Appendix — Swain v. Pressley

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APPENDIX Ae

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Iu the Supreme Cowt of the United States

OCTOBER TERM, 1975

No. 75-811

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, ET AL.,

Petitioners

—

ROOSEVELT F. PALMORE

C. L. SWAIN, SUPERINTENDENT, LORTON REFORMATORY,

Petitioner

JASPER C. PRESSLEY

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

PETITION FOR WRITS OF CERTIORARI FILED DECEMBER 5, 1975

CERTIORARI GRANTED FEBRUARY 23, 1976

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-811

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, ET AL.,

pao Petitioners

ROOSEVELT F. PALMORE

C. L. SWAIN, SUPERINTENDENT, LORTON REFORMATORY,

Petitioner

ot od

JASPER C, PRESSLEY

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

INDEX*

Page

I. Superior Court of the District of Columbia, et al. Vv.

Palmore:

ee 1

Application for Writ of Habeas Corpus ....0............60cccccceceeeeee 3

*A copy of the opinions of the United States Court of Appeals

for the District of Columbia Circuit were filed as Appendix A and

D to the petition for a writ of certiorari (pp. la-52a and 57a-63a).

The judgments of the court of appeals were reproduced as Appen-

dices B and E to the petition. The order of the United States District

Court discharging the rule to show cause and dismissing the peti-

tion in the Palmore case is reproduced as Appendix C. The order

and the memorandum of the United States Court discharging the

rule to show cause and dismissing the petition in the Pressley case

are reproduced as Appendices F and G.

ii INDEX

Applicant's Memorandum of Points and Authorities in Sup-

port of Application for a Writ of Habeas Corpus ................

Order Directing Respondent to Show Cause ..................c0

Return and Answer to Order to Show Cause and Memorandum

0 sensstnaeicedinsenmanenmiaan anciatiaieniieaa

Petitioner’s Supplemental Memorandum ....................cceeres

Appellant’s Motion for Leave to Amend Jurisdictional Allega-

Cem .....ncccoocccccencccccsnocerssnssensesenscocsstasonesnsnssannansseeinanninannannnn==nEn

Opposition to Appellant's Motion for Leave to Amend Juris-

diction Allegations ...................... smsncseveneessinameantedieimaanaaaaaan

Order Granting Motion for Leave to Amend Jurisdictional

AMemAthORS ...ccccccceccccetssccccccccecessceesecoscesscsssosssssnossoscsesosssessseseeeenes

Applicant’s Amended Jurisdictional Allegations. ....................

Il. Swain v. Pressley:

Relevant Decket Entries .............cccccccccscrsssrsccesssesscsccsscsssssseveseseseees

Petition for Issuance of Writ of Habeas Corpus .................... oe

Order Authorizing Filing and Directing Respondent to Show

ID ccccomsenanene eessvsooesseomassonsessssnnnesesenensieessnnsnanslannnsannnnnnnnnnn

Answer to Petition for Writ of Habeas Corpus and Rule to

Show Cause ............ sensnenestcensenseeuneiennal nccusbiessidiaanaaaaaaa

Supplemental Return and Answer to Rule to Show Cause......

Reply of Petitioner ............csssesesseesseeeesnnerensenes aaccttiedienenainas

Answer to the Reply of Petitioner (Not including the

Memorandum of Law, which is the same as filed in the

| )

Transcript of Hearing on Writ of Habeas Corpus held on

July 16, 1973, before Honorable Gerhard A. Gesell .............

The Judgment of the District of Columbia Court of Appeals

in Pressley v. United States, No. 6063, dated May 22, 1972..

The Judgment of the District of Columbia Court of Appeals

in Pressley v. United States, No. 6631, dated March 2,

BOTT ..... -ceseccecccccccocecssesnsnsesssecscoesnessennnesssensnnnnnasnsnnnannnnnnnnn===nm

The Judgment of the District of Columbia Court of Appeals

in Pressley v. United States, No. 6803, dated July 6, 1973..

III. Order in respect to both cases:

The Order allowing Certiorari ..............ccc:ccccccceceeeeeeeeeeeeeereeenennene

109

111

114

116

I. Superior Court of the District of Columbia, et al. v.

almore

RELEVANT DOCKET ENTRIES

Date Entries Judge

May 15, 1973 Application for Writ of Habeas C :;

P & A’s; Appendix —

May 16, 1973 Order directing respondent to show cause

on or before the 10th day after service

Judge McGuire

May 16, 1973 Rule to show cause & copies issued;

ser: 5/18/ on #2 & #3 #1 5-25-73

June 4, 1973 Return and answer of respondents to show

cause; memorandum of Law; c/m 6-4-73; Exh. Ap-

pearance Harold H. Titus, Jr. and Craig M. B

U.S. Attorney’s Office. » on

June 7, 1973 Order setting hearing on Rule to Show

Cause for June 18, 1973 at 9:30

Judge Sirica

June 8, 1973 Order granting petitioner’s motion to con-

tinue bail pending appeal.

P . Judge Sirica

une 15, 1973 Reply Memorandum b titi

AF y petitioner p/s

June 21, 1973 Supplemental Memorandum of petiti

p/s 6/21/78. petitioner ;

Jul. 138, 1973 Further Supplemental Memorand

Petitioner; Exhibit; p/s 7/13/73. andum of

Jul. 16, 1973 Appearance of Thomas G. Krattenmaker

entered as co-Counsel for petitioner.

Jul. 15, 1974 ORDER discharging rule to show cause

and dismissing petition (signed 7/10/74)

a Judge Waddy

Date Entries Judge

Jul. 17, 1974 NOTICE of Fag A — from

f July 15, 1974. to U.S. ,

order of July py Judge Waddy

* * * —

July 31, 1975 Certified copy of judgment USCA re-

versing and remanding cause to U.S. District Court.

Opinion attached.

Aug. 1, 1975 Transmittal sheet U.S.C.A. returning

original record to U.S.D.C.

Aug. 8, 1975 Report and recommendation of Mag.

Margolis.

oo o . *

Sept. 3, 1975 AMENDED Jurisdictional Allegations by

applicant; attachment; ¢/s 9-3-75.

*~ * - o

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Habeas Corpus No. 31-73

[Filed May 15, 1973, James F. Davey, Clerk]

ROOSEVELT F. PALMORE,

1880 South Addison Road,

District Heights, Maryland, APPLICANT

Vv.

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA,

Fifth and E Streets, N.W.,

Washington, D.C.,

THE ATTORNEY GENERAL OF THE UNITED STATES,

United States Department of Justice,

Washington, D.C.,

and

DIRECTOR, DISTRICT OF COLUMBIA DEPARTMENT

OF CORRECTIONS,

614 H Street, N.W.,

Washington, D.C., RESPONDENTS

APPLICATION FOR WRIT OF HABEAS CORPUS

Roosevelt F. Palmore respectfully applies for the is-

suance of a writ of habeas corpus and in support thereof

alleges and represents as follows:

1. Applicant is a citizen of the United States and

is now in custody under the authority of the United

States of America, and for an act done or omitted

pursuant ty an Act of Congress, and in violation of the

Constitution of the United States.

2. Applicant is presently in the custody of the Su-

perior Court of the District of Columbia and the judges

and officers thereof. As more fully alleged herein, ap-

plicant will shortly be in the custody of either the At-

torney General of the United States and his subordinates,

or the Director of the District of Columbia Department

of Corrections and his subordinates, or both.

3. This Court has jurisdiction to entertain this ap-

plication and issue the writ of habeas corpus as prayed

herein pursuant to 28 U.S.C. §§ 2241 et seg. Jurisdic-

tion is also invoked under and by virtue of Article I,

§9, cl. 2 and Article III of the Constitution of the

United States and 28 U.S.C. § 1651.

4. On April 27, 1971, the Superior Court of the

District of Columbia entered a judgment convicting ap-

plicant of the crime of carrying a dangerous weapon

in violation of D.C. Code § 22-3204, and sentencing him

to imprisonment for not less than two years, nor more

than six years. Execution of the sentence was sus-

pended, except for six months, and applicant was placed

on probation for six years. The aforesaid judgment

does not state the name or title of the person having

custody of applicant.

5. Applicant commenced service of the aforesaid sen-

tence on April 27, 1971, and was incarcerated in the

custody of either the Attorney General of the United

States, or the Director of the District of Columbia

Department of Corrections, or both, for a period of

thirty seven days when, by further order, the Superior

Court of the District of Columbia admitted applicant

to bail pending appeal. At the time this application

is filed, anplicant is in custody pursuant to the order

of the Superior Court admitting him to bail pending

appeai.

6. On April 28, 1972, the District of Columbia Court

of Appeals entered a judgment affirming applicant’s

conviction, but thereafter that court stayed transmittal

of its mandate pending review by the Supreme Court

of the United States.

7. On April 24, 1973, the Supreme Court of the

United States granted, in part, applicant’s petition for

a writ of certiorari and affirmed the judgment of the

District of Columbia Court of Appeals. The Supreme

Court denied applicant’s petition for writ of certiorari

with respect to the constitutional claim raised by this

application.

8. The sole evidence against applicant was obtained

by police officers in violation of applicant’s right to be

AOS A CI te a Ngee

ee ee

free from unreasonable searches and seizures under the

Fourth Amendment to the Constitution of the United

States in that:

(a) while applicant was violating no law, police of-

ficers, acting without probable cause to believe that an

offense had been, was being, or was about to be, com-

mitted and also acting without a suspicion having an

articulate basis in fact to warrant the intrusion, se-

lected applicant for a “spot check,” forced his automobile

to the side of the road, and detained applicant pending

completion of the “spot check” ;

(b) among other things, the purpose of the “spot

check” was to investigate suspicious persons and to

complete investigative forms prepared by a division of

the Metropolitan Police Department and to see if ap-

plicant had committed a crime;

the point in time when the police officers had forced

applicant to the side of the road and detained him,

a gun was seized by the officers from applicant’s auto-

mobile;

(d) the gun which the officers seized as aforesaid

was admitted into evidence at applicant’s trial before

the Superior Court of the District of Columbia over

applicant’s Fourth Amendment objection.

9. The Superior Court of the District of Columbia

and the District of Columbia Court of Appeals have

each denied applicant relief from the violation of ap-

plicant’s right to be free from unreasonable seizures and

searches in accordance with the Fourth Amendment to

the Constitution.

10. No judge or court of the United States has de-

termined the legality of applicant’s detention on the

grounds set forth herein, either on prior application

for writ of habeas corpus or otherwise.

11. Applicant is now in custody and restrained of

his liberty by virtue of the order of the Superior Court

of *he District of Columbia admitting him to bail pend-

ing appeal. On information and belief, the mandate of

the Supreme Court of the United States will issue on

or about May 19, 1973, and the mandate of the Dis-

trict of Columbia Court of Appeals will issue on or

about May 21, 1973. Thereafter, and on or about May

22, 1973, applicant will be returned to the custody of

the Attorney General of the United States or the Di-

rector of the District of Columbia Department of Cor-

rections, or both, pursuant to the judgment of convic-

tion entered by the Superior Court of the District of

Columbia.

12. Both the aforesaid order of the Superior Court

of the District of Columbia admitting applicant to bail

pending appeal and the judgment of conviction of that

court are in violation of the Fourth Amendment to the

Constitution of the United States.

WHEREFORE, this application should be granted

and a writ of habeas corpus should issue.

/s/ Frank F. Flegal

FRANK F. FLEGAL

Georgetown University Law Center

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

(624-8208)

Attorney for Applicant

May 15, 1973

VERIFICATION

DISTRICT OF COLUMBIA: ss.

ROOSEVELT F. PALMORE, being duly sworn, de-

poses and says that he has read the foregoing application

for a writ of habeas corpus and that the factual state-

ments, allegations and representations set forth therein

are true and complete.

/3/ Roosevelt F. Palmore

ROOSEVELT F.. PALMORE

Subscribed and sworn to before me this 15th day of

May, 1973.

/s/ Anna M. Snow

Notary Public

Comm. Exp. 5/14/77

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Habeas Corpus No, 31-738

(Filed May 15, 1973, James F. Davey, Clerk]

ROOSEVELT F. PALMORE, APPLICANT

Vv,

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, et al.,

RESPONDENTS

APPLICANT’S MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF APPLICATION

FOR A WRIT OF HABEAS CORPUS

Preliminary Statement

Applicant seeks issuance of a writ of habeas corpus

on the ground that the order and judgment of con-

viction which constitute the basis for the restraint of

applicant’s liberty are in violation of the Fourth Amend-

ment to the Constitution. Two issues are presented for

the Court’s determination. First, the threshhold ques-

tion of jurisdiction to entertain this application. Second,

assuming jurisdictiom, the merits of applicant’s Fourth

Amendment claim. We address these issues seriatim

after first setting forth the pertinent facts.’

The Facts

Resolution of the jurisdictional issues does not re-

quire a detailed statement of the facts. Thus, for the

Court’s convenience, we first set forth a summary of the

‘As an appendix to this memorandum, applicant has annexed a

copy of the printed record filed with the Supreme Court of the

United States. This record was designated and filed pursuant to

agreement between applicant’s counsel and the Solicitor General

of the United States in accordance with the Rules of the Supreme

Court and contains all portions of the local court record pertinent

to the issues raised here.

i AE A ay

i a ee

pertinent developments in the case sufficient to permit

full consideration of the question of jurisdiction. There-

after, as necessary for disposition of applicant’s Fourth

Amendment claim, we detail the pertinent facts reflected

in the local court record.

A. Summary of the Case. On February 23, 1971,

a grand jury returned an indictment in the Superior

Court of the District of Columbia charging applicant

with carrying a dangerous weapon, a gun, in violation

of D.C. Code § 22-3204. Prior to trial, applicant moved

the Superior Court to dismiss the indictment contend-

ing that only a court ordained and established in ac-

cordance with Article III of the Constitution had juris-

diction to hear and determine the charge against him

(R.? 4). Applicant also moved for an order suppressing

as evidence a gun, and all testimony pertaining thereto,

on the ground that his Fourth Amendment right to be

free from unreasonable searches and seizures had been

violated by police officers in obtaining that gun (R. 5).

The Superior Court denied both motions (R. 8-11, 42-

43), found applicant guilty of the charge set forth in

the indictment (R. 47), and thereafter imposed sentence

and entered its judgment of conviction (R. 50).

Applicant perfected an appeal to the District of Co-

lumbia Court of Appeals. On April 28, 1972, that court

affirmed the judgment of the Superior Court, expressly

passing on both of the constitutional issues which ap-

plicant had raised in the trial court. Palmore v. United

States, 290 A.2d 573 (D.C. App. 1972) (R. 52-68).

Applicant sought review in the Supreme Court of

the United States invoking alternatively that Court’s

appellate jurisdiction pursuant to 28 U.S.C. § 1257(2)

and its certiorari jurisdiction prrsuant to 28 U.S.C.

§ 1257(3). On April 24, 1973, the Supreme Court held

that it lacked appellate jurisdiction but granted a writ

of certiorari limited to applicant’s claim under Article

III of the Constitution. Palmore v. United States, ——

U.S. ——, 41 L.W. 4528, 4529-4530. That contention

* The abbreviation “R.” refers to the record annexed to this

memorandum as an appendix. See supra, p. 1 n.1.

is, of course, foreclosed and is not pressed here. The

Supreme Court, however, expressly declined to pass on

applicant’s claim under the Fourth Amendment to the

Constitution, denying the petition for writ of certiorari

on that issue. Palmore v. United States, supra, 41

L.W. at 4530 n.6. That is the sole issue raised in this

application for writ of habeas corpus and the threshhold

issue thus turns on this Court’s jurisdiction to entertain

this application under these circumstances.

B. The Facts.’ On January 16, 1971, Officers Busker

and Morrissette were assigned to the Specia! Operations

Division (“S.0.D.”) of the Metropolitan Police Depart-

ment, working in casual clothes in an unmarked police

vehicle (R. 12). About 8:00 p.m. that evening, these

officers were parked at the curb near Vermont and

Florida Avenues, N.W., when they observed applicant

drive by in an automobile (R. 19-20). Applicant had

violated no law or traffic regulation, there was no ap-

parent equipment defect on his automobile, the officers

had received no word that this vehicle was reported

stolen, and the officers had no other factual basis to

believe that applicant was engaged in criminal activity

(R. 61-62, 35).*

Noting that the automobile had Virginia rental “tags”

(R. 12), the officers decided to stop applicant for a

“spot check” (R. 18, 35)° pursuant to instructions given

‘The facts set forth herein are taken solely from the local court

record. Although applicant and his witness gave a different version

of the events than did the police officers, the trial court believed

the officers (R. 43). We do not ask this court to pass upon credi-

bility in this habeas corpus proceeding. Rather, we have confined

our statement of the facts to the testimony of the police officers,

i.e., the Government's version of the facts.

* Both the District of Columbia Court of Appeals (290 A.2d at

581; R. 61-62) and the Supreme Court of the United States (41

L.W. at 4528) made findings on this point. The Government has

never contended otherwise.

°“A “spot check,” also referred to interchangeably as a “traffic

check” (R. 25), consists of stopping a vehicle and demanding that

the operator produce for inspection his driver's license and regis-

tration certificate (R. 18, 38). During a “spot check,” special forms

are completed and returned to the 8.0.D. for departmental use (R.

35-36).

them by their superiors (R. 19, 35). Officer Busker,

the senior officer (R. 39) who decided to make the

“spot check” (R. 14, 20), had never received instruc-

tions as to the basis by which he was to select a par-

ticular vehicle for a “spot check,” and he believed that

“this is left up to each individual officer” (R. 19).

While his reason for stopping a particular automobile

varies at “a given time” (R. 19), Officer Busker fre-

quently stops rented automobiles and had been doing

so for “over a year” when this case was tried in the

Superior Court (R. 22). Officer Busker stops rented

automobiles because:

. a lot of these care are rented, and are not

taken back on time, and on other occasions I have

personally known where an officer stopped a rental

car and got about $6,000 worth of dope out of the

car” (R. 21).

Officer Busker is concerned about overdue rental cars

because, in his view, “it’s a criminal charge” to operate

a rental car with an overdue agreement (R. 26), and

he thus conducts “spot checks” so that “the man driving

can prove that it’s his car” (R. 25).

A special form had been prepared by S.O.D. for its

officers to complete when “spot checks” are made (R.

35). This form, which is not a numbered police de-

partment form (R. 36), is handed in at the conclusion

of an officer’s duty and lists “the information that the

department would like” including “the name, the ad-

dress of the person driving, the color of the vehicle,

the tag number, the driver’s permit number, and the

color, the number of occupants in it” (R. 35-36).

Pursuant to this “spot check” policy, the officers forced

applicant to the side of the road (R. 20, 22, 29, 30)

after advising a second unmarked police car manned

by two other plainclothes officers of their intentions

(R. 29, 38-39). Applicant stopped his car, got out of

the vehicle, and walked toward Officer Busker (R. 14),

who asked applicant to produce his driver’s license and

rental agreement form (R. 15). Applicant immediately

produced a valid driver’s license (R. 15) and returned

to the automobile to obtain the rental form which was

in the glove compartment (R. 15). During this time,

applicant was not free to refuse the officers’ request and

drive away (R. 28).

Applicant’s rental form bore an expiration date several

days earlier, and the officer engaged applicant in a

conversation lasting a minute or two “about the rental

agreement” (R. 18, 23). While Officer Busker and

applicant were engaged in this conversation, Officer Mor-

rissette stationed himself on the passenger side of the

automobile in order to “protect” his partner (R. 38).

He was “observing everything that might be inside the

car” (R. 37) because there might be “numerous things

in the glove compartment that [applicant] could be

charged with” (R. 40). By shining his flashlight beam

into the car (R. 32) and by bending [his] torso (R.

37), Officer Morrissette observed “the hammer mecha-

nism” of a gun under the lowered armrest (R. 32). He

notified Officer Busker of his discovery, and applicant

was placed under arrest (R. 18, 32-35).

The Superior Court denied applicant’s motion to sup-

press as evidence the gun, and testimony relating thereto,

holding that the “spot check” procedure revealed by this

record was not “unreasonable even under the Fourth

Amendment to the Constitution” (R. 42). The District

of Columbia Court of Appeals agreed (R. 61-66).

ARGUMENT

THIS COURT HAS JURISDICTION TO ISSUE

THE WRIT

The jurisdictional inquiry involves two separate con-

siderations. First, is the applicant in “custody” within

the meaning of 28 U.S.C. § 2241?° Second, is this Court

®* Since the District of Columbia is not a “state” absent a clear

Congressional intention to treat it as such in a particular circum-

stance, Palmore v. United States, —— U.S. ——, 41 L.W. 4528,

4529-4530 (1973); District of Columbia v. Carter, —— U.S. ——,

possessed of jurisdiction to issue a writ of habeas corpus

on application of one convicted by the local District of

Columbia courts after the applicant has unsuccessfully

sought vindication of a constitutional’ claim in the local

courts? For reasons which follow, we submit that both

questions must be answered affirmatively.

It is, of course, fundamental that the writ will issue

only on the application of one in “custody.” At the

time this application was filed, applicant was enlarged

on bail pending appeal from the judgment of conviction

entered by the Superior Court. That status constitutes

“custody” within the meaning of habeas corpus statutes.

Hensley v. Municipal Court, —— U.S. ——, 41 L.W.

4513 (1978). Absent intervention by this Court," ap-

plicant will shortly be subject to eit! ur actual incarcera-

tion or an extended period of probation. That status,

like applicant’s present status, also constitutes “custody”

for purposes of the habeas corpus statutes. Jones V.

Cunningham, 371 U.S. 286 (19638); Stolte v. Laird, 353

F. Supp. 1392, 1895 (D.D.C. 1972) (Robinson, J.). It

is thus clear that applicant meets the “custody” require-

ment for habeas corpus relief.

Putting to one side for a moment any sui generis

problems which may have been created by the reorganiza-

tion of the courts in the District of Columbia, it is also

clear that applicant has satisfied the standard exhaus-

tion requirement which is a precondition to an applica-

98 S. Ct. 602, 604 (1973), we contend that the appropriate juris-

dictional statute is 28 U.S.C. § 2241, not 28 U.S.C. § 2254 which

pertains to state “custody.” In any event, the “custody” test is

the same under either statute. Cf. Heflin v. United States, 358 U.S.

415 (1959).

' This application tenders for decision only a Fourth Amendment

claim which is clearly cognizable on application for habeas corpus

by one held in either state or federal custody. Kaufman y. United

States, 394 U.S. 217 (1969). There is thus no occasion to decide

the availability of the writ when sought on a purely “local” issue.

* Applicant’s present status pursuant to the bail order of the

Superior Court will continue pending disposition of this application

unless otherwise ordered by the Court. Rule 23(a), F.R.A.P. There-

after, applicant’s custody will turn on the disposition of this appli-

cation in accordance with Rule 23(b), (c), F.R.A.P.

tion for habeas corpus. Roberts v. LaVallee, 389 U.S.

40 (1967); Brown v. Allen, 344 U.S. 448 (1953). As

Roberts and Brown made clear, it is not necessary that

an applicant for federal habeas corpus make a post-con-

viction application in the state courts if the applicant

has already unsuccessfully urged the very point on a

direct appeal in the state courts. The same principle

is applied in federal custody cases. Cf. Noyd v. Bond,

395 U.S. 683 (1969); Gusik v. Schilder, 340 U.S. 128

(1950) ; Parisi v. Davidson, 405 U.S. 84 (1972).* Thus,

unless the dual court system in the District of Columbia

calls for a different jurisdictional rule, it is plain that

the applicant satisfies all the jurisdictional and comity

requirements of 28 U.S.C. § 2241."° We accordingly turn

to an analysis of the District of Columbia statutes and

considerations and demonstrate that these matters do

not call for a different conclusion.

There are three separate statutory provisions of rele-

vance to the jurisdictional inquiry. First, the general

federal habeas corpus statute, 28 U.S.C. §§ 2241 et seq.,

upon which we rely. Second, the local habeas corpus

statute, D.C. Code § 16-1901. Finally, the local post-

conviction relief statute, D.C. Code § 23-110. As we pro-

ceed to demonstrate, these statutes are not in conflict

and support this Court’s jurisdiction in the circum-

stances of this case.

* The cited federal custody cases illustrate the exhaustion prin-

ciple as applied to military prisoners seeking habeas corpus in the

federal civilian courts. See generally, Sherman, Judicial Review of

Military Determinations and the Exhaustion of Remedies Require-

ment, 55 Va.L.Rev. 483 (1969). The same principles are applied

when territorial prisoners seek federal habeas corpus. E.g., Mal-

donado V. Delgado, 345 F. Supp. 993 (D.P.R. 1972).

’° Applicant satisfies three separate jurisdictional requirements

of an application for habeas corpus pursuant to 28 U.S.C. § 2241.

First, applicant is “in custody under or by color of the authority

of the United States” within the meaning of 28 U.S.C. § 2241(c)(1).

Benson V. Henkel, 198 U.S. 1 (1905). Second, applicant is in cus-

tody “for an act done or omitted in pursuance of an Act of Con-

gress” within the meaning of 28 U.S.C. § 2241(c)(2). Palmore v.

United States, —— U.S. ——, 41 L.W. 4528, 4531, 4533, 4534

(1973). Finally, applicant “is in custody in violation of the Consti-

tution * * * of the United States” within the meaning of 28 U.S.C.

§ 2241(c)(3). Kaufman v. United States, 394 U.S. 217 (1969).

First, it is obvious that this Court is a “district

court” within the meaning of 28 U.S.C. § 2241. Congress

has expressly defined the term “district court’ to mean

“the courts constituted by chapter 5 of [title 28, United

States Code].” 28 U.S.C. $451. This Court is a

court constituted by chapter 5. 28 U.S.C. § 88. See

O’Donoghue v. United States, 289 U.S. 516 (1933) ; Pal-

more V. United States, —— U.S. ——, 41 L.W. 4528,

4533 (1973). No provision of the District of Columbia

Court Reform and Criminal Procedure Act of 1970, 84

Stat. 473 et seq., purports to provide otherwise, or to

amend the federal habeas corpus act so as to exclude this

Court from the “district court[s]” vested with federal

habeas corpus jurisdiction. It is therefore not necessary

to grapple with the serious constitutional problems which

would arise had Congress done so. See infra, pp. 12-13.

Second, D.C. Code § 16-1091, as amended by the Court

Reorganization Act, §145(h), 84 Stat. 560, vests this

Court with jurisdiction to issue writs of habeas corpus

“to Federal officers and employees” while conferring

similar jurisdiction on the Superior Court with spect

to writs “directed to any other person.” This, we sub-

mit, is merely an illustration of the frequent situation

where this Court has jurisdiction pursuant to two dif-

ferent statutes. Cf. Graham v. Brotherhood of Locomotive

Firemen, 338 U.S. 232 (1949). A writ of habeas corpus

may issue on grounds other than those specified in the

general habeas corpus statutes, and in such a situation,

the applicant must direct his application to the appropri-

ate District of Columbia Court in accordance with D.C.

Code § 16-1901. The fact that additional habeas corpus

jurisdiction is vested by that statute does not preclude

the exercise of general habeas corpus jurisdiction under

28 U.S.C. $$ 2241 et seg. See, e.g., Stewart v. Over-

holser, 87 U.S.App.D.C. 402, 186 F.2d 339 (1951) (en

bane); Bland v. Rodgers, 332 F. Supp. 989, 992 (D.D.C.

1971).

Finally, the local post-conviction statute, D.C. Code

§ 23-110, must be considered. That statute provides:

“An application for a writ of habeas corpus in be-

half of a prisoner who is authorized to apply for

relief by motion pursuant to this section shall not

be entertained by the Superior Court or by any

Federal or State court if it appears that the appli-

cant has failed to make a motion for relief under

this section or that the Superior Court has denied

him relief, unless it also appears that the remedy

by motion is inadequate or ineffective to test the

legality of his detention.” D.C. Code § 23-110(g).

There are two ways to read this confusing provision

of law. First, the section may be read to mean that no

federal court shall entertain an application for writ of

habeas corpus involving a federal constitutional issue un-

less either (1) the applicant has exhausted his local post-

conviction remedies or (2) the local courts have passed

upon the constitutional claim and denied relief. This

reading, the one for which we contend, presents no con-

stitutional difficulties and comports with the general

principles of exhaustion set forth in cases such as Wil-

wording Vv. Swenson, 404 U.S. 249 (1971); Roberts v.

LaVallee, 389 U.S. 40 (1967); and Brown v. Allen, 344

U.S. 443 (1953). This reading comports with the sprace

legislative history,’' maintains a local-federal balance be-

tween the courts in the District of Columbia, extends full

comity to the local courts, and preserves to the constitu-

tional courts in the District of Columbia the “last say”

on federal constitutional matters. Palmore v. United

States, U.S. ——, 41 L.W. 4528, 4533 (1973); Fay

v. Noia, 372 U.S. 391 (1963) ; Kaufman v. United States,

394 U.S. 217 (1969); Brown v. Allen, 344 U.S. 443, 508

(1953) (separate opinion of Frankfurter, J.) ; Bator and

1 This section commanded only passing reference in the legisla-

tive reports. The Senate Report merely states: “Rather than re-

lying on the inherent power of the superior court to review judg-

ments of conviction, the new section provides statutory procedures

for postconviction challenges. Section 23-110 is modeled upon 28

U.S.C. section 2255 with only the necessary technical changes.” S.

Rep.No. 91-405, 91st Cong., Ist Sess. at 38 (1969). The House

Report is even more terse. H.R.Rep.No. 91-907, 91st Cong., 2d Sess.

at 171 (1970). Neither in the legislative reports nor in the reported

hearings and debates is there any suggestion that Congress intended

to suspend the availability of the writ of habeas corpus from the

federal constitutional courts.

Hart, The Supreme Court, 1958 Term, Foreword: The

Time Chart of the Justices, 73 Harv. L. Rev. 84, 106-107

(1959).

The other reading of this section would always pre-

clude a federal constitutional court from considering an

application for writ of habeas corpus claiming denial of

a federal constitutional right since it will always be the

case that either (1) the applicant has remaining a post-

conviction remedy in the local courts or (2) the local

courts have rejected his constitutional claim and denied

relief."* There are two reasons why, we submit, the Court

should decline to adopt this reading of the statute.

First, this reading would make the District of Colum-

bia the only place in the nation where a criminal defend-

ant can never obtain a ruling on a federal constitutional

issue from a federal constitutional court. The Supreme

Court’s recent opinion sharply points out the contrast

between the non-constitutional local courts and the con-

stitutional status of this Court. Palmore v. United States,

U.S. , 41 L.W. 4528 (1973). In holding that

Congress need not provide a constitutional court to hear

and determine criminal charges against persons accused

of violating a local criminal statute, the Supreme Court

relied on the non-availability of a constitutional court in

state criminal trials, 41 L.W. at 4528, 4532, in criminal

trials before federal military tribunals, 41 L.W. at 4532,

and in criminal trials before federal territorial courts,

41 L.W. at 4532. Yet, in each of these situations, vin-

dication of federal constitutional claims in the constitu-

tional courts by writ of habeas corpus is available.** As

%In Bland v. Rogers, 332 F. Supp. 989 (D.D.C. 1971), Judge

Walsh was confronted with a unique third possibility, for in that

case the local judge had denied an application “without prejudice.”

In those circumstances, Judge Walsh found jurisdiction under 28

U.S.C. § 2241 although he indicated, in dictum, that there would

have been no jurisdiction had the local judge denied the application

“with prejudice.” 332 F. Supp. at 992.

13 E.g., Fay v. Noia, 372 U.S. 391 (1963) (state court defendant) ;

Burns v. Wilson, 346 U.S. 137 (1953) (military defendant) ; Stolte

v. Laird, 353 F. Supp. 1352 (D.D.C. 1972) (military defendant) ;

Maldonado v. Delgado, 345 F. Supp. 993 (D.P.R. 1972) (defendant

we read the Supreme Court’s opinion, the same is true

in the District of Columbia, for the Court pointed out

that “the position of the District of Columbia defendant

is similar to that of the citizen of any of the 50 States

when charged with violation of a state criminal law

....” Palmore v. United States, supra, 41 L.W. at

4528." Thus it was that the Supreme Court, pointing

out the distinction between the local courts and the con-

stitutional courts within the District of Columbia, noted:

“ . . the United States District Court for the Dis-

trict of Columbia and the United States Court of

Appeals for the District of Columbia Circuit are con-

stitutional courts manned by Art. III judges to which

the citizens of the District must or may resort for

consideration of those constitutional and statutory

matters of general concern... .” Palmore v. United

States, supra, 41 L.W. at 4533 (emphasis added).

That is precisely what applicant has done, seeking to

avail himself of the right to seek federal habeas corpus

which would be available in any other part of the nation.

It ought to take more than an awkwardly worded sen-

tence with no evidence of legislative intent te deprive him

of the very fundamental privilege of the writ of habeas

corpus.

There is a further reason why § 23-110(g) should not

be construed to preclude habeas corpus jurisdiction in the

constitutional courts, for it is fundamental that statutes

will be construed to avoid constitutional questions and

serious constitutional issues would be presented if Con-

gress ever atttempted to suspend the availability of the

writ in the constitutional courts. As the Supreme Court

convicted by local territorial court). In all three situations, of

course, exhaustion of state, military or local court remedies is a

precondition to federal habeas corpus.

This was consistent with the Government’s argument that

“Congress merely sought to establish a local court system, com-

parable to those in the several states, for adjudication of all non-

federal matters arising in the District of Columbia.” Brief for the

United States, Palmore v. United States, No. 72-11, Oct. T. 1972,

at p. 48. Nothing, of course, could be more “federal” that an issue

arising under the federal Constitution.

en ae ee

has made clear, one of the inherent attributes of con-

stitutional courts is the power to issue writs of habeas

corpus. McNally v. Hi' 293 U.S. 181, 185 (1934);*

United States ex rel. Turner v. Williams, 194 U.S. 279,

295 (1904) (Brewer, J., concurring); Rowe v. Peyton,

383 F.2d 709, 715 (4th Cir. 1967), aff'd., 391 U.S. 54

(1968). As Professor Freund has argued, “{H]aving

established Federal courts Congress would be powerless

to deny the privilege of the writ. Otherwise Article I,

section 9 would be reduced to a dead letter.” Brief for

Respondent, United States v. Hayman, No. 23, Oct. T.

1951, at p. 29. The Supreme Court has quoted Professor

Freund’s brief on this very point with approval in Fay

v. Nowa, 372 U.S. 391, 406 n.15 (1963). Since the priv-

ilege of the writ can only be suspended in cases of “rebel-

lion or invasion,” Art. I, § 9, cl. 2, it is clear that any

construction of the local post-conviction remedy statute

which would bar resort to the federal constitutional courts

for the adjudication of federal constitutional issues would

raise substantial doubts as to the statute’s validity under

the Suspension Clause of the Constitution. Hornbook

principles of statutory construction call for a reading

that avoids constitutional doubts, and this is particularly

true where the statute, as here, is far from clear on its

face and comes before the Court unaccompanied by any

legislative expression of an intent to suspend the writ.

Dorsey v. Gill, 80 U.S.App.D.C. 9, 16, 148 F.2d 857, 864,

cert. denied, 325 U.S. 890 (1945).

#8 McNally was overruled on its construction of “custody” within

the meaning of the habeas corpus statutes in Peyton v. Rowe, 391

U.S. 54 (1968), but the Supreme Court said nothing do detract

from the validity of the point for which we cite the case.

by Of course, protection against abuse of the writ does not con-

stitute a suspension of the writ. But that protection is built into

the federal statutes for 28 U.S.C. § 2244 provides that no federal

court or judge need entertain an application for the writ. that has

once been denied by a “court of the United States or a justice of

judge of the United States.” This Court, a constitutional court, is

a “court of the United States.” E.g., Federal Trade Commission v.

Klesner, 274 U.S. 145, 154 (1926); Embry v. Palmer, 107 U.S. 3

(1882). See generally, Palmore v. United States, supra; O’ Donoghue

Vv. United States, 289 U.S. 516 (1933). The local courts, non-consti-

For these reasons, we submit that the federal habeas

corpus statute, 28 U.S.C. §§ 2241 et seg., confers upon

this Court jurisdiction to entertain this application for

a writ of habeas corpus presenting only a federal con-

stitutional claim. And, applicant having exhausted his

remedies before the local courts,’’ we turn to the merits.

APPLICANT IS CONFINED IN

VIOLATION OF THE FOURTH AMENDMENT

In overruling applicant’s claim that he was unreason-

ably seized by police officers in violation of the Fourth

Amendment, the local courts held that a police officer

need observe no violation of law nor articulate any rea-

son before he forces a motorist to pull his automobile to

the curb and produce for the officer’s inspection a driver’s

permit and motor vehicle registration certificate. If, dur-

ing the course of such a forcible selective stop, the officer

observes evidence of a crime in “plain view,” the local

courts have held that he may seiz» that evidence and use

it to obtain the motorist’s conviction over timely Fourth

Amendment objection. We contend that the selective,

forcible stop shown on this record violated applicant’s

right to be free from unreasonable seizures because: (1)

any seizure of an individual made without at least an

articulable suspicion of criminal behavior is “unrewson-

able” under the Fourth Amendment; and (2) the seizure

shown on this record cannot be sustained on “health and

safety” grounds since (a) this was not a “health and

safety” seizure at all and (b) even if it were, the Fourth

Amendment requires that selective intrusions, even so-

tutional courts, are not “courts of the United States” within the

meaning of such statutes. United States v. Mills, 11 App. D.C. 500

(1897) ; ef. Capital Traction Co. v. Hof, 174 U.S. 1, 16-18, 45 (1899).

11 E.g., Wilwording v. Swenson, 404 U.S. 249 (1971); Roberts v.

La Vallee, 389 U.S. 40 (1967) ; Brown v. Allen, 344 U.S. 443 (1953).

called “health and safety” ones, be subject to minimum

articulable suspicion standards."*

The Fourth Amendment provides protection not only

against unreasonable searches but also unreasonable

“seizures.” Terry v. Ohio, 392 U.S. 1 (1968); Adams v.

Williams, 407 U.S. 143 (1972). A seizure is unreason-

able under the Fourth Amendment unless, at a minimum,

the police have “specific and articulable facts which, taken

together with rational inferences from those facts, war-

rant that intrusion.” Terry v. Ohio, supra, 392 U.S. at 21.

It is conceded, and the local courts expressly found, that

the police officers had no such articulable facts when they

seized applicant. (R. at 62). On this record, the local

courts could not have done otherwise, for it could not be

seriously maintained that the activity in which applicant

was engaged—lawfully operating a motor vehicle in ac-

cordance with all provisions of law on the public streets

—constitutes an articulable basis of suspicion warranting

police intrusion into the motorist’s freedom. Common-

wealth v. Swanger, —— Pa. ——, 300 A.2d 66 (1973).*

The local courts held that Fourth Amendment protec-

tions against unreasonable seizures do not apply to seiz-

ures arguably related to “health and safety.” Palmore v.

United States, 290 A.2d 573, 583 n.25 (1972), cert. de-

nied on this issue, —— U.S. ——, 41 L.W. 4528, 4530 n.6

(1973). This conclusion is a question of law on a con-

stitutional matter which must be determined by this

Court. Townsend vy. Sain, 372 U.S. 2938, 318 (1963). As

a matter of constitutional law, we submit that this

seizure cannot be sustained on “health and safety”

grounds.

18 Since no one can contend that police officers may stop traffic

solely to get a “plain view” of “everything that might be inside

the car” (R. 37), the local court properly held that the lawfulness

of the seizure of the gun turns on the lawfulness of the seizure of

— (R. 66). See Harris v. United States, 390 U.S. 234, 236

1968).

1° The Prothonotary of the Pennsylvania Supreme Court has ad-

vised us that the notation “rehearing denied” appearing at 300 A.2d

66 is in error, and that the Pennsylvania Supreme Court has

granted an application for rehearing, heard additional argument,

and now has the case under advisement.

First, we do not think there are any “health and

safety” considerations involved in this case.” A careful

reading of the local court’s opinion makes it clear that

that court thought the Fourth Amendment inapplicable

when police officers stop automobiles “to investigate some

criminal behavior []related to the possession of a valid

license and valid registration.” 290 A.2d at 283 n.24;

R. 64 n.24. On the record, the local court could not have

properly affirmed appellant’s conviction unless it so held,

for the police officer flatly testified that he stopped appli-

cant’s automobile to ascertain whether there were grounds

for a “criminal charge” of operation of an overdue rental

ear (R. 26).

This case vividly illustrates the hazards of indiscrim-

inate use of the “health and safety” label. Here, what is

termed a “routine spot check” for “health and safety”

purposes involved two unmarked cars and four plain

clothes officers, one of whom immediately stationed him-

self on the passenger side of applicant’s vehicle “for the

protection of [his] partner’ (R. 38) and remained in that

position looking for “things in the glove compartment

2° There is no “health” consideration involved in the possession

of a driver’s license and motor vehicle registration certificate, and

there is no “safety” consideration involved with respect to regis-

tration certificates. The motor vehicle registration procedure in

both the District of Columbia and Virginia is principally a revenue-

raising measure (D.C. Code § 40-102; 40 Va. Code §§ 46.1-149, 167),

and merely by observing the visible license plate, a policeman can

readily ascertain whether the owner of the vehicle has complied

with the registration requirements. Visual inspection of the cer-

tificate, as this record clearly shows (R. 25), is designed to ascer-

tain whether the driver of an automobile is authorized by the owner

to operate the vehicle “[b]Jecause it’s—it’s a criminal charge if

[he’s] not” (R. 26). While registration certificates may provide

an informal method of ascertaining ownership of a vehicle, that

function is one normally considered a “safety” measure. Yet, it

was the registration certificate, not the driver’s license, that moti-

vated the officers to seize applicant (R. 21, 34). This is clear, not

only from the officers’ testimony (R. 21-22, 25-26), but from the

conceded fact that having produced a valid driver’s license prior

to discovery of the gun, applicant was not free to move on until he

had satisfied the officers that he was in possession of a valid regis-

tration permit (R. 28) and therefore not committing a “criminal

offense” (R. 26, 41).

that the applicant] could be charged with” (R. 40-41).

In reality, the police conduct shown on this record by the

officers’ own testimony constituted a “seizure” to investi-

gate pollible criminal activity related to the use of an

automobile. To be sure, the officers stopped applicant, at

least in part, in order to inspect his driver’s license and

registration certificate. But their motivation for this

inspection was not to enforce a “health and safety” regu-

lation but to see if applicant was committing a crime

(R. 26, 40-41). This is absolutely clear on the local court

record, not only from the officers’ own testimony, but

from the practice of recording on . ms:

“... the name, [and] the address of the person driv-

ing, the color of the vehicle, the tag number, the

driver’s permit number, and the color [and] num-

ber of occupants in [the car]” (R. 35).

In this regard, the “spot check” can be viewed as a

descendant of the police investigatory arrest described in

a study conducted by a special committee appointed by

the Commissioners of the District of Columbia. Report

and Recommendations of the Commissioners’ Committee

on Police Arrests for Investigation (1962). Both “spot

checks” and investigatory arrests, by their failure to

provide standards that spell out adequate grounds for

the seizure of an individual, leave police officers free to

halt citizens virtually on whim. Commissioners’ Report,

supra, at 5. In condemning the practice of investigatory

arrests, the Committee pointed to the seizure, on clearly

unsubstantial grounds, of 6800 persons in the District

of Columbia during the two years studied. The impact

on each individual seized in an investigatory arrest is

severe. However, the adverse impact upon the community

of a vastly greater number of investigatory “spot checks”

accompanied by the completion of investigatory forms is

potent. This local court record, viewed most favorably

to the Government, shows that as a matter of constitu-

tional law, the “spot check” of applicant was an investi-

gatory seizure in violation of the Fourth Amendment.

Even if this was a “health and safety” seizure, the

local court’s constitutional determination could not with-

stand attack. The local court thought the Fourth Amend-

ment inquiry at an end when it concluded that “health

and safety” was at stake. 290 A.2d at 582-583; R. 63-65.

The Supreme Court’s Fourth Amendment jurisprudence

flatly rejects that approach. Camara v. Municipal Court,

387 U.S. 523, 533-534 (1967); See v. City of Seattle,

387 U.S. 541 (1967). Indeed, Terry’s requirement of

“articulable suspicion” for police-citizen street encounters

flows directly from Camara’s holding that salutory rea-

sons for a search or a seizure do not remove conduct

from Fourth Amendment scrutiny altogether, although

such reasons may justify an “intermediate response”’ to

Fourth Amendment standards of reasonableness. Terry

v. Ohio, 392 U.S. 1 (1968). “Health and safety” consid-

erations, assuming that such exist in this case, are merely

factors to be balanced with the fundamental rights pro-

tected by the Fourth Amendment in assessing the con-

stitutional reasonableness of a particular intrusion.

Of course, there are obvious safety considerations in-

volved in the operation of automobiles, and we do not

contend that driver’s license statutes are not related to a

public safety purpose. Nor do we contend that the

Fourth Amendment prohibits any and all efforts by police

to ensure compliance with licensing regulations and stat-

utes. We do contend, however, that the means by which

the police seek to achieve this public safety purpose must

be carefully balanced against the obvious potential of

serious Fourth Amendment incursions.

The term “spot check”, we respectfully submit, hin-

ders, instead of aids, Fourth Amendment analysis. We

challenge only the “spot check” shown on this record

whereby: (1) police officers are told to make such checks

(R. 19, 35); (2) the officer making the decision to seize

appellant is furnished on standards on which that deci-

sion is to be based and is under the impression that “this

is left up to each individual officer” (R. 19); (3) this

same officer selects rented automobiles because of the

possibility of a “criminal charge” for driving an overdue

car (R. 25-26); and (4) the officers are instructed to

complete informal forms prepared by the Special Opera-

tions Division which are handed in to the division fol-

lowing “spot checks” (R. 35-36). That conduct, we sub

mit, is violative of the Fourth Amendment’s requirement

of reasonableness. Commonwealth v. Swanger, —— Pa.

——, 300 A.2d 66 (1973); cf. Gomez v. Wilson, 323 F.

Supp. 87 (D.D.C. 1971), remanded, —— U.S.App.D.C.

: F.2d —— (1973). The holding which we

seek will not, of course, outlaw all police efforts to en-

gage in bona fide non-selective “spot checks” of automo-

biles;** nor would it necessarily outlaw selective “spot

checks” conducted in accordance with announced stand-

ards which pass muster under the Fourth Amendment’s

reasonableness standard. Cf. Gomez v. Wilson, supra;

United States v. Lopez, 328 F. Supp. 1077 (E.D. N.Y.

1971). Finally, the Fourth Amendment holding which we

seek does not preclude consideration of the mobility of

an automobile as a factor in judging the constitutional

validity of “articulable suspicion” for a particular ve-

hicle stop,” for on this record it is conceded that the

officers had no factual information whatever save the

fact that applicant was lawfully operating an automobile

on the public street.

21 Compare Camara Vv. Municipal Court, 387 U.S. 523 (1967); See

v. City of Seattle, 387 U.S. 541 (1967); Comment, Interference

with the Right to Free Movement: Stopping and Search of Auto-

mobiles, 51 Cal.L.Rev. 907 (1963); Note, Use of Police Roadblocks

to Inspect Licenses, 37 Conn.B.J. 486 (1963); Note, The Driver's

License Display Statute: Problems Arising from its Application,

1960 Wash.U.L.Q. 279. See City of Miami v. Aronovitz, 114 So.2d

784, 787 (Fla. 1959); Commonwealth v. Mitchell, 355 S.W.2d 686,

- _ 1962); Edwards v. State, 319 P.2d 1021, 1026 (Okla.

22 United States v. Fallon, 457 F.2d 15 (10th Cir. 1972); Young

v. United States, 140 U.S.App.D.C. 333, 336-337, 435 F.2d 405, 408-

409; United States v. Madril, 445 F.2d 827 (9th Cir. 1971), vacated

on other grounds, 404 U.S. 1010; United States v. Thompson, 420

F.2d 536 (3d Cir. 1970); cf. Coolidge v. New Hampshire, 403 U.S.

443 (1971); Preston v. United States, 376 U.S. 364 (1964).

Conclusion

For the foregoing reasons, the Court should issue the

writ of habeas corpus.

Respectfully submitted,

/3/ Frank F. Flegal

FRANK F. FLEGAL

Georgetown University Law Center

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

(624-8208)

Attorney for Applicant

[The Supreme Court Appendix to the briefs in

Palmore v. United States, No. 72-11 which was

appended to this application has been omitted]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Habeas Corpus No. HC 31-73

[Filed May 16, 1973, James F. Davey, Clerk]

ROOSEVELT PALMORE, PETITIONER

v8.

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, THE

ATTORNEY GENERAL OF THE UNITED STATES, DIRECTOR,

DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS,

RESPONDENTS ;

ORDER DIRECTING RESPONDENT

TO SHOW CAUSE

It is this 16th day of May, 1973, ORDERED that the

respondent either in person or by counsel appear in the

Court on or before the tenth day after service of a copy

of this order and of the petition upon him and make

return to said petition and show cause, if any he has

why the Writ of Habeas Corpus should not issue.

IT IS FURTHER ORDERED that the respondent

serve on the petitioner by mail a copy of his answer to

this rule.

/3/ Matthew F. McGuire

Judge

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Habeas Corpus No. 31-73

[Filed Jun. 4, 1973, James F. Davey, Clerk]

ROOSEVELT PALMORE, PETITIONER

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, THE

ATTORNEY GENERAL OF THE UNITED STATES, DIRECTOR,

D.C. DEPARTMENT OF CORRECTIONS, RESPONDENTS

RETURN AND ANSWER TO ORDER

TO SHOW CAUSE

Come now the respondents by their attorney, the United

States Attorney for the District of Columbia, and assert

as follows:

The extended procedural background of this case is

set forth in full in petitioner’s pleadings. Briefly, peti-

tioner was convicted of carrying a dangerous weapon

(felony) in violation of 22 D.C. Code 3204 in the Su-

perior Court. He appealed and the conviction was af-

firmed by the D.C. Court of. Appeals. United States v.

Palmore, 290 A.2d 573 (1972). An appeal was taken to

the Supreme Court. The appeal was dismissed, certiorari

granted in part and the decision of the D.C. Court of

Appeals, upholding the jurisdiction of the Superior Court

to try felonies under the D.C. Code was affirmed. The

instant petition followed. For the reasons set forth in the

attached memorandum, respondents pray that the Order

to Show Cause be discharged and the petition for a writ

of habeas corpus be dismissed.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Habeas Corpus No. 31-73

| Filed Jun. 4, 1973, James F. Davey, Clerk)

ROOSEVELT PALMORE, PETITIONER

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, THE

ATTORNEY GENERAL OF THE UNITED STATES, DIRECTOR,

D.C. DEPARTMENT OF CORRECTIONS, RESPONDENTS

MEMORANDUM OF LAW

There are but two questions pertinent to the instant

inquiry. (1) Has Congress limited the power of the

United States District Court for the District of Columbia

to hear collateral attacks on Superior Court criminal

convictions?; and (2) If so, did they have the power to

do it? If the answer to both of these questions is “yes”,

as we shall contend, then the other arguments raised by

petitioner have no bearing on this inquiry. It becomes

immaterial, for instance, that “the District of Columbia

(would be) the only place in the nation where a criminal

defendant can never obtain a ruling on a federal consti-

tutional issue from a federal constitutional court.” ( Pets.’

Br. p. 11). If Congress sought to so distinguish the Dis-

trict of Columbia and had the power to do so, the fact

that they may somehow have spoiled the symmetry of

the traditional federal state system is not a matter which

may be inquired into. We thus turn to the two ques-

tions:

I. Under 23 D.C. Code § 110 Congress has vested exclu-

sive post-conviction collateral review of Superior

Court convictions in the sentencing court.

One of the major reasons behind the Court Reorganiza-

tion Act was the recognition that the United States Dis-

trict Court for the District of Columbia was so over-

burdened with essentially local matters that it was unable

to effectively carry out the normal functions of a federal

district court. The Senate Committee on the District of

Columbia summarized the problem in the following terms:

(S. Rep. No. 91-405, 91st Cong., Ist Sess. p. 3).

The burden is acute in the District of Columbia, the

seat of the Federal Government, where, in the ab-

sence of inordinately crowded dockets (both civil

and criminal), a substantial and greater quantum of

genuinely Federal litigation might best and con-

veniently be brought. Yet, at present the median

time for civil jury trial in the U.S. District Court

for the District of Columbia is nearly double the

median for Federal district courts nation-wide. In

recent years as many as 12 out of 14 judges of the

Federal court in the National Capitol have been as-

signed full time to the trial of local felony offenses.

It was to remedy this situation that the Court Reorga-

nization Act was passed. The Act consolidated the local

trial courts into a new court of general local jurisdiction,

the Superior Court of the District of Columbia. See Sec-

tion 111 of the Act, 84 Stat. 482; D.C. Code § 11-901.

The Superior Court was given jurisdiction “of any crim-

inal case under any law applicable exclusively to the

District of Columbia” (Section 111 of the Act, 84 Stat.

486; D.C. Code § 11-923(b) and, with the exception of

matters over which exclusive jurisdiction is vested in a

federal court, “of any civil action or other matter (at

law or in equity) brought in the District of Columbia”

(Section 111 of the Act, 84 Stat. 484; D.C. Code § 11-921

(a))."

At the same time, the Act eliminated the federal dis-

trict court’s special jurisdiction over local civil matters

and reduced its jurisdiction over local criminal offenses

to prosecutions involving a federal (United States Code)

offense. See Section 111 of the Act, 84 Stat. 476, 477;

D.C. Code §§ 11-501, 11-502. The former appellate juris-

diction of the United States Court of Appeals for the

1 The jurisdictional changes brought about hy the Act were made

effective in stages over the course of a transitional period.

District of Columbia Circuit over the judgments of the

District of Columbia Court of Appeals, with only a minor

exception, was also eliminated (Section 111 of the Act, 84

Stat. 476; D.C. Code § 11-301) and the District of Colum-

bia Court of Appeals was declared to be the “highest

court of the District of Columbia,” whose judgments are

reviewable directly by the Supreme Court (Section 111

of the Act, 84 Stat. 475; D.C. Code § 11-102).

Petitioner now proposes to upset this system by return-

ing to the District Court the power, and hence the duty

to collaterally review, pursuant to 28 U.S.C. 2241, all

Superior Court criminal convictions. Furthermore, if peti-

tioner’s logic is accepted, habeas corpus would also lie in

this Court to challenge pre-trial rulings of the Superior

Court.*. This Court would thus once more be over-

whelmed with the task of ruling on essentially local mat-

ters such as right to be released on bail before trial, ad-

missibility of evidence at trial (as here), ete. Even if

collateral review is somehow limited to post-conviction

situations it would represent a heavy burden on this

Court in derogation of the Court Reform Act. See, Pal-

more V. United States, U.S. —— 41 L.W. 4528,

4534 (dec. 4-24-73).°

The intention of Congress to place both trial and re-

view of local criminal matters exclusively in the Superior

2 Petitioner contends that § 2241, not 28 U.S.C. 2254, is the ap-

propriate remedy here because he is in federal rather than state

custody. If this is so, then the “exhaustion of state remedies” pro-

visions of § 2254 are not applicable as a check on the District Court’s

power and the writ must be potentially available to anyone in “cus-

tody” in the District of Columbia whether in a pre-trial, during

trial, pending appeal or final conviction status. Thus petitioner

seeks to give this Court far greater power than any other district

court by urging that it can interfere with local proceedings at any

time, without the necessity of exhausting local remedies.

* Palmore noted that the purpose of the Court Reform Act was to

relieve the regular Art. III courts . . . from the smothering re-

sponsibility for the great mass of litigation, civil and criminal,

that inevitably characterizes the Court system in a major city

and to confine the work of those courts to that which, for the

most part, they were designed to do, namely the trial of cases

arising under the Constitution and the nationally applicable

laws of Congress. Ibid.

Court is clearly expressed in 23 D.C. Code § 110 which

creates a remedy exactly equal, by its terms, to that

established by 28 U.S.C. 2255 in the federal system. § 110

(g) states that:

An application for a writ of habeas corpus in behalf

of a prisoner who is authorized to apply for relief

by motion pursuant to this section shall not be enter-

tained by the Superior Court or by any Federal or

State Court if it appears that the applicant has failed

to make a motion for relief under this section or that

the Superior Court has denied him relief, uniess it

also appears that the remedy by motion is inade-

quate or ineffective to test the legality of his deten-

tion. (Emphasis added).

Petitioner contends that the above section is confusing

(Pet’s. Br. p. 10). Whatever confusion this section may

hold for petitioner, its prohibition against habeas corpus

being entertained by “any Federal . . . Court” is explicit.

It is also directly on point. Petitioner here seeks to chal-

lenge his Superior Court conviction in a Federal District

Court without having presented the motion to the Su-

perior Court, his exclusive source of relief by the terms

of this section. This he cannot do.

Any confusion about the necessity of applying to the

sentencing court for relief may be resolved by reference

to the case law interpreting 28 U.S.C. 2255 from which

$110 was derived. It is well settled that if relief is

possible under § 2255 such relief must be sought in the

sentencing court and habeas corpus relief is not avail-

able. 2 C.A. Wright, Federal Practice and Procedure,

$$ 591, 593; E.g., Walker v. United States, 429 F.2d

1301 (5th Cir. 1970); Bandy v. Willingham, 398 F.2d

333 (8th Cir. 1968) cert. den. 393 U.S. 1006; See, discus-

sion in United States v. Hayman, 342 U.S. 205, 210-222

(1952).

The only exception to the rule that a collateral attack

upon a conviction or sentence may be brought only in the

sentencing court is when relief in that court is “inade-

quate or ineffective.” 28 U.S.C. 2255, 23 D.C. Code

110(g). Petitioner makes no such explicit claim here, nor

can he. Since Kaufman v. United States, 394 U.S. 217

(1969) claims alleging illegal searches and seizures may

be raised on a § 2255 (and hence a § 110) motion. Fur-

thermore, it is well settled that lack of success on such

a motion (and hence, anticipated lack of success as here)

does not render the remedy by § 2255 motion “inade-

quate or ineffective.” The only time the motion would be

inadequate is when the sentencing court lacks power to

grant the relief sought, which is certainly not the case

here. Smith v. Reid, 89 U.S. App. D.C. 272, 191 F.2d 491

(1952); Boyden v. United States, 463 F.2d 229 (9th Cir.

1972) ; Walker v. United States, 429 F.2d 1301 (5th Cir.

1970) ; Littero v. Parker, 369 F.2d 395 (3d Cir. 1966).

The statute allows no further exceptions. It is thus true,

as petitioner postulates (Pet’s. Br. pp. 10-11) that § 110

precludes an Article III court from considering a writ of

habeas corpus claiming denial of a federal constitutional

right. This, according to the clear wording of the stat-

ute, was the intent of Congress. See, Rauh and Silbert,

Criminal Law and Procedure: D.C. Court Reform and

Criminal Procedure Act of 1970, 20 Am. U.L. Rev. 252,

339-40.‘

Any doubt that Congress intended to limit the power

of this Court more than that of the other Federal Dis-

trict Courts is resolved by reference to 16 D.C. Code

1901. That section provides that the District Court has

power to issue writs of habeas corpus only to federal

officers and employees in the District of Columbia, peti-

tions for writs against “any other person shall be filed

in the Superior Court . . .” 16 D.C. Code 1901.° There is

no exception for raising “constitutional claims” in the

*“(T}he Court Reorganization Act extinguishes the traditional

authority of the federal courts to review local judicial action by

the issuance of writs of habeas corpus.” Williams, D.C. Court Re-

organization 59 Geo. L.J. 477, 499; Bland v. Rogers, 332 F. Supp.

989, 991 (n. 12) (D.D.C. 1971) ; Palmore v. United States, 290 A.2d

573, 580 (D.C. App. 1972).

5 Prior to the 1970 amendment, this section gave the District

Court exclusive power to grant the writ against any “officer or

other person in whose custody or keeping the party so detained is

District Court. If a person is in a local jail in Alabama

and feels he has been denied a speedy trial he may, after

exhausting state remedies, petition the Federal District

Court in that state for habeas corpus against the local

officials. By contrast, if he is in the custody of a local

official’ in the District of Columbia he may not, by the

terms of $1901, apply to the District Court for relief.

The power of the District Court has been curtailed by

Congress, the reason being, as discussed above, that the

potential petitioner, unlike the man in Alabama or any

other state, can have his rights vindicated in another

federal court of competent jurisdiction.

II. Congress had the power to create such an

exclusive remedy in the Superior Court.

Given the clear intent of Congress to eliminate habeas

corpus review in the District Court we must turn to the

question of whether Congress had the power to carry out

such an intention. This in turn depends upon a de-

termination of whether limiting, except in unusual cir-

cumstances, collateral review of a criminal conviction to

the sentencing court which was created under Article

I, is unconstitutional.

It is true, as petitioner points out (Pet’s. Br. p. 11)

that such a limitation would make the District of

Columbia the only place where a criminal defendant can

never obtain a ruling on a federal constitutional issue

from an Article III court. Yet, as we shall discuss, infra,

there is no authority for the proposition that Article

III includes an inherent demand that a court created

under that provision must hear federal constitutional

claims. As the Supreme Court pointed out in Palmore,

supra, “neither this Court nor Congress has read the

Constitution as requiring every federal question arising

under the federal law ... to be tried in an Art. III

court....” 41 L.W. at 4533.

The Superior Court, as decided in Palmore, supra, is

competent to try cases arising under federal law. It

6‘ Leaving aside the difficult question of which District of Colum-

bia officials are local and which federal under this statute.

is similarly competent to decide federal constitutional

questions under 23 D.C. Code 110 as it is mandated to

do by Congress. The Superior Court is not a state

court, independent of Congressional control. It is a

federal court, designed to vindicate federal rights at the

local level. It was created for this purpose by Congress

and its function is to enforce the laws of Congress. Its

judges, like United States District judges, are nomi-

nated by the President and confirmed by the Senate.

The prosecutors in both courts are from the United

States Attorney’s Office. The only difference is that

Superior Court judges serve a fifteen year term while

District judges are appointed for life.’

This is not to deny that the scope of the Superior

Court’s competence differs from that of the District

Court. It is true, as the Supreme Court pointed out in

this case, that the citizens of the District “must or may

resort” to Art. III judges “for consideration of those

constitutional statutory matters of general concern... .”

Ibid, at 41 L.W. 4533.

However, this power of Art. III judges is not an

inherent constitutional power. It is a power granted

by Congress. As such, it can be taken away by Con-

‘It is clear that while Congress looked for guidance to the state-

federal model in defining the respective jurisdictions of the Superior

and District Courts it did not find the analogy complete and did

not intend it to be so regarded (E.g., in addition to the federal

aspects of the Superior Court previously mentioned, United States

Marshals serve the Superior Court, prisoners convicted in the Su-

perior Court are remanded to the custody of the Attorney General,

Superior Court felony arrest warrants can be served throughout

the entire United States, the Federal Rules of Criminal and Civil

Procedure unless modified or otherwise provided in 23 D.C. Code

are applicable in the Superior Court, 11 D.C. Code 946; and St.

Elizabeths Hospital, a federal institution, is available for examina-

tion and commitment of persons mentally incompetent for trial or

found not guilty by reason of insanity in the Superior Court.

In short, it is apparent that Congress had in mind “the practical

objective of streamlined, efficient administration of justice in the

District rather than providing the citizens of the District with the

benefits of the dual court system familiar to the states.” Williams,

District of Columbia Court Reorganization, 19

511 (1971). 9 ion, 1970, 59 Geo. L.J. 477,

gress. As argued in Part I, supra, 23 D.C. Code 110(g)

takes away the power of Art. III judges to entertain a

collateral attack on a Superior Court conviction.

Indeed Congress has frequently curtailed, or failed to

grant, various powers to the Art. III courts. As Chief

Justice Marshall stated unequivocally in Ex Parte Boll-

man, 8 U.S. (4 Cranch) 75, 94 (1807) “. . . [T]he

power to award the writ by any of the courts of the

United States must be given in written law.”* (Em-

phasis added.) Indeed, prior to an Act of Congress in

1867 (See 14 Stat. 385) the federal courts had no

power to issue the writ to anyone in state custody. 1

Stat. 81; See discussion in Kaufman v. United States,

374 U.S. 217, 221 (1969).

In Glidden Company v. Zdanok, 370 U.S. 530, 551

(1962) the Supreme Court observed that

The great constitutional compromise that resulted

in agreement upon Art. III, §1, authorized but did

not obligate Congress to create inferior federal

courts. . . . Once created, they passed almost a

century without exercising any very significant ju-

risdiction. . . . Throughout this period and beyond

it up to today, they remained constantly subject to

jurisdictional curtailment.

The power of Congress to limit and control the jurisdic-

tion of the federal courts has been exercised on other

occasions. For example, and particularly pertinent in

the present context, when Congress created the Circuit

Courts of Appeals in 1891, the act establishing the

courts did not authorize them to issue writs of habeas

corpus, and the Supreme Court accordingly held that in

the absence of a congressional grant of jurisdiction, they

had no authority “to issue original and independent writs

® For other cases in which the Supreme Court stated that the

jurisdiction of federal courts (except the Supreme Court) to issue

writs of habeas corpus is surely statutory, See, Ex parte Dorr, 3

How. 104, 105 (1845); Ex parte Parks, 93 U.S. 18, 22 (1876); Ex

parte Hung Hang, 108 U.S. 552 (1883) ; Jn re Burris, 136 U.S. 586,

591 (1890).

of habeas corpus.” Whitney v. Dick, 202 U.S. 132,

137 (1906). Moreover, it is clear that Congress may

not only limit the jurisdiction it vests in inferior Ar-

ticle III courts, but it also may withdraw jurisdiction

from such courts and even abolish the courts themselves.’

In 1911, for example Congress abolished the Circuit

Courts which it had created in 1789 and thereby with-

drew all of their jurisdiction. Accordingly, the Supreme

Court held that the remaining circuit judges, whose

offices were created in 1869 but whose courts had been

abolished, had no authority to issue writs of habeas

corpus under the habeas statute. Craig v. Hecht, 263

U.S. 255, 273 (1923).

This power of Congress to limit the jurisdiction of a

United States District Court was exercised again in

1970 by the enactment of 16 D.C. Code § 1901(c) (Supp.

V., 1972) in the Court Reform Act. That provision is

also the result of an exercise by Congress of its power

under the District Clause, Article I, Section 6, Clause 17

of the Constitution, to “exercise exclusive Legislation

in all cases whatsoever, over such District (not exceeding

ten Miles square) as may . . . become the Seat of the

Government of the United States” (emphasis added), a

power independent of any limitation imposed by Article

III of the Constitution. Glidden Company v. Zdanok,

supra; O’Donoghue v. United States, 289 U.S. 516, 545-

ye x “eae Kendall v. United States, 12 Pet. 525, 619

Prior to February 1, 1971, the effective date of the

Court Reform Act, a person in the District of Columbia

could seek a writ of habeas corpus under 16 D.C. Code

§ 1901 (1967) and under 28 U.S.C. § 2241. Pursuant

to both of these provisions, such a person alleging un-

lawful restraint was given a habeas remedy in the

United States District Court for the District of Co-

lumbia. There was no general habeas remedy in the

* Cf. Act of March 27, 1868, ¢.34, § 2, 15 Stat. 44, by which Con-

gress withdrew from the Supreme Court jurisdiction of appeals

from habeas decisions by the lower federal courts. This Act was

upheld in Ex parte McCardle, 7 Wall. 506 (1868).

Court of General Sessions.*° When Congress amended

Section 1901 in 1970, it granted to the successor of

the Court of General Sessions a general habeas au-

thority and restricted the habeas remedy in the United

States District Court for the District of Columbia to

allegations of restraint by Federal officials. This action

was consistent with the fundamental purpose of the

Court Reform Act to create within the District of Co-

lumbia two completely self-sufficient and independent

cour. systems, one to handle only “national-federal”

litigation, the other to handle all “local-federal” litiga-

tion. As pointed out, supra, this represents yet another

example of both the power and the intention of Congress

to limit the District Court’s jurisdiction.

The Constitution provides in Art. I §9 Cl. 2 that

“The Privilege of the Writ of Habeas Corpus shall not

be suspended. . . .” Congress’ placing of collateral re-

view power in the Superior Court does not “suspend”

the writ. There is no requirement in the Constitution

that the writ, if made available, be made available in a

particular kind of federal court. Furthermore, the

United States Court of Appeals has explicitly recog-

nized the power of Article I judges to vindicate federal

constitutional claims in Lurk v. United States, 111 US.

App. D.C. 238, 296 F.2d 360 (1961) aff'd on other

grounds sub nom Glidden Co. v. Zdanok, 370 U.S. 350

(1962) wherein the Court of Appeals held, en bane,

that an Article I judge could sit on the District Court

and perform all of the functions of a District Court

judge (including, implicitly, exercising habeas corpus

jurisdiction ).

Thus, it is apparent that Congress, in an exercise

of its inherent power to grant or deny powers to Article

III courts has limited the power of the District Court

in such a way as to render this Court without jurisdic-

tion to grant the writ in the instant case.

10 The only habeas authority granted by Congress to the former

Court of General Sessions was limited to its Domestic Relations

Branch. See 11 D.C. Code § 1161 (1967).

III. Search and Seizure claims should not be cog-

nizable on collateral attack.

Alternatively, we would urge, as did Justices Powell,

Burger and Rehnquist, concurring in the rece>t case of

Schneckloth v. Bustamonte, —— USS. , 4. LW.

4726, 4735 (1973) that petitioner’s search and seizure

claim should not be entertained on a habeas corpus

(or § 110) motion. .

They state that scholarly research since Fay v. Noia,

372 426 (1963) on which Kaufman is based, indicates

that Fay’s expansive notion of the scope of habeas corpus

review was based on an erroneous view of the history

of that writ. 41 LW. at 4737 They conclude that

“(w)here there is no constitutional claim bearing on in-

nocence, the inquiry of the federal court on habeas re-

view of a state prisoner’s Fourth Amendment claim

should be confined solely to the question of whether

the defendant was provided a fair opportunity in the

state courts to raise and have adjudicated the Fourth

Amendment claim.” 41 L.W. at 4740. If state habeas

corpus were so limited, the equal protection rationale

for Kaufman infra, would be eroded and federal habeas

corpus or § 2255 claims would also be narrowed in

scope.

We recognize that this position is in conflict with

Kaufman v. United States, 394 U.S. 217 (1969). How-

ever, Justice Blackmun agreed, in Schneckloth that Kauf-

man is incorrect but felt the issue wasn’t presented in

that case. 41 L.W. at 4735. Furthermore, Justice

Stewart dissented in Kaufman. Thus, there are at least

five justices who believe that Kaufman is incorrect.

Under these circumstances there is authority for dis-

regarding the lame duck Supreme Court precedent.

Thus, in Perkins v. Endicott Johnson Corp., 128 F.2d

208, 217-18 (2nd Cir. 1942) the court held that

Legal doctrines, as first enunciated, often prove to

be inadequate under the impact of ensuing experi-

ence in their practical application. And when a

lower court perceives a pronounced new doctrinal

trend in Supreme Court decisions, it is its duty,

cautiously, to be sure, to follow—not to resist it.

Similarly, in Barnette v. W.Va. State Board of Educa-

tion, 47 F.Supp. 251 (1942) aff'd 319 U.S. 624 (1942)

Judge Parker of the Fourth Circuit, sitting on a three-

judge court, declined to follow the clear Supreme Court

precedent of Minersville Sch. Dist. v. Gobitis, 310 US.

586 (1940) on the grounds that the Supreme Court

appeared readv to overrule Gobitis (which they did on

appeal in 7 © tte itself.) See, also United States ex

rel. Meadows v. State of N.Y., 426 F.2d 1176, 1181-82

(2nd Cir. 1970) in which the Second Circuit declined

to adhere to the “apparently uncompromising dictates”

of Aherns v. Clark, 335 U.S. 188 (1948) in allowing

a habeas corpus petitioner to bring his action in a dis-

trict other than the one in which he was confined. This

case was cited with approval in Braden v. 30th Judicial

Circuit Court of Ky., , US. —, 93 S.C. 1123

(1973) which overruled Ahrens.

Accordingly, we would request this Court to rule that

petitioner’s search and seizure claim is no longer cog-

nizable in a habeas corpus petition.

IV. The Stop and Search of Petitioner was legal.

Even if this Court believes that it has jurisdiction in

the instant case, petitioner’s substantive claims lack

merit. Here we rely on the opinion of the District of

Columbia Court of Appeals (included in petitioner’s

appendix) and on the Government’s brief in this case

in the Supreme Court (attached).

Conclusion

For the reasons stated it is respectfully submitted

that the order to show cause be discharged and the pe-

tition for a writ of habeas corpus be dismissed.

/s/ Harold H. Titus, Jr.

HAROLD H. Titus, Jr.

United States Attorney

/s/ Eari J. Silbert

EARL J. SILBERT

Principal Assistant U.S. Attorney

/s/ Osear Altshuler

OSCAR ALTSHULER

Assistant United States Attorney

‘s/ Craig M. Bradley

CRAIG M. BRADLEY

Assistant United States Attorney

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing return

and answer to show cause has been mailed to attorney

for petitioner, Frank Flegal, Esq., Georgetown Uni-

versity Law Center, 600 New Jersey Avenue, N.W.,

Washington, D.C. 20001, this 4 day of June, 1973.

/s/ Craig M. Bradley

CRAIG M. BRADLEY

Assistant United States Attorney

[Pages 49-56 of the Government’s brief filed with this

Court in Palmore v. United States, No. 72-11 headed

“The Selective Stop of An Automobile Driver for the

Purpose of Inspecting his Driving Permit and Vehicle

Registration Certificate Does Not Constitute An Unrea-

sonable Seizure’, which was appended to this Return and

Answer, has been omitted here]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Habeas Corpus No. 31-73

{Filed Jun. 21, 1973, James F. Davey, Clerk]

ROOSEVELT F. PALMORE, PETITIONER

Vv.

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, ET AL.,

RESPONDENTS

PETITIONER’S SUPPLEMENTAL MEMORANDUM

Preliminary Statement

On June 18, 1973, the Court heard oral argument on

the application for writ of habeas corpus and took the

matter under advisement. One of the issues vigorously

contested both in the memoranda of the parties and the

arguments of counsel is the jurisdiction of this Court

to entertain the application. On June 21, 1973, peti-

tioner’s counsel received the current issue of the advance

Supreme Court Reports, 93 S. Ct., No. 16, which contains

the proposed Federal Rules Governing Habeas Corpus

Proceedings. Because these rules have direct bearing on

the jurisdictional issue, this supplemental memorandum is

tendered solely for the purpose of calling this important

additional authority to the Court’s attention.

ARGUMENT

Pursuant to appointment by the Chief Justice of the

United States, the Advisory Committee on Criminal Rules

has studied the administration of habeas corpus applica-

tions in the United States District Court and has sub-

mitted for consideration and comment its proposed rules.

Two of those rules have a vital bearing on the jurisdic-

tional issue now pending swb judice before the Court.

In pertinent part, Rule 1 of the Proposed Rules Gov-

erning Habeas Corpus Proceedings for the United States

District Courts provides:

“These rules govern the procedure in the United

States district courts on applications (a) by persons

in custody pursuant to the judgment of a state court

for a determination that such custody is in violation

of the Constitution, laws, or treaties of the United

States... .” 93 S. Ct., No. 16, at 34.

The advisory committee’s notes makes it plain that pro-

posed Rule 1 is designed, inter alia, to summarize the

scope of federal habeas corpus jurisdiction pursuant to 28

U.S.C. §§ 2241, et seg. The committee noted:

“The basic scope of habeas corpus is prescribed by

statute. 28 U.S.C. § 2241(c) provides that the ‘writ

of habeas corpus shall not extend to a prisoner un-

less * * * [hje is in custody in violation of the Con-

stitution.” 28 U.S.C. § 2254 deals specifically with

state custody providing that habeas corpus shall ap-

ply only ‘in behalf of a person in custody pursuant

to a judgment of a state court * * *.” Ibid. (empha-

sis in the original).

Implementing this general definition of the scope of

federal habeas corpus—and dealing directly with the is-

sue which respondents raise here—the advisory commit-

tee provided in Rule 13 of its proposed rules:

“For purposes of these rules the phrase ‘state court’

includes the Superior Court of the District of Colum-

bia.” 93 §.Ct., No. 16, at 89 (emphasis added).

It is therefore clear that, contrary to respondents’ argu-

ment, the advisory committee has taken the view that this

Court indeed possesses habeas corpus jurisdiction on ap-

plication of one in custody pursuant to a judgment of the

Superior Court of the District of Columbia who claims

that such custody is in violation of the Constitution of

1 The advisory committee’s comprehensive notes on the “custody”

requirement point out that petitioner’s status on bail pending ap-

peal constitutes “custody” within the meaning of the federal habeas

corpus statutes. 93 S. Ct., No. 16, at 35-37. Since the committee

prepared its notes, the Supreme Court has agreed. See Hensley v.

Municipal Court, —— U.S. ——, 93 S. Ct. 1571 (1973).

the United States.* While, of course, this Court is not

bound by proposed rules, we respectfully submit that this

construction of the federal habeas corpus statutes, and

the relationship between the constitutional and legislative

courts in the District of Columbia, should be given great

weight in passing upon the jurisdictional issue raised by

this habeas corpus application.*

Finally, the advisory committee expressly addressed a

point which the Court raised during oral argument with

regard to the reviewing function of the federal habeas

corpus court. In its proposed Rule 8, the committee set

forth standards for evidentiary hearings, and in the notes

which accompany that proposed rule, the committee

pointed out:

“If dismissal has not been ordered, the court must

determine whether an evidentiary hearing is re-

quired. This determination is to be made upon a re-

view of the answer, the transcript and record of

state court proceedings, and if there is one, the

expanded record.” 93 S. Ct., No. 16, at 70, citing

Townsend v. Sain, 372 U.S. 293 (1963).

While the local court record, whice is annexed as an ap-

pendix to our memorandum of points and authorities, is

adequate for resolution of the Fourth Amendment issue

tendered, Townsend v. Sain, supra, cited by the advisory

committee, speaks directly to the point which the Court

posed during oral argument. In that case, Chief Justice

Warren, speaking for the Court, said:

2 The application for writ of habeas corpus filed herein invoked

this Court’s jurisdiction pursuant to 28 U.S.C. §§ 2241 et seq. Since

the judicially imposed exhaustion requirement for § 2241 applica-

tions is co-extensive with the statutory exhaustion requirement set

forth in § 2254, e.g., Stack v. Boyle, 342 U.S. 1, 6-7 (1951) ; United

States v. Hayman, 342 U.S. 205, 223 n.40 (1952); Ex parte Royall,

117 U.S. 241 (1886), it is clear that this Court’s jurisdiction is

proper. Under either § 2241 or § 2254, petitioner has exhausted his

local remedies and the matter is ripe for federal habeas corpus

consideration. E.g., Brown v. Allen, 344 U.S. 443 (1953); Roberts

v. La Vallee, 389 U.S. 40 (1967).

3’ Among other prominent members of the advisory committee are

Circuit Judge Robb and District Judge Gesell. 93 S.Ct., No. 16,

at III.

“Although the district judge may, where the state

court has reliably found the relevant facts, defer

to the state court’s findings of fact, he may not defer

to its findings of law. It is the district judge’s duty

to apply the applicable federal law to the state court

fact findings independently. The state conclusions

of law may not be given binding weight on habeas.

That was settled in Brown v. Allen, supra, 344 U.S.

at 506 (opinion of Mr. Justice Frankfurter).” 372

U.S. at 318.

For the reasons set forth in our memorandum of points

and authorities, we respectfully submit that an independ-

ent application of federal constitutional law to the facts

shown in the local court record compels the conclusion

that petitioner is in custody in violation of the Fourth

Amendment to the Constitution.

Conclusion

The application for a writ of habeas corpus should be

granted.

Respectfully submitted,

/s/ Frank F. Flegal

FRANK F. FLEGAL

Georgetown University Law Center

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

(624-8208)

Attorney for Petitioner.

June 21, 1973

Certificate of Service

A copy of the foregoing supplemental memorandum has

been delivered to Craig Bradley, Esq., Assistant United

States Attorney, United States Courthouse, Washington,

D. C. 20001, attorney for respondents, this 21st day of

June, 1973.

FRANK F. FLEGAL

/s/ Frank F. Flegal

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 74-1832

[Filed Jan. 28, 1975, United States Court of Appeals for

the District of Columbia Circuit, Hugh E. Kline, Clerk]

ROOSEVELT F. PALMORE, APPELLANT

Vv.

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, et al.,

APPELLEES

APPELLANT’S MOTION FOR LEAVE TO AMEND

JURISDICTIONAL ALLEGATIONS

Pursuant to 28 U.S.C. § 1653, appellant respectfully

moves for leave to amend the jurisdictional allegations

set forth in his application for writ of habeas corpus

by adding to paragraph three thereof the following

underscored allegations so that, as amended, the para-

graph would read:

3. This Court has jurisdiction to entertain this

application and issue the writ of habeas corpus as

prayed herein pursuant to 28 U.S.C. §§ 2241 et

seq. Jurisdiction is also invoked under and by

virtue of Article I, § 9, cl. 2 and Article III of the

Constitution of the United States and 28 U/S.C.

§ 1651. Alternatively, this action arises under the

Fourth Amendment to the Constitution of the United

States, involves an amount in controversy which

exceeds the sum of ten thousand dollars ($10,000),

and this Court has jurisdiction pursuant to 28

U.S.C. § 1331. There exists between the parties an

actual controversy, and this Court has power to

declare the respective rights of the parties, and to

award such other relief as may be necessary and

proper, pursuant to 28 U.S.C. §§ 2201-2202.

This appeal presents for decision the question of the

jurisdiction of the United States District Court to enter-

tain complaints by prisoners who have unsuccessfully con-

tended in the local District of Columbia courts that they

are in custody in violation of the Constitution of the

United States. In the District Court, appellant bottomed

his jurisdicional allegations on the statutory and constitu-

tional power of the Article III courts to award writs of

habeas corpus. In this Court, appellees contend that 23

D.C. Code § 110(g) deprives the constitutional courts of

jurisdiction to award the writ, although they have con-

ceded that § 110(g) does not deprive those courts of jur-

isdiction to award other remedies found necessary and

appropriate to redress a constitutional violation. Brief

for Appellees at 14-15, n. 18. This concession is deemed

to be without significance by appellees “since appellant

has only petitioned the District Court for a writ of

habeas corpus” and thus “the jurisdictional bar of sub-

section (g) would be sufficient grounds for dismissal of

his cause of action.” Ibid. (emphasis added). This latter

contention reflects a fundamental misunderstanding of

the role of pleading in federal adjudication, f - a litigant

does not lose his “cause of action” simply because he has

not demanded one type of relief instead of another, Rule

54(c), F.R.C.P.,’ nor does he suffer a “dismissal of his

cause of action” merely because his jurisdictional allega-

tions are arguably defective. 28 U.S.C. § 1653. £.9.,

Tatum v. Laird, 144 U.S. App. D.C. 72, 76 n.8, 444 F.2d

947, 951 n.8, rev’d on other grounds, 408 U.S. 1 (1972);

Jones V. Freeman, 400 F.2d 383, 387 (8 Cir. 1968) ;

Mantin v. Broadcast Music, Inc., 248 F.2d 530, 531 (9

Cir. 1957); Blanchard v. Terry & Wright, Inc., 218 F.

Supp. 910, 913-914 (W.D. Ky., 1963), aff'd, 331 F.2d

467 (6 Cir. 1964). Compare Childs v. United States Board

of Parole, U.S. App. D.C. ‘ F.2d (No.

74-1052, decided December 19, 1974) (slip op. at 5-7).?

1 Except where inconsistent with a federal statute or prior prac-

tice, the Federal Rules of Civil Procedure apply to habeas corpus

proceedings. Rule 81(a) (2), F.R.C.P.

2 The 1948 amendments to 28 U.S.C. § 1653 were made for the

express purpose of “permit[ting] amendment of all jurisdictional

We have demonstrated, both in our opening and reply

briefs, that the District Court had jurisdiction to enter-

tain appellant’s application for a writ of habeas corpus.

If this Court agrees, the jurisdictional allegations of ap-

pellant’s application are not defective, and this motion

becomes moot. We also pointed out, however, that the

District Court had power to award declaratory and other

relief without regard to the availability of the writ of

habeas corpus (Appellant’s Brief at 16 n.19; Appellant’s

Reply Brief at 4-12). If, contrary to our argument, the

Court concludes that 23 D.C. Code § 110(g) bars habeas

corpus relief but accepts the Government’s concession

that other forms of relief are avaiirble in the District

Court, the sufficiency of our jurisdictionai allegations will

be placed in issue. It may be that no additional jurisdic-

tional allegations are needed to support declaratory re-

lief, Sobell v. Attorney General, 400 F.2d 986, 989 (3

Cir.), cert. denied, 393 U.S. 940 (1968), but if the Court

concludes otherwise, this motion should be granted so

that this case may be decided on its merits.

Because consideration of this motion is inextricably

linked with the jurisdictional issues which have been fully

briefed by the parties, we respectfully suggest that the

Court hold this motion in a»eyance pending argument

and disposition of this case.

WHEREFORE, if appellant’s jurisdictional allegations

are deemed defective, this motion should be granted and

appellant should be granted leave to amend those allega-

tions as set forth herein.

Respectfully submitted,

FRANK F, FLEGAL

600 New Jersey Avenue, N.W.

Washington, D. C. 20001

Attorney for Appellant

allegations instead of merely allegations of diversity of citizenship

as provided by [former] section 399 of title 28, U.S.C., 1940 ed.”

H.R. Rep. No. 308, 80th Cong., Ist Sess. at A-145 (1947).

Certificate of Service

A copy of the foregoing motion has been personally de-

livered to the office of the United States Attorney, United

States Courthouse, Washington, D. C. 20001, this 28th

day of January, 1975.

FRANK F, FLEGAL

600 New Jersey Avenue, N. W.

Washington, D. C. 20001

Attorney for Appellant

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 74-1832

(Habeas Corpus No. 31-73)

ROOSEVELT F. PALMORE, APPELLANT

Vv.

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

OPPOSITION TO APPELLANT’S MOTION FOR

LEAVE TO AMEND JURISDICTIONAL

ALLEGATIONS

Appellees respectfully oppose appellant’s motion for

leave to amend the jurisdictional allegations of his

allegations of his initial application for a writ of habeas

corpus filed in the United States District Court for the

District of Columbia on May 15, 1973.

On May 15, 1973, appellant filed an application for a

writ of habeas corpus in the District Court along with

a memorandum of points and authorities in support of

that application. An order to show cause was issued by

the court on May 16; the return and answer of the

respondents was subsequently filed on June 4. On June

15 appellant filed a reply memorandum. The court heard

argument on appellant’s application on June 18; appel-

lant later filed supplemental memoranda on June 21 and

July 13, 1973. In each of these pleadings appellant’s

entire effort was directed toward the issuance of a writ

of habeas corpus by the District Court. |

On July 10, 1974, the Honorable Joseph C. Waddy

entered an order discharging the rule to show cause and

dismissing appellant’s petition for a writ of habeas

corpus. This appeal followed. In his initial brief in this

Court appellant asserted that this Court had jurisdiction

of his appeal pursuant to 28 U.S.C. § 2253, the provi-

sion dealing with the appeal of decisions in habeas cor-

pus proceedings.

Appellant now seeks to amend his initial application

to the District Court under 28 U.S.C. § 1653 to allege

jurisdiction of that court pursuant to 28 U.S.C. § 1331—

asserting a federal question arising under the Fourth

Amendment involving more than $10,000 in damages

—and, in addition, he requests relief under 28 U.S.C.

§§ 2201-2202, the provisions enabling the federal courts

to issue declaratory judgments. We strenuously oppose

any such amendment.

28 U.S.C. § 1653 provides:

Defective allegations of jurisdiction may be

amended, upon terms, in the trial or appellate courts.

Appellant contends in his motion that this provision

entitles him at this juncture to amend his initial appli-

cation for a writ of habeas corpus to include, in the

jurisdictional allegations of that petition, an assertion

of federal question jurisdiction and a claim for declara-

tory relief. This position is simply contrary to the con-

trolling case law in this and other jurisdictions.

The purpose of section 1653 is to allow a party to

avoid dismissal of his cause of action on purely technical

grounds. Moore v. Coats Co., 270 F.2d 410, 412 (3d Cir.

1959). However, the amendment which appellant seeks

1In Moore the court permitted the amendment of a complaint to

include an additional party, thereby perfecting venue in the District

Court. The court noted that the plaintiff in that action was appear-

ing pro se, and since he was unskilled in the law, his pleadings

should be liberally construed. 270 F.2d at 411. In the instant case,

appellant is represented by very distinguished counsel, as he was

in the trial court. Consequently, there is not the same need to make

allowances as in the case of a pro se litigant. In any event, as we

shall show, amendment of the type requested here is improper even

under a liberal construction of the statute.

in his pending motion is far more than a mere technical

amendment to cure a technical jurisdictional defect.

Rather, appellant now seeks to raise new and funda-

mentally different grounds for the jurisdiction of the Dis-

trict Court. Such an amendment should not be allowed

in this Court following dismissal of appellant’s action by

the District Court.

As the Tenth Circuit noted in Brennan v. University

of Kansas, 451 F.2d 1287, 1289 (10th Cir. 1971):

The power of the appellate court to correct defective

jurisdictional allegations [under 28 U.S.C. § 1653]

concerns defects of form, not substance. [Footnote

omitted. ]

An appellate court “cannot consider a ‘new issue, not

raised by the pleadings in the District Court or con-

sidered by it,’ whether raised by motion to amend a com-

plaint or otherwise.” First National Bank of Cincinnati

v. Pepper, 454 F.2d 626, 636 (2d Cir. 1972) (citation

omitted) ; cf. Champ v. Atkins, 76 U.S. App. D.C. 15,

16-17, 128 F.2d 601, 602-603 (1942).?

* The cases relied upon by appellant in his motion do not support

his contention on close examination. In both Tatum v. Laird, 144

U.S. App. D.C. 72, 444 F.2d 947, rev'd, 408 U.S. 1 (1972), and

Childs v. United States Board of Parole, D.C. Cir. No. 74-1052,

decided December 19, 1974, this Court relied upon a provision of

the District of Columbia Code, 11 D.C. Code § 521, which estab-

lished the United States District Court for the District of Columbia

as a court of general equity jurisdiction, and noted, therefore, that,

even if this jurisdictional basis was not properly pleaded, the local

court clearly had jurisdiction over the subject matter of the pro-

ceeding. Since the District of Columbia Court Reform and Criminal

Procedure Act of 1970 took effect on February 1, 1971, however,

the jurisdictional basis relied upon in those decisions no longer

exists. See Tatum v. Laird, supra, 144 U.S. App. D.C. at 75 n.5,

444 F.2d at 950 n.5.

Similarly, Mantin v. Broadcast Music, Inc., 248 F.2d 530 (9th

Cir. 1957), and Blanchard v. Terry & Wright, Inc., 218 F. Supp.

910 (W.D.Ky. 1963), aff'd, 331 F.2d 467 (6th Cir. 1964), were cases

in which the facts pleaded or presented to the court showed that it

had jurisdiction, but the pleadings did not properly allege the juris-

dictional bases.

In the instant case, we submit, appellant is not simply attempting

to cure an imperfect pleading. Rather, he is no presenting to this

Moreover, there is an additional ground on which ap-

pellant’s motion should be denied: it is clearly unlikely

that the amendment which appellant now seeks to offer

will avail him in his cause of action. E.g., Brennan V.

University of Kansas, supra, 451 F.2d at 1289. Appel-

lant asserts that, if he is granted leave to amend his

initial petition, he may well prevail in an action for

monetary damages within the court’s federal question

jurisdiction under 28 U.S.C. § 1331. In addition, he

argues, he should be able to obtain declaratory relief

even if the District Court lacks habeas corpus jurisdic-

tion.

With respect to appellant’s potential suit for monetary

damages, while he could conceivably recover for the al-

leged deprivation of his constitutional rights, the likeli-

hood of such a recovery on the facts of this case is so

remote as to defy quantitative analysis. It must be re-

membered that the police officers were acting in accord-

ance with prior precedent when they stopped appellant,’

and their actions were later approved by the local court

of appeals.‘

Appellant argues at some length in his reply brief that

his action could have been maintained under the Decla-

ratory Judgment Act, 28 U.S.C. §§ 2201-2202. This

position, however, is simply not in accord with the rele-

vant authority. As this Court clearly stated in Clark v.

Memolo, 85 U.S. App. D.C. 65, 68, 174 F.2d 978, 981

(1949):

The action for declaratory judgment is not suit-

able and does not lie in the District of Columbia in

such cases as a substitute for a motion to vacate

or to correct the sentence in the court where it was

imposed, or as a substitute for habeas corpus in the

Court an entirely new jurisdictional basis for his claim. Such tardy

introduction of legal theories which were never presented to the

District Court should not be allowed.

3 See Mincy V. District of Columbia, 218 A.2d 507 (D.C. Ct. App.

1966).

+ Palmore Vv. United States, 290 A.2d 573, 580-584 (D.C. Ct. App.

1972).

district where the unlawful detention occurs, or as

a substitute for a new trial or appeal.

See also Ruip v. Kentucky, 400 F.2d 871, 872 (6th Cir.

1968), cert. denied, 395 U.S. 911 (1969); United States

ex rel. Bennett v. Illinois, 356 F.2d 878 (7th Cir.), cert.

denied, 384 U.S. 946 (1966).

It is clear, as we have argued in our brief, that appel-

lant has an appropriate statutory remedy under 23 D.C.

Code § 110 to challenge the legality of his conviction.

Under such circumstances he should not be allowed to

seek declaratory relief and thereby avoid the statutory

remedy which Congress has provided. Cf. Clauseill v.

Turner, 295 F. Supp. 533, 536-5387 (S.D.N.Y. 1969).

Particularly in the instant case, because Congress has

specifically precluded any court other than the Superior

Court from jurisdiction to consider collateral attacks

on judgments of conviction entered in that court, it

would totally frustrate the congressional purpose to al-

low appellant to bring an action for declarato li

in the District Court.° —

5 Despite appellant’s assertions to the contrary, there is no au-

thority to support his contention that declaratory relief should be

available to him under the circumstances of this case. Rather, as

the cases cited above show, collateral relief under 23 D.C. Code § 110

is his exclusive remedy. The cases cited in appellant’s reply brief

(Appellant’s Reply Brief at 8-12) do not support his contention. For

example, Brownell v. Tom We Shung, 352 U.S. 180 ( 1956), and

Shaugnessy VN. Pedreiro, 349 U.S. 48 (1955), were immigration

cases involving challenges to administrative orders of deportation

or exclusion. The Supreme Court held that such administrative

orders were subject to review either in actions for declaratory

judgments or on petitions for writs of habeas corpus. Such declara-

tory relief as was available was held to emanate from the Adminis-

trative Procedure Act. This Court similarly held in Hurley v. Reed,

110 U.S. App. D.C. 32, 288 F.2d 844 (1961), that a decision of the

United States Board of Parole could be challenged in an action for

a declaratory judgment. The important distinction between these

cases and the instant case, however, which appellant ignores, is

that these cases involved decisions of an administrative agency

and thus were amenable to declaratory relief because of the Admin-

istrative Procedure Act, whereas the instant case involves no ad-

ministrative decision. For a helpful discussion of this distinction,

see Clausell v. Turner, supra, 295 F. Supp. at 536-537.

(Footnote continued on page 56]

Thus it is plain not only that appellant’s proposed

amendment is improper under 28 U.S.C. § 1653, but also

that, even if his motion were granted, his amendment

would not avail him in his cause of action.

WHEREFORE, appellees respectfully submit that ap-

pellant’s motion for leave to amend jurisdictional allega-

tions should be denied.

/s/ Earl J. Silbert

EARL J. SILBERT

United States Attorney

/s/ John A, Terry

JOHN A. TERRY

Assistant United States Attorney

/s/ Albert H. Turkus

ALBERT H. TURKUS

Assistant United States Attorney

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a copy of the foregoing

Opposition has been mailed to counsel for appellant,

Frank F. Flegal, Esquire, 600 New Jersey Avenue, N.W.,

Washington, D.C. 20001, this 3rd day of March, 1975.

/s/ Albert H. Turkus

ALBERT H. TURKUS

Assistant United States Attorney

5 [Continued ]

Appellant also cites Rose v. McNamara, 252 F. Supp. 111 (D.D.C.

1966), aff'd, 126 U.S. App. D.C. 179, 375 F.2d 924 (1967), in sup-

port of his contention that declaratory relief should be available to

him. While there is no discussion in ether of the Rose decisions

of the reason why deciaratory relief was thought to be available,

it would appear that declaratory relief was appropriate rather than

habeas corpus in that particular case because the petitioner was not

incarcerated but had only been fined as a result of her conviction.

At the time of that decision, prior to the establishment of expanded

notions of “custody” by the Supreme Court, it is likely that habeas

corpus would not have bee. >vailabie to the petitioner.

ATTACHMENT

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1974

[Filed, May 21, 1975; Hugh E. Kline, Clerk]

(Filed, Sep. 3, 1975; James F. Davey, Clerk]

Habeas Corpus #31-73

No. 74-1832

ROOSEVELT F. PALMORE, APPELLANT

Vv.

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, ET AL.

Before: Bazelon, Chief J udge; Wright, M

, : , cGowan,

Tamm, Leventhal, Robinson, MacKinnon, Robb

and Wilkey, Circuit Judges

ORDER

On consideration of appellant’s motion for leave to

amend jurisdictional allegatio a

thereto, it is gations, and of the opposition

ORDERED by the Court, en banc, that a ,

_en bane, ppellant’s

pon ol "aad leave to amend jurisdictional allegations is

P. .

A true copy: 7

Test: Hugh E. Kline, Clerk

United States Court of Appeals

for the District of Columbia Circuit

By: /s/ Catherine Carr, Deputy Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Habeas Corpus No. 31-73

[Filed, Sep. 3, 1975; James F. Davey, Clerk]

ROOSEVELT F’. PALMORE, APPLICANT

SUPERIOR COURT OF THE DISTRICT O# COLUMBIA, ET AL.,

RESPONDENTS

APPLICANT’. AMENDED JURISDICTIONAL

ALLEGATIONS

Pursuant to 28 U.S.C. § 1653, and in accordance with

the leave granted to applicant by the United States

Court of Appeals for the District of Columbia Circuit,

applicant hereby amends the jurisdictional allegations

set forth in paragraph 3 of his application for writ of

habeas corpus as follows:

3. This Court has jurisdiction to entertain this ap-

plication and issue the writ of habeas corpus as prayed

herein pursuant to 28 U.S.C. §§ 2241 et seg. Jurisdic-

tion is also invoked under and by virtue of Article I,

§9, cl. 2 and Article III of the Constitution of the

United States and 28 U.S.C. § 1651. Alternatively, this

action arises under the Fourth Amendment to the Con-

stitution of the United States, involves an amount in

controversy which exceeds the sum of ten thousand dol-

lars ($10,000), and this Court has jurisdiction pursuant

to 28 U.S.C. § 1331. There exists between the parties an

actual controversy, and this Court has power to declare

the respective rights of the parties, and to award such

other relief as may be necessary and proper, pursuant

to 28 U.S.C. §§ 2201-2202. ne

/8/ Frank F. Flegal

FRANK F. FLEGAL

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

Attorney for Applicant

II. Swain v. Pressley

RELEVANT DOCKET ENTRIES

Date Entries Judge

May 11, 1973 Petition for Writ of Habeas Corpus

c/s 5/9/73.

May 11, 1973 Petition for leave to file and prosecute

in forma pauperis; Affidavit.

May 11, 1973 Order authorizing filing and directing

respondent to show cause on or before the 5th day

after service. (signed 5/10/73).

Judge McGuire

May 11, 1973 Rule to show cause & copies issued to:

Swain ser: 5/15/73

U.S. Attorney ser: 5/15

Corporation Counsel ser: 5/16

May 21, 1973 Answer by respondent to petition for

writ of Habeas Corpus and Rule to show cause;

c/m 5/21/73. Appearance of Donald F. Rosendorf,

Asst. Corp. Counsel. 7

May 23, 1973 Order for writ of habeas corpus return-

able June 11, 1973 at 10:00 A.M.; requesting Glenn

L. Archer to represent petitioner.

Judge McGuire

May 25, 1973 Writ of Habeas Corpus & copies issued;

ser: not served.

June 6, 1973 Supplemental return and Answer of re-

spondent to Rule to show cause; c/m 6-6-73. Ap-

pearance of Tobey W. Kaczensky.

June 8, 1973 Order continuing hearing on cause set

for June 11, until 9:30 A.M. July 9, 1973.

Judge Sirica

* * * *

Date Entries Judge

July 9, 1973 Reply of petitioner; Exh. A, B, C; ¢/sr

7/9/73

July 12, 1973 Answer of respondent to reply of pe-

titioner; p/s 7/12/73; Exhibit.

July 18, 1973 ORDER discharging rule to show cause;

dismissing petition. Court does not have jurisdic-

od over this matter by virtue of 23 D.C. Code

110(g).

Judge Gesell

July 25, 1973 ORDER dated 7-24-73 appointing Glenn

L. Archer, Jr., counsel for deft. Nune Pro Tune

5-23-73. Filed. #263370

Judge Gesell

Aug. 13, 1973 NOTICE of Appeal by petitioner from

order of July 18, 1973. Copies to: U.S. Attorney;

Corporation Counsel; U.S.C.A.; 67371

Jan. 22, 1974 CERTIFIED copy order U.S.C.A. ap-

pointing Robert Weinberg, Esq. as counsel to rep-

resent appellant.

Nov. 12, 1974 MEMORANDUM clarifying Court’s Or-

der of 7/18/74 dismissing petition for issuance of

writ of habeas corpus

Judge Gesell

Nov. 1, 1974 CERTIFIED copy order of U.S.C.A. re-

manding record to U.S.D.C. for clarification of the

order dated July 18, 1974.

Nov. 14, 1974 SUPPLEMENTAL RECORD on re-

mand returned to U.S.C.A. receipt askn. (73-1975).

Feb. 3, 1975 TRANSCRIPT of proceedings July 16,

1973: Pages 1-19. (Ida Z. Watson reporter).

July 31, 1975 Certified copy of judgment U.S.C.A. re-

versing and remanding cause to the U.S. District

Court. Opinion attached. —

a ®

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Habeas Corpus No. 30-73

[Filed May 1, 1973, James F. Davey, Clerk]

JASPER C. PRESSLEY, Box 12, Lorton, Virginia 22079,

PETITIONER

Vv.

C. L. Swain, Superintendent, Lorton Correctional

Complex, Box 25, Lorton, Virginia 22079, RESPONDENT

PETITION FOR ISSUANCE OF

WRIT OF HABEAS CORPUS

Comes now, the Petitioner, Jasper C. Pressley, and in

accordance with Title 28, U.S.C. Sections 2241-2243,

respectfully moves this Honorable Court to issue a writ

of Habeas Corpus and for cause states as follows:

1. In February 1971, the Petitioner’s house was

searched in compliance with an affidavit in support of a

search warrant for the entire premises of 6809 9th

Street, N.W. in Washington, D.C. for the charge:

RECEIVING STOLEN PROPERTY IN VIOLATION

OF THE DISTRICT OF COLUMBIA CODE, TITLE

22, SECTION 2205. In that, two (2) Metropolitan

Police Badges, one (1) purported to have been stolen in

January 1970, prior to the employment of the Peti-

tioner at the Pilot District Project and the other in

October 1970 from the locker room of the Third Dis-

trict Headquarters, where the Petitioner never been

nor had access, and one (1) IBM Electric Typewriter

serial number 6238665, purported to have been reported

stolen from the Pilot District Project’s office between the

hours of 7:30 p.m. and 11:00 a.m. on Friday and Satur-

day, November 13 and 14th respectively. An IBM Se-

lectrie Typewriter serial number 5613255 was taken

from the premises of the Petitioner. A call was made

to the office of the Pilot District Project by one Lt.

Keahon from the Petitioner’s premises, to check on type-

writer #5613255. There was no report of such a type-

writer being stolen or missing from the Pilot District

Project but said typewriter was taken by said Police

Lieutenant for the purpose of checking on it. The Peti-

tioner was not arrested nor was he detained for in-

terrogation.

2. On February 9, 1971, the Petitioner was indicted

secretly by a Grand Jury of the District of Columbia

Superior Court on charges of; and in violation of: Grand

Larceny (22 D.C. Code 2201), Larceny from the Dis-

trict of Columbia Government (22 D.C. Code 2206) and

Receiving Stolen Property (22 D.C. Code 2205). After

a trial by jury before the Honorable Tim C. Murphy on

April 20, 21 and 22, 1971, the Petitioner was found

guilty of Grand Larceny and Larceny from the District

of Columbia Government and not guilty of Receiving

Stolen Property. On October 1, 1971, the court sen-

tenced the Petitioner to concurrent prison terms of

thirty-two to ninety-six months for grand larceny and

twenty months to five years for larceny from the District

of Columbia Government. Petitioner appealed from the

conviction whereby his court appointed Attorney Michael

F, X. Dolan, presented argument on PERJURIOUS

TESTIMONY, an issue not presented at trial level. On

May 22, 1972, the District of Columbia Court of Ap-

peals entered a judgment affirming the conviction in

Pressley v. United States, No. 6063, stating, “No con-

stitutional issues were involved.”

3. June 5, 1972, the Petitioner filed a motion for a

new trial pro se claiming inter alia that he was denied

the effective assistance of counsel. June 6, 1972, Judge

Murphy denied the motion without a hearing. An appeal

followed.

4. The Petitioner's argument was and remains, that:

THE PETITIONER WAS DENIED EFFECTIVE AS-

SISTANCE OF COUNSEL GUARANTEED BY THE

SIXTH AMENDMENT IN THAT TRIAL COUNSEL’S

GROSS INCOMPETENCE BLOTTED OUT THE ES-

SENCE OF A SUBSTANTIAL DEFENSE, AND PETI-

TIONER’S CONVICTIONS BEING BASED, IN PART,

UPON PATENTLY PERJURED TESTIMONY.

Ineffective assistance of trial counsel, to be violative

of the Constitution, must be so grossly incompetent as

to blot out the essence of a substantial defense. Bruce

v. United States, 126 U.S. App. D.C. 336, 379 F. 2d 113

(1967) ; Scott v. United States, 188 U.S. App. D.C. 339,

427 F. 2d 609 (1970). In the case before this Court,

trial counsel acted in such a manner.

The most flagrant illustration of trial counsel’s in-

competence was his failure to move to suppress as evi-

dence the typewriter allegedly stolen by Appellant. Fac-

ing a similar fact situation, the Supreme Court of Cali-

fornia, speaking through Justice Traynor, held that “it

is counsel’s duty to investigate carefully all defenses of

fact and of law that may be available to the Defendant,

and if his failure to do so results in withdrawing a

crucial defense from the case, the Defendant has not

had the assistance to which he is entitled. People v.

Ibarra, 34 Cal. Rptr. 863, 386 P. 2d 487, 490 (1963).

In the /barra case, the Supreme Court overturned a con-

viction because trial counsel failed to voice any objection

to the admission of heroin allegedly taken from Defend-

ant’s person. A motion to supress in the present case

could have been based upon lack of probable cause for

issuance of a search warrant and on improper execu-

tion of said warrant.' The probable cause issue was im-

portant because the Affidavit in support of said war-

rant was based on the testimony of one Roman §. Dixon,

who was arrested on January 27, 1971 and charged with

grand larceny, a charge to which he admitted his guilt.

Mr. Dixon also admitted stealing a Metropolitan Police

Officer’s badge which he utilized during the commission

of said offense. After he was arrested and had issued

a confession, he assisted the police in recovering prop-

erty which had been stolen by him. This according to

Officer Richard Hayden and the Superior Court Judge

1 See Grand Jury Minutes dated February 8, 1971, line 8 thru 16,

and Lt. Keahon’s testimony at (Tr. 110-111) in addition to Dixon’s

(Tr. 72-73). Each has a different statement.

who authorized the issuance of the search warrant caused

Roman Dixon to be a reliable informer. A man who

steals property from others, and after he is arrested

and has admitted to the larceny, helps the police re-

cover the property which he has stolen, suddenly be-

comes a reliable informer. The United States Supreme

Court has said that “although an Affidavit may be based

on hearsay information . . . the magistrate must be in-

formed of some of the underlying circumstances from

which the informant concluded that the [typewriter]

was where he claimed it was, and some of the under-

lying circumstances from which the officer concluded the

informant . . . was credible or his information reliable.”

Agutlar v. Texas, 378 U.S. 114 (1963). The Affidavit in

this case was not corroborated in any way by outside

sources, and yet the issuing magistrate felt that this

confessed criminal was credible and reliable. See Spin-

elli v. United States, 393 U.S. 410 (1968). It is also

clear that this case did not involve danger to either police

officers or the innocent public, thereby reducing the stand-

ards necessary for a search and seizure. Murphy v.

United States, D.C. Appeals No. 6226 (Aug. 10, 1972);

Adams v. Williams, —— U.S. ——, 32 L.Ed. 2d 612

(1972). At the very least, there is a substantial question

as to whether there were proper grounds for issuance of

a search warrant, and yet no motion to suppress, here

basic to the essence of a criminal defense, was ever raised

by trial counsel.?

There were other grounds which could have been raised

at the trial level in a motion to suppress evidence. A

typewriter, in and of itself, is neither an unusual house-

hold item, nor an illegal one. To describe the typewriter

as an IBM Electric, Serial Number 6238665 is specific

enough, but in fact, the typewriter seized from the prem-

2 See Affidavit and Search Warrant. Police Badges missing prior

to employment of Petitioner at Pilot District Project (EMPHASIS

ADDED). Petitioner was not detained upon seizure of typewriter

#5613255 and if it had been ascertained that said typewriter was

stolen or missing, the Petitioner would have been arrested upon the

seizure. See Officer Haydn statement before Grand Jury dated 8

February 1971, line 8-16.

ises was an IBM Se ectric, Serial Number 5613255. Thus

there was an improper execution of the search warrant,

particularly in light of the fact that the object of the

search was a typewriter, a common household item. The

issue before this Court is not whether a motion to sup-

press would have been successful, but rather that because

it was not made at the trial level, it can not be raised on

appeal, and thus Appellant has been denied the assistance

of counsel guaranteed under the Constitution.

There were other ways in which trial counsel was in-

effective. A crucial question in any trial for the charge

of grand larceny is the value of the allegedly stolen

property. In the case before this Court, a government

witness testified that the typewriter in question cost

$495.00 when purchased in 1969. However, there was no

testimony to the precise value of the property at the

time it was stolen and there were no vouchers of cost

nor of ownership presented at trial as evidence. Trial

counsel failed to seek an expert witness who might tes-

tify to a substantially lower valuation or if the type

writer was in ordinary working condition to justify a

charge of grand larceny. This was ineffective of coun-

sel. A. K. Ramson v. U.S. (1964, 337 F. 2d 550, 119

U.S. App. D.C. 154, states that “Without evidence of

value of article involved, charge of Grand Larceny is

inadequate to sustain finding of jury that it was of

value of $100 or upward

The counsel also failed to have any expert finger-

printer to verify that finger prints could have been taken

off the typewriter in opposition to governments argu-

ment that no fingerprints could be taken from the type-

writer, trial counsels concurrence would have revealed the

petitioner’s innocence.

Trial counsel failed to object at Voir Dire when a

prospective juror rose in the open court and stated that

she had seen petitioner in court on a previous occasion.

Trial counsel did not object to the indictments handed

3In Grand Larceny prosecutions, instructions on petit larceny is

unnecessary where NOTHING IN EVIDENCE indicates value of

less than $100. W. Chew v. U.S. (1962, 298 F.2d 334, 112 U.S. App.

D.C. 6).

down by the Grand Jury when it appeared on the face

of two separate indictments that the signatures of the

United States Attorney for the District of Columbia were

patently different.‘ Further, counsel made no serious at-

tempt to impeach the witness Dixon with regard to the

spraypaint on the typewriter, when it was clear that

this testimony was in conflict with other government

witnesses. °

The ineffective assistance described above is not merely

a reassessment by hind sight of the strategy decisions of

defense counsel. Under the Bruce case, supra., this would

‘not be a proper standard for a reviewing court. Nor

is this case similar to Edwards v. United States, 103

U.S. App. D.C. 152, 256 F. 2d 707 (1958), because

that case involved a plea of guilty rather than an exten-

sive criminal trial, and the decision to plead guilty was

arrived at after discussion between the Defendant and

his counsel. A distinction must be made between im-

provident strategy and lack of investigation, when the

latter amounts to ineffective assistance of counsel. In

Coles v. Peyton, 389 F. 2d 224 (1968), as in this in-

stant case before the Court, the United States Court of

Appeals for the Fourth Circuit held that the Petitioner

was denied effective assistance of counsel when his trial

counsel failed to investigate matters which were crucial

to the defense of a charge of rape in the State of Vir-

ginia.

The opinion of this Court should not affect or be af-

fected by the fact that trial counsel was retained by the

Petitioner. A double standard of effectiveness required

under the Constitution would be inconceivable. Because

the petitioner seeks his own counsel should not relax any

Constitutional protection to which he is otherwise en-

*Count 1 & 2 are identical and the signature of the DA is

FORGED; in that no initial indicates the signee even if authoriza-

tion was given. As the indictment stands, anyone, anywhere can

sign the DA’s signature without indicating WHO signed it. Fur-

ther, if the Ass’t are authorized to sign the DA’s signature, WHY

did the DA sign #9227-71 himself?

®See Dixon (Tr. 72) Keahon (Tr. 107-08) PERJURED TES-

TIMONY.

titled. Holland v. Boles, 225 F. Supp. 863 (N.D.W.Va.,

1963)

CONCLUSION

The Petitioner respectfully urges this Court to grant

his petition and order the Respondent in this cause to

show the legality of the detainment of the Petitioner,

and, should the allegations and facts herein presented

prove as stated, Petitioner humbly prays that this Court

will move as law and justice provide to discharge the

Petitioner from confinement. Further, it is arguable

that the trial judge should have recognized the illegal

nature of the seizure and raised the issue himself. When

essential integrity of the judicial process is at state, an

experienced trial judge should take the necessary action

to assure a fair hearing. That the trial Judge has that

power is implied in many decisions regarding the ef-

fective representative of counsel which holds that the in-

competency of counsel must be of the sort of which the

trial court may take cognizance and which it has a duty

to correct. Davis v. Bomer, 349 F. 2d 84 (6th Cir.)

Cert. Denied 382 U.S. 883, 86 S. Ct. 177, 152 L Ed 2d

124 (1965); U.S. v. ex rel Darcy v. Hardy, 202 F. 2d

407 (8rd Cir. 1953).

Respectfully submitted,

/s8/ Jasper C. Pressley

JASPER C. PRESSLEY

Box 12

Lorton, Virginia

CERTIFICATE OF SERVICE

I, hereby certify that a copy of the foregoing Petition

for Leave to File and Prosecute and Petition for the Is-

suance for a Writ of Habeas Corpus in Forma Pau-

peris, was mailed, postage prepaid to the Attorney for

the District of Columbia, at his office, U. S. Courthouse,

Washington, D. C. this 9th day of May 1973.

/s/ Jasper C. Pressley

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Habeas Corpus No. 30-73

[ Filed, May 11, 1973; James F. Davey, Clerk]

JASPER C. PRESSLEY, PE” ’"IONER

vs.

C. L. SWAIN, RESPONDENT

ORDER AUTHORIZING FILING AND DIRECTING

RESPONDENT TO SHOW CAUSE

It is this 10th day of May, 1973,

ORDERED that the petition be filed without prepay-

ment of costs.

IT IS FURTHER ORDERED that the respondent ei-

ther in person or by counsel appear in the Court on or

before the 5th day after service of a copy of this order

and of the petition upon him and make return to said

petition and show cause, if any he has why the Writ of

Habeas Corpus should not issue.

IT IS FURTHER ORDERED that the respondent serve

on the petitioner by mail a copy of his answer to this rule.

The Clerk is directed to furnish the United States

Marshal with a copy of this order and of the petition

for the purpose of making such service.

/s/ Matthew F. McGuire

Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Habeas Corpus No. 30-73

[Filed, May 21, 1973; James F. Davey, Clerk]

JASPER C. PRESSLEY

Box 12

Lorton, Virginia 22079

PETITIONER ,

C. L. SWAIN, Superintendent

Lorton Correctional Complex

Box 25

Lorton, Virginia 22079

RESPONDENT

ANSWER TO PETITION FOR WRIT OF HABEAS

CORPUS AND RULE TO SHOW CAUSE

For answer to Petition for Writ of Habeas Corpus

and rule to show cause thereon, counsel for respondent,

C. L. Swain, represents to the Court that the matters

complained of therein de mot amount to gross incompe-

tence on the part of petitioner’s tria) counsel and, accord-

ingly, there is no basis for granting the petition.

Petitioner alleges several grounds for his contention

that trial counsel was grossly incompetent. He alleges

a failure to attack the validity of the search warrant but

admits that the informant who provided information

which served as the basis for the affidavit had helped

the police recover stolen property in another case. Since

the informant had proved to be reliable in the past by

leading police to stolen property this would meet the test

of Jones v. United States, 362 U.S. 257 (1960). In any

event, the decision as to whether an attack upon the

validity of the warrant would be worthwhile is subjective

in nature and totally within the discretion of counsel.

Petitioner also states that there was no precise testi-

mony as to the value of the stolen typewriter at the time

it was recovered although there was testimony as to its

worth in 1969 which was $495.00. For the purposes

§ 22-2201, D.C. Code, 1967 ed., the exact value of the

item would, in any event, be irrelevant.

Petitioner’s complaints, in essence, amount to after

the fact dissatisfaction with strategic and tactical deci-

sions of trial counsel. In Scott v. United States of Amer-

ica, 427 F.2d 609 (D.C. Cir. 1970) the court noted that

“the appropriate standard for ineffective assistance of

counsel . . . is whether gross incompetence blotted out

the essence of a substantial defense.” Petitioner’s allega-

tions do not rise to this test and he has not met his

burden of “showing requisite unfairness” of the trial

as required by Bruce v. United States, 126 U.S. App.

D.C. 336 (D.C. Cir., 1967). In order to prevail, petitioner

must show that counsel lacked “the minimum standards

of competence necessary to satisfy appellant’s constitu-

tional right to counsel.” Bruce, supra.

Petitioner was represented at trial by counsel of his

own choosing. In Anderson v. Brennan, 250 F.2d 654

(6th Cire., 1958) the petitioner complained of incom-

petent representation of retained counsel in that he did

not object to the introducing of evidence which may have

been the basis of his conviction for armed robbery. The

court stated:

“'WJe must keep in mind that appellants were rep-

resented by counsel of their own choosing . . . In

the aftermath of a trial, it is often found that even

the most able of counsel may have erred in some

respects . . . To justify a writ of habeas corpus on

the ground of incompetence of counsel, an extreme

case must be disclosed, considerably more than in-

adequacy of representation by counsel of one’s own

choosing.”

Finally, it should be noted that petitioner does not

complain of the services rendered by his court appointed

counsel on appeal. The issues raised by this petition,

had they been of substance, could have been raised on

appeal. After hearing oral argument, the District of

Columbia Court of Appeals, Ne. 6063, affirmed the con-

viction and, according to petitioner, stated “no constitu-

tional issues were involved.” In the Anderson case, supra,

the court stated that “habeas corpus cannot be used as a

substitute for appeal for the purpose of attacking the

validity of state court rulings not involving constitutional

questions.”

WHEREFORE, it is respectfully submitted that the

Petition for Writ of Habeas Corpus should be denied and

that the Rule to Show Cause thereon should be discharged.

/8/ C. Francis Murphy

C. FRANCIS MURPHY

Corporation Counsel, D.C.

/s/ John A. Earnest

JOHN A. EARNEST

= Corporation Counsel,

/s/ Donald F. Rosendorf

DONALD F. ROSENDORF

— Corporation Counsel,

Attorneys for the Respondent

District Building

Washington, D.C. 20004

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Answer

to Petition for Writ of Habeas Corpus and Rule to Show

Cause was mailed, postage prepaid, to Jasper C. Pressley,

Plaintiff pro se, Box 12, Lorton, Virginia, 22079, this

21st of May, 1973.

/s/ Donald F. Rosendorf

Assistant Corporation Counsel, D.C.

Attorney for the Respondent

District Building

Washington, D.C. 20004

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Habeas Corpus 30-73

(Superior Court Criminal Number 6733-71)

| Filed, Jun 6, 1973; James F. Davey, Clerk]

JASPER C. PRESSLEY, PETITIONER

C. L. SWAIN, RESPONDENT

SUPPLEMENTAL RETURN AND ANSWER

TO RULE TO SHOW CAUSE

Comes now the respondent by his attorney, the United

States Attorney for the District of Columbia, and makes

the following supplemental answer to the rule to show

cause :

1. By a three-count indictment filed on February 9,

1971, in the Superior Court, Criminal Number 6733-71,

petitioner was charged with grand larceny (22 D.C.C.

§ 2201) larceny from the District of Columbia govern-

ment (22 D.C.C. § 2206) and receiving stolen property

(22 D.C.C. § 2205). After a trial by jury before the

Honorable Tim C. Murphy on April 20, 21, and 22, 1971,

petitioner was found guilty of grand larceny and larceny

from the District of Columbia government and not guilty

of receiving stolen property. On October 1, 1971, the

court sentenced petitioner to concurrent prison terms of

thirty-two to ninety-six months for grand lareeny and

twenty-months to five-years for larcemy from the District

of Columbia government. Petitioner, by counsel, appealed

from his conviction. On appeal, petitioner argued prin-

cipally that the variance in testimony between the govern-

ment witnesses necessitated reversal. The District of

Columbia Court of Appeals affirmed petitioner’s convic-

tion by order noting that the record disclosed no error

affecting the substantial rights of appellant. Pressley v.

United States, Number 6063, May 22, 1972.

2. On June 5, 1972, fourteen months after his trial

petitioner filed a pro se motion for a new trial. This

motion was denied. Petitioner by counsel appealed. The

issue presented on appeal was whether petitioner had

been denied effective assistance of counsel because trial

counsel had failed to move to suppress certain physical

evidence introduced by the government. The District of

Columbia Court of Appeals affirmed by order noting

that trial counsel’s determination not to move to sup-

press did not constitute professional incompetence. Press-

ley v. United States, Number 6631, March 2, 1973.

3. During the pendency of his appeal in that case,

Number 6631, and after the affirmance of his conviction

in Number 6063, petitioner filed a pro se motion in July

of 1972 to compel production of the grand jury voting

record in Superior Court Criminal Number 6733-71. On

September 8, 1972, this motion was denied by the trial

judge. Appointed counsel has appealed that order in the

District of Columbia Court of Appeals Number 6803. The

ground for the request for production of the grand-jury

minutes appears to be an alleged difference in form be-

tween the signatures of the United States Attorney in

Number 6733-71 and the signature on the indictment in

an unrelated Superior Court Criminal case, Number

9227-71. The allegation appears to be that the alleged

difference in some way taints the indictment. On March

22, 1973, the United States filed a motion for summary

affirmance. The District of Columbia Court of Appeals

has rendered no decision as yet.

4. Petitioner styles his present pleading a writ of

habeas corpus. However, he indicates that the principal

claim for relief is based on ineffective assistance of coun-

sel. He also alludes to a further complaint that the evi-

dence at trial was either not credible or insufficient.

These two points appear to be substantially identical to

those previously raised on appeal as outlined above. Peti-

tioner also alleges that the indictment by which he was

charged was defective. This issue is substantially iden-

tical to the one presently before the District of Columbia

Court of Appeals in Number 6803.

5. This court lacks jurisdiction to entertain this peti-

tion. A collateral attack upon a conviction in the Su-

perior Court may be brought only by a motion pursuant

to 23 D.C.C. § 110 in the Superior Court; subsection (g)

thereof expressly provi ‘s that a writ of habeas corpus

shall not be entertained by the Superior Court or by any

Federal or State Court if it appears that the applicant

has failed to make a motion for relief to the sentencing

court unless it appears that the remedy under § 110 is

inadequate or ineffective. No reason appears why such

motion would be inadequate or ineffective.

WHEREFORE, the respondent respectfully requests

that the rule to show cause be discharged and that the

petition be denied on the ground that this court lacks

jurisdiction over this matter.

/s/ Harold H. Titus, Jr.

HAROLD H. TITUus, JR.

United States Attorney

/3/ Earl J. Silbert

EARL J. SILBERT

Principal Assistant U.S. Attorney

/s/ Osear Altshuler

OscAR ALTSHULER

Assistant United States Attorney

/s/ Tobey W. Kaczensky

ToBEY W. KACZENSKY

Assistant United States Attorney

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing supple-

mental return and answer to rule to show cause has been

mailed to Glenn L. Archer, Jr. 888 17th Street, N.W.,

Washington, D.C. 20006, this 6 day of June, 1973.

/s/ Tobey W. Kaczensky

TOBEY W. KACZENSKY

Assistant United States Attorney

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Habeas Corpus 30-73

| Filed Jul. 9, 1973, James F. Davey, Clerk]

JASPER C. PRESSLEY, PETITIONER

C. L. SWAIN, RESPONDENT

REPLY OF PETITIONER

Petitioner, Jasper C. Pressley, by his court-appointed

attorney, respectfully submits the following reply to re-

spondent’s (1) answer and (2) supplemental return and

answer.

THIS COURT HAS JURISDICTION TO EN-

TERTAIN THIS PETITION FOR HABEAS

CORPUS IN ACCORDANCE WITH TITLE

28, U.S.C. § 2241

Petitioner Has Complied With The Terms Of 23 D.C.

Code § 110.

23 D.C.C. §110 requires application for relief by

motion to the sentencing court, in this case the Superior

Court, before applying for a writ of habeas corpus.

Petitioner filed such a motion when, on June 5, 1972,

he filed a pro se motion for a new trial, raising the fol-

lowing questions: legality of the search and seizure,

validity of the indictment, jurisdiction of the court,

legality of his custody, and effectiveness of counsel.

Judge Murphy denied the motion. Petitioner by counsel

appealed. The issue on appeal was whether the assist-

ance of counsel had been effective. The Court of Appeals

affirmed. These procedural steps satisfy the require-

ments of 23 D.C.C. $110, and the application for a

writ of habeas corpus is properly before the District

Court.

Petitioner’s Rights Should Not Be Denied Through

Resort To Technicalities.

Although the petitioner filed a motion for a new trial

rather than a motion to vacate, set aside, or correct the

sentence as required by 23 D.C.C. § 110, such a techni-

cality should not interfere with the petitioner’s con-

stitutional right to apply for a writ of habeas corpus.

Petitioner’s motion was filed pro se, and he could not be

expected to be aware of the procedural prerequisites

for application for habeas corpus and to fashion his

motion before the Superior Court accordingly. The im-

portance of a prisoner’s access to the writ should over-

ride the significance of any distinction between a mo-

tion for new trial and the forms of collateral attack

specified in 23 D.C.C. § 110.

In Woods v. Rodgers, 275 F. Supp. 559 (D.C. D.C.

1967), a hearing on a return to a writ of habeas corpus,

the question was whether the District Court had juris-

diction or whether petitioner’s remedy was by motion

under 28 U.S.C. § 2255, a statute similar to 23 D.C.C.

§ 110. Judge Holtzoff stated:

The Court is unable to perceive why the petitioner

is proceeding by means of a petition for writ of

habeas corpus instead of by motion under 28 U.S.C.

§ 2255 to set aside the sentence. The Court will,

however, consider the present proceeding as though

it was a motion under 28 U.S.C. § 2255, as well as

a petition for writ of habeas corpus, because these

technical refinements should not control the disposi-

tion of the petitioner’s right. (id at 560)

See also St. Clair v. Hyatt, 83 F. Supp. 585 (D.C. Ga.

1949), where the judge treated petitioner’s letter to him

relating to the validity of the sentences as a motion

under 28 U.S.C. § 2255.

In sum, therefore, petitioner’s motion for a new trial

satisfies the statutory requirements of 23 D.C.C. § 110,

and the grounds of petitioner’s application should be

considered on the merits by the District Court.

PETITIONER WAS DENIED HIS RIGHT TO

DUE PROCESS AND HIS RIGHT TO EF-

FECTIVE COUNSEL AS GUARANTEED BY

THE FIFTH AND SIXTH AMENDMENTS

TO THE CONSTITUTION AS A RESULT OF

AN AGGREGATION OF ERRORS COMMIT-

TED BY HIS TRIAL COUNSEL

Petitioner’s Trial Counsel Failed To Move For A

Suppression Of Illegally Seized Evidence.

Petitioner was charged with and ultimately convicted

of the crime of stealing a typewriter, the property of the

District of Columbia. The sole basis for the indictment

charging pevitioner with this offense was the seizure

pursuant to a search warrant by the Metropolitan Police

from a house leased by petitioner.

The sole basis, in turn, for the issuance of the search

warrant was information given to the Metropolitan Police

by Roman C. Dixon contemporaneous with his arrest

for grand larceny. According to the affidavit in support

of the search warrant (Exhibit A) Dixon told the Metro-

politan Police that on January 20, 1971, he had seen a

bluish green IBM Selectric typewriter in the basement

recreation room of petitioner’s residence at 6809 Ninth

Street, N.W., Washington, D.C. Further, according to

the affidavit, a light green IBM Selectric typewriter serial

#6238665 had been reported stolen on or about No-

vember 13 and 14, 1970, from the Pilot District Project,

a community relations project sponsored by the District

of Columbia, where both petitioner and Dixon were em-

ployed.

Based on this search warrant issued February 1,

1971, the Metropolitan Police on that same date searched

petitioner’s residence. Pursuant to that search, the

Metropolitan Police discovered an IBM Selectric type-

writer, serial #5613255, contained within a storage area

in petitioner’s basement recreation room (Tr. 106).* As

of the time of the seizure, petitioner stated he had no

knowledge as to the existence of that typewriter or how

it came to be placed in the crawl space (Tr. 111).

It was subsequently learned that an IBM typewriter,

serial #5613255, had in fact been the typewriter re-

ported missing on or about November 14, 1970, from

the Pilot District Project, and that the IBM typewriter,

serial #6238665, was not missing but was still on the

premises of the Pilot District Project (Tr. 18-19).

As of petitioner’s trial on April 20-22, 1971, certain

facts were known which bore heavily on the reliability

of the information supplied by Dixon to the Metropolitan

Police. In November of 1971, both petitioner and Dixon

lived in a house rented by petitioner at 1530 Spring

Place, N.W., Washington, D.C. (Tr. 262-263). On about

November 27, 1970, petitioner moved from this residence

to 6809 Ninth Street, N.W., Washington, D.C. (Tr.

247, 310). Thereafter, on about January 20, 1971, in a

combined move, petitioner moved his remaining furnish-

ings and possessions from 1530 Spring Place to his resi-

dence at 6809 Ninth Street and Dixon moved from 1530

Spring Place, N.W. to 1410 Missouri Avenue, N.W.

(Tr. 134, 138, 324-326). During the course of this move,

Udolph R. Porter, who aided petitioner and Dixon in this

combined move, saw Dixon place a green electric type-

writer in the storage area, or crawl space, in petitioner’s

basement recreation room at 6809 Ninth Street (Tr.

137).

Earlier on the day of the move, Porter had seen the

same typewriter in a closet in the basement apartment

occupied by Dixon at the Spring Place residence (Tr.

146), and had seen Dixon carry the same typewriter

from the rental truck that was being used in the move

to the basement recreation room of petitioner’s residence

on Ninth Street (Tr. 137, 146, 150). Another person

who aided petitioner and Dixon in the move, Rudolph

Tate, saw Dixon adjusting the panel which had to be

removed in order to gain access to the crawl space (Tr.

200).

* “Tr” references are to the trial transcript.

Based on these facts, there was clearly sufficient

grounds to move for a suppression from evidence of the

seized IBM Selectric typewriter, serial #5613255. Such

a@ suppression would have resulted in a dismissal of the

charges against petitioner.

Petitioner’s Trial Counsel Failed To Challenge The

Propriety Of The Grand Jury Indictments Returned

Against Petitioner.

In the course of the proceedings against petitioner,

two separate indictments were returned against pe-

titioner, the first one (Exhibit B) charging petitioner

with theft of the above-described IBM typewriter, and

the second (Exhibit C) charging petitioner with assault.

On the face of these two indictments, the signature of

the then United States Attorney, Thomas A. Flannery,

appears materially different. This discrepancy in signa-

tures clearly rebutts the presumption of regularity in

these indictments as set forth in Gaither v. United

States, 134 U.S. App. D.C. 154, 1638-164 (1969), a

point that was not raised by petitioner’s trial counsel.

Had these indictments proved to have been improper,

the charges against petitioner would have been dismissed.

Petitioner's Trial Counsel Failed To Move For A

Judgment Of Acquittal, On The Grounds That One

Of The Government’s Principal Witnesses, Roman C.

Dixon, Apparently Committed Perjury.

During the course of the trial, there appeared sub-

stantial reason to believe that one of the government’s

principal witnesses, Roman C. Dixon, committed perjury.

In describing the typewriter seized from petitioner’s

residence, Lieutenant Keahon of the Metropolitan Police

noted (Tr. 107-108) two separate sets of disclorations

on the typewriter. One set of discolorations was white

“sticky stuff” described as either paint or “some type

of plaster”. The other set of discolorations described by

Lieutenant Keahon as bronze in color was identified as

fingerprint dusting powder, which powder was put on the

typewriter in the Metropolitan Police Department Crime

Lab after it had been removed from petitioner’s resi-

dence.

In identifying the typewriter that he had seen in

petitioner’s residence, Dixon testified (Tr. 72) that he

remembered seeing “white marks on it like somebody

had been painting on top of it” and in addition some

“spray paint, like they would use some kind of silver

paint to spray in their hair’. Apparently, Dixon was

referring to the substance which was subsequently iden-

tified as fingerprint dusting powder, a substance which

Dixon could not possibly have seen on the typewriter

prior to its seizure from petitioner’s residence. This

discrepancy, coupled with the testimony of Udolph Por-

ter (Tr. 146) that he had seen Dixon place the type-

writer in the crawl space in petitioner’s basement,

strongly suggests the possibility that Dixon committed

perjury, a possibility that was apparently never ex-

plored by petitioner’s trial counsel. Had it been es-

tablished that Dixon, a principal witness in the govern-

ment’s case against petitioner, had committed perjury,

petitioner would have at the very least been granted

a mistrial, if not had the charges against him dismissed.

Petitioner's Trial Counsel Failed To Object During

Trial To The Introduction Into Evidence Of The Type-

writer.

In addition to failing to move, preliminary to trial,

to suppress from evidence the illegally seized typewriter,

petitioner’s trial counsel also failed during the course

of the trial to object to the introduction of the typewriter

into evidence. At the very least, in effort to preserve

record for appeal, petitioner’s trial counsel should have

objected to the introduction into evidence of the type-

writer. There was substantial reason to believe that

the typewriter had been placed in petitioner’s basement

by Dixon, which, if true, would have resulted in a dis-

missal in the charges against petitioner. The failure

of petitioner’s trial counsel to either challenge Dixon’s

testimony or the introduction into evidence of the type-

writer clearly deprived petitioner of a substantial de-

fense.

SUMMARY OF ARGUMENT

The cumulative effect of the above-enumerated fac-

tors, (1) the failure to move for a suppression of il-

legally seized evidence, (2) the failure to challenge the

propriety of the grand jury indictments, (3) the failure

to move for a judgment of acquittal on the grounds of

perjury of a government witness, and (4) the failure

to object to the introduction into evidence of the type-

writer, any one of which factors if successfully advanced

would have resulted in a dismissal of the charges against

petitioner, clearly resulted in a denial of petitioner’s

right to due process and right to effective counsel. Ac-

cordingly, it is respectfully submitted that there are

sufficient grounds to warrant the issuance of a writ

of habeas corpus in favor of petitioner.

/s/ Glenn L. Archer, Jr.

GLENN L. ARCHER, JR.

888 17th Street, N.W.

Washington, D.C. 20006

Appointed Counsel for

Petitioner

Of Counsel

Michael C. Durney

HAMEL, PARK, MCCABE & SAUNDERS

888 17th Street, N.W.

Washington, D.C. 20006

CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED that service of the fore-

going Reply of Petitioner has this 9th day of July, 1973,

been made on counsel by hand delivering a copy thereof

to:

TOBEY W. KACZENSKY

Assistant United States Attorney

United States Courthouse

Washington, D.C. 20001

/s/ Michael C. Durney

MICHAEL C. DURNEY

HAMEL, PARK, MCCABE & SAUNDERS

888 17th Street, N.W.

Washington, D.C. 20006

EXHIBIT A

[Filed Ju, , 1973, James F. Davey, Clerk]

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

Criminal Division

SEARCH WARRANT

TO: P1.C Richard A. Hayden, Third District, Mem-

ber of Metropolitan Police Department authorized to

serve same.

Affidavit having been made before me by P1.C Richard

A. Hayden, Third District (affidavit attached herewith)

that he (has reason to believe) that (on the premises

known as): For the entire premises of 6809 9th St.,

Washington, D.C. in the District of Columbia, there is

now being concealed certain property, namely: Two

MPDC Badges and IBM Electric Typewriter which are

Title 22 Section 2205 D.C. Code (alleged grounds for

seizure) and as I am satisfied that there is probable cause

to believe that the property so described is being con-

cealed on the (premises) above described and that the

foregoing grounds for application for issuance of the

search warrant exist.

YOU ARE HEREBY COMMANDED TO SEARCH

FORTHWITH the (place) named for the property speci-

fied, serving this warrant and making the search (in

the daytime) and if the property be found there, to seize

it, leaving a copy of this warrant and a receipt for the

property taken, and prepare a written inventory of

the property seized. Return this warrant and bring the

property before me within ten days of this date, as re-

quired by iaw.

Dated this 1 day of Feb., 1971.

/s/ (ilegible]

Judge, Superior Court of

the District of Columbia

RETURN

I received the search warrant, detailed above Febru-

ary 1, 1971 and have executed it as foilows:

On February 1, 1971 at 1480 o’clock 1430 Hr’s. M. I

searched the (premises) described in the warrant and I

left a copy of the warrant with: Jasper Pressley (Name

of person searched or owner of place of search) to

gether with a receipt for the items seized.

The following is an inventory of property taken pur-

suant to this warrant:

#1 IBM Electric Typewriter Serial #5613255

This inventory was made in the presence of Jasper

Pressley.

I swear that this inventory is a true and detailed ac-

count of all the property taken by me on this warrant.

/s/ P1C. Richard A. Hayden

MPDC

SUBSCRIBED AND SWORN TO BEFORE ME

THIS DAY OF , 19—.

Judge, Superior Court of

the District of Columbia

1The Federal Rules of Criminal Procedure: “The warrant shall

direct that it be served in the daytime, but if the affidavits are

positive that the property is on the person or in the place to be

searched, the warrant may direct that it be served at any time.”

(Rule 41C).

AFFIDAVIT IN SUPPORT OF A DISTRICT OF CO-

LUMBIA SUPERIOR COURT SEARCH WAR-

RANT FOR ENTIRE PREMISES OF 6809 9th

STREET, NORTHWEST, WASHINGTON, D.C. A

ONE STORY BRICK RAMBLER TYPE DWELL-

ING OCCUPIED BY JASPER LEE PRESSLEY.

CHARGE: RECEIVING STOLEN PROPERTY IN

VIOLATION OF THE DISTRICT OF COLUMBIA

CODE, TITLE 22, SECTION 2205

Roman S. Dixon, male, 21 years of age, 1410 Missouri

Avenue, Northwest, Washington, D.C. was arrested at

1:30 P.M., Thursday, January 27, 1971 at 1624 V Street,

Northwest, Washington, D.C. (Third District Head-

quarters). The defendant (Dixon) was charged with

Grand Larceny on arrest warrant #USW 536-71 (Dis-

trict of Columbia Court of General Sessions Warrant).

The defendant (Dixon) admitted his part in this of-

fense to the undersigned officer at the time of his arrest.

He also admitted using a Metropolitan Police Officer’s

Badge #2591 during the commission of this offence. He

further admitted stealing the badge #2591, from a po-

lice officer coat which was in the report writing room

of the Third District Headquarters building.

The defendant (Dixon) assisted the arresting officer’s

in recovering all of the property that was taken in the

Grand Larceny offense. As a result of the reliability

and truthfulness of this defendant eight ladies rings with

an approximate value of Twenty-three Hundred Dollars

($2,300.00) was recovered from several different persons

and locations within the District of Columbia. The Met-

ropolitan Police Department Badge #2591 was also re-

covered.

This defendant (Dixon) also related that on several

different occasions, the latest being Thursday evening,

January 20, 1971 that he saw two other Metropolitan

Police Department Badges: one a Sergeant’s badge, gold

in color and the other an officer’s badge, silver in color.

He stated that he saw the badges in the bedroom, first

floor of 6809 9th Street, Northwest, Washington, D.C.

He continued and related that the occupant of these

premises, Jasper Lee Pressley showed him the badges,

while in Jasper Lee Pressley’s home, the defendant (Dix-

on) stated that he saw two typewriters. One, he was

in the basement recreation room an IBM Electric, bluish

green in color. The second typewriter was on the first

floor of the same premises. The defendant (Dixon) con-

tinued and stated that Pressley and one Allen Colston

both told him that the typewriters came from the office

of the Pilot District Project.

The defendant (Dixon) and both Jasper Lee Pressley

and Allen Colston all are employees of the Pilot Dis-

trict Project. The project is a Police Community Rela-

tions experimental program involving officers of the

Third District and community residents of the District

of Columbia. As a result of their employment, all three

have access to certain areas within the Third District

Headquarters and sub-station buildings and the offices

of the Pilot District Project, 2101 16th Street, North-

west, Washington, D.C.

During the past year the employees of the Pilot Dis-

trict Project have reported a variety of articles stolen

from the offices located at 2101 16th Street, Northwest,

Washington, D.C. The latest articles reported stolen was

one (1) selective IBM light green typewriter Serial

#6238665, Friday, November 13, 1970 and Saturday,

November 14, 1970 between the hours of 7:30 P.M. and

11:00 A.M. Complaint #587-947.

A check of the reports at the Third District shows

that in complaint number 19634 that Sergeant Charles

F. Klopfer, Third District reported his Sergeant’s badge

#S99 missing sometime between 4:00 P.M., on January

13, 1970 and 2:30 P.M. on January 14, 1970 somewhere

in the vicinity of his home and the Third District Sub-

station.

Also, under Complainant number 533-373 Officer Hugh

F. Triggs, Third District reported that about 3:30 P.M.

on October 17, 1970 his badge #2608 was stolen from

his locker, from the basement of Third District Head-

quarters.

In view of the foregoing, the undersigned has probabl

cause to believe that the above described stolen earn

is presently located in the premise 6809 9th Street, North-

west, Washington, D.C. and therefore requests that a

District of Columbia Superior Search Warrant issue

authorizing the seizure of said pro hich i

Proceeds of a Crime. a

/8/ Richard A. Hayden

RIcARD A. HAYDEN

Piainclothesman,

Third District,

Metropolitan Police

Department

Subscribed and sworn to before me this Feb. 1, 1971.

/s/ ([Illegible]

Judge,

D.C. Superior Court

EXHIBIT B

[Filed Jul. 9, 1973, James F. Davey, Clerk]

OF THE

DISTRICT OF COLUMBIA

Holding a Criminal Term

Grand Jury Sworn in on February 1, 1971

Criminal No.

THE UNITED STATES OF AMERICA

Vv.

JASPER C. PRESSLEY

Violation: 22 D.C. Code 2201, 2206, 2205

(Grand Larceny; Larceny from the District of Columbia;

Receiving Stolen Property)

The Grand Jury charges:

FIRST COUNT:

On or about November 13, 1970, within the District

of Columbia, Jasper C. Pressley stole property of the

Pilot District Project, an ageney of the District of

Columbia Government, of the value of about $495.00,

consisting of one typewriter of the value of $495.00.

SECOND COUNT:

On or about November 13, 1970, within the District

of Columbia, Jasper C. Pressley did steal the said prop-

erty of the District of Columbia, a Municipal Cor-

poration, having a value of $495.00, consisting of one

typewriter of the value of $495.00.

THIRD COUNT:

On or about November 13, 1970, within the District

of Columbia, Jasper C. Pressley with intent to defraud,

received one typewriter, property of the District of

Columbia Government, which had been stolen knowing

and having cause to believe the said property had been

stolen.

/s/ Thomas A. Flannery

Attorney for the United

States in and for the District

of Columbia

A True Bill:

/s/ (Illegible]

Foreman

Notary Public

EXHIBIT C

[Filed Jul. 9, 1973, James F. Davey, Clerk]

SUPERIOR COURT

OF THE

DISTRICT OF COLUMBIA

Holding a Criminal Term

Grand Jury Sworn in on February 1, 1971

Criminal No. 9227-71

THE UNITED STATES OF AMERICA

Vv.

JASPER C. PRESSLEY, RUDOLPH PORTER, BETTY J. SMITH

Violation: 22 D.C. Code 502

(Assault With a Dangerous Weapon)

The Grand Jury Charges:

On or about February 5, 1971, within the District

of Columbia, Jasper C. Pressley, Rudolph Porter and

Betty J. Smith assaulted Roman S. Dixon with dan-

gerous weapons, that is, a pistol and a screwdriver.

/8/ Thomas A. Flannery

Attorney of the United

States in and for the District

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