Warren v. Connor Reply Brief for Appellants

    I n  the

InttfJj States (Emort of Appeals
F or the F ifth  Circuit 

No. 21,853

James W arren, et al.,

•v.-
Appellants,

R ichard A. Connor, Sheriff,
City Court of Savannah, et al.,

Appellees.

OUST APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF GEORGIA, SAVANNAH DIVISION

REPLY BRIEF FOR APPELLANTS

H oward M oore, Jr.
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

Jack Greenberg 
James M. Nabrit, III 
Charles H . J ones

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants
S heila R ush 

Of Counsel



I N D E X

PAGE

A rgument ......................................................................................... 1

Conclusion .........................................................................  12

T able op Cases

Cobb v. Balkcom, 339 F. 2d 95, 100-01 (5th Cir. 1964) .. 5

Dilworth v. Riner, 343 F. 2d 226 (1965) ....................... 8

Fay v. Noia, 372 U. S. 391.................................................. 2,5

Hamm v. Rock Hill, 379 U. S. 306 .......................... 5, 6, 7, 8, 9

Linkletter v. Walker, 381 U. S. 618..................................  6

Mapp v. Ohio, 367 U. S. 643 .............................................. 6

Tolg v. Grimes, 5th Cir., No. 21661 ..................................  5

Wallace v. Foster, 1950, 206 Ga. 561, 57 S. E. 2d 920 .... 3
Wells v. Pridgen, 1922, 154 Ga. 397, 114 S. E. 355 (342

F. 2d at p. 391) ...............................................................  3
Whippier v. Balkcom, 342 F. 2d 388 (5th Cir. 

1965) ...........................................................................1,2, 3, 4



11

PAGE
S tatutes

28 U. S. C. §2241(c)(3) .................................................. . 5,6

28 U. S. C. §2254 .............................................................. 2

42 U. S. C. §1981 .............................................................. 4

Civil Rights Act of 1964, 78 Stat. 241...........5, 6, 8, 9,10,11

Ga. Code Ann., §26-3005 .................................................... 6

Other A uthorities

9 

9

H. R. Report No. 914 (88th Cong. 1st Sess. 1963)

110 Cong. Rec. 6871 (daily ed. April 7, 1964) .....

110 Cong. Rec. 12999 (daily ed. June 11,1964) ..... . 10



In the

Unttrii States (Hour! of Appeals
F or  t h e  F i f t h  C ir c u it

No. 21,853

J a m e s  W a r r e n , et al.,

-v.-
Appellants,

R ic h a r d  A. C o n n o r , Sheriff,
City Court of Savannah, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF GEORGIA, SAVANNAH DIVISION

REPLY BRIEF FOR APPELLANTS

Argument

A. Whippier v. Balhcom, 342 F. 2d 388 (5th Cir. 1965) 
squarely disposes of the two interrelated procedural grounds 
upon which the district court relied in denying appellants’ 
federal habeas corpus petitions. United States District 
Judge Scarlett remanded appellants to state custody, with­
out hearing, upon the following bases:

. . .  [1] The exhaustion of state remedies is a juris­
dictional requirement in federal habeas corpus pro­
ceedings . . .  [2] The court finds that the [appellants] 
presently have available to them the state remedy of



2

habeas corpus (Georgia Code 50-1) . . . State habeas is 
an appropriate remedy when the trial court was with­
out jurisdiction, or where it exceeded its jurisdiction 
in making the order, rendering the judgment, or pass­
ing the sentence by virtue of which the party is im­
prisoned, so that such order, judgment, or sentence 
is not merely erroneous, but is absolutely void (R. 61, 
62).

Whippier, relying upon Fay v. Noia, 372 U. S. 391, de­
cided, first, that the exhaustion requirements of 28 U. S. C. 
§2254 are not a limitation upon jurisdiction, but rather a 
matter of comity (342 F. 2d at p. 390):

. . .  In Fay v. Noia, 1963, 372 U. S. 391, 83 S. Ct. 822, 9 
L. Ed. 2d 837, the Court struck down the highest bar­
rier posed by the exhaustion principle, holding that a 
state prisoner is never barred from federal habeas 
corpus by mere failure to exhaust state remedies no 
longer open to him (footnote omitted).

. . . The exhaustion principle is a matter of comity, not 
‘a matter of jurisdiction. In federal habeas proceed­
ings, jurisdiction is confirmed by the allegation of an 
unconstitutional restraint and is not defeated by any­
thing that may occur in the state court proceedings’. 
Fay v. Noia, 372 U. S. at 426.

Fay v. Noia, 372 U. S. at 438-439, made it clear that a 
trial judge lacks discretion to deny federal habeas relief 
except to an applicant “ who has deliberately by-passed the 
orderly procedure of the state courts.” As previously noted 
(see Appellants’ Brief, p. 7), the trial court’s ruling did



3

not rest on any claim that appellants had deliberately by­
passed state appellate review, but rather on the more cen­
tral question, that Georgia habeas corpus was a remedy 
available to review appellants’ federal constitutional claims.

Turning to this issue, in Whippier, supra, the Court of 
Appeals held that resort to Georgia habeas corpus was not 
necessary since Georgia law is settled against post-convic­
tion review of claims other than “ deprivation of counsel” :

Habeas corpus in Georgia is a door that not every 
constitutionally deprived prisoner can open.4 The 
magic words are ‘deprivation of counsel.’ The applicant 
who cannot say them may not pass. . . . The Georgia 
rule is that habeas corpus cannot be used as a sub­
stitute for appeal, writ of error, or other remedial pro­
cedure for the correction of errors or irregularities al­
leged to have been committed by a trial court. Wallace 
v. Foster, 1950, 206 Ga. 561, 57 S. E. 2d 920. This 
rule has been applied so strictly that the state is unable 
to cite a single case in which the Georgia Supreme 
Court, on habeas corpus, has held a judgment void on 
any ground other than denial of counsel.

4 The general rule is that the judgment of a court having 
jurisdiction of the offense and the party charged with its 
commission is not open to collateral attack. [Citations omit­
ted.] The remedy by habeas corpus should be confined to 
cases in which the judgment or sentence attacked is clearly 
void, by reason of its rendition by a court without jurisdic­
tion in the premises, or by reason of the court’s having 
exceeded its jurisdiction in the premises . . . [Citations omit­
ted.] The denial of due process of law, although erroneous, 
must be such as to deprive the court of jurisdiction. Wells 
v. Pridgen, 1922, 154 Ga. 397, 114 S. E. 355 (342 F. 2d at 
p. 391).



4

In Whippier, petitioner applied for federal habeas corpus 
relief subsequent to prosecuting an unsuccessful appeal to 
the Georgia Supreme Court. The district court denied re­
lief for non-exhaustion, ruling that state habeas corpus was 
available on three of petitioner’s five federal habeas claims, 
which had never been presented to the Georgia Courts.1 
The Court of Appeals, in reversing the district court’s 
order, reasoned that even though several of petitioner’s 
federal claims had not been presented on appeal in the state 
system, Georgia habeas corpus has been so judicially cir­
cumscribed as a post-conviction remedy, that petitioner 
could be deemed to have exhausted his state remedies.

Appellants claim (see Appellants’ Brief, p. 6, fn. 1), 
essentially, that §26-3005, Ga. Code Ann., facially, and as 
applied runs afoul of Fourteenth Amendment due process 
and equal protection guarantees, and violates 42 U. S. C. 
§1981. Unlike an asserted deprivation of counsel, appel­
lants’ claims like those presented in Whippier, share a com­
mon disability under Georgia law. As Whippier indicates, 
Georgia courts have never held, where a procedural objec­
tion was raised, that claims similar to appellants’ will void 
a state judgment and thus bring it within the scope of state 
habeas corpus. Their claims, like Whippler’s, would be

1 The five claims asserted by Whippier, in his federal habeas 
corpus petition, are summarized in the opinion as follows (see 342 
F. 2d at pp. 390, 391) : (1) Admission in evidence, over Peti­
tioner’s timely objection, of a coerced confession; (2) Admission 
in evidence, over Petitioner’s timely objection, o f certain evidence 
obtained as the result of an unlawful search and seizure; (3) In­
dictment by a grand jury and trial jury [sic] by a traverse jury 
from which Negroes had been systematically excluded; (4) Con­
finement from July 19, 1960 to December 5, 1960 without benefit 
of a commitment hearing; (5) Causing Petitioner to incriminate 
himself by taking his fingerprints under the pretense of custodial 
purposes and actually using then [sic] to obtain a conviction.



5

equally barred by the Georgia limitation on habeas cor­
pus review. In any event, Cobb v. Balkcom, 339 F. 2d 95, 
100-01 (5th Cir. 1964) (systematic exclusion of Negroes 
from grand and traverse juries) makes it clear that appel­
lants cannot be required to speculate upon the possibility 
that George habeas corpus may expand, in light of Fay v. 
Noia, supra, to include consideration of a federal sub­
stantive right not previously embraced.

B. Subsequent to the tiling of appellants’ brief, the 
United States Supreme Court decided Hamm, v. Rock Hill, 
379 U. S. 306, finding that state trespass convictions not 
finalized at the time of the passage of the Civil Bights Act 
of 1964, and pending on direct review, were, under the 
force of the Supremacy Clause, abated by the passage of 
that Act. The effect of the Civil Bights Act of 1964 and its 
interpretation in Hamm is to foreclose punishment for any 
pre-enactment conviction not finalized at the time that the 
federal law intervened. The applicability of the Civil 
Bights Act of 1964 to cases pending collateral review is an 
issue now pending before this court in Tolg v. Grimes, 
5th Cir., No. 21661, and necessarily subsumed in the case 
at bar.2

Title 28 U. S. C. §2241(c)(3) provides:

(c) The writ of habeas corpus shall not extend to a 
prisoner unless—

(3) He is in custody in violation of the . . . laws 
. . .  of the United States; . . .

2 Appellants noted (see Appellants’ Brief, p. 10) that as the 
judgment below was entered prior to passage of the Civil Rights 
Act, that issue was not presented, but it should be further noted 
that appellees, in their brief, nowhere contest the obvious impli­
cations of passage of the Civil Rights Act of 1964, upon appel­
lants’ convictions.



6

Section 203(c) of the Civil Rights Act of 1964 (42 U. S. C. 
§2000a-2) provides:

No person shall . . . punish or attempt to punish 
any person for exercising or attempting to exercise 
any right or privilege secured by section 201 or 202.

Section 201(a) provides:

All persons shall be entitled to the full and equal 
enjoyment of the goods, services, facilities, privileges, 
advantages, and accommodations of any place of public 
accommodation, as defined in this section, without dis­
crimination or segregation on the ground of race, color, 
religion, or national origin.

Appellants submit that the effect of Hamm, extending 
to all convictions not “ finalized,” is to carve out a category 
of inclusion broader than cases pending direct review. 
“ Finalized,” a term twice used by the majority is appro­
priately more inclusive3 given the Court’s recognition of 
the Congressional emphasis upon the cessation of punish­
ment expressed in §203(c).

Doubtless, §203(c)’s proscription of punishment collides 
with 28 U. S. C. §2241 (c)(3) no less than this expression 
of Congressional will operated in Hamm to abate convic­

3 It is interesting to note that in a later Supreme Court decision, 
Linkletter v. Walker, 381 U. S. 618, where the Court used both the 
terms “ final judgment” and “ finalized,” in refusing to apply 
Mapp v. Ohio, 367 U. S. 643, to a case on collateral review, it was 
careful to define “ final judgment” :

By final we mean where the judgment of conviction was 
rendered, the availability of appeal exhausted, and the time 
for petition for certiorari had elapsed . . . 381 U. S. at 622, 
footnote 5.



7

tions pending direct review at the time of passage. The 
Court, in Hamm, discussing the effect of the Act upon 
prosecutions stated (379 U. S. at p. 313):

“Although [United States v.] Chambers [291 U. S. 
217] specifically left open the question of the effect 
of its rule [of abatement] on cases where final judg­
ment was rendered prior to ratification of the Twenty- 
First Amendment, and petition for certiorari sought 
thereafter, such an extension of the rule was taken for 
granted in the per curiam decision in Massey v. United 
States, supra, [291 U. S. 608] handed down shortly 
after Chambers.

It is apparent that the rule exemplified by Chambers 
does not depend on the imputation of a specific inten­
tion to Congress in any particular statute. . . . Rather, 
the principle takes the more general form of imputing 
to Congress an intention to avoid inflicting punish­
ment at a time when it can no longer further any legis­
lative purpose, and would be unnecessarily vindic­
tive.” (Emphasis added.)

While the Court found that the general principle of 
abatement “ is to be read wherever applicable as part of 
the background against which Congress acts,” it also deter­
mined that Congress had exercised its power to abate in 
the Act itself. 379 U. S. at 314. Given the sufficiency of 
the common law doctrine of abatement to vacate pre-enact­
ment convictions, Congress’ specific prohibition on punish­
ment with no specific reference to abatement implies an 
intent to devitalize all pre-enactment convictions. It would 
be anomalous to conclude that such power is abbreviated 
by the passage of time for filing certiorari.



8

It is entirely consistent with the language in Hamm and 
the general thrust of that opinion to include within the 
category of finalized convictions all except those where 
punishment has ceased. The Court was precise in depict­
ing the Act as a “ far-reaching and comprehensive scheme” 
sufficient to annul contrary state practices. 379 U. S. at 314. 
It also commented upon the substitution of a right for a 
crime as a “ drastic change.” Under such circumstances 
where congressional and judicial sentiment are in accord, 
continued punishment certainly becomes meaningless and 
unnecessarily vindictive.

Section 203(c) of the Act forces this conclusion. The 
provision condemns any punishment for the exercise of 
rights secured by the Title, not simply arresting, prose­
cuting, sentencing, or committing. If Congress intended 
to restrict the reach of this provision to a particular form 
of punishment, it could have easily done so. That the con­
gressional intent was otherwise and that an unqualified 
meaning of “punishment” was intended was made clear 
by Judge Bell in Dilworth v. Riner, 343 F. 2d 226 (1965) 
where he rejected the argument that prosecution was not 
punishment if there was the possibility of reversal on ap­
peal. He emphasized that “ the right to public accommoda­
tions on a non-discriminatory basis is a federal right the 
claim to which Congress has said shall not be the subject 
matter of punishment,” and that individuals exercising 
such federal rights “ may simply not be punished.” 343 
F. 2d at 231.

This interpretation of congressional intent is supported 
by the legislative history. Senator Stennis of Mississippi 
objected to §203(c) as it applied to the law enforcement 
processes of the State:



9

This is patently an attempt to make enforcement by 
State judges and State law enforcement officers of 
State laws which may later be held to conflict with 
the act a violation of a federal law and to subject them 
to punitive Federal action. (110 Cong. Rec. 6871 
(daily ed. April 7, 1964).)

The Court in Hamm could not find “ persuasive reasons” 
to impute to Congress an intent to insulate the prosecutions 
under review there, noting that the supposed right to dis­
criminate on the basis of race had been qualified by the 
statute in a congressional effort to “ eradicate an unhappy 
chapter in our history.” 379 U. S. at 315. Appellant fur­
ther submits that Congress in considering the public ac­
commodations title of the bill was thinking not only in terms 
of “ rights” to be created by it, but of rights already exist­
ing, at the very least on the moral plane, which were to be 
secured by it. The House Committee Report on the Civil 
Rights Act, H. R. Report No. 914 (88th Cong. 1st Sess. 
1963) contains passages corroborating our position.

. . . Today, more than 100 years after their formal 
emancipation, Negroes, who make up over 10 percent 
of our population, are by virtue of one or another 
type of discrimination not accorded the rights, privi­
leges, and opportunities which are considered to be, 
and must be, the birthright of all citizens.

In the next paragraph, it is added:

. . .  A number of provisions of the Constitution of the 
United States clearly supply the means to “ secure these 
rights,” and H. R. 7152, as amended, resting upon this 
authority, is designed as a step toward eradicating



10

significant areas of discrimination on a nationwide 
basis. It is general in application and national in 
scope.

That this language refers, among other things, to the 
public accommodations problem is made clear on the same 
page, where it is said of the bill:

. . .  It would make it possible to remove the daily 
affront and humiliation involved in discriminatory de­
nials of access to facilities ostensibly open to the gen­
eral public . . .

This application is also suggested by specific statement 
in the part of the Report at p. 20 dealing with public 
accommodations :

Section 201(a) declares the basic right to equal ac­
cess to places of public accommodation, as defined, 
without discrimination or segregation on the ground 
of race, color, religion, or national origin. [Emphasis 
added.]

In the Senate, a textual change, highly significant here, 
took place when, in §207(b), the phrase “based on this 
title” was substituted for “hereby created,” in application 
to the rights to public accommodation. Senator Miller of 
Iowa, explaining, said:

One can get into a jurisprudential argument as to 
whether the title creates rights. Many believe that the 
title does not, but that the rights are created by the 
Constitution. [Emphasis added.] (110 Cong. Rec. 
12999 (daily ed. June 11, 1964).)



11

These passages make plain that the Act was passed in 
an atmosphere in which the right to nondiscrimination was 
conceived of, at least in part, as something that existed 
before the bill, something that was recognized, declared, 
and protected rather than being created by the bill. They 
further show that there is nothing unnatural in a construc­
tion of §203 (c) that extends to pre-enactment convictions 
now on collateral review if the right “ secured” and es­
pecially implemented by the law was conceived of as exist­
ing, at least morally, prior to its passage. In this setting, 
an all-inclusive reading of “punishment” is mandatory. It 
is precisely these “ secured” rights which §203 (c) now in­
sulates from punishment. To condition the effectuation of 
Congress’ intent not to punish the exercise of such rights 
on the method by which a conviction is being reviewed is 
to defeat the congressional intention.

At least some of the “ rights” “ secured” by Title II of 
the Civil Eights Act were necessarily conceived as pre­
existing the Act, as a matter of strictest law, for Title 
II proscribes discrimination supported by state action 
(§§201a, b). Moreover, among the forms of “ state action” 
illegal under the Act is state “ enforcement” of “ custom” 
(§2001d(2))—terminology seemingly applicable to the case 
at bar. In §203 (c), Congress lumps together all these 
“ rights” without the slightest suggestion of there being 
intended any distinction between them, with respect to 
the present lawfulness of “ punishing” their assertion, 
whenever that assertion took place. It can hardly be be­
lieved that Congress would have wished to present this 
Court with the task of unravelling and disentangling those 
“ rights” which did and those which in some strict sense 
did not antedate the Act, merely for the purpose of dis­



12

posing of residual convictions for actions now approved. 
It is much, more reasonable to think that Congress meant 
to forbid “ punishment” of all actions descriptively similar 
to those now shielded by the Act.

CONCLUSION

W herefore, for the foregoing reasons, it is respectfully 
submitted that the Order and Judgment of the District 
Court along with appellees’ Motion to Dismiss, denying the 
petition for writ of habeas corpus and remanding appel­
lants to custody, be reversed, vacated, and set aside with 
directions to the District Court to conduct a full evidentiary 
hearing and with further directions to consider the effect 
of the Civil Rights Act of 1964 upon future custody of the 
appellants, or such other directions as to this Court appear 
to be just and conformable to the usages and principles of 
law and equity.

Respectfully submitted,

H oward M oore, Jr.
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

J ack Greenberg 
James M. N abrit, III 
Charles H . J ones

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants
S heila R ush 

Of Counsel



CERTIFICATE OF SERVICE

I hereby certify that on the .......  day of October, 1965,
two copies of the foregoing brief were served upon Hon­
orable Arthur Bolton, Attorney General of the State of 
Georgia, and Peyton Hawes, Assistant Attorney General, 
State Judicial Building, Atlanta, Georgia 30303, by United 
States Mail, air mail, postage prepaid.

Attorney for Appellants