Petition for Writ of Certiorari — Baker v. Hunter

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Fre if

Supreme Court of the United States—

OCTOBER TERM, 1943.

No. 200 -

NORMAN G. BAKER, PETITIONER,

VS.

WALTER A. HUNTER, WARDEN, UNITED STATES

PENITENTIARY, LEAVENWORTH, KANSAS,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT, AND SUPPORT-

ING BRIEF.

A. G. Bus,

906 Kahl Building,

Davenport, Iowa,

Counsel for Petitioner.

a Sa ee

PERN OO eee RONEN a peter RS Ree NNER NEN

Index to Petition for Certiorari

I. Summary Statement of the Matters Involved

II. Basis of Jurisdiction __ bepdaaiesiiehak Cee oa

II. Questions an

Prayer

a)

OS TH AS ver AEE EAM AB eT - % ven See

ARATE ARNOT RATERS

Sipreme Court of the United States

OCTOBER TERM, 1943.

NORMAN G. BAKER, PETITIONER,

VS.

WALTER A. HUNTER, WARDEN, UNITED STATES

PENITENTIARY, LEAVENWORTH, KANSAS,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT, AND SUPPORT-

ING BRIEF. ;

To the Honorable Chief Justice, and to the Associate

Justices of the Supreme Court of the United States:

I. SUMMARY STATEMENT OF MATTERS

INVOLVED.

This case challenges the validity of Rule 5 of the

rules adopted by the Supreme Court as the rules of

practice and procedure in all proceedings in criminal cases

after verdict of guilty (7 F. C. A., p. 431).

9

Petitioner has been illegally imprisoned since Febru-

ary 23, 1943. To avoid further illegal imprisonment, this

case is brought to this Court under Sec. 347 of Title 28,

F. C. A., before decision of the case by the Circuit Court

of Appeals from the Tenth Circuit in which it is pending

on appeal from the United States District Court for the

District of Kansas.

Action for release on habeas corpus was brought in

said District Court on or about July 30, 1943, alleging that

Petitioner was wrongfully imprisoned by the Warden of

the United States Penitentiary at Leavenworth after hav-

ing legally completed on February 23, 1943, the service of

the sentence for which he was committed.

Hearing was delayed by the regrettable death of

Judge Hopkins, and on October 19, 1943, Judge Huxman,

sitting as the District Court of Kansas, heard the case

and entered judgment discharging the writ and refusing

relief to Petitioner (Rec. 21). On December 1, 1943, Peti-

tioner perfected his appeal to the United States Circuit

Court of Appeals for the Tenth Circuit (Rec. 21).

The case apparently cannot be reached before the

May, 1944, Term of the Tenth Circuit Court of Appeals.

To await the decision of that court before issuing cer-

tiorari would render the remedy by certiorari of no value.

The validity of Rule V of the rules for criminal cases

after verdict is questioned, and should be passed upon by

this Court which made the rules.

The gist of the question is whether Petitioner, whose

service of sentence to four years imprisonment in the

penitentiary, was commenced on January 25, 1949, by im-

prisonment without his request or consent, in a county

jail to which he had been delivered by the marshal to

await transportation to the penitentiary, and where he

was so imprisoned for one year and two months, can law-

aay

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3

fully be imprisoned in the penitentiary four more years

after affirmance of the judgment on appeal. Petitioner

asks to have applied upon his sentence the year and two

months service cf sentence in county jails while awaiting

transportation to the penitentiary.

The case necessitates clarification of the hazy line be-

tween substantive and procedural law and the determina-

tion whether Rule V of the said rules is void as substan-

tive or is merely precedural and valid, also whether it is

void because not authorized by Sec. 688 of Title 18, F.C. A.

It involves the applicability of Sections 1 and 8 of Article

I of the Constitution to Rule V and necessitates construc-

tion and interpretation of Sections 688 and 709a of Title 18

of the United States Code.

The controversy is one of law only. There is no dis-

pute as to the facts. They are alleged in the petition

(Ree. 4).

They are admitted by the demurrer (Rec. 17), and by

stipulation at the close of the hearing. The facts are set

out in the accompanying brief, pp. 9-13.

Il. BASIS OF JURISDICTION.

This is a petition for writ of certiorari to review the

judgment and decree of the United States District Court

for the District of Kansas prior to the decision on appeal

by the United States Circuit Court of Appeals for the

Tenth Circuit where said appeal is now pending, and prior

to the hearing or submission of the case in the appellate

court (Sec. 204a, Judicial Code as Amended).'

1Sec. 347, Title 28, F. C. A.:

“(a) In any case, civil or criminal, in a circuit court of

appeals, * * * it shall be competent for the Supreme Court

of the United States, upon the petition of any party thereto,

whether Government cr other litigant, to require by certiorari,

4

The case comes within the specific provisions of said

statute.

Carter v. Carter Coal Co., 298 U. S. 238, 80 L. Ed.

1160.

U. S. v. Three Friends, 166 U. S. 1, 41 L. Ed.

897-913.

III. QUESTIONS PRESENTED.

The questions urged for decision of this Court are:

1. Whether by the terms and provisions of Sec. 7092

of Title 18, F. C. A., Petitioner’s service of his sentence

commenced as a matter of law on January 25, 1940, at the

time the United States Marshal, in executing the commit-

ment under which Petitioner is now imprisoned, incarcer-

ated Petitioner in the county jail at Little Rock to await

transportation to the penitentiary at Leavenworth.

2. Whether Rule V of, the rules adopted by the Su-

preme Court prescribing procedure and practice after ver-

dict in criminal cases, embraces a matter of substantive

law which only Congress had power to enact (Const.

Art. I, Secs. 1-8) and is therefore unconstitutional and

void and could not cause Petitioner’s appeal to the Eighth

Circuit Court of Appeals to stay or interrupt service of

Petitioner’s sentence theretofore commenced.

3. Whether the provisions of Sec. 688 of Title 18,

F. C. A., by expressly providing that “the rules made as

either before or after the judgment or decree by such lower

court, that the cause be certified to the Supreme Court for de-

termination by it with the same power and authority, and with

like effect, as if the cause had been brought there by unre-

stricted appeal. * * *

(March 3, 1891, Ch. 517, Sec. 6, 26 Stat. 823: March 3, 1911,

Ch. 231, Sec. 240, 36 Stat. 1157; February 13, 1925, Ch. 229, Sec. 1, 43

Stat. 938, Jenuary 31, 1993. Ch. 14, Sec. 1, 45 Stat. 54; June 7,

1934, Ch. 426, 48 Stat. 926.)”_ -

5

herein authorized may prescribe the times for and the

manner of taking appeals * * * and the conditions en which

supersedeas or bail may be allowed,” impliedly withheld

from the Supreme Court the power to make a rule to stay

execution of a judgment in any way other than by an

order of court allowing bail pending appeal, or an order

recalling an outstanding commitment under which service

of sentence had been commenced.

4. Whether Exhibit II (Rec. 18) had the legal effect

oi suspending the service of Petitioner’s sentence during

the time he was incarcerated in the county jails, neither

the statutes nor rules applicable to the case making any

provision for such an election and Petitioner having no

authority to change the law as to service of sentence nor

to modify the duties of the marshal as to executing the

commitment in question.

5. Whether adding one year and two months’ im-

prisonment in jail to the punishment of four years in the

penitentiary to which Petitioner was sentenced, is so man-

ifestly unjust and so abhorrent to an enlightened sense of

justice that Congress will not be held to have intended

such a result by Sec. 688, Title 18, F. C. A.

IV. REASONS RELIED UPON FOR THE

ALLOWANCE OF THE WRIT.

This case presents for the first time important ques-

tions as to the constitutionality and as to the interpreta-

tion of Rule V of the rules adopted by the Supreme Court

of the United States for practice and procedure after ver-

dict in criminal cases in the United States district courts

and other courts. It presents for the first time an impor-

tant question as to the construction of Sec. 688 of Title 18,

F.C. A. (February 24, 1933, Ch. 119, Secs. 1 to 3, 47 Stat.

RE

6

904; March 8, 1934, Ch. 49. 48 Stat. 399; June 7, 1934, Ch.

426, 48 Stat. 926).

An early authoritative decision on these questions is

of pressing importance to Petitioner because he has al-

ready been imprisoned for approximately eleven months

after completing the service of his sentence as required

by law. Relief from this flagrant violation of his constitu-

tional rights to liberty will be lost if he is subjected to

the delay necessary to reach a decision of his appeal by

the Tenth Circuit Court of Appeals before application for

certiorari is allowed by this Court.

This Court has declared that the boundary line be-

tween substantive law and procedural rules is hazy. The

public interest will be promoted by clarification of that

boundary line to throw light upon the principles to be

applied by the courts in other cases, and by the Advisory

Committee now at work on new rules of procedure for

criminal cases. Similar questions exist as to many other

prisoners and this Court is the only court which can pass

upon the validity and interpretation of said rule without

embarrassment.

This cause was brought and proceeded to judgment

in the District Court of Kansas and aside from the novelty

and importance of the issues presented, the case should

be reviewed for the additional reason that the decision of

the District Court was clearly erroneous and not in ac-

cord with the principles of applicable decisions of this —

Court—among others

Panama Refining Co. v. Ryan, 293 U. S. 388, 79

: Ed. 448.

Wilhamson v. U. S., 207 U. S. 425, 52 L. Ed. 278.

Sibbgch v. Wilson & Co., 312 U. S. 1, 85 L. Ed.

‘ars,

Sunshine Anthracite Coal Co. v. Adkins, 310

U.S. 381, 397, 84 L. Ed. 1263, 1273.

Tete)

REY ee LNT Pe eS Ug hate om

7

Carter v. Carter Coal Co., 298 U. S. 238, 80 L. Ed.

1160.

U. S. v. Cohen Grovery Co., 255 U. S. 81, 65

L. Ed. 516.

Also because of the difference of opinion of the Cir-

cuit Court Judges themselves as illustrated in Aderhold

v. Ellis, 81 F. 2d 543 and the conflict between the deci-

sions of various circuit courts and the Supreme Court of

the United States, as shown by Dimmick v. Tompkins,

194 U. S. 540, 48 L. Ed. 1110; Mosheik v. Bates, 87 F. 2d

211; Moss v. U. S., 72 F. 2d 30, and Shifflett v. Hiatt,

50 F. Sunp. 415; Baker v. U. S.*

Petitioner further alleges that since the taking of said

appeal to the Tenth Circuit Court of Appeals and the

transmission to that court of the transcript of the record

of the District Court of Kansas herein, Appellant has, by

the lapse of time, completed his full term of imprisonment

under the judgment and sentence in question, said four

year term having expired on the 24th of January, 1944.

Wherefore, Your Petitioner respectfully prays that

a writ of certiorari be issued out of and under the seal

of this Honorable Court directed to the United States

Circuit Court of Appeals for the Tenth Circuit, command-

ing that court to certify and to send to this Court for its

review and determination on a day certain therein to be

named, a transcript of the record and proceedings here-

in and that the judgment and order of the United States

District Court for the District of Kansas, pending on said

appeal to the Tenth Circuit Court of Appeals, be reversed;

that it be adjudged that Appellant had completed service

of his sentence as required by law, on the 23rd day of

“8th Circuit Court of Appeals, Motion to Correct Commitment

overruled January 8, 1944; Petiticn for Rehearing Denied January

23, 1944; Opinion not yet Published, but review in this court is

intended.

8

February, 1943; that Appellant, on January 24, 1944, fully

completed service of his sentence in question without re-

gard to any allowance for good behavior and is now en-

titled to unconditional release; that an order be made for

the immediate and unconditional release and discharge of

Appellant; and that your Petitioner have such other and

further relief in the premises as to this Court may seem

meet and just.

A. G. Busu,

906 Kahl Building,

Davenport, Iowa,

Counsel fer Petitioner.