Waller v. Youell Petition for Rehearing of the Denial of Certiorari

    ^uprrotr (Court of thr llnitrii States
October T erm 1941

No. 1097

Odell W aller, 

against
Petitioner,

R ice M. Y ouell, Superintendent of the State 
P enitentiary, R ichmond, V irginia,

Respondent.

PETITION FOR REH EARIN G  OF TH E DENIAL  
OF CERTIORARI TO  T H E  SUPREM E CO U RT  

OF APPEALS OF VIR G IN IA

J ohn F . F inerty,. 
M orris Shapiro, 

Counsel for Petitioner.

T homas H. Stone, 
M artin A. M artin, 
E rnest F leischman ,

Of Counsel.



INDEX

PAGE

Exceptional reason for granting rehearing.................  1-3

Specific grounds for granting rehearing, and there­
upon, either issuing certiorari or recognizing 
petitioner’s right to a writ of habeas corpus from 
this Court or from a lower Federal co u rt ............ 3-5

Discussion of specific grounds:
I It would seem that consistently with Waley v. 

Johnston, supra, and Bowen v. Johnston, supra, 
this Court should grant certiorari herein and 
thereupon require the Supreme Court of Ap­
peals of Virginia to issue its writ of habeas 
corpus or, consistently with Moore v. Dempsey, 
supra and Hale v. Crawford, supra, this Court 
should expressly recognize the right of peti­
tioner either to obtain a writ of habeas corpus 
from the United States District Court for the 
Eastern District of Virginia or to obtain from 
this Court its own original writ of habeas corpus.

Wood v. Brush and Andrews v. Swartz, supra, 
distinguished .......................................................... 7

II Under Moore v. Dempsey, 261 U. S. 86, even 
should this Court finally deny certiorari here, 
this would not constitute a bar to petitioner’s 
right to a writ of habeas corpus from the United 
States District Court for the Eastern District 
of Virginia, even though the petition for such 
writ of habeas corpus were to be based on 
exactly the same grounds here presented to this 
Court by the petition for certiorari .................  14

III Assuming that petitioner might have waived his 
constitutional right to indictment and trial by 
juries from which his economic peers have not 
been systematically excluded, this court should 
hold that, consistently with the principles of 
Patton v. United States, 281 U. S. 276 and



11 TABLE OF CASES CITED

PAGE
.Johnson v. Zerbst, 304 U. S. 458, such waiver 
could only be by petitioner’s “ express and in­
telligent consent,’ ’ and that 110 mere error of 
petitioner’s counsel could constitute such waiver 17

IV It would appear that this Court could not have 
denied certiorari on the ground that the equal 
protection clause of the 14th Amendment is lim­
ited to denials solely because of race or color, 
in view of its decisions, not heretofore cited, in 
which this Court has held that clause to extend 
to inanimate corporations, of no race and no 
c o lo r .........................................................................  19

V The denial of certiorari without opinion leaves 
the future administration of criminal law in the 
State of Virginia in hopeless and unnecessary 
confusion, and, unless this court at least states 
the grounds of such denial, this court will un­
doubtedly be burdened with appeals for review, 
in future cases, which must prove either futile
or unnecessary ......................................................  21

Conclusion...........................................................................  22
Certificate...........................................................................  24

T able of Cases Cited

American Sugar Refining Co. v. Louisiana, 179 U. S.
89 .................................................................................  20

Andrews v. Swartz, 156 U. S. 272 ....................... 4,7,11,12

Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232........5,19
Bowen v. Johnston, 306 U. S. 1 9 ................. 3, 4, 7, 9,10,13

Carruthers v. Reed, 102 Fed. 933 .................................... 17

Covington & L. Turnp. Road Co. v. Sanford, 164 U. S.
579 ................................................................................5,19

Ex Parte Lange, 18 Wallace 163 .....................................  8



PAGE

Ex Parte Neilson, 131 U. S. 176 ................................... 8
Glasser v. U. S., 86 Law Ed. 405 ................................... 18
Hale v. Crawford, 65 Fed. (2d) 739 ............4,6,7,9,11,13

Johnson v. Zerbst, 304 U. S. 458 ........................... 5,17,18

Kentucky Finance Corp. v. Paramount Auto Exchange 
Corp., 262 U. S. 544 .................................................. 5,20

Minneapolis & St. L. E. Co. v. Beckwith, 129 U. S.
26 .................................................................................5,19

Mooney v. Holohan, 294 U. S. 1 0 3 ................................. 16
Moore v. Dempsey, 261 U. S. 8 6 ................. 4, 6, 7,13,14,15
Patton v. U. S., 281 U. S. 276 ..................................5,17,18

Pierre v. Louisiana, 306 U. S. 354 .................................  22
Power Mfg. Co. v. Saunders, 274 U. S. 490 ............... 5,20
Smith v. Texas, 311 U. S. 1 2 8 ........................................  22
Waley v. Johnston, 86 L. Ed. 932 ...........................3, 4, 7, 9

Wood v. Brush, 140 U. S. 278 ...............................4, 7,11,12

T able of Statutes Cited

U. S. C. A., Title 28, Sec. 345 ......................................  16
U. S. C. A., Title 28, Sec. 347 ....................................... 16
U. S. C. A., Title 28, Sec. 466 ......................................  16

TABLE OF CASES CITED 111



jiatpmn? (Emtrt o f thr Unitfii States
October T erm 1941

-----------f ----------
Odell W aller, 

against
Petitioner,

Rice M. Y ouell, Superintendent of the S tate 
Penitentiary, R ichmond, V irginia,

Respondent.
------------------------------ *------------------------------

PETITION FOR REH EARING OF TH E DENIAL  
OF CERTIORARI TO TH E SUPREME COURT  

OF APPEALS OF VIRG IN IA

To the Honorable the Supreme Court of the United States:

Exceptional reasons, it is respectfully submitted, exist 
for the granting of rehearing herein.

The Governor of Virginia, following denial by this Court 
on May 1/, 191/2 of certiorari herein without opinion, has 
postponed petitioner’s execution from May 19 to June 19, 
1942, expressly for the purpose of permitting a petition 
for rehearing of such denial to be filed.

The present Governor and his predecessors have con­
sidered the constitutional questions presented by peti­
tioner of sufficient importance that, with courageous and 
humane disregard of any political considerations, they 
thus have gone to the unusual length of granting peti­
tioner four stays of execution in order that he might' 
obtain answers to those questions from this Court.

The denial of certiorari without opinion affords no an­
swer to those questions.



2

In determining whether those questions are entitled to 
specific answer, it is respectfully submitted that this Court 
may also properly consider the fact that it has only been 
possible to bring those questions before this Court as a 
“ test case”  by reason of the aid of public spirited citi­
zens and of volunteer counsel, whose sole interest has 
been to determine whether protection exists against the 
violation of the apparent constitutional rights of an entire 
economic class of citizens who, because of their economic 
and political disabilities, are themselves powerless to pro­
tect those rights.

The constitutional and procedural questions left unan­
swered by the mere denial of certiorari without opinion 
are the following:

Was certiorari denied because:
1. The equal protection clause of the Fourteenth 

Amendment is limited to systematic exclusion from grand 
and petit juries solely because of race or color?

2. Even if not so limited, and even though that clause 
would extend to systematic exclusion because of religion, 
politics or nativity, it nevertheless does not extend to 
such exclusion, because of its economic disabilities, of 
petitioner’s entire class?

3. Even though the equal protection clause would other­
wise extend to such systematic exclusion of petitioner’s 
entire economic class from grand and petit juries, no 
remedy is available by habeas corpus or otherwise, and 
petitioner must die, solely because of the error of his trial 
counsel as to the procedure necessary to establish the 
undenied and undeniable facts of such exclusion?

Counsel most respectfully submit that petitioner, being 
under sentence of death, is peculiarly entitled to an an­
swer to these questions, and to have them answered only 
after the fullest presentation and consideration; that 
neither full presentation or consideration is possible



‘>o

under the limitations prescribed by the rules of this Court 
both upon briefs in support of petitions for certiorari and 
upon petitions for rehearing; that unless this Court does 
answer these constitutional and procedural questions, the 
future administration of criminal law in the State of Vir­
ginia will be left in hopeless and unnecessary confusion, 
and this Court will be burdened with further appeals for 
review which must prove either unnecessary or futile.

Finally, counsel most respectfully submit that if rehear­
ing is granted, it is their profound conviction that, on the 
following grounds, this Court, on further and mature con­
sideration of the questions here involved, must conclude 
that petitioner’s constitutional rights have clearly been 
violated; that habeas corpus affords a clear and proper 
remedy for such violation; and therefore either that cer­
tiorari should issue to review the judgment of the Su­
preme Court of Appeals of Virginia denying habeas cor­
pus, or that this Court should issue to petitioner its own 
original writ of habeas corpus or expressly recognize the 
right of a lower Federal court to issue that writ.

The following are specific grounds on which it is sub­
mitted rehearing should be- granted, and that thereupon 
either certiorari should issue, or this Court should ex­
pressly recognize petitioner’s right to a writ of habeas 
corpus, either from this Court or from a lower Federal 
court.

1. The denial of certiorari here would seem in necessary 
conflict with the recent decisions of this Court in Waley v.
Johnston, ------  U. S. -— —, 86 L. Ed. 932, and Bowen v.
Johnston, 306 U. S. 19,* holding that a judgment of con­
viction, even though not void for want of jurisdiction of 
the trial court, is properly reviewdble on habeas corpus,

* Counsel regret that they failed in their brief in support of the 
petition for certiorari to call the attention of this Court to the rele­
vance of certain decisions now cited for the first time in this petition.



4

(a) If, as here, such conviction was in disregard of peti­
tioner’s constitutional rights;

(&) If, as here, the facts relied on to show such viola­
tion are dehors the record and their effect on the 
judgment of conviction ivas not open to considera­
tion and review on appeal, and

(c) If, as here, the writ of habeas corpus is the only 
effective means of preserving petitioner’s constitu­
tional rights.

2. The decisions in Waley v. Johnston, supra, and 
Bowen v. Johnston, supra, though directed to judgments 
of conviction in Federal courts, would seem no less ap­
plicable to petitioner’s conviction in a State court where, 
as here, all state remedies have been exhausted, Hale v. 
Crawford, 65 Fed. (2d) 739, 747 (certiorari denied 290 
U. S. 674).

3. Even should this Court finally deny certiorari here, 
this ivould not, under Moore v. Dempsey, 261 U. S. 86, 
constitute a bar to petitioner’s right to a writ of habeas 
corpus from the United States District Court for the East­
ern District of Virginia, even though the petition for such 
ivrit of habeas corpus were to be based on exactly the 
same. grounds here presented to this Court by the petition 
for certiorari.

4. The decisions in Wood v. Brush, 140 U. S. 278 and
Andrews v. Swartz, 156 U. S. 272, cited in respondent’s 
brief in opposition, are clearly inapplicable to petitioner’s 
case. In those cases, habeas corpus teas held not to afford 
a proper remedy to review the judgments of conviction in 
the state courts there involved, (a) because, before apply­
ing to a Federal court for habeas corpus, the accused had 
not resorted to direct review by this Court, available 
there, but not here, as a matter of right; {b) because 
there, upon direct review, the question of violation of con-



5

stitutional rights could have been determined, since there., 
unlike here, the facts constituting such violation appeared 
of record in the trial court.

5. Assuming that petitioner might have waived his con­
stitutional right to indictment and trial by juries from 
which his economic peers had not been systematically ex­
cluded, it would seem that, consistently with Patton v. 
U. S., 281 U. S. 276, and Johnson v. Zerbst, 304 U. S. 458, 
there could be no such waiver except by petitioner’s ex­
press and intelligent consent” , and that no mere error of 
petitioner’s counsel as to the procedure necessary to es­
tablish violation of such constitutional rights could con­
stitute such waiver.

6. It would appear that this Court could not hold that 
the equal protection clause of the Fourteenth Amend­
ment is limited to denial because of race or color, in view 
of its decisions, not heretofore cited, in which this Court 
has expressly held that clause to extend to inanimate cor­
porations, of no race. and no color.

Minneapolis & St. L. R. Co. v. Beckwith, 129 
U. S. 26;

Bell’s Cap R. Co. v. Pennsylvania, 134 U. S. 232;
Covington & L. Tump. Road Co. v. Sanford, 

164 U. S. 579;
Kentucky Finance Corp. v. Paramount Auto Ex­

change Corp., 262 U. S. 544;
Power Mfg. Co. v. Saunders, 274 U. S. 490.

7. Exclusion of non-payers of poll taxes from jury ser­
vice is in reality a means of indirect exclusion because 
of race and color, since, as alleged in the petition for cer­
tiorari, p. 9, negroes constitute a large proportion of the 
persons so barred. Moreover it has the advantage of 
avoiding the recognized illegality of direct exclusion on 
account of race and color, with the added advantage of also 
excluding poor whites as well as negroes.



6

8. Finally, the. denial here of certiorari, without opinion,

(a) Leaves the future administration of criminal law 
in the State of Virginia in hopeless and unnecessary 
confusion;

(h) May well burden this Court with appeals for review 
in future cases, which must prove either futile or 
unnecessary ;

(c) Constitutes a practical bar to a remedy otherwise 
clearly available under the decisions in Moore v. 
Dempsey, supra, and Hale v. Crawford, supra, that 
is, a petition for habeas corpus to the United States 
District Court for the Eastern District of Virginia.

(d) Most important to petitioner, it leaves petitioner’s 
counsel without any basis for forming an intelligent 
judgment as to whether petitioner has the Constitu­
tional rights here claimed; whether those rights have 
been violated; whether remedy exists for their viola­
tion under Moore v. Dempsey, supra, and Hale v. 
Crawford, supra; and, if so, what is the proper pro­
cedure to obtain such remedy.

Counsel trust that in view of the importance of the 
questions presented by the foregoing grounds, this Court 
will not consider a further brief exposition of certain of 
those grounds to exceed the limits placed by its rules on 
petitions for rehearing.



It would seem that consistently with W aley  v. 
Johnston, supra, and Bowen  v. Johnston, supra, this 
Court should grant certiorari herein and thereupon 
require the Supreme Court of Appeals of Virginia to 
issue its writ of habeas corpus or, consistently with 
M oore v. Dem psey, supra and Hale v. Crawford, 
supra, this Court should expressly recognize the right 
of petitioner either to obtain a writ of habeas corpus 
from the United States District Court for the Eastern 
District of Virginia or to obtain from this Court its 
own original writ of habeas corpus.

W ood  v. Brush and Andrews v. Swartz, supra, dis­
tinguished.

It lias long been contended, and the respondent so con­
tends in his brief in opposition, that a conviction cannot be 
reviewed by habeas corpus unless the judgment of convic­
tion be void for want of jurisdiction of the trial court to 
render it. Prior language of this court, taken out of its 
context, has lent color to such contentions. The recent deci­
sions of this court, however, in Waley v. Johnston, supra, 
and Bowen v. Johnston, supra, make such contentions no 
longer tenable.

Those decisions make it clear that while want of jurisdic­
tion of the trial court to render a judgment of conviction 
affords one ground for habeas corpus, it is not the sol& 
ground.

On the contrary, it is clear from those cases that viola­
tion of constitutional rights in the conviction of an ac­
cused, in itself affords proper ground for habeas corpus, 
even though the judgment of conviction is not void for 
want of jurisdiction:*

* Indeed, this is no new doctrine. The limitations imposed by the 
rules of this Court, on petitions for rehearing, do not permit of an 
adequate discussion of former decisions o f this Court to substan­
tially this same effect. Attention, however, is directed to the lan­
guage of this Court in this respect in two of its early decisions.

(Footnote continued on next page)

I



8

(a) if the facts relied on to show such violation are 
dehors the record;

(b) if the effect of those facts on the judgment of 
conviction was not open to consideration and re­
view on appeal; and

(c) if the writ of habeas corpus is the only effective 
means of preserving such constitutional rights.

In E x Parte Lange, 18 Wall. 163, this Court, in discharging the 
petitioner there, upon this Court’s original writ o f habeas corpus, 
said, pages 175-176:

“ But it has been said that, conceding all this, the judgment 
under which the prisoner is now held is erroneous, but not 
void ; and as this court cannot review that judgment for error, 
it can discharge the prisoner only when it is void.

But we do not concede the major premise in this argument. 
A  judgment may be erroneous and not void and it may be er­
roneous because it is void. The distinctions between void and 
merely voidable judgments are very nice and they may fall 
under the one class or the other as they are regarded for differ­
ent purposes.”

In E x Parte Neilson, 131 U. S. 176, this Court, in reversing de­
nial of habeas corpus by a district court, said, page 182:

"The objection to the remedy of habeas corpus, of course, 
would be that there was in force a regular judgment of con­
viction, which could not be questioned collaterally, as it would 
have to be on habeas corpus. But there are exceptions to this 
rule which have more than once been acted upon by this court. 
It is firmly established that if the court which renders a judg­
ment has not jurisdiction to render it, either because the pro­
ceedings or the law under which they are taken are unconsti­
tutional, or for any other reason, the judgment is void and may­
be questioned collaterally, and a defendant who is imprisoned 
under and by virtue o f it may be discharged from custody on 
habeas corpus. This was so decided in the cases o f E x Parte 
Lange, 85 L . S. 18 Wall. 163 and E x Parte Sic. old, 100 U. S. 
371 and in several other cases referred to therein.”

At pages 183-184, this Court further said:
It is difficult to see why a conviction and punishment under 

an unconstitutional law is more violative o f a person's consti­
tutional rights, than an unconstitutional conviction and punish­
ment under a valid law. In the first case, it is true, the court 
has no authority to take cognizance o f the case: but. in the 
other, it has no authority to render judgment against the de­
fendant."



9

Furthermore, Mr. Chief Justice Hughes, in Boiven v. 
Johnston, made it clear that while this court ordinarily will 
not review by habeas corpus a judgment of conviction even 
of a Federal court, where the right to direct review by this 
court exists, and has not been exhausted, this has not been 
because of any question of power to make such review by 
habeas corpus, but a question of the appropriate exercise 
of such power.

Finally, it is pointed out in Hale v. Crawford, supra, that 
the ordinary rule that habeas corpus may not be used to 
review a judgment of conviction in a State court, even 
though such judgment violates constitutional rights, unless 
not only State remedies but any right to direct review by 
this court of their denial have been exhausted, was a rule 
of procedure which grew up prior to the amendment of the 
Judiciary Act of 1925, when direct review by this court 
under a writ of error was a matter of right; that since 
that amendment changed review by this court to a matter 
of discretion under certiorari, a Federal court now can re­
view such judgment by habeas corpus, even after this 
court has denied review by certiorari. (See in this latter 
respect subsequent discussion under Point II of Moore v. 
Dempsejq 261 U. S. 86.)

For the convenience of this Court, brief quotation will 
accordingly be made from the foregoing cases.

In Waley v. Johnston, supra, this Court said, page 934:
“ The issue here was appropriately raised by the 

habeas corpus petition. The facts relied on are dehors 
the record and their effect on the judgment was not 
open to consideration and review on appeal. In such 
circumstances the use of the writ in the federal courts 
to test the constitutional validity of a conviction for 
crime is not restricted to those cases where the judg­
ment of conviction is void for want of jurisdiction of 
the trial court to render it. It extends also to those 
exceptional cases where the conviction has been in 
disregard of the constitutional rights of the accused,



10

and where the writ is the only effective means of pre­
serving his rights. Moore v. Dempsey, 261 U. S. 86; 
Moonev v. Holohan, 294 U. S. 103, Bowen v. Johnston, 
306 XL S. 19.”

In Bowen v. Johnston, supra, Chief Justice Hughes said, 
pages 23-24:

“ The scope of review on habeas corpus is limited 
to the examination of the jurisdiction of the court 
whose judgment of conviction is challenged. (Citing 
decisions.) But if it be found that the court had no 
jurisdiction to try the petitioner, or that in its pro­
ceedings his constitutional rights have been denied, 
the remedy of habeas corpus is available. Ex Parte 
Lange, 18 Wall. 163; Ex parte Crow Dog, 109 U. S. 
556; Re Snow, 120 U. S. 274; Re Coy, 127 U. S. 751; 
Re Nielsen, 131 U. S. 176; Re Bonner, 151 U. S. 242; 
Moore v. Dempsey, 271 U. S. 86; Johnson v. Zerbst, 
304 U. S. 458.”

The Chief Justice further said, pages 26-27:
“ It must never be forgotten that the writ of habeas 

corpus is the precious safeguard of personal liberty 
and there is no higher duty than to maintain it unim­
paired. Ex parte Lange, 18 Wall. 163, supra. The 
rule requiring resort to appellate procedure when the 
trial court has determined its own jurisdiction of an 
offense is not a rule denying the power to issue a writ 
of habeas corpus when it appears that nevertheless 
the trial court was without jurisdiction. The ride is 
not one defining power but one which relates to the 
appropriate exercise of power. It has special applica­
tion where there are essential questions of fact de­
terminable by the trial court. Rodman v. Pothier, 264 
U. S. 399, supra. It is applicable also to the de­
termination in ordinary cases of disputed matters of 
law whether they relate to the sufficiency of the in­
dictment or to the validity of the statute on which 
the charge is based. Ibid; Glasgow v. Moyer, 225 
U. S. 420, supra; Henry v. Henkel, 235 U. S. 219, 
supra. But it is equally true that the rule is not so



11

inflexible that it may not yield to exceptional circum­
stances where the need for the remedy afforded by 
the writ of habeas corpus is apparent.”

In Hale v. Crawford, supra, the Circuit Court of Ap­
peals for the First Circuit said, page 747 of its decision, 
in referring, among other cases, to Andrews v. Swartz, 
and Wood v. Brush, supra-.

“  Counsel for Crawford contend that these cases 
are not applicable for, if he were remitted to Vir­
ginia and seasonably and properly raised the question 
here under consideration and the question was de­
cided against him, at the present time and under the 
Judiciary Act of 1925, he could not, as of right, 
prosecute a writ of error from the Supreme Court of 
the United States to the highest court of the state 
of Virginia to which the case could be taken. It is 
true that his right of review by writ of error from 
the Supreme Court of the United States on the facts 
of this case ivas taken away by the act of 1925, for 
under the law as it now stands no writ of error lies 
from the Supreme Court in this case, as the grand 
jury was not drawn under a statute of the state of 
Virginia which violated the Constitution of the United 
States. 43 Stat. 936, 937, e. 229, § 237 (28 USCA 
§ 344). He is, however, permitted by that act to apply 
to that court for certiorari, a discretionary writ. 
South Carolina v. Bailey, supra. If review on such 
application is not granted he undoubtedly, at that 
stage of the proceeding, could have the matter re­
viewed on habeas corpus in the proper federal court, 
being without review in the Supreme Court on writ of 
error as of right. In re Royall, 117 U. S. 241, 252, 
253, 6 S. Ct. 734, 29 L. Ed. 868; In re Wood, supra, 
140 U. S. at pages 289, 290, 11 S. Ct. 738, 35 L. Ed. 
505. It would not then be an endeavor by habeas 
corpus to intervene before trial or to review what 
ordinarily can be reexamined only on writ of error; 
and the federal court applied to could not, under such 
circumstances, properly refuse review on habeas 
corpus.”



12

Petitioner’s ease, it is submitted, meets every condition 
which, under the principles of the foregoing decisions, 
would make habeas corpus a proper remedy to review 
petitioner’s conviction. Moreover, it is submitted, peti­
tioner’s case is clearly distinguishable from Andrews v. 
Swartz, supra, and Wood v. Brush, supra, where, on the 
record in those cases, resort to habeas corpus was held 
improper.

In Andrews v. Sivartz, supra, and Wood v. Brush, 
resort to habeas corpus wras held improper on two 
grounds: First, because although state remedies had been 
exhausted, the accused, before applying to a Federal court 
for habeas corpus, had not resorted to the direct review 
of the judgment of the State court there available from 
this Court as a matter of right by writ of error. Second, 
because there, upon direct review", the question of violation 
of constitutional rights could have been determined, since 
the facts constituting such violation appeared of record in 
the trial court.

Here, on the contrary, while State remedies have un­
questionably been exhausted, no right of direct review 
by this Court of the judgment of the State court was ever 
available as a matter of right by writ of error, but only 
as a matter of discretion by certiorari.

Here, moreover, the facts relied on to show violation of 
petitioner’s constitutional rights are dehors the record, 
and, therefore, those facts and their effect on the judg­
ment of conviction would not have been open to considera­
tion and review by this Court on direct review by cer­
tiorari of the judgment of conviction.

Here, therefore, the writ of habeas corpus is and at all 
times lias been the only effective means on this record of 
preserving petitioner’s constitutional rights.



It would seem, therefore, that, under the cases cited, 
and in particular under Bowen v. Johnston, supra, taken 
in connection with Hale v. Crawford, supra, the petitioner 
is entitled to obtain by some means a writ of habeas 
corpus to review his judgment of conviction.

In this connection, the decision of this Court in Moore 
v. Dempsey, supra, makes it clear that, even if this Court 
should finally deny certiorari here, this would constitute 
no legal bar to an application to the United States Dis­
trict Court for the Eastern District of Virginia for a 
writ of habeas corpus, even though such application were 
based on the same grounds presented to this Court by the 
petition for certiorari. In all probability, however, should 
this Court persist in its refusal to state its grounds for 
denial of certiorari, the District Court would deny the 
writ, on the assumption that such denial means either 
that petitioner’s constitutional rights have not been vio­
lated, or that, if they have, petitioner is without rem­
edy because of the error of his trial counsel in failing to 
prove in the trial court the facts of such violation. How­
ever, in such event, it would seem that, under Moore v. 
Dempsey, this Court should nevertheless require the Dis­
trict Court to issue habeas corpus.

Since Moore v. Dempsey would seem thus to be of com­
pelling significance here, that decision will be briefly dis­
cussed.

13



14

I I

Under M oore v. Dem psey, 261 U. S. 86, even should 
this Court finally deny certiorari here, this would not 
constitute a bar to petitioner’s right to a writ of 
habeas corpus from the United States District Court 
for the Eastern District of Virginia, even though the 
petition for such writ of habeas corpus were to be 
based on exactly the same grounds here presented to 
this Court by the petition for certiorari.

In Moore v. Dempsey, supra, this Court, although it had 
previously denied certiorari to review on constitutional 
grounds the judgment of conviction in the state court, 
and had also denied a writ of error to review a later 
denial of habeas corpus by the state court, held habeas 
corpus nevertheless available from the appropriate Fed­
eral district court, even though the grounds alleged for 
habeas corpus were identical with the grounds presented 
by the petitions for certiorari and for writ of error, pre­
viously denied by this Court.

In Moore v. Dempsey, this Court, on appeal, reversed 
an order of the District Court for the Eastern District 
of Arkansas, dismissing a writ of habeas corpus, and 
thereupon required the District Court to issue the writ. 
Moreover, this Court, speaking through Mr. Justice 
Holmes, required the issuance of habeas corpus by the 
District Court, in spite of the following facts pointed out 
in the dissenting opinion of Mr. Justice McKeyonlds, 
joined in by Mr. Justice Sutherland.

It there appears, page 98:
“ A petition for certiorari, filed in this court May 

24, 1920, with the record of proceedings in the state 
courts, set forth in detail the very grounds of com­
plaint now before us. It was presented October 5th, 
denied October 11th, 1920.



15

April 29, 1921, the governor directed execution of 
the defendants on June 10th. June 8th the chancery 
court of Pulaski county granted them a writ of habeas 
corpus; on June 20th the state supreme court held 
that the chancery court lacked jurisdiction and pro­
hibited further proceedings. State v. Martineau, 149 
Arp. 237, 232 S. D. 609. August 4th a justice of this 
court denied writ of error. Thereupon, the governor 
fixed September 23rd, for execution. On September 
21st the present habeas corpus proceeding began, and 
since then the matter has been in the courts.”

It is also significant to note that it appears from the 
same page of the opinion that one of the grounds alleged, 
not only for habeas corpus, but previously for certiorari 
and for writ of error, was the systematic exclusion of 
negroes from grand and petit juries in the State of 
Arkansas.

It would seem not unreasonable to assume from this 
statement of the record in Moore v. Dempsey that one of 
the grounds for the dismissal of the writ of habeas corpus 
by the District Court may well have been the fact that this 
Court, had denied, without opinion, both the prior peti­
tion for certiorari and the prior application for writ of 
error. Nor, as has already been suggested, is it unreason­
able to assume that were petitioner here to make applica­
tion for habeas corpus to the District Court for the East­
ern District of Virginia, that Court, in the face of a denial 
of certiorari by this Court without opinion, would likewise 
deny habeas corpus.

In such event, petitioner, due to the amendments of 
1925 to the Judiciary Act, could not have, as had the peti­
tioners in Moore v. Dempsey, review by this Court of such 
denial as a matter of right, or even review as of right by 
the Circuit Court of Appeals. On the contrary, petitioner 
could not even have appeal to the Circuit Court of Appeals 
except on a certificate of probable cause either by that



1G

Court or by the District Court, (Title 28, Sec, 466, U. S. 
C. A.). Furthermore, should both the District Court and 
the Circuit Court of Appeals refuse such certificate, no 
appeal would lie to this Court (Title 28, Sec. 345, U. S. 
C. A.), and this Court would be without jurisdiction even 
to grant certiorari (Title 28, Sec. 347, U. S. C. A.). There­
fore, should the right to appeal to the Circuit Court of 
Appeals be denied, petitioner’s only recourse would be an 
application to this Court for an original writ of habeas 
corpus.

This, indeed, was the very situation which arose in 
Mooney v. Holohan, 294 U. S. 103. In that case, prior to 
the application to this Court for an original writ of habeas 
corpus, a certificate of probable cause for appeal to the 
Circuit Court of Appeals from the denial of the writ by 
the District Court, had been refused both by the District 
Court and by the Circuit Court of Appeals. On represen­
tation of these facts to this Court in the petition to it in 
the Mooney case for an original writ of habeas corpus, this 
Court thereupon recognized the right to apply to this 
Court for such original writ. Presumably, petitioner, 
under similar circumstances, here would have a similar 
right.

The question remains whether this Court, therefore, 
should put petitioner, who is under sentence of death and 
in indigent circumstances, to the circuity of action which 
would be involved in a petition to the United States Dis­
trict Court for the Eastern District of Virginia for habeas 
corpus, should this Court here finally deny certiorari.

Counsel most respectfully submit that the more appro­
priate and orderly procedure would be for this Court to 
grant rehearing herein, and thereupon to require the Su­
preme Court of Appeals of Virginia to accord petitioner 
its writ of habeas corpus. Should this Court fail to do 
this, petitioner’s only practical remedy would seem to be 
an application direct to this Court for its own original 
writ of habeas corpus.



17

I I I

Assuming that petitioner might have waived his 
constitutional right to indictment and trial by juries 
from which his economic peers have not been sys­
tematically excluded, this court should hold that, con­
sistently with the principles of Patton v. United States, 
281 U. S. 276 and Johnson v. Zerbst, 304 U. S. 458, 
such waiver could only be by petitioners “ express and 
intelligent consent,” and that no mere error of peti­
tioner’s counsel could constitute such waiver.

In Carruthers v. Reed, 102 Fed. 933, the Court said, in 
connection with the systematic exclusion of negroes from 
grand and petit juries, page 939:

‘ ‘ The right to challenge the panel (for systematic 
exclusion of negroes) is a right that may be waived 
and is waived if not seasonably presented.”

There the Court noted, page 938, however, that the rec­
ord expressly showed that counsel for accused had de­
liberately waived the right to make such challenge, con­
cluding after mature consideration, first, that to raise the 
question might prejudice his client’s interests, and, second, 
that the jury panel was a favorable one or, as he ex­
pressed it, “ a very good jury” .

The record here shows no such waiver before the trial 
court, even by petitioner’s counsel. On the contrary, it 
shows that petitioner’s counsel specifically moved to quash 
both the grand and petit juries, as violating petitioner’s 
right to equal protection of the laws by reason of the sys­
tematic exclusion therefrom of non-payers of poll taxes, 
constituting petitioner’s entire economic class (R. 18-19, 
Ex. 1, pp. 31-32). Moreover, it shows that petitioner’s 
trial counsel did not offer evidence of the facts of such 
exclusion, first, because of their erroneous belief that the 
Constitution and laws of Virginia required such exclusion 
as a matter of law (R. 18-19, Ex. 1, pp. 59-60) and second,



18

because of their failure to take the precaution of proving 
the facts of such exclusion, lest the Supreme Court of 
Appeals of Virginia should, as it subsequently did, speci­
fically hold that such exclusion was not required by laAv. 
Moreover, the record shows that, on the writ of error to 
the Supreme Court of Appeals to review petitioner’s con­
viction (R. 18-19, Ex. 1, pp. 5-10), petitioner’s counsel 
again specifically alleged unconstitutional exclusion, still, 
however, on the assumption that it was required by the 
Constitution and laws of Virginia, a point not theretofore 
specifically decided by that Court.

It would seem clear that neither the error of petitioner’s 
counsel, in assuming that the Constitution and laws of 
Virginia required such exclusion, nor their error as to the 
necessity of proof of the facts of such exclusion, could 
constitute a waiver of petitioner’s constitutional rights 
against such exclusion.

On the contrary, it would seem that this Court should 
hold that, consistently with the principles declared by this 
Court in Patton v. United States, supra, and Johnson v. 
Zerbst, supra, as to the safeguards against the waiving 
of constitutional rights, petitioner’s constitutional rights 
could not here have been waived except by petitioner’s 
own “ express and intelligent consent” .

It is true that in Patton v. United States, supra, waiver 
of the constitutional right there involved was the right to 
trial by jury at all, while, in Johnson v. Zerbst, supra, it 
was the right to protection of counsel.

It would seem that no reason can be advanced, how­
ever, why like safeguards should not attend any waiver 
of petitioner’s right to indictment and trial by a constitu­
tional jury. On the contrary, this Court has recently said
in the case of Glasser v. United States, ------U. S. --------,
86 Law Ed. 405, 412:



19

“ To preserve the protection of the Bill of Rights 
for hard pressed defendants, we indulge every rea­
sonable presumption against the waiver of funda­
mental rights.”

On this record, it is clear that there was no “ express 
and intelligent consent”  by petitioner to any waiver of 
his constitutional rights to trial by a jury from which 
his economic peers had not been systematically excluded. 
On the contrary, it must be assumed that petitioner in­
tended to insist on those rights and relied, as he had a 
right to do, upon his counsel for their adequate protec­
tion. The error of his counsel as to what procedure was 
necessary adequately to protect those rights certainly 
should not be held the equivalent of “ express and intelli­
gent consent”  to the waiver of them by petitioner.

I V

It would appear that this Court could not have de­
nied certiorari on the ground that the equal protection 
clause of the 14th Amendment is limited to denials 
solely because of race or color, in view of its deci­
sions, not heretofore cited, in which this Court has 
held that clause to extend to inanimate corporations, 
of no race and no color.

Counsel in their brief in support of the petition for 
certiorari failed to call the attention of this Court to the 
following decisions in which it has directly held that the 
equal protection clause of the 14th Amendment extends to 
corporations:

Minneapolis d St. L. R. Co. v. Beckwith, 129 
U. S. 26;

Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232;
Covinaton & L. Tump. Road Co. v. Sandford, 164 

U. S. 579;



20

Kentucky Finance Cory. v. Paramount Auto Ex­
change Cory., 262 U. S. 544;

Power Mfg. Co. v. Saunders, 274 U. S. 490.

Moreover, counsel failed to make clear the real sig­
nificance of the decision of this Court in American Sugar 
Refining Company v. Louisiana, 179 U. S. 89, referred to 
at page 9 of that brief. While, in that case, this Court 
held that the State license tax there in question did not 
arbitrarily discriminate against the corporation there af­
fected, this Court implicitly recognized that, had such tax 
done so, the provisions of the equal protection clause of 
the 14th Amendment would have applied to the corpora­
tion.

Furthermore the language quoted, from that case, and 
from other cases at pages 4 to 14 of the brief in support 
of the petition for certiorari, would seem to make clear 
that, since the equal protection clause of the 14th Amend­
ment is not limited to denials because of race or color, it 
must extend not only to denials because of politics, reli­
gion and nativity, but to denials because of economic 
disabilities of a particular class, or to any other arbitrary 
class discrimination.

Finally, on this point, as shown at p. 9 of the petition 
for certiorari, and at pp. 14-22 of the brief in support of 
that petition, poll taxes in Virginia are, in reality, a 
means of indirect exclusion because of race or color, since 
negroes constitute a large proportion of those unable to 
pay poll taxes on account of their economic disabilities; 
that, as such, poll taxes avoid the patent illegality of 
direct exclusion on account of race or color, and have the 
added advantage of killing two birds with one stone, in 
that they exclude poor whites as well as negroes.



21

V

The denial of certiorari without opinion leaves the 
future administration of criminal law in the State of 
Virginia in hopeless and unnecessary confusion, and, 
unless this court at least states the grounds of such 
denial, this court will undoubtedly be burdened with 
appeals for review, in future cases, which must prove 
either futile or unnecessary.

It is respectfully submitted that this Court should keep 
in mind that the sworn facts presented by the petition for 
habeas corpus to the Supreme Court of Appeals of Vir­
ginia, showing the systematic exclusion of non-payers of 
poll taxes from grand and petit jury service, stand un­
denied on this record. Moreover, counsel submit, those 
facts cannot be denied.

It must be clear, therefore, that, until this Court ex­
pressly states whether certiorari was here denied because 
the 14th Amendment does not extend to such systematic 
exclusion of petitioner’s entire economic class, or was de­
nied because of the error of petitioner’s trial counsel in 
failing to prove the facts of such exclusion on the record 
before the trial court, the State of Virginia may well con­
tinue to practice such exclusion, and its courts may and 
undoubtedly will reject or disregard proof of such exclu­
sion, if such proof be made or offered.

On the other hand, counsel for defendants in future 
cases cannot know whether grand or petit juries are open 
to challenge because of such systematic exclusion, and 
whether, therefore, it will be futile to offer proof of such 
exclusion or, should such proof be made and the courts 
of Virginia reject or disregard it, whether appeal to this 
Court for review will be warranted or will be wholly 
futile.



22

Most important to petitioner, however, is the fact that 
denial of certiorari without opinion leaves petitioner’s 
counsel without any basis for forming an intelligent judg­
ment as to whether petitioner has the constitutional rights 
here claimed; whether those rights have been violated; 
whether remedy exists for their violation under Moore v. 
Dempsey and Hale v. Crawford, supra, and, if so, what is 
the proper procedure to obtain such remedy.

Conclusion

In Pierre v. Louisiana, 306 U. S. 354, this Court said, 
page 358:

“  Indictment by a Grand Jury and trial by a jury 
cease to harmonize with our traditional concepts of 
justice at the very moment particular groups, classes 
or races— otherwise qualified to serve as juries in a 
community—are excluded from such jury service.”

In Smith v. Texas, 311 U. S. 128, this Court said, page 
130:

“ It is part of the established tradition in the use of 
juries as instruments of public justice that the jury 
be a body truly representative of the community. For 
racial discrimination to result in the exclusion from 
jury service of otherwise qualified groups not only vio­
lates our Constitution and the laws under it but is at 
war with our basic concepts of a democratic society 
and a representative government.”

Though both those cases specifically involved only the 
exclusion of negroes from jury service, it would seem im­
probable that this Court would now hold that the princi­
ples there announced were intended to be confined solely 
to exclusion solely because of race or color. The express 
language, particularly in Pierre v. Louisiana, would seem 
to preclude any such limitation.



23

Furthermore, it seems incredible that this Court could 
hold that the fundamental rights recognized by those 
principles can be protected only if the facts of their viola­
tion can be presented to this Court on certiorari to review 
a judgment of conviction obtained in violation of those 
rights, and that such rights cannot be protected where, as 
here, the undenied facts of violation can only be presented 
on habeas corpus, because of absence of proof of them in 
the record before the trial court. So to hold would make 
the protection of constitutional rights depend, not upon 
the undenied facts of their violation, but upon the pro­
cedure by which those facts are shown to this Court.

Finally, counsel here feel a heavy responsibility to this 
Court and to the petitioner in having failed in their brief 
in support of the petition for certiorari to present to this 
Court certain of the foregoing matters which now, for the 
first time, are called to its attention by this petition for 
rehearing.

Counsel most earnestly submit, however, that neither 
such failure on the part of counsel here, nor any error of 
trial counsel as to the procedure necessary to bring before 
this Court the undenied and undeniable facts of violation 
of petitioner’s constitutional rights, should now prevent 
further and more mature consideration of the questions 
here presented, and certainly could not justify permitting 
the execution of petitioner in violation of his constitutional 
rights.

It is therefore respectfully submitted that this Court 
should grant rehearing herein and that, upon such re­
hearing, this Court should either

(a) Issue its writ of certiorari to the Supreme Court 
of Appeals of Virginia requiring that Court to issue a 
writ of habeas corpus; or



24

(b) Expressly recognize petitioner’s right to obtain a 
writ of habeas corpus either from the United States Dis­
trict Court for the Eastern District of Virginia or from 
this Court itself.

For the reasons already given the first procedure would 
seem the more appropriate and orderly.

Respectfully submitted,

J ohn F. F inerty, 
M orris S hapiro, 

Counsel for Petitioner.
T homas H. Stone,
M artin A. M artin,
E rnest F leischman , 

of Counsel.

Certificate

I hereby certify that the foregoing petition for rehear­
ing is presented in good faith and not for delay.

J ohn F. F inerty, 
Counsel for Petitioner.



1