Hillegas v. Sams Opposition to Motion to Dismiss Petition for Writ of Certiorari

    I k the

^uprott? ( ta r t in %  luilrfs Stairs
October T erm , 1965 

No. 704

J a n  H illegas,

-----v . -----
Petitioner,

.Joe S am s, Jr., County Attorney for Lowndes County, 
Mississippi, and P en n  T aylor, Sheriff and Custodian 
of the County Jail of Lowndes County, Mississippi,

Respondents.

OPPOSITION TO MOTION TO DISMISS PETITION 
FOR WRIT OF CERTIORARI

H enry  M. A ronson
538% North Parish Street 
Jackson, Mississippi 39202

J ack Greenberg 
J ames M. N abrxt, III 
M elvyn  Zaer

10 Columbus Circle 
New York, New York 10019

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Petitioner
E . J ess B rown 
Carsie A . H all 
J ack H . Y oung

Of counsel



I n the

Supreme (Emir! tlje ImtTfr States
October T erm , 1965 

No. 704

J an  H illegas, 

— v .—
Petitioner,

J oe S am s, Jr., County Attorney for Lowndes County, 
Mississippi, and P e n n  T aylor, Sheriff and Custodian 
of the County Jail of Lowndes County, Mississippi,

Respondents.

OPPOSITION TO MOTION TO DISMISS PETITION 
FOR WRIT OF CERTIORARI

Respondents have moved to dismiss the petition for writ 
of certiorari in this habeas corpus proceeding on the ground 
that petitioner, released pending appeal herein, is pres­
ently not in the physical custody of the respondents. Noth­
ing of this appears in the record;1 petitioner’s counsel 
brought the matter to the Court’s attention in her petition 
for certiorari for the purpose of assuring the Court that 
there was no need for undue haste in consideration of the 
case. See page 8, n. 3, of the Petition. In any event, since

1 On the face of the record, it appears that petitioner is in respon­
dents’ custody. Her habeas corpus petition so alleged, see Appendix to 
Petition, page 15a; nothing to the contrary appears; and both courts 
below reached the exhaustion issue which petitioner seeks to present to 
this Court. See id., pages la-14a. This alone is sufficient grounds for 
denial of respondents’ motion to dismiss. See Ex parte Catanzaro, 138 
F.2d 100, 101 (3d Cir. 1943).



2

even on the facts stated by respondents2 it appears that 
petitioner’s release pending appeal was effected by the 
action of the federal habeas corpus court itself, the claim 
that such release moots the proceeding is frivolous. Eagles 
v. Samuels, 329 TJ.S. 304 (1946); e.g., Reis v. United States

2 The actual facts surrounding petitioner’s release are as follows. Be­
tween the time of her arrest December 28, 1964 and the date of filing 
and denial of this habeas corpus petition January 5, 1965, petitioner 
was respondents’ prisoner in the Lowndes County Jail. Following dis­
missal of her habeas corpus petition by District Judge Clayton on 
grounds of failure to exhaust state remedies, see Appendix to Petition, 
page la , petitioner’s counsel asked Judge Clayton for a certificate of 
probable cause to appeal. Judge Clayton granted the certificate. Counsel 
then requested an order staying state prosecution of petitioner and re­
leasing her on her own recognizance or nominal bail pending appeal. 
Judge Clayton said lie did not think an order was necessary, that he 
believed the matter of stay and release could be amicably arranged with 
counsel for the respondents. Petitioner’s counsel said he thought such 
an order desirable, in order to protect against possible claims of mootness 
on appeal. Judge Clayton pointed out that the record would not con­
tain any grounds for a claim of mootness by respondents. Petitioner’s 
counsel replied that, if respondents raised the issue on appeal, he could 
not in conscience fail to tell the Fifth Circuit and this Court that peti­
tioner was at large. Judge Clayton said he would resolve that matter 
by obtaining an assurance from respondents’ counsel that no claim of 
mootness would be raised on the appeal; this, he said, would dispense 
with the need for any formal order on his part releasing the petitioner. 
In the presence of petitioner’s counsel, Judge Clayton then telephoned 
respondents’ counsel, said that he wished the petitioner released, and ob­
tained an assurance that this release would not be made the basis for a 
contention of subsequent mootness.

In violation of this assurance, respondents filed in the Court of Appeals, 
on the day of oral argument of the appeal, a motion to dismiss on the 
ground that petitioner was no longer in respondents’ custody. The mat­
ter was raised by the Court in oral argument, and petitioner’s counsel 
suggested that if the record were in any regard unclear, he would be 
pleased to have Judge Clayton supplement it by certifying the facts 
recited in the first paragraph of this footnote, which clearly brought 
the case within Eagles v. Samuels, 329 U.S. 304 (1946). The Court of 
Appeals saw no need for this; it did not dismiss the appeal; it decided 
it on the merits and did not bother to address respondents’ mootness 
contention in its opinion.



3

Marshal, 192 F.Supp. 79, 83 (E.D. Pa. 1961). Respondents’ 
motion to dismiss should be denied.

Respectfully submitted,

H enry  M. A ronson

538% North Parish Street 
Jackson, Mississippi 39202

J ack Greenberg
J ames M. N abrit, III
M elvyn  Zarb

10 Columbus Circle 
New York, New York 10019

A n t h o n y  G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa, 19104

Attorneys for Petitioner

R. J ess B rown 
Carsie A. H a le  
J ack H. Y oung

Of counsel



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