Jackson v. Ruthazer Reply Brief in Support of Petition for Writ of Certiorari

    i>uprntti> (Eflurt nf the United States
OCTOBER TERM, 1949

No. 783

Clarence J ackson, 

against
Petitioner,

H erman J. R uthazer, Warden of the City Prison, Borough 
of Manhattan, 125 White Street, New York,

Respondent.

REPLY BRIEF IN SUPPORT OF PETITION FOR 
WRIT OF CERTIORARI

Curtis F. McClane,
Counsel for Petitioner,

6 Maiden Lane,
Borough of Manhattan, 

New York City, N. Y.



I N D E X
PAGE

Reply B r ie f ____ ...__..._____ ________________________— 1
Conclusion—For the additional reasons stated in this 

reply brief, petitioner respectfully renews his re­
quest that a Writ of Certiorari issue to review the 
judgment of the Court of Appeals for the Second 
Circuit herein ................................. ........................... 8

Cases:
Darr v. Burford, 339 U. S. 200...............................  3
Hawk, Ex parte, 321 U. S. 114...............................  3
Middlebrooks, Application of, 88 Fed. Supp. 943.2, 5, 6
Taylor v. Alabama, 336 U. S. 907, 69 S. Ct. 510....  2
United States ex rel. Cook v. Dowd, 180 F. (2d) 212... 2

Statutes:
U. S. Code, Title 28:

Chapter 153 ......................................................... 1
Section 2244 ......................................................... 2, 3



$ttpran? (Enurt nf tlip States
OCTOBER TERM, 1949

No. 783

Clarence J ackson, 

against
Petitioner,

H erman J . R uthazer, Warden of the City Prison, Borough 
of Manhattan, 125 White Street, New York,

Respondent.

REPLY BRIEF IN SUPPORT OF PETITION FOR 
WRIT OF CERTIORARI

The within brief is respectfully submitted to this Court 
in reply to the respondent’s brief heretofore filed herein.

The respondent argues in his brief herein that this peti­
tion should be denied on the ground that it presents no 
substantial issue for this Court to determine. Respondent 
gives no other reason as to why this petition should not 
be granted. But there is a substantial issue herein and 
that issue is the interpretation of a very important statute, 
Chapter 153, Title 28, U. 8. C.

Neither the District Judge, the Court of Appeals or the 
respondent herein have ever addressed themselves to the 
question of what this statute means. Petitioner claims



2

that clearly it means that the District Judge must give 
him a hearing on the merits notwithstanding a prior State 
Court hearing, unless petitioner has already been ac­
corded a hearing in the Federal Court. Title 28, U. S. C. 
§ 2244. It is submitted that this is the clear and unequivocal 
intendment of the statute. In view of the fact that Con­
gress explicitly excluded the instance where there was an 
earlier hearing in the Federal Court it seems clear that the 
instance where the prior hearing was in the State Court the 
District Judge does not have any discretion as to whether 
or not he shall hear the matter. Certainly it cannot be said 
that restricting Title 28, TJ. 8. C. § 2244 to cases where 
“the legality of such detention has been determined by a 
judge or court of the United States on a prior application 
for a writ of habeas corpus and the petition presents no 
new ground not theretofore presented and determined, and 
the judge or court is satisfied that the ends of justice will 
not be served by such inquiry” was an oversight on the 
part of Congress since the problem of habeas corpus where 
there had been a previous hearing in the State Court was 
certainly presented to Congress. Petitioner claims that 
these considerations can only lead this Court to interpret 
the statute in the manner advanced by him; but, in any 
event, it would trivialize the phrase “no substantial ques­
tion” to say that in this instance, in view of the above, that 
doctrine should govern this Court’s decision as to whether 
the writ of certiorari should be granted or denied herein.

The issue that petitioner seeks to present to this Court 
for its determination has only been presented on three 
other occasions in proceedings in a Federal Court. In 
U. 8. ex rel. Cook v. Dowd, 180 F. (2d) 212, the Seventh 
Circuit disposed of the issue in the manner urged by peti­
tioner herein. And in Taylor v. Alabama, 336 U. S. 907, 
69 S. Ct. 510, the issue was such a difficult one that this 
Court split four—four. The third occasion was in Appli­
cation of Middlebrooks, 88 Fed. Supp. 943, which was de­
cided by the United States District Court for the Southern



3

District of California in February, 1950, and is referred 
to more fully hereinafter. Certainly under such circum­
stances it cannot be said that petitioner has not presented 
a “substantial issue”.

As indicated above neither the District Court, the Court 
of Appeals or the respondent herein addresses itself to 
the statute hereinbefore cited. Instead, they have all com­
pletely overlooked the governing statute. In other words, 
they attempt to import notions involving general principles 
of equity and judicial administration—that there must be 
an end to litigation—which notions though often worthy 
must be rejected herein for the reasons stated. It is clear 
that in habeas corpus proceedings the rule of res judicata 
is not applicable. This represents a departure from the 
general rule that there must be an end to litigation. The 
Court of Appeals herein also relies upon the rule that a 
court should not hear an application where another court 
earlier passed upon substantially the same allegations. 
The habeas corpus statute explicitly deals with this case 
but it limits the rule as hereinbefore stated to instances 
where the earlier hearing was had in the Federal Court. 
Title 28, U. 8. C. % 2244. In the instant case the prior hear­
ing was in the State Court and the reasons which gave 
rise to the statutory limitation are not applicable here for 
the following reasons.

This Court has consistently held, without any degree of 
uncertainty, that a petitioner must invoke and exhaust all 
available state remedies before resorting to the Federal 
Courts in a habeas corpus proceeding. Ex parte Hawk, 
321 U. S. 114; Harr v. Burford, 339 U. S. 200. Therefore a 
petitioner has no right of election as to whether or not in 
the first instance he will present his application to a State 
or Federal Court. The cases hold that it is mandatory 
that a petitioner follow the established procedure and re­
sort to the State Court and its appellate tribunals before 
a Federal Court will entertain jurisdiction. After exhaust­
ing state remedies, as required, a petitioner is without 
remedy if the Federal Court refuses to hear the merits



4

of liis petition. It seemingly matters not that the State 
Court’s decision is at divergence with the Federal Court’s 
decisions. All that is required is for the petitioner to 
submit his claims to the State Court and its appellate tri­
bunals and then thereafter he can be barred summarily 
from asserting his Federal claims in the Federal Courts. 
As in the instant case it seems that a petitioner is placed 
at an unfair disadvantage in barring him from the Federal 
Courts because of a prior State Court hearing. This fol­
lows irrespective of there being no right of election on the 
petitioner’s part as to which Court he will seek his remedy 
in. Therefore, in a given set of circumstances a State 
Court could say “we have given you a hearing on the merits 
of your petition, we have heard your testimony and con­
sidered your evidence, under our rules evidence in hearsay 
form is admissible to refute your allegations and testi­
mony, and also under our decisions, in any event, your 
claims do not constitute sufficient basis for relief, even 
though under the Federal decisions they may suffice but 
we are not bound by those decisions in such a matter as 
this one and therefore we decide against you”. And there­
after the Federal Court has the right to bar the petitioner 
from a hearing on the merits notwithstanding the fact that 
if the same evidence and testimony had been presented to 
the Federal Court in the first instance it would have been 
sufficient to form the basis for relief. It therefore follows 
that a petitioner in a case such as the instant one is placed 
in the position of being forced to resort to a State Court 
and thereafter run the risk of being barred from the 
Federal Courts where, if he had the right to proceed in 
the first instance, he would have been granted relief. It 
does not seem that a holding such as this constitutes the 
intent of our habeas corpus statutes or decisions there­
under.

In February, 1950, the United States District Court for 
the Southern District of California, Central Division, de­
cided the precise point involved in the instant case in a 
manner directly contrary to the Court of Appeals herein.



5

In Application of Middlebrooks, the District Court dis­
charged a petitioner from custody by way of writ of habeas 
corpus where the facts were practically identical with the 
instant case. The petitioner was allegedly a fugitive from 
justice in the State of Georgia, and he claimed violation 
of his constitutional rights under the Fourteenth Amend­
ment to the United States Constitution in that he had been 
subjected to cruel and unusual punishments while confined 
on the “chain gang” under sentence in the State of Georgia. 
The petitioner had had a hearing in the State Court of 
California on his writ of habeas corpus and upon dismissal 
thereafter had applied to the intermediate appellate tri­
bunal and the California Supreme Court without success 
and his application for a stay of proceedings pending 
application to the United States Supreme Court for a writ 
of certiorari had been denied by two justices of this Court. 
Notwithstanding the foregoing the District Court issued 
a writ of habeas corpus and proceeded to a hearing therein 
and discharged the petitioner from custody. In discharg­
ing the petitioner the District Court stated:

“the rule of exhaustion of remedies in the State has 
been supplemented by the further rule that once the 
remedies have been exhausted and the highest court 
of the State has passed upon the problem, then Federal 
courts are reluctant to intervene because of comity 
and out of respect for State courts. Thus there has 
been created an endless circle, which if followed would 
deny to a Federal District court the right to give relief 
for basic constitutional rights.

The Supreme Court states in Ex parte Hawk, supra,
‘a federal court will not ordinarily re-examine upon 
writ of habeas corpus the questions thus adjudicated’. 
(Emphasis supplied.)

The general rule rests upon the balance between the 
State and Federal powers and jurisdictions, and the 
niceties of the comities existing between these sepa­
rate sovereignties. The observance of these niceties 
and the concern concerning comity must give way on 
the assertion and finding of the violation of basic con­
stitutional rights.



6

Such a violation constitutes an exceptional case. It 
is therefore important that the exception be recognized 
and that where basic constitutional rights and liberties 
have been violated, that Federal Court should not re­
fuse to grant relief.” Application of Middlebrooks 
(1950), 88 F. Supp. 943, 955.

It is true that the argument can be advanced that grant­
ing of a hearing in the Federal Court after a State Court 
hearing gives a petitioner “two shots in the hunt”—not­
withstanding that argument this Court has held that doubt 
if existing in a habeas corpus proceeding should be re­
solved in favor of the petitioner. A further answer to 
that argument in the instant case is that the New York 
State Courts are universal in their holding that “cruel and 
unusual punishments do not constitute a basis for relief” 
and therefore the “first shot in the hunt” herein could be 
typified by what the marksman calls “a dry run”.

CONCLUSION

For the additional reasons stated in  this reply brief, 
petitioner respectfully renews his request that a Writ 
of Certiorari issue to review the judgment o f the Court 
of Appeals for  the Second Circuit herein.

Respectfully submitted,

Curtis F. McCuaxe, 
Counsel for Petitioner.



T h e  H ec la  P re ss  : : N ew  Y ork C ity
39