Taylor v. Tennyson Dennis Petition for Rehearing and Further Relief

    Supreme Court of the United States
October Term, 1948

No. 121 Miscellaneous

SAMUEL TAYLOR,

vs.

Petitioner,

TENNYSON DENNIS, Warden Alabama State 
Penitentiary, Kilby, Alabama,

Respondent.

PETITION FOR REHEARING AND FURTHER RELIEF

N esbitt E lmore,
Montgomery, Alabama,

T hurgood M arshall ,
New York, New York,

Attorneys for Petitioner.

F ran k  D. R eeves,
F ran k lin  H. W illiam s ,
Constance B aker M otley,
R obert L. Carter,

Of Counsel.



TABLE OF CASES

PAGE

Ashcraft v. Tennessee, 322 IT. S. 143 _______________  4
Brisko v. Commonwealth Bank of Kentucky, 33 U. S.

(8 Pet.) 118 ____________________________________ 6
Brown v. Mississippi, 313 IT. S. 547 _________________  4
Chambers v. Florida, 309 IT. S. 227 __________■______  4
Ex parte Hawk, 321 IT. S. 114 ______________________  5, 8
Ex parte Quirin, 317 IT. 8. 1 ________________ _______  5
Ex parte Taylor, 249 Ala. 670, 32 So. (2d) 659 ________  2
Haley v. Ohio, 332 IT. S. 596 _______ ..._______________  4
Hirota v. General MacArthur, 93 L. ed. (Adv. Op.)

119______________________________________________  7
Holiday v. Johnston, 313 IT. 8. 342 ___________________ 5, 8
Home Ins. Co. of N. Y. v. New York, 119 IT. S. 129, 148;

122 IT. S. 636; 134 U. S. 594 ___________ ________ __ 6
House v Mayo, 324 IT. 8 42 _______________ ________4, 5, 8
Johnson v. Zerbst, 304 IT. S. 458 ____________________ 8
Lee v. Mississippi, 332 IT. S. 722 ___
Lisenba v. California, 314 IT. S. 219
Malinski v. New York, 324 U. S. 401___ ____
Marzani v. United States, — U. S. 93 L. ed.
Marino v. Ragen, 332 U. S. 561 ____ ______
Mooney v. Holohan, 294 U. S. 103__________
New York v. Millan, 33 U. 8. (8 Pet.) 120_____________  6
Polack v. Farmers Loan and Trust Co., 157 U. S. 429,

586; 158 U. 8. 601_______ ________________________  6
Price v. Johnston, — IT. S. —, 93 L. ed. (Adv. Op.)

993 ..._____________________________________________  5
Smith v. O’Grady, 312 U. S. 329 ______________ ______  8
Taylor v. Alabama, — U. S. —, 92 L. ed. (Adv. Op.)

1394_____________________________________________  2, 8
Taylor v. State, 249 Ala. 130, 30 So. (2d) 256__________  1

CJ
l 

CJ
1 

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11
PAGE

IT. S. v. Adams, 320 U. S. 220 ______ __________________  5
Vernon v. Alabama, 313 U. S. 547 ___________________ 4
Von Moltke v. Gillies, 332 U. S. 708 ___________________ 5
Wade v. Mayo, 332 U. S. 672 _______________________  4
Waley v. Johnston, 316 IT. S. 101_____________________  5
Walker v. Johnston, 312 U. S. 275 ___________________ 5, 8
Ward v. Texas, 316 IT. S. 547 ________________________  4
White v. Bagen, 324 IT. 8. 760 _______________________  4
White v. Texas, 310 IT. S. 530______ _________________ 4, 5, 8
Williams v. Kaiser, 323 IT. S. 471____________________  5

Statutes and Other Authorities

Title 28, United States Code, Sections 2241-2255 ______ 5
A Memorandum Decision, 40 Harv. L. Rev. 485, Janu­

ary, 1927_____ i_____T_____________________________  10



Supreme Court of the United States
October Term, 1948

No. 121 Miscellaneous

S am uel  T ayloe,

vs.
Petitioner,

T ennyson  D en n is , Warden Alabama State Penitentiary, 
Kilby, Alabama,

Respondent.

PETITION FOR REHEARING AND FURTHER RELIEF

To the Honorable Chief Justice of the United, States and 
the Justices of the Supreme Court of the United 
States:

Petitioner respectfully presents this petition pursuant 
to Rule 33 of the Rules of this Court for a rehearing* of 
the above-entitled cause decided on the 7th day of Febru­
ary, 1949, by an evenly divided Court of eight (8) Justices. 
Petitioner respectfully submits the following reason why 
the relief prayed for should be granted:

On November 19,1946, petitioner was sentenced to death 
by electrocution upon a conviction of rape in the Circuit 
Court of Mobile County, Alabama, which judgment was 
affirmed by the Supreme Court of Alabama on April 24, 
1947. Taylor v. State, 249 Ala. 130, 30 So. (2d) 256. On 
November 13, 1947, that Court denied petitioner permission 
to file a petition for writ of error coram nobis in the trial



2

court, Ex Parte Taylor, 249 Ala. 670, 32 So. (2d) 659, which 
decision was subsequently affirmed by this Court. Taylor 
v. Alabama, — U. S. —, 92 L. ed. (Adv. Op. 1394).

In the majority opinion of this Court it was made clear 
that the review of the judgment was limited to the pro­
cedural question of whether or not the coram nobis remedy 
as used in Alabama denied petitioner due process of law. 
It was held that the procedure was in conformity with the 
due process clause and that the Supreme Court of Alabama 
did not deny petitioner due process by refusing permission 
to file for coram nobis after taking into consideration the 
entire record of the original trial along with certain photo­
graphs produced by the State of Alabama and supported by 
affidavit. The majority opinion, however, was careful to 
point out that: “ If the new petition (seeking permission 
to file petition for writ of error coram nobis) and its sup­
porting affidavits stood alone or had to be accepted as 
true, the issue would be materially different from what it 
is.”  Taylor v. Alabama, 92 L. ed. (Adv. Op.) at page 1401.

Mr. Justice F rankfurter  in concurring pointed out that: 
“ In reaching such a conclusion the Supreme Court of Ala­
bama was entitled to consider the circumstances of the 
original trial, the manner of its conduct by the trial judge, 
the professional ability with which the defendant was repre­
sented, the behavior of the accused throughout the proceed­
ings, and, in the light of all these circumstances, the weight 
to be attached to the affidavits on which his present peti­
tion is based.”  Mr. Justice F rankfurter concluded: “ But 
this merely carries me to sustaining the judgment of the 
Alabama Supreme Court, There is not now before us any 
right that the petitioner may have under the Judicial Code 
to bring an independent habeas corpus proceeding in the 
District Court of the United States.”



3

Mr. Justice M u rph y  in his dissenting opinion in which 
Mr. Justice D ouglas and Mr. Justice R utledge concurred 
pointed out that “ Fortunately, this Court has not yet made 
a final and conclusive answer to petitioner’s claim. . . . 
Nothing has been held which prejudices petitioner’s right 
to proceed by way of habeas corpus in a federal district 
court, now that he has exhausted his state remedies. He 
may yet obtain the hearing which Alabama has denied 
him. ’ ’

Thereupon, petitioner filed a verified petition for writ 
of habeas corpus in the United States District Court for 
the Middle District of Alabama (R. 1-5), and a rule to show 
cause was issued by that court. The Attorney General of 
the State of Alabama filed a pleading captioned “ Return 
to Rule’ ’ (R. 8-9). This had the force and effect of a mo­
tion to dismiss and was so recognized by the court and the 
Attorney General of Alabama (R. 12). Under these cir­
cumstances, the allegations of the verified petition had to 
be accepted as true at that stage of the proceedings. A 
hearing was held on the verified petition and the motion to 
dismiss. Under normal procedure, such a hearing is limited 
to legal arguments and was so limited in this case. No 
pleadings were filed by the State of Alabama to bring to 
issue the allegations in the verified petition. It cannot be 
argued that at this stage of the proceeding, petitioner was 
obliged to or should have been prepared to produce testi­
mony.

Orderly procedure permits testimony only after the 
respondent has made a full and complete return and has 
placed in issue the factual basis for the petition for writ of 
habeas corpus. The record in the original trial was not 
before the district court. Respondents had filed neither a 
return within the accepted meaning of that term, nor an 
answer, nor any denial of the factual basis for the petition.



4

The decision of the district judge was allegedly based upon 
the legal insufficiency of the petition and was admittedly 
determined by: (a) the verified petition, and, (b) the opin­
ions of the Supreme Court of Alabama and of this Court 
in the coram nobis case.

In applying to this Court for a writ of certiorari peti­
tioner relied upon principles of law which heretofore had 
been considered clear and well established:

a. Use by a state of a coerced confession to obtain a 
conviction for a crime is a violation of the due process 
clause of the Fourteenth Amendment.

Lee v. Mississippi, 322 U. S. 722;

Haley v. Ohio, 332 U. S. 596;

Malinski v. Neiv York, 324 U. S. 401;

Ashcraft v. Tennessee, 322 U. S. 143;

Ward v. Texas, 316 U. S. 547;

Lisenba v. California, 314 U. S. 219;

Vernon v. Alabama, 313 U. S. 547;

White v. Texas, 310 U. S. 530;

Chambers v. Florida, 309 U. S. 227;

Brown v. Mississippi, 313 U. S. 547.

b. A habeas corpus proceeding in the Federal District 
Court is the proper method of attacking a conviction ob­
tained in a state court in violation of defendant’s consti­
tutional rights, after the exhaustion of state remedies.

White v. Ragen, 324 U. 8. 760;

Wade v. Mayo, 332 U. 8. 672;
House v. Mayo, 324 U. S. 42;



5

Ex parte Hawk, 321 U. S. 114;

Mooney v. Holohan, 294 U. S. 103;

Title 28, United States Code, Sections 2241-2255.

c. The allegations of a petition for habeas corpus in 
Federal courts must be taken as true in the absence of an 
answer or a hearing.

White v. Ragen, 324 U. S. 760;
House v. Mayo, 324 U. S. 42;
Williams v. Kaiser, 323 U. S. 471;
U. 8. v. Adams, 320 U. S. 220.

d. The Federal District Court is under the duty to 
forthwith award the writ of habeas corpus, unless it ap­
pears from the petition itself that the party is not entitled 
thereto.

Holiday v. Johnston, 313 U. S. 342;

Price v. Johnston, — U. S. — ; 92 L. ed. (Adv. 
Op.) 993;

Von Moltke v. Gillies, 332 U. S. 708;

Marino v. Ragen, 332 U. S. 561;

U. S. v. Adams, 320 U. S. 220;

Ex parte Quirin, 317 U. S. 1;

Walker v. Johnston, 312 U. S. 275;

Title 28, United States Code, section 2243 (then, 
28 U. S. C. #461).

e. The prior proceedings in this case did not relieve the 
District Court of its duty to afford petitioner a hearing on 
the allegations of the petition for habeas corpus.

House v. Mayo, 324 U. S. 42;
Waley v. Johnston, 316 U. S. 101.



6

These principles of law heretofore considered clear and 
well established are inextricably involved in this case. The 
decision by an equally divided court has cast grave doubt 
and confusion upon these principles.

The case was placed on the summary docket, thereby 
limiting* argument to one-half hour by one attorney. This 
Court denied the request of attorneys for petitioner that 
two attorneys be permitted to argue the case for a half 
hour each. The respondent did not appear for argument so 
that the entire argument was limited to one-half hour.

Less than a week after argument, the Court entered its 
per curiam decision, affirming the judgment by an equally 
divided court in this, “ a matter of life and death, a matter 
of constitutional importance” . (Mr. Justice M u rph y  in 
dissenting opinion.)

This case imperatively requires rehearing and final dis­
position of the case by majority vote of this Court. This 
case reached the Court by petition for certiorari, not on 
appeal. The review thus came to petitioner because a suffi­
cient number of this Court deemed the specific questions 
presented to be of sufficient general importance to require 
decision by this Court. The per curiam order of affirmance 
by an equally divided court fails to supply that decision. 
Instead it leaves the law of this case in a state of confusion 
and casts doubt on the applicability of the principle involved 
to other cases.

For many decades, the practice has been followed, when­
ever practicable, of having questions of the nature involved 
in this case heard by the full court so that a judgment therein 
might be by a majority of the Court. Brisko v. Common­
wealth Bank of Kentucky, 33 U. S. (8 Pet.) 118; New York 
v. Millan, 33 U. 8. (8 Pet.) 120; Home Ins. Co. of New York 
v. New York, 119 IT. S. 129, 148; 122 IT. S. 636; 134 U. S.



594; Polack v. Farmers Loan and Trust Co., 157 U. S. 429, 
586; 158 IT. 8. 601.

Mr. Justice B lack  did not participate in either the hear­
ing of argument or the decision in this case, and we respect­
fully submit that for the reasons set out above, a rehearing 
should be granted in this case in order to give to Mr. Justice 
B lack  an opportunity to reconsider his position in the light 
of the equally divided Court so that the doubt and confusion 
as to the principles of law involved may be resolved one 
way or the other. The precedent for such action has been 
recognized in the case of Hirota v. General MacArthur, 93 
L. ed. (Adv. Op.) 119 and the granting of a rehearing in 
the case of Marzani v. United States, -— U. S. —, 93 L. 
ed. — .

The opinion of this Court in the first Taylor ease did not 
pass upon the constitutional question as to whether or not 
the conviction of Samuel Taylor was based upon a denial 
of due process of law. The decision of this Court in the 
instant case leaves this question as well as the procedural 
question in doubt. Unless these points are clearly decided 
in this case they can never be decided. There is now no 
other judicial remedy open to petitioner to prevent his death 
by electrocution.

The per curiam order of the Court in this case does not 
disclose the reasons for Mr. Justice B l a c k ’s nonparticipa­
tion. Whatever they may be, petitioner is convinced that 
if upon reconsideration Mr. Justice B lack  were to agree 
to hear and participate in the decision of this case, petitioner 
would thereby be afforded a full and complete hearing and 
the possibility of a definitive determination of the issues 
in this case so as to remove the doubt now existing as a re­
sult of the present per curiam order. If Mr. Justice B lack  
sits and hears argument on this case it might not be neces­
sary for him to participate in the final decision in order to



8

have a majority decision. In the Hirota case, Mr. Justice 
J ackson  while agreeing to hear argument did not partici­
pate in the final determination of the case because a ma­
jority decision was possible without his participation.

Prior to the decision in this case the law was clear that, 
after state remedies had been exhausted by a petitioner 
without a hearing on the merits of claimed violations of the 
Constitution, United States District Courts were prohibited 
from dismissing a petition for habeas corpus sufficiently 
alleging facts to show such constitutional violation without 
a hearing on the merits. Ex Parte Hawk, swpra, and White 
v. Hagen, supra, and as modified by House v. Mayo, supra, 
and Wade v. Mayo, supra. The order of this Court in the 
instant case leaves an unresolved doubt, therefore as to the 
present availability of habeas corpus upon the exhaustion 
of state remedies in the process of which no hearing on the 
merits was given. This doubt is particularly strong when 
the opinion of the District Court herein and the opinion of 
this Court in Taylor v. Alabama are considered together.

The order of this Court creates doubt concerning the 
principle of the truth of uncontroverted facts in a Petition 
for Writ of Habeas Corpus. From an examination of the 
cases Walker v. Johnson, supra; Waley v. Johnston, supra; 
Holiday v. Johnston, supra; Johnson v. Zerbst, 304 U. S. 
458; Smith v. O’Grady, 312 U. S. 329, it was clear that the 
uncontroverted facts in a petition for writ of habeas corpus 
to a federal court must be taken as true in the absence of 
an answer or a hearing. In response to the rule to show 
cause in the Court below, the State of Alabama did not sub­
mit an answer nor was a hearing granted upon the facts of 
the petition by the Court. There can be no question but 
that the allegations of such petition, if true, sufficiently set 
forth facts constituting a violation of constitutional rights 
by a state court in the trial of the petitioner. The District



9

Judge, however, upon receipt of a motion to dismiss, which, 
for all intents and purposes admits the truth of such allega­
tions, refused to accept the allegations as true and without 
more concluded rather “ that a further hearing is not re­
quired by the Constitution of the United States” . (Italics 
ours.)

The Court’s per curiam order of February 7, it is sub­
mitted, places an unwaranted effect upon the decision in 
Mooney v. Hollahan, supra, insofar as that case requires 
that state courts, equally with federal courts, provide a 
remedy whereby one claiming to have been convicted in 
violation of basic constitutional rights may have such claim 
judicially tested. The effect of the order of affirm­
ance of this Court is to give the courts of Alabama the sole 
jurisdiction for entertaining such applications according 
to Alabama’s coram nobis standard.

The order of the Court in effect further completely bars 
the remedy of and the standards of habeas corpus in the 
federal courts in all circumstances to any person detained 
by authority of an Alabama state court after disposal of 
petition for permission to file for coram nobis. The order 
further gives sanction to the Alabama coram nobis prac­
tice of requiring a petitioner to prove his innocence as a 
prerequisite to obtaining a hearing on his claim of viola­
tion of constitutional rights. Clearly, as pointed out in 
petitioner’s brief and in argument before the Court, no 
such rule had heretofore existed in the federal courts.

The order of the Court further gives sanction to Ala­
bama’s practice of speculating on the verity of the allega­
tions of a petition for coram nobis. While it may be ad­
mitted that Alabama has the right to set up such procedure 
as it may deem appropriate subject to the limitations of due 
process for the consideration of claims such as the one 
which petitioner makes, it is submitted that the intent of 
the Mooney v. Hollahan doctrine was not to bar completely



10

the right to federal habeas corpus by a state prisoner, un­
less he had obtained in the state court, through habeas 
corpus, coram nobis or other similar procedure, a hearing 
on the merits of his petition according to the standards 
which prevail in the federal courts on habeas corpus.

In Waley v. Johnston, 316 IT. S. 101, 104, this Court 
stated: “ True, petitioner’s allegations in the circumstances 
of this case may tax credulity. But in view of their spe­
cific nature, . . . and the failure of respondent to deny . . . 
them specifically, we cannot say that the issue was not one 
calling for a hearing within the principles laid down in 
Walker v. Johnston, 312 U. S. 275, 85 L. Ed. 830, 61 S. Ct. 
574. . . .  If the allegations are found to be true, peti­
tioner’s constitutional rights were infringed.”

The decision of the District Court denied a hearing on 
the merits and dismissed the petition on the grounds that 
the issues had been disposed of in the coram nobis proceed­
ings. Thus, instead of applying the standards for disposi­
tion of habeas corpus proceedings in federal courts the Dis­
trict Court substituted the contrary standards for state 
court determination of coram nobis applications. The fac­
tual basis of the coram nobis proceedings was determined 
by the decision.

The decision in this case now affirmed by an equally 
divided court cannot be rationalized with the former opinion 
of this Court in the coram nobis proceeding. There are 
several clear principles of law involved in this decision 'which 
cannot be rationalized with existing decisions.1 The equally

1 In a note concerning reversals by memorandum opinions it has 
been stated that “ An opinion is a check on ‘administrative justice’ 
and doubtful reasoning. It makes possible the thoughtful extension, 
limitation or correction of doctrine in subsequent cases. It is a guide, 
in the present instance much needed, to counsel and inferior courts. 
It is a mark of respect in case of reversal, for the court reversed. It 
is submitted that in cases like the present, there are grave objections 
to the Court’s departure from its practice of delivering opinions.” 
A  Memorandum Decision, 40 Harv. L. Rev. 485, January, 1927.



11

divided court and the lack of opinion thereby casts doubt 
upon these principles of law. The present decision in this 
case and the resultant confusion will increase rather than 
decrease the applications to this Court for certiorari from 
decisions of district courts.

The effect of the Court’s order is to completely bar peti­
tioner’s right to a hearing with compulsory process and 
right of cross examination in any judicial forum. Such a 
consequence, it is submitted, is in and of itself a denial of 
due process.

It cannot be said that petitioner’s claims are without 
merit. There was a vigorous dissenting opinion in the 
Alabama Supreme Court and in this Court on the coram 
nobis proceeding. If petitioner is now electrocuted there 
will always be grave doubt as to whether or not his life was 
taken without due process of law. Our Constitution re- 
quii'es that due process of law be afforded at every step of 
our judicial proceedings. Is it not more in keeping with our 
principles to grant a full and complete hearing of this peti­
tioner ’s claim of denial of rights guaranteed by our 
Constitution I

Conclusion

Petitioner has been seeking a hearing of his claim that 
his conviction is in violation of the United States Consti­
tution—a hearing within the accepted meaning of the word. 
If he had been granted such a hearing the entire matter 
would have been disposed of. If his claims were so un­
believable the State of Alabama would not have opposed 
such a hearing at every stage of both proceedings.

We are not unaware of the large number of petitions 
for writs of habeas corpus in federal courts. On the other



hand, we are certain that the present decision by an equally 
divided court will increase rather than decrease applica­
tions to this Court for review of such cases.

Where a man’s life is at stake and constitutional rights 
are involved his life should not be taken as the result of a 
decision by an equally divided court based upon a half hour 
argument.

W herefore, petitioner prays that this Court grant to 
petitioner a re-hearing by having the case placed on the 
regular docket for a full hearing. Petitioner further prays 
that Mr. Justice B lack  reconsider his reasons for not par­
ticipating in this case and in the light of the equally divided 
court that he participate in the hearing of argument and 
if necessary the final decision of the case.

Counsel represents to the Court that this petition for 
re-hearing and other relief is not filed for the purpose of 
delay.

N esbitt E lmore,
Montgomery, Alabama,

T hurgood M arshall ,
New York, New York,

Attorneys for Petitioner.

F ran k  D . R eeves,
F ran k lin  H. W illiam s ,
Constance B aker M otley,
R obert L. Carter,

Of Counsel.



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