# Appendix — Swain v. Pressley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2151%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 430 U.S. 372 ## Text —** _>* Supreme @ourt, |). S, FILED APPENDIX Ae MAY | MICHAT! 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 re 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 a ee 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. 4 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 5 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; (c) during the aforesaid “spot check”, but well after 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 6 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 7 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 8 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. 10 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). 11 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 12 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 I 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. ——, 13 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. 14 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). 15 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 16 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. 17 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 18 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 19 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- 20 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. II 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). 21 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. 22 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). 23 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- 24 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- 25 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). 26 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] 27 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 28 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 v. 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. 29 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 v. 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- 30 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. $1 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. 32 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 34 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. 35 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, 36 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). 37 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). 38 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). 39 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 40 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). 41 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 42 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: 44 “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). 45 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. 46 “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 47 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. 48 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 49 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). 50 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 51 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. I 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 52 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. II 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. 53 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 54 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). 55 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] 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. 57 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 v. 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 59 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 * * * * 61 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 ® 62 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 63 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- 64 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. 66 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 exp [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2151%3A2. Public record. Not legal advice.