# John R. Jones v. W. K. Cunningham, Jr., Superintendent of Virginia State Penitentiary

> Court of Appeals for the Fourth Circuit · September 14, 1961 · 294 F.2d 608

URL: https://www.frixlaw.com/law-library/cases/9448164

## Case

- **Full name:** John R. JONES, Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of Virginia State Penitentiary, Appellee
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** September 14, 1961
- **Citations:** 294 F.2d 608; 1961 U.S. App. LEXIS 3611
- **Precedential status:** Published
- **Opinion:** Concurrence by Sobeloff
- **Judges:** Sobeloff, Haynsworth, Boreman
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9448164

## Opinion text

SOBELOFF, Chief Judge
(concurring) .
The assumption that on completing a prison sentence, or being paroled, a person has no further interest to contest his record of conviction is contrary to common experience. Society, as our everyday observation confirms, visits upon such persons its strong disfavor, often involving hardship not less severe than imprisonment itself. Where the conviction was obtained by due process these collateral consequences, though unfortunate, cannot be redressed by law. But where constitutional rights have been violated there should be standing to attack a conviction even though the crime has been “paid for.” Particularly is this true where the necessary steps for relief — technical, complicated and challenging to the most astute lawyers — are *613 so time consuming that the prison term runs out before the process is completed.
The instant case, however, presents stronger grounds for allowing such attack than where “mere” social and economic prejudices will be brought to bear on an “ex-con.” Here, not only is Jones still under some restriction, but he remains subject to recommitment to serve out his unexpired term in the event of parole violation, even if the breach is a minor one. This fact, it seems to me, makes our case logically indistinguishable on the issue of justiciability from Fiswick v. United States, 1946, 329 U.S. 211 , 67 S.Ct. 224 , 91 L.Ed. 196 and, on the issue of standing to maintain a collateral attack, from United States v. Morgan, 1954, 346 U.S. 502 , 74 S.Ct. 247 , 98 L.Ed. 248 and Pollard v. United States, 1957, 352 U.S. 354 , 77 S.Ct. 481 , 1 L.Ed.2d 393 .
In all fairness, the right to prosecute the appeal should not be lost in the instant case because, after unavoidably extended proceedings in state and federal courts, the prisoner’s parole was announced to the court on the morning the appeal was scheduled for hearing. Because the time lag between initiation and final disposition of habeas corpus proceedings will so often make the remedy illusory, I would not be disposed to accept without question a state’s right to bar the vindication of constitutional rights by granting a parole. One should not be made to bear the continuing burden of a constitutionally void conviction merely because, the period of actual confinement having ended, no remedy can undo the unjust commitment. This is no reason to withhold the benefit of the remedy’s prospective operation.
It would be difficult to explain why the statutory fiction of constructive custody over a parolee may not be availed of to supply the custody made prerequisite by section 2254 or section 2255. Nevertheless, debate on this point seems to be foreclosed by the Supreme Court’s recent decision in Parker v. Ellis, 1960, 362 U.S. 574 , 80 S.Ct. 909 , 4 L.Ed.2d 963 , which held that a state prisoner’s petition for habeas corpus became moot when his sentence expired. Although this is not a direct holding that a parolee is similarly without standing, we are bound to recognize that, despite intervening decisions, the per curiam opinion in Parker v. Ellis has restored the authority of Weber v. Squier, 1942, 315 U.S. 810 , 62 S.Ct. 800 , 86 L.Ed. 1209 , which, as pointed out by Judge Haynsworth, is here controlling.
On this basis I concur in the dismissal of the appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9448164. Public record. Not legal advice.