Petition — Brackett v. United States

iq Supreme Court, U.S.

FILED

| NOV 281977!

eee a eX \ ST ED

| MICHAEL RODAK, JR., CLERK

IN THE ‘

Supreme Court of the United States

OCTOBER TERM, 1977

WALTER S. BRACKETT,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

TIMOTHY N. BLACK

JOHN H. HARwoop II

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

Counsel vr Petitioner

WILSON - EPES PRINTING Co.. INC. - RE 7-6002 - WASHINGTON. D. C. 20001

INDEX

ee

ER RSISRE SA A pe SOOO Ret enact vt oe

ERE REE rere see e neo De Nr MND Ree enna

RITE nee CPN eee Oe NON EEE EI

Statutes and Regulations Involved |... eee

I lacie samlnaoens

Bin FO II aecttec ccccccceeeicstrcetnstistcittinescries

Hess YAP sdiplebasilaseseipeiteiieentibeiiinaudliin otha tithes

— RESTRIC e Rae Ace es See Oe Re

Reasons Ser Granting thre Writ —.............-....0--ccece---00------

A. The Decision below Not to Give Kent Retrospec-

tive Application Conflicts with the Standards

Prescribed by This Court for Retroactivity of

Its Rulings on Criminal Procedure and with De-

cisions of Other Circuits and of State Supreme

I i sciiniahaicienadcniilincicbasng heeiedeiabsash ieeiaeiaaeieaihiihdtteabangitde

1. The Standards of Stovall, Desist, and Wil-

liams Require Retrospective Application of

I

2. The Courts of Appeals and the State Su-

preme Courts Are in Conflict on This Ques-

EEN re NE EO a a a

The Decision below Not to Give Retrospective

Effect to Dorszynski Conflicts with the Stand-

ards Prescribed by This Court for Retroactivity

and with Decisions of Other Circuits —............

1. This Court’s Rules of Retroactivity Require

Retrospective Application of Dorszynski ........

2. The Courts of Appeals Are in Conflict on

ee ID a iemmseuuneneesiaane

aonrw SB SO NS NY

—_

_—

13

14

17

21

INDEX—Continued

Page

C. The Failure of the Court below to Give Tucker

Retrospective Application Conflicts with the

Standards Prescribed by This Court for Retro-

activity and with Decisions of Other Circuits

and of State Supreme Courts ................................ 25

I TUIIITIIET . sussiisibielhcsiseistbitierscaieiibiaheaniciagininsendidaindesemnkelaentesitein 28

Til

TABLE OF AUTHORITIES

Cases: Page

Adams V. Illinois, 405 U.S. 278 (1972) -................. 12,18

Argersinger V. Hamlin, 407 U.S. 25 (1972) —._.... 25, 26

Arizona V. Martin, 107 Ariz. 444, 489 P.2d 254

1 RRSSRE RPO PAPO REDS ee PD Mg ray Se BL 18

Arsenault v. Massachusetts, 393 U.S. 5 (1968) __ _... 12

Belgarde v. United States, 503 F.2d 1054 (9th Cir.

TIT sca biichididnnsliiets cites Cite a ae oe eee ean a 23

Berry V. City of Cincinnati, 414 U. S. 29 (1973) ...... 25, 26

Bouge V. Reed, 254 Ore. 418, 459 P.2d 869 (1969) __. 18

Brager Vv. United States, 527 F.2d 895 (8th Cir.

GD cecetnthceieisensei babes iis tisaaceten ia nad ieee cies 23

Brooks v. United States, 497 F.2d 1059 (1974),

modified on other grounds, 531 F.2d 317 (6th Cir.

ITT NA AL Pe EES RR me Me 22

Brown V. Cox, 481 F.2d 622 (4th Cir. 1973), cert.

denied, 414 U.S. 1136 (1974) . fae a 17,18

Brown V. New Jersey, 395 F.2d 917 (3d Cir. 1968) : 17

Brown V. Wainwright, 5387 F.2d 154 (5th Cir.

SID “consntnsiiclannsidscbaieibdmbiaesitieetesi ctl wie iene ear ens 17

Brumley v. Charles R. Denney Juvenile Center, 17

Wash.2d 702, 466 P.2d 481 (1970) —.......0.. 18

Burgett v. Texas, 389 U.S. 109 (1967) ................... 26, 27

Coleman V. United States, 532 F.2d 1062 (6th Cir.),

cert. denied, 429 U.S. 847 (1976) . sebas 23

Collins v. Buchkoe, 493 F.2d 343 (6th Cir. 1974). 28

Commonwealth v. Calvert, 344 A.2d 797 (Pa.

TEED . cscisisissiniedhsetsicie itn iptbecaaicniiaetdicendilebenameaieemmanemanamanimaaai 28

Commonwealth Vv. James, 440 Pa. 205, 269 A.2d

898 (1970) _..... scciileiaeainceauelhcelimcaae dill T Gitta A aki 18

Cradle v. Peyton, 208 Va. 243, 156 S. E.2d 874

(1967), cert. denied, 392 U.S. 945 (1968) _..... 18

Craig Vv. Beto, 458 F.2d 1131 (5th Cir. 1972) ce 28

Crowe V. State, 194 N.W.2d 234 (S. Dak. 1972)... 28

Desist v. United States, 394 U.S. 244 (1969) 12,14

DeVerse Vv. United States, 536 F.2d 804 (8th Cir.),

cert. denied, 429 U.S. 897 (1976) _.............-..-...... 23

Dorszynski v. United States, 418 U.S. 424 (1974). ." 2, 4,

5, 10, 11, 13, 19, 20, 21, 22, 23, 24

IV

TABLE OF AUTHORITIES—Continued

Page

Douglas v. California, 372 U.S. 353 (1963) .... ... 12, 19

Florida v. Steinhauer, 216 So.2d 214 (Fla. 1968),

cert. denied, 398 U.S. 914 (1970) —......—.... a 18

Garrett Vv. Swenson, 459 F.2d 464 (8th Cir. 1972) . 28

Gideon V. Wainwright, 372 U.S. 335 (1963) .. 12, 26, 27

Hamilton v. Alabama, 368 U.S. 52 (1961)... 12, 13,

14, 15, 16, 17, 19

Harris Vv. Procunier, 498 F.2d 576 (9th Cir.), cert.

denied, 419 U.S. 970 (1974) _ anenen 17, 18, 19

Heryford v. Parker, 396 F.2d 393 (10th Cir.

AA 17

Howard v. State, 280 So.2d 705 (Fla. App. 1973) . 28

Hoyt v. United States, 502 F.2d 562 (5th Cir.

a cusiiemanns 23

In re Gault, 387 U.S. 1 (1967) . me SF i. 13, 14,

15, 16, 17, 18, 24, 25

In re Harris, 67 Cal.2d 876, 64 Cal. Rptr. 319, 434

P.2d 615 (1967) . 18

Irby Vv. Missouri, 502 F.2d 1096 (8th Cir. 1974),

cert. denied, 425 U.S. 997 (1976) ............. 27

Jackson V. United States, 510 F.2d 1335 (10th Cir.

I = StS SRS SN Oe 23

Kemplen Vv. Maryland, 428 F.2d 169 (4th Cir.

SE ahi mmnianis | 17

Kent v. United States, 383 US. ‘BAL (1966). 2, 3, 5, 9, 10,

11, 13, 14, 15, 17, 18, 19, 24

Kitchens v. Smith, 401 U.S. 847 (1971) 25, 26

Linkletter v. Walker, 381 U.S. 618 (1965) 16

Lipscomb V. Clark, 468 F.2d 1321 (5th Cir. 1972) 28

Loper V. Beto, 405 U.S. 473 (1972) .............. 27

Marsden V. Commonwealth, 352 Mass. 564, 297

N.E.2d 1 (1967) . Nae 18

McConnell v. Rhay, 393 US. 2 ES 12, 15, 22

McCray V. United States, 542 F.2d 1246 (4th Cir.

1976) | 82 SOR ae 23

Vv

Page

TABLE OF AUTHORITIES—Continued

McKnabb v. United States, 551 F.2d 101 (6th Cir.

EER a oa an NL RT ee 23

Mempa V. Rhay, 389 U.S. 128 (1967) ...................... 12, 13,

15, 16, 19, 22

Mitchell v. United States, 482 F.2d 289 (5th Cir.

aceite ladle teen ah slieeleel taleliinsdla a 28

Mordecai v. United States, 137 U.S. App. D.C. 198,

421 F.2d 1133 (1969), cert. denied, 397 U.S. 977

=a a 10, 17, 18, 19, 24

Owens V. United States, 383 F. Supp. 780 (M.D.

Pa. 1974), aff'd, 515 F.2d 507 (3d Cir.), cert.

denied, 423 U.S. 996 (1975) ...............-----..----------+- 23

People v. Moore, 391 Mich. 426, 216 N.W.2d 770

(1974) . ie 28

People Vv. Terpening, 16 Mich. “App. 104, 167 N. W.

ELE EE ee ee ove 18

Pickelsimer V. Wainwright, 375 U.S. 2 (1968) ........ 26

Powell v. Hocker, 453 F.2d 652 (9th Cir. 1971)... 17

Powell v. Sheriff, 85 Nev. 684, 462 P.2d 756

Ee ne 18

Rewak v. United States, 512 F.2d 1184 (9th Cir.

SE 23

Rivera V. United ‘States, 542 F.2d 478 (8th Cir.

EE ES SE ae eee neem 23

Robinson V. United States, 536 F.2d 1109 (5th Cir.

ee Se 23

Russo v. United States, 470 F.2d 1357 (5th Cir.

RY Pe re are eee ee ee ee 28

Sappington V. United States, 518 F.2d 28 (8th Cir.

0 ee one ane 23

Smith v. Cady, 452 F.2d 141 (7th Cir. 1971) ee 17

Smith v. Commonwealth, 412 S.W.2d 256 (Ky. Ct.

App.), cert. denied, 389 U.S. 873 (1967) ... ...... 18

Smith v. Crouse, 378 U.S. 584 (1964) 12

Smith v. United States, 325 A.2d 180 (D.C. Ct.

SIL III ch ction nsieetnsiatieldieesbininenieiipasatathabapeechenetens 23

Smith v. Yaeger, 459 F.2d 124 (3d Cir. 1972) _.. 17

vI

TABLE OF AUTHORITIES—Continued

Page

State v. Circuit Court, 37 Wis.2d 329, 155 N.W.2d

ESTES SR ETA See ere nae 18

State v. Hance, 2 Ma. App. 162, 233 A.2d 526

a 18

State v. Lueder, 137 N.J. Super. 67, 347 A.2d 805

ASE RURENGSRE ER ateRi rons, ce riner Sv ae! euro mA Teer 18

Stovall v. Denno, 338 U.S. 293 (1967) .. _.12, 14, 22, 24

Tasby v. United States, 535 F.2d 464 (8th Cir.

a 23

Towers V. Director, Patuxent Institution, 16 Md.

App. 678, 299 A.2d 461 (Ct. Spec. App. 1973) 28

United States v. Bailey, 509 F.2d 881 (4th Cir.

1975) .. Pe 23

United States v. Coefield, ‘155 US. ‘App. D.C. 205,

"4 eg ETS cee 22

United States v. Flebotte, 503 F. 2d 1057 (4th Cir.

Se 23

United States v. Jarrett, 439 F.2d 1135 (3d Cir.

a 22

United States v. Kaylor, 491 F.2d 1133 (2d Cir.),

vacated on other grounds, 418 U.S. 909 (1974)... 22, 23

United States v. Radowitz, 507 F.2d 109 (5th Cir.

I iciaieianeeedciinsaededteciihcceeaiinne tae eae ati ean eee ae 28

United States v. Rundle, 438 F.2d 839 (3d Cir.

SEITE - icsesessancesidinncasesdeocadesduinadin:tseceicaladhaedciadiiaembaiaiameatnies 19

United States v. Scheffer, 506 F.2d 922 (5th Cir.

HIE (aiciinaddetenccosabacapianisosuaem dates sdteastia tial ti tele ae, 23

United States v. Scruggs, 538 F.2d 214 (8th Cir.

III. sccscacieccenneiimabsendansedeeasntiiamdengsniibaiaameiiiaiiiam i aaiies 23

United States v. Tucker, 404 U.S. 443 (1972) ......2, 4, 5, 9,

1l, 13, 25, 26, 27, 28

United Siates v. Walters, 526 F.2d 359 (3d Cir.

1975) . 27

Walls v. United States, 544, F. 24 236 (5th Cir.

STI dacpdsenaneunnnstdiaihadasahiabsdhtatiecindianmiae iis hited ees coeats va 23

White v. Maryland, 373 U.S. 59 (1963) 000. 12

Williams v. United States, 401 U.S. 646 (1971) .... 12, 14,

18, 19, 21

Vil

TABLE OF AUTHORITIES—Continued

Statutes: Page

Section 5006 of the Federal Youth Corrections Act,

I 3

Section 5010 of the Federal Youth Corrections Act,

RESETS ASR ees ales 0 CE 3, 20

Section 5017 of the Federal Youth Corrections Act,

I 3, 20

Section 11-906 of the District of Columbia Juvenile

ETERS Reece ean Sean ATR 3

Section 11-907 of the District of Columbia Juvenile

SF RON Sporn a orale eS eA eS eee Oa 3

Section 11-914 of the District of Columbia Juvenile

ERED ae MAE ASO a RS Sn eC 3

Section 22-2401 of the District of Columbia Code... 5

18 U.S.C. § 1114 _.. sulla ielauatebbaisleshiedadiaamt aided ote 5

28 U.S.C. § 2255 .............. rape Ae seaianaiiiasiaieniiiaasial 3, 8, 25

IN THE

Suprene Court of the United States

OCTOBER TERM, 1977

No. 77-

WALTER S. BRACKETT,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Petitioner Walter S. Brackett, Plaintiff-Appellant be-

low, prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the

District of Columbia Circuit entered on July 18, 1977.

Opinion Below

The order of the United States District Court for the

District of Columbia is not reported and is reproduced

at A. 20 of the Appendix. The Judgment of the panel

of the United States Court of Appeals for the District

of Columbia Circuit (A. 21) is not reported. The

opinion of the Court of Appeals (en banc) on the issue

of retrospective application of Dorszynski v. United

States, 418 U.S. 424 (1974), (A. 1) is not reported.

2

Jurisdiction

Jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1) (1970). The judgment of the Court of

Appeals was entered on July 18, 1977. By order dated

October 6, 1977, the Chief Justice extended the time in

which a petition for writ of certiorari may be filed to

and including November 28, 1977.

Questions Presented

This case presents the following important questions

concerning the retrospective applicability of four de-

cisions of this Court regarding the constitutional and

statutory rights of juveniles and others charged with

criminal offenses :

1. Should the Court’s decisions in Kent v. United

States, 383 U.S. 541 (1966)—where the Court held that

a child is entitled to notice, a hearing, and counsel at a

juvenile court proceeding to determine whether the child

is to be prosecuted as an adult or treated as a juvenile—

and in Jn re Gault, 387 U.S. 1 (1967)—where the Court

made clear that the rule in Kent is a constitutional one—

be given retrospective application? The Circuits and

state supreme courts are in conflict on this question.

2. Should the Court’s decision in Dorszynski v. United

States, 418 U.S. 424 (1974)—where the Court held that

the Federal Youth Correctiorrgy Act requires a district

court, before sentencing a child to an adult sentence,

to make an explicit finding that the child would not bene-

fit from sentencing pursuant to that Act—be given retro-

spective application? The Circuits are in conflict on this

question.

3. Should the Court’s decision in United States v.

Tucker, 404 U.S. 443 (1972)—where the Court held that,

in imposing a sentence, a district court may not take

into account previous convictions that were constitu-

tionally deficient because obtained in violation of the

defendant’s right to counsel—be given retrospective ap-

plication?

Statutes and Regulations Involved

Section 2255 of 28 U.S.C. (1970), the Federal Youth

Corrections Act, 18 U.S.C. §$§ 5006, 5010, and 5017

(1970), and Sections 11-906, 11-907, and 11-914 of the

District of Columbia Juvenile Court Act (1961) are set

forth in the Appendix to this Petition. (A. 23-27.)

Statement of the Case

A. Preliminary Statement

This case arises out of a homicide in 1960 at the

National Training School for Boys. Petitioner, who

was 14 years of age at the time of the offense,

was subsequently made the subject of proceedings in

the District of Columbia Juvenile Court and in the

United States District Court for the District of Co-

lumbia (hereinafter “trial court”) which, on the basis

of subsequent holdings of this Court, were unconstitu-

tional or contrary to federal statutory requirements, in

three respects:

First, in September 1960, the District of Columbia Juve-

nile Court waived its exclusive jurisdiction over petitioner,

then age 15, without affording him effective assistance

of counsel, prior notice, or a hearing. Less than a year

later Morris A. Kent, age 16, was ushered through the

D.C. Juvenile Court processes in the same fashion as

petitioner here had been, except that Kent had a lawyer

whom the Juvenile Court ignored, while petitioner

Brackett had no lawyer at all. In 1966 in Kent v. United

States, supra, this Court found that this treatment of

Kent violated provisions of the District of Columbia

Juvenile Court Act. In 1967 in In re Gault, supra, the

Court made clear that such treatment is also unconstitu-

tional.

4

Second, the trial court, in sentencing petitioner as an

adult in 1961, made no explicit finding that petitioner

would not benefit from sentencing under the Federal

Youth Corrections Act, and indeed made representations

on the record indicating beyond doubt that its sentencing

disposition was made without regard to the rehabilita-

tive goals of the Act. In 1974 in Dorszynski v. United

States, supra, this Court held that the omission of such

an explicit finding is error, requiring remand for recon-

sideration of the question and, if appropriate, resentenc-

ing.

Finally, at petitioner Brackett’s 1961 sentencing, the

trial court gave explicit attention to petitioner’s earlier

juvenile convictions—convictions which, petitioner has as-

serted without contradiction, were obtained in violation

of his constitutional right to counsel. In 1972 in United

States v. Tucker, supra, the Court held that a 1953

sentence for bank robbery must be vacated because the

sentencing court had given “explicit attention” to pre-

vious convictions that were invalid because obtained in

violation of the constitutional right to counsel.

In short, if petitioner Brackett had in 1960 been af-

forded the safeguards that, according to this Court,

should have obtained in Kent’s juvenile waiver hearing

in 1961, petitioner might never have been prosecuted as

an adult. If the trial court that sentenced petitioner in

1961 had properly considered whether petitioner would

benefit from sentencing under the Youth Corrections Act,

petitioner might never have been sentenced as an adult.

And if the trial court had excluded from its considera-

tion petitioner’s prior invalid convictions, petitioner

might have received a less harsh sentence. But petitioner

had the benefit of none of these safeguards. In conse-

quence, petitioner, at age 15, received the maximum and

harshest sentence available for adults for conviction of

manslaughter—not less than five nor more than 15 years

5

—with recommendations that he be confined to a maxi-

mum security institution and not receive parole.

This case thus presents in stark terms the questions

whether the Court’s decisions in Kent, Gault, Dorszynski,

and Tucker should be given retrospective application.

The courts below answered this question in the negative

with respect to each decision, though other Circuits and

state supreme courts have reached contrary conclusions.

B. Facts

On September 13, 1960, petitioner Brackett, age 14,

and two older boys, ages 16 and 17, were charged in

District of Columbia Juvenile Court with having com-

mitted assault with a deadly weapon two days earlier on

an officer of the National Training School for Boys.’

The boys, who had been confined to the school, were ac-

cused of striking and injuring the officer in the course

of an escape attempt, and the Government petitioned the

Juvenile Court to commence noncriminal proceedings

against petitioner.

A month later, the officer suffered a kidney failure and

died. Prosecuting attorneys immediately asked the Juve-

nile Court to waive its exclusive jurisdiction over pet-

itioner so that he could be tried as an adult on charges of

first-degree murder. Four days later, the Juvenile Court

waived jurisdiction without affording petitioner the bene-

fit of counsel, prior notice, or a hearing. (A. 28.)

On November 7, 1960, an indictment was filed charg-

ing petitiener and the other boys with first-degree murder

in violation of D.C. Code § 22-2401 (1973) and with

murder of an officer of the United States in violation

of 18 U.S.C. $1114 (Supp. V 1975). On January

30, 1961, trial began before the late Judge Alexander

Holtzoff. Petitioner initially entered a plea of not guilty

1 Petitioner was born on September 14, 1945, and thus turned

15 on the day after these charges were filed.

6

but, after his co-defendants pled guilty to manslaughter

charges and the court applied substantial pressure to pe-

titioner’s counsel,’ petitioner agreed to plead guilty to

manslaughter, too.

At sentencing, the trial court rejected the request of

petitioner’s counsel that petitioner, by then age 15, be

sentenced under the Federal Youth Corrections Act or

that petitioner’s youth otherwise be considered a mitigat-

ing factor. (A. 42.) The court’s approach to the sentenc-

ing was purely retributive and reflects no consideration

of whether petitioner would benefit from treatment under

the Youth Corrections Act—much less an explicit finding

that he would not:

“The fact that these defendants are young is not a

mitigating circumstance so far as their crime is con-

cerned. They are really murderers. They were al-

lowed to plead guilty to manslaughter, but their

acts could have been held by the jury to constitute

murder. They were prisoners in the National Train-

ing School for Boys, having been committed under

the Federal Juvenile Delinquency Act for stealing

automobiles. Each of them has a bad record before

this present commitment. They were in a dormitory

with 80 other prisoners. There was only one guard

during the night. He sat inside, immediately in-

side the dormitory, at a desk. The door of the dormi-

tory was locked... .

“These two defendants, in conjunction with the

third defendant, Jankowski, plotted to overpower the

2 At trial, petitioner relied on, inter alia, an insanity defense. In

support, he had offered a psychiatrist’s report and several witnesses’

testimony that petitioner looked “wild” or “crazy” during his par-

ticipation in the assault. Transcript of sentencing, March 10, 1961,

at 224-25, 235, 273. Judge Holtzoff suggested that petitioner should

ignore the insanity defense, that the defense was not made in good

faith, and that it was worthless (A. 30-31). He further berated

petitioner’s counsel as “immature” and as showing lack of “mature

jucgment” because petitioner’s counsel declined to advise petitioner

to plead guilty (A. 30, 35).

T

officer, get the keys from him and make an escape

during the night. Brackett, although he is the young-

est of the three, was the ring leader and he is ap-

parently the most vicious of the three.

“By a prearranged signal they got out of their

beds and walked to the desk and Brackett grabbed

a big heavy brass lamp and began to beat the guard

over the head with that lamp and, in addition to

that, used a big broom. McCracken, according to

the evidence, participated in the beating by hitting

the guard with his fist. The guard was screaming

and pleading for help but Brackett, particularly,

did not let up the beating.

“The guard was eventually found on the floor in

a pool of blood. He was in a coma for a week and

three weeks later he died of this attack.

“Now, obviously this is not a case for the Youth

Corrections Act, both because of the nature of the

offense and the nature of the prior records of these

defendants. The Court is more interested in the

fate that befell the guard than it is in the future of

these two boys.

“Now, if they have a spark of humanity—and

every human being has; some have a greater spark

and some a lesser, but everyone has—they will lie

awake many a night in a feeling of remorse for

what they have done, and if they have any spark of

humanity they will spend many an hour on their

knees praying to God and imploring God to forgive

them.

“Now, Brackett has shown vicious tendencies. In

addition to plotting the escape plan involved in this

case, after he pleaded guilty he tried to escape from

the Marshal’s van. He needs incarceration in a max-

imum security institution.” (A. 42-43.) (Emphasis

added. )

8

Moreover, in determining what adult sentence peti-

tioner should receive, the trial court gave explicit at-

tention to petitioner’s prior juvenile convictions. As the

foregoing excerpt from the sentencing transcript reflects,

the court rejected a request for leniency and for commit-

ment under the Youth Corrections Act because petitioner

and one of his co-defendants had

“been committed under the Federal Juvenile De-

linquency Act for stealing automobiles. Hach vf them

has a bad record... .”’ (A. 42.) (Emphasis added.)

The court also rejected Youth Corrections Act treatment

“because of the nature of the offense and the nature of

the prior records of these defendants” (A. 43) (empha-

sis added). The court accordingly gave petitioner the

maximum sentence: not less than five nor more than 15

years. The court also recommended that petitioner be

committed to “a Federal institution of the maximum se-

curity type” (A. 43) and that “he receive no parole.” *

C. Litigation

On December 10, 1969, petitioner filed a pro se motion

under 28 U.S.C. § 2255 to vacate his conviction and sen-

tencing. Civ. No. 3497-69. Petitioner was released on

parole before the motion was heard, but when his parole

was revoked in 1973, petitioner began efforts to reinstate

the motion.‘ He sent letters and a new motion to the

clerk of the District Court, to various District judges,

’ Transcript of sentencing of Bernard J. Jankowski, March 30,

1961, at 7.

* Petitioner was imprisoned until August 1, 1967, for the man-

slaughter conviction described in the text above. After each of two

subsequent convictions, in 1969 in Alabama and in 1973 in South

Carolina, petitioner’s federal parole was revoked and petitioner

served additional time on his original federal sentence. Petitioner

was convicted of a further offense in July 1977 and is now impris-

oned in the DeKalb County Jail in Decatur, Georgia. Of petition-

er’s original 15 year sentence for manslaughter, almost five years

(1724 days) remain.

and to a lawyer who had been appointed to represent him

when petitioner first filed the original motion. After

meeting with no success, he sought a writ of mandamus

from the Court of Appeals, and Judges Bastian and Robb

remanded his motion to the District Court for considera-

tion.°

The renewed motion alleged that petitioner’s original

conviction and sentencing were invalid because, inter alia:

(1) the trial court had lacked jurisdiction since petitioner

had been denied counsel and a hearing at his Juvenile

Court waiver proceeding; (2) the trial court had failed

to make a finding that he would not benefit from sentenc-

ing under the Youth Corrections Act; and (3) in sen-

tencing him, the trial court had taken into account pre-

vious juvenile convictions that were invalid because they

were obtained without providing him, as an indigent, the

assistance of counsel. (A. 47-57).

The Government opposed petitioner’s motion on August

5, 1974 (A. 58-65), and the District Court (Green, D.J.)

denied the motion the next day, without holding a hearing

or appointing counsel for petitioner.’ The court subse-

quently denied petitioner’s request for leave to proceed in

forma pauperis on appeal, as well, and stated that it had

denied petitioner’s Section 2255 motion for the reasons

set forth in the Government’s opposition. (A. 66.)’

5 Order dated May 16, 1974 (A. 45).

® Order of August 6, 1974 (A. 20).

7 With respect to petitioner’s first contention the Government

had argued that Kent is not to be given retrospective application.

In response to petitioner’s argument that the trial court had failed

to make a “no benefit” finding, the Government had said that the

court need not state “reasons” for refusing to impose a sentence

under the Youth Corrections Act. The Government’s only response

to petitioner’s Tucker allegations had been that petitioner had not

specified which prior convictions were improperly considered by the

trial court.

10

The Court of Appeals did allow petitioner to proceed

in forma pauperis and appointed counsel on appeal,” but

on December 10, 1975 (A. 21), a division of the court

affirmed without opinion.’ Petitioner’s suggestion for re-

hearing en bane was granted on July 16, 1976, on the

question whether Dorszynski should be given retrospective

application.

On July 18, 1977, the Court of Appeals affirmed, with

two judges (MacKinnon and Robb, JJ.) concurring spe-

cially, and two (Bazelon, C.J., and Robinson, J.) dissent- — _

ing. The majority found (1) that the trial court had, in

sentencing petitioner, made an implicit but not an explicit

finding that petitioner would not benefit from sentencing

under the Youth Corrections Act, and (2) that Dorszyn-

ski should not be given retrospective application. Judges

MacKinnon and Robb were of the view that Dorszynski

does not require “an explicit finding of ‘no benefit’ in all

instances” (emphasis in original) and thus that Dorszyn-

ski required nothing more than that which occurred in

petitioner’s case. Chief Judge Bazelon and Judge Robin-

son dissented because they believed that the record re-

flected neither an express nor an implied finding of no

benefit “and thus conclude[d] that under either a pre-

or post-Dorszynski standard the sentencing judge failed

8 Petitioner’s counsel before the Court of Appeals was obliged

to withdraw in September 1977 and requested present counsel to

assume representation of petitioner.

*On appeal before the division, petitioner advanced, inter alia,

the three arguments set forth in the text above, see page 9, supra,

that were presented to the District Court. The Government respond-

ed, in opposition, (1) that, as previously held by the District of Co-

lumbia Circuit in Mordecai v. United States, 137 U.S, App. D.C.

198, 421 F.2d 1123 (1969), cert. denied, 397 U.S. 977 (1970), Kent

should not be given retroactive effect, (2) that the trial court was

sufficiently clear in its finding that petitioner would not benefit from

Youth Corrections Act sentencing, and (3) that the record does not

show reliance by the trial court on a prior conviction obtained in

violation of petitioner’s right to counsel.

me

11

to give the required degree of attention to the possibility

of a Youth Corrections Act sentence.” ”

Reasons for Granting the Writ

This case involves a ruling on important questions of

criminal procedure under the Constitution and laws of

the United States as to which the Courts of Appeals and

the states’ highest courts are in conflict.’ Petitioner

brings to this Court important and recurring issues of

wide application involving the temporal reach—prospec-

tive only or retrospective—of four significant decisions

of the Court that broadly affect the rights and interests

of juveniles and others in the criminal justice system.

Cases raising these issues have been reaching the Courts

of Appeals since the late 1960s and continue to arise,

producing different rules of law in different forums.

Moreover, the failure of the Circuits and the states

uniformly to give retrospective effect to Kent, Gault,

Dorszynski, and Tucker runs counter to the principles

established by this Court concerning retroactivity. The

Court has described as follows the criteria guiding reso-

lution of the question of retroactivity of new rules of

criminal procedure:

“(a) the purpose to be served by the new stand-

ards, (b) the extent of the reliance by law enforce-

ment authorities on the old standards, and (c) the

effect on the administration of justice of a retroac-

© A. 15.

In addition to the issues presented here, petitioner argued to

the Court of Appeals that the trial court’s intrusion into the plea-

bargaining process deprived petitioner of effective assistance of

counsel. See note 2, supra. Although petitioner believes that the

decision below on this point is wrong and that the trial judge

abused his discretion in coercing petitioner to abandon his legitimate

insanity defense, petitioner recognizes that this aspect of the case

is not of sufficient general importance to warrant review by this

Court at this time.

12

tive application of the new standards.” Stovall v.

Denno, 388 U.S. 293, 297 (1967).

“Foremost among these factors is the purpose to be served

by the new... rule.” Desist v. United States, 394 U.S.

244, 249 (1969) (footnote omitted). In fact, the Court

has “given complete retroactive effect to the new rule,

regardless of good-faith reliance by law enforcement au-

thorities or the degree of impact on the administration

of justice, where the ‘major purpose of new constitu-

tional doctrine is to overcome an aspect of the criminal

trial that substantially impairs its truth-finding function

and so raises serious questions about the accuracy of

guilty verdicts in past trials ...’.” Adams V. Illinois, 405

U.S. 278, 280 (1972), quoting Williams v. United States,

401 U.S. 646, 653 (1971) (emphasis added).

The Court has also given retrospective application both

to procedural rules that affect important factfinding at

stages of the criminal process other than the trial and to

rules that ensure the integrity of stages that do not in-

volve factfinding. It has, for example, applied not only

the right to counsel at trial retroactively, Gideon v. Wain-

wright, 372 U.S. 335 (1963), but also the right to coun-

sel on appeal, established in Douglas v. California, 372

U.S. 353 (1963) ;** the right to counsel at arraignments

where pleas are entered and defenses are pled or waived,

established in White v. Maryland, 373 U.S. 59 (1963) ,”

and in Hamilton v. Alabama, 368 U.S. 52 (1961); and

the right to counsel at dispositional proceedings, estab-

lished in Mempa v. Rhay, 389 U.S. 128 (1967).*% The

purpose of these rules is to ensure the careful and focused

making of certain critical determinations which may have

the most important consequences for a criminal defendant.

12 See Smith v. Crouse, 378 U.S. 584 (1964).

18 Held retroactive in Arsenault v. Massachusetts, 393 U.S. 5

(1968).

'* See McConnell v. Rhay, 393 U.S. 2 (1968).

13

We demonstrate below that the procedural rules articu-

lated in Kent and Gault are, for purposes of the Court’s

stated retroactivity test, indistinguishable from the rules

in Hamilton and Mempa and thus should be applied

retrospectively. The rules of Dorszynski and Tucker,

while less closely analogous to those in Hamilton and

Mempa, are essential to the integrity of the sentencing

process and thus should also be retroactive. Finally,

the conflict among the Circuits and the state supreme

courts on retroactivity of these cases should be resolved.

A. The Decision below Not to Give Kent Retrospective

Application Conflicts with the Standards Prescribed

by This Court for Retroactivity of Its Rulings on

Criminal Procedure and with Decisions of Other Cir-

cuits and of State Supreme Courts.

In Kent this Court held that, “in the context of con-

stitutional principles relating to due process and the as-

sistance of counsel,” ** Morris A. Kent was entitled under

the District of Columbia Juvenile Court Act to notice,

a hearing, and effective assistance of counsel before the

Juvenile Court could validly waive its exclusive jurisdic-

tion over him and refer him to the District Court for

prosecution as an adult. The court said:

“(T]here is no place in our system of law for

reaching a result of such tremendous consequences

without ceremony—without hearing, without effec-

tive assistance of counsel, without a statement of

reasons. It is inconceivable that a court of justice

dealing with adults, with respect to a similar issue,

would proceed in this manner. It would be extra-

ordinary if society’s special concern for children,

as reflected in the District of Columbia’s Juvenile

Court Act, permitted this procedure. We hold that

it does not.” 383 U.S. at 554.

15 383 U.S. at 557 (footnote omitted).

14

Gault made clear that Kent’s requirements are constitu-

tionally based and thus are applicable in all jurisdic-

tions.

There are two reasons why the Court should hear and

determine the question whether these principles of Kent

and Gault should be given retrospective application.

First, retrospective application is compelled under the

standards laid down by this Court in Stovall, Desist,

and Williams. Second, the Courts of Appeals and the

state supreme court are in conflict on the question.

1. The Standards of Stovall, Desist, and Williams Re-

quire Retrospective Application of Kent and Gault.

The rule articulated in Kent is designed to overcome

an aspect of the criminal process “that substantially

impairs its truth-finding function.” Williams v. United

States, 401 U.S. at 653. The Juvenile Court is “en-

gaged in determining the needs of the child and of so-

ciety rather than adjudicating criminal conduct,” Kent v.

United States, 383 U.S. at 554, but the process of “de-

termining” in a waiver proceeding whether the child is

susceptible of rehabilitation is no less factfinding than

is the process of determining at trial whether the de-

fendant is innocent or guilty. And the safeguards rec-

ognized in Kent were plainly designed to assure the in-

tegrity of this factfinding process. Indeed, the rule ar-

ticulated in Kent added far more than a fillip that en-

hanced the reliability of that factfinding proceeding. Cf.

Stovall v. Denno, 388 U.S. at 299-301. For all practical

purposes, Kent established the existence of the proceed-

ing—notice, hearing, right to counsel, and statement of

reasons—for the District of Columbia.

The “special rights and immunities” conferred by the

Juvenile Court Act are, moreover, “critically important.”

15

Kent v. United States, 383 U.S. at 556. Under the Act,

the child “may not be jailed along with adults. He may

be detained, but only until he is 21 years of age... .

The child is protected against consequences of adult con-

viction such as the loss of civil rights, the use of ad-

judication against him in subsequent proceedings, and dis-

qualification for public employment.” Jd. at 556-57. Most

significantly in Kent’s case—just as in the case of peti-

tioner Brackett—the difference between Juvenile Act and

adult treatment could have been “the difference between

five years’ confinement [six for Brackett] and a death

sentence.” Jd. at 557. In short, the factfinding proceed-

ing that the Juvenile Court undertakes in considering

waiver could not be of greater moment, particularly in

connection with offenses of the gravity of those with which

petitioner Brackett was charged.

Moreover, the failure of the courts below to apply Kent

and Gault retroactively cannot be reconciled with the

Court’s determination to give retrospective application to

Hamilton v. Alabama, supra, and Mempa v. Rhay, supra.

In Mempa the Court held that a criminal defendant is

entitled to counsel at all dispositional proceedings, in-

cluding those not formally part of the “sentencing” hear-

ing immediately after a finding of guilt. The court said:

“{T jhe necessity for the aid of counsel in marshal-

ing the facts, introducing evidence of mitigating

circumstances and in general aiding and assisting

the defendant to present his case as to sentence is

apparent.” Mempa v. Rhay, 389 U.S. at 135.

And in later holding this right to counsel at dispositional

proceedings to be fully retroactive,” the Court found

16 McConnell Vv. Rhay, supra.

16

that it “relates to ‘the very integrity of the fact-finding

process.’ ” *"

The Court has also recognized the equally great need

for counsel in juvenile proceedings:

“(Ijn all cases children need advocates to speak for

them and guard their interests, particularly when dis-

position decisions are made. It is the disposition stage

at which the opportunity arises to offer individualized

treatment plans and in which the danger inheres

that the court’s coercive power will be applied with-

out adequate knowledge of the circumstances.” Jn

re Gault, 387 U.S. at 38-39 n.65, quoting from Re-

port by the President’s Commission on Law Enforce-

ment and Administration of Justice, “The Challenge

of Crime in a Free Society” (1967).

It is clear, in light of the enormous consequences of

juvenile court waiver proceedings, that such proceedings

are at least as dispositional in nature as sentencing pro-

ceedings. And the same kind of factfinding occurs at

waiver proceedings.

In Hamilton the Court held that a criminal defendant

is entitled to counsel at an arraignment hearing where

he will be required to plead or waive certain defenses,

including insanity. 368 U.S. at 53. Although this rule is

not designed to prevent errors in determining whether

the defendant committed the offense in question, it is

essential to determining the defendant’s guilt or inno-

cence. One who pleads an insanity defense does not deny

having engaged in prohibited conduct but rather asserts

that the conduct should not be treated as criminal be-

cause of his diminished capacity at the time of the con-

duct.

17 Id. at 3, quoting Linkletter v. Walker, 381 U.S. 618, 639 (1965).

17

The same reasoning compels the retroactivity of Kent

and Gault. At a juvenile court waiver proceeding, a

juvenile defendant has the opportunity to present a de-

fense that, if successful, is analogous to the insanity

defense in Hamilton: that, because of his diminished

capacity and potential for rehabilitation as a juvenile,

he should not be held accountable for conduct that would

otherwise be treated as criminal. At the waiver proceed-

ing the juvenile must not only plead that “defense’’; he

must try it, for the juevnile court determines, in most

cases finally, whether the defendant is to be exempted

from the full force of adult criminal prosecution.

2. The Courts of Appeals and the State Supreme Courts

Are in Conflict on This Question.

Sharp conflicts exist among the Courts of Appeals and

the state supreme courts on the Kent/Gault retroactivity

question. The Fourth and Tenth Circuits have given Kent

and Gault retrospective application,’* while the Fifth and

D.C. Circuits have not,’® and in an en bane decision the

Ninth Cireuit overruled an earlier decision applying

Kent retrospectively.” Similarly, while the highest courts

of some states have treated Kent and Gault as retro-

active, others have not.”

1’ Brown V. Cox, 481 F.2d 622 (4th Cir. 1973) (en banc), cert.

denied, 414 U.S. 1136 (1974); Kemplen v. Maryland, 428 F.2d 169

(4th Cir. 1970) ; Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968).

1% Brown V. Wainwright, 537 F.2d 154 (5th Cir. 1976); Mordecai

v. United States, supra, and the instant case.

20 Harris Vv. Procunier, 498 F.2d 576 (9th Cir.) (en banc), cert.

denied, 419 U.S. 970 (1974), overruling Powell v. Hocker, 453 F.2d

652 (9th Cir. 1971). See also Smith v. Cady, 452 F.2d 141 (7th

Cir. 1971), and Brown v. New Jersey, 395 F.2d 917 (3d Cir. 1968),

declining to address the issue; and Smith v. Yaeger, 459 F.2d

124, 127 (3d Cir. 1972), suggesting in dictum that “limited retro-

activity may be appropriate.”

21 Compare, ¢.g., Marvaden v. Commonwealth, 352 Mass. 564, 227

N.E.2d 1 (1967); State v. Lueder, 137 N.J. Super, 67, 347 A.2d

18

The courts rejecting retrospective application have

without exception failed properly to apply the test of

Adams Vv. Illinois and Williams v. United States—that

retroactive effect shall be given, regardless of any re-

liance by law enforcement authorities or impact on the

administration of justice,

“where the ‘major purpose of new constitutional

doctrine is to overcome an aspect of the criminal

trial that substantially impairs its truth-finding

function and so raises serious questions about the ac-

curacy of guilty verdicts in past trials... .’””

These courts have focused on perceived reliance by

courts on pre-Kent rulings, on feared adverse effects of

retroactivity on the criminal justice system, and on

supposed impediments to providing a satisfactory remedy.

E.q., Harris v. Procunier, 498 F.2d at 579; Mordecai v.

United States, 187 U.S. App. D.C. at 201-04, 421 F.2d

at 1136-39. See also Brown v. Cox, 481 F.2d at 627-28

In Harris, for example, the Ninth Circuit quoted the

reference in Williams to rules designed to serve the

805 (1975): State v. Circuit Court, 837 Wis.2d 329, 155 N.W.2d 141

(1967), applying Kent and Gault retrospectively, with e.g., Ari-

zona V. Martin, 107 Ariz. 444, 489 P.2d 254 (1971) (en banc); In

re Harris, 67 Cal.2d 876, 64 Cal. Rptr. 319, 434 P.2d 615 (1967)

(en banc); Florida v. Steinhauer, 216 So.2d 214 (Fla. 1968), cert.

denied, 398 U.S. 914 (1970); Smith v. Commonwealth, 412 S.W.2d

256 (Ky. Ct. App.), cert. denied, 389 U.S. 873 (1967); State v.

Hance, 2 Md. App. 162, 233 A.2d 326 (1967); People v. Terpening,

16 Mich. App. 104, 167 N.W.2d 899 (1969); Powell v. Sheriff, 85

Nev. 684, 462 P.2d 756 (1969); Bouge v. Reed, 254 Ore. 418, 459

P.2d 869 (1969) (en banc); Commonwealth v. James, 440 Pa. 205,

269 A.2d 898 (1970); Cradle v. Peyton, 208 Va. 248, 156 S.E.2d

874 (1967), cert. denied, 392 U.S. 945 (1968); Brumley v. Charles

R. Denney Juvenile Center, 77 Wash.2d 702, 466 P.2d 481 (1970)

(en banc), applying Kent and Gault prospectively only.

22 Adams V. Illinois, 405 U.S. at 280, quoting Williams v. United

States, 401 U.S. at 653.

19

truth-finding function of “the criminal trial’ ** and

grounded its decision on the theory that “a certification

hearing is not a trial, but a hearing.” 498 F.2d at 579.

That distinction fails to account for the Court’s decisions

giving retrospective application to such cases as Hamil-

ton, Mempa, and Douglas v. California, supra, and thus

is clearly without merit.

Nor does the supposed difficulty of devising a remedy

justify the failure to apply Kent retroactively. In Mor-

decai, where a 24 year old petitioner sought to have his

conviction vacated because of a waiver proceeding that

did not conform to Kent standards, the Court denied re-

lief because of ‘the impossibility of according the ap-

pellant an adequate remedy... .” 421 F.2d at 1139. No

remedy was possible, according to the Court, because

the Juvenile Court no longer had jurisdiction over the

petitioner and ‘“nonpunitive rehabilitation” would no

longer be available. Jd. at 1138. In Kent, however, the

Supreme Court specifically rejected this very contention:

It remanded to the District Court for a hearing de novo

on waiver. “If that court finds that waiver was inap-

propriate, petitioner’s conviction must be vacated.” 383

U.S. at 565. If waiver was determined to be proper, the

District Court was directed to enter “an appropriate

judgment,” id., presumably dismissing the habeas corpus

petition. See also United States v. Rundle, 438 F.2d 839

(3d Cir. 1971).

B. The Decision below Not to Give Retrospective Effect

to Dorszynski Conflicts with the Standards Prescribed

by This Court for Retroactivity and with Decisions of

Other Circuits.

In Dorszynski this Court recognized that in the Federal

Youth Corrections Act, enacted in 1950,% Congress had

23 401 U.S. at 653.

2418 U.S.C. §§ 5005-5026, 64 Stat. 1087.

20

expressed its legislative judgment that federal courts

must accord young offenders special consideration in

imposing sentences. “The Act was. . . designed to pro-

vide a better method for treating young offenders con-

victed in federal courts in that vulnerable age bracket

[16 to 22], to rehabilitate them and restore normal be-

havior patterns.” Dorszynski v. United States, 418 U.S.

at 438. The Act therefore provides that, before a court

may sentence an eligible offender under the penalty pro-

vision that would govern in the Act’s absence, “the court

shall find that the youth offender will not derive benefit”

from the rehabilitative alternatives provided in the Act.

18 U.S.C. § 5010(d).

In Dorszynski the Court held that the “no benefit”

finding must be explicit. 418 U.S. at 444. It noted that

any different requirement would leave “unclear whether

. . . the court believed petitioner to be legally ineligible

for treatment under the Act—which would be error—

or whether, realizing he was eligible, nevertheless de-

liberately opted to sentence him as an adult.” Jd. (em-

phasis added).

Such an error might well have a major effect on

the outcome of the sentencing. Under the Act, a court

might suspend sentencing and place the youth offender

on probation, 18 U.S.C. § 5010(a); sentence him to non-

prison custody of the Attorney General for no more than

six years, 18 U.S.C. §§ 5010(b), 5017(c); or sentence

him to non-prison custody of the Attorney General for

longer than six years but with mandatory discharge at

least one year before the maximum amount of the other-

wise applicable sentence, 18 U.S.C. §$ 5010(c), 5017

(d). The adult sentence imposed on petitioner here, when

he was 15 years of age, was the maximum permitted—

from five to 15 years incarceration in a maximum se-

curity prison.

Thus, a court’s failure to consider Youth Corrections Act

sentencing, and to exercise its discretion on the facts of

21

each case in imposing such sentencing, is an error that

affects the very essence of the sentencing proceeding.

It is a failure to consider the special facts of a youth

offender’s individual circumstances as expressly required

by Congress—in short, an abdication of a critical fact-

finding function. The rule of Dorszynski, requiring an

explicit finding of no benefit, is designed to assure that

such fundamental errors do not occur, and the instant

case provides a graphic illustration of why the rule is

necessary. The trial court made no reference at all in

the 1961 sentencing proceeding to the question whether

petitioner Brackett would benefit from sentencing under

the Act. The court was, in its own words, “more in-

terested in the fate that befell the guard than it is in

the future of these... boys.” (A. 43.)

The question presented is whether the Dorszynski rule

should be given retroactive effect here and in other cases.

Application of the principles articulated by the Court in

past decisions demonstrates that it should. The question

is important and has resulted in a conflict in the Cir-

cuits.”

1. This Court’s Rules of Retroactivity Require Retro-

spective Application of Dorszynski.

The Court has previously made clear that the con-

stitutional right to counsel at dispositional hearings is

fully retroactive, noting that “the necessity for the aid

of counsel in marshaling the facts, introducing evidence

of mitigating circumstances and in general aiding and

assisting the defendant to present his case as to sentence

2>In deciding not to give Dorszynski retrospective effect, the

Court of Appeals expressly differentiated below between issues

raised in appeals and those raised in collateral attacks, holding that

retroactivity may consistently be given in the first situation while

not in the second. This Court has sharply criticized this approach,

recognizing that such distinctions are illogical. E.g., Williams v.

United States, 401 U.S. at 657 and n.9.

99

is apparent.” McConnell v. Rhay, 393 U.S. at 4, quoting

Mempa v. Rhay, 389 U.S. at 135. The Dorszynski rule

that the sentencing court must make a no benefit finding,

and must make.it expressly, serves the same fundamental

purpose as that of the right to counsel at sentencing—

to ensure that the court’s attention is turned specifically

to the relevant issues respecting sentencing, and in par-

ticular to an issue whose consideration Congress has

mandated.”

2. The Courts of Appeals Are in Conflict on This

Question.

The Courts of Appeals are widely split on the question

whether Dorszynski should be given retrospective appli-

cation. As the District of Columbia Circuit said below,

“Our limitation of the retroactivity of Dorszynski is

eoncededly at odds with holdings in other circuits.” (A.

10.) The Fourth, Fifth, and Eight Circuits have uni-

26 It is unlikely that a rule giving Dorszynski retroactive appli-

cation would result in the imposition of undue burdens on the

criminal justice system; nor would such a rule offend the good faith

reliance of District judges on some longstanding contrary prin-

ciple. Stovall v. Denno, supra. First, the District judges in at least

three Circuits had, prior to Dorszynski, been required by their own

Courts of Appeals to make explicit no benefit findings. See Brooks

v. United States, 497 F.2d 1059 (1974), modified on other grounds,

531 F.2d 317 (6th Cir. 1975); United States v. Kaylor, 491 F.2d

1133 (2d Cir.) (en bane), vacated on other grounds, 418 U.S. 909

(1974) ; United States v. Coefield, 155 U.S. App. D.C. 205, 476 F.2d

1152 (1973) (en banc). Second, it is improbable that a large num-

ber of persons who were improperly sentenced under Dorszynski

remain in prison today: The requirement of a no benefit finding

applies only to youth offenders who are in the federal system and

were 21 or younger at the time of conviction; and the vast ma-

jority of eligible youths were in fact sentenced under the Act, as

was intended. Third, the earliest Court of Appeals decision holding

that something other than an explicit finding was permissible issued

on December 20, 1972, see United States v. Jarrett, 439 F.2d 1135

(3d Cir. 1971), only 15 months before Dorszynski itself was decided

on March 20, 1974. Thus, except for that short period of time, there

was no precedent for making less than an explicit no benefit finding

and, therefore, nothing on which District judges might have relied.

23

formly applied Dorszynski retroactively,*’ while the D.C.,

Third, and Tenth Circuits have applied it only pros-

pectively.** The Ninth Circuit has given the rule retro-

active effect at least once,” and on a subsequent occa-

sion declined to address the question. The Sixth

Circuit has at least twice avoided consideration of the

issue," and the Second Circuit suggested in a pre-

Dorszynski opinion that it would not apply its explicit

finding rule retrospectively.”

These conflicts among the Circuits should be resolved.

The courts rejecting retroactivity have, as in the case of

27 United States v. Flebotte, 503 F.2d 1057 (4th Cir. 1974);

United States v. Bailey, 509 F.2d 881 (4th Cir. 1975); McCray Vv.

United States, 542 F.2d 1246 (4th Cir. 1976); Hoyt v. United

States, 502 F.2d 562 (5th Cir. 1974); United States v. Scheffer, 506

F.2d 922 (5th Cir. 1975) ; Robinson v. United States, 536 F.2d 1109

(5th Cir. 1976); Walls v. United States, 544 F.2d 236 (5th Cir.

1976); Sappington v. United States, 518 F.2d 28 (8th Cir, 1975);

Brager v. United States, 527 F.2d 895 (8th Cir. 1975); Tasby v:

United States, 535 F.2d 464 (8th Cir. 1976); DeVerse v. United

States, 536 F.2d 804 (8th Cir.), cert. denied, 429 U.S. 897 (1976);

United States v. Scruggs, 538 F.2d 214 (8th Cir. 1976); Rivera v.

United States, 542 F.2d 478 (8th Cir. 1976).

In addition, the District of Columbia Court of Appeals has given

Dorszynski retrospective application in appeals from sentencings

that occurred before Dorszynski. E.g., Smith v. United States, 325

A.2d 180 (D.C. Ct. App. 1974).

28 Owens V. United States, 383 F. Supp. 780 (M.D. Pa. 1974),

aff'd without opinion, 515 F.2d 507 (3d Cir.), cert. denied, 423

U.S. 996 (1975); Jackson v. United States, 510 F.2d 1335 (10th

Cir. 1975).

2° Belgarde Vv. United States, 503 F.2d 1054 (9th Cir. 1974).

30 Rewak v. United States, 512 F.2d 1184 (9th Cir. 1975). In

addition, the District of Columbia Court of Appeals has applied to

rule retroactively. E.g., Smith v. United States, 325 A.2d 180 (D.C.

Ct. App. 1974).

3! Coleman v. United States, 532 F.2d 1062 (6th Cir.), cert. de-

nied, 429 U.S. 847 (1976); McKnabb v. United States, 551 F.2d 101

(6th Cir. 1977).

32 [/nited States v. Kaylor, supra.

24

those dealing with the Kent and Gault issue, failed to

focus on what, under this Court’s rulings, is the central

retroactivity question: whether the Dorszynski rule is

essential to the integrity of the sentencing process. The

reasoning of the Second Circuit in United States v. Kaylor,

for example, is inapposite, because the court considered

only the second and third factors enumerated in Stovall

(reliance and effect on the administration of criminal jus-

tice) and not the first and most important factor—the

purpose of the rule requiring an explicit finding.

The D.C. Cireuit has rejected retroactivity on the

ground that no adequate remedy was available, noting

that in Mordecai it had followed the same course for the

same reason with respect to Kent.** But as noted above,

this disposition in Mordecai was clearly wrong: This

Court was confronted in Kent with precisely the same

facts as those in Mordecai, and the Court specifically

rejected the contention that no adequate remedy was

available. The Court held that if waiver was improper,

the conviction of Kent must be vacated.

Here, by the same token, the case should be remanded

to the District Court for a hearing, nune pro tune, on

whether petitioner should have been sentenced under the

Youth Corrections Act. Petitioner’s conviction should be

vacated if it is determined on remand (1) that Youth Cor-

rections Act treatment would have been appropriate and

(2) that such treatment cannot now be afforded. Alter-

natively, the remainder of petitioner’s adult sentence—

approximately four years—should be set aside. If, on the

other hand, the District Court were to find that the trial

court’s rejection of youth sentencing was apt, it should

enter an appropriate order.

8 A. 7.

25

C. The Failure of the Court below to Give Tucker Retro-

spective Application Conflicts with the Standards Pre-

scribed by This Court for Retroactivity and with Deci-

sions of Other Circuits and of State Supreme Courts.

Petitioner alleged in his pro se Section 2255 motion that

his sentence is invalid under United States v. Tucker since

the trial judge had given attention to petitioner’s earlier

convictions and those convictions were improperly ob-

tained in violation of petitioner’s constitutional right to

counsel. The Government’s response, which was adopted

by the District Court (A. 66), said only that

“without indicating more specifically what prior

convictions or what statements or under what cir-

cumstances they were made, these allegations must

be considered insufficient as stating any grounds for

relief.” (A. 69.) (Citations omitted.)

The Court of Appeals affirmed without opinion. (A. 20.)

It seems improbable that the basis of the Court of Ap-

peals’ affirmance could have been the rationale offered by

the Government and relied on by the District Court, since

the Government’s position was so clearly wrong. First,

the sentencing transcript that was before the District

Court, the Court of Appeals, and this Court (A. 40-44)

demonstrates that the sentencing judge did give attention

to netitioner’s earlier convictions. Second it is clear that

if, .s petitioner contended in his motion, petitioner was

improperly denied counsel at the proceedings leading to

those convictions, the convictions were invalid. Berry v.

City of Cincinnati, 414 U.S. 29 (1973); Argersinger Vv.

Hamlin, 407 U.S. 25 (1972); In re Gault, supra. And

third, it is clear that petitioner’s allegation of these facts

is sufficient to state a claim for relief, see Berry v. City

of Cincinnati, supra; Kitchens v. Smith, 401 U.S. 847

(1971), and entitles him, at a minimum, to a hearing.

See 28 U.S.C. § 2255 (“Unless the motion and the files

26

and secords of the case conclusively show that the prisoner

is entitled to no relief, the court shall... grant a prompt

hearing thereon... .” (Emphasis added.) ).*

The only other possible basis for the Court of Appeals’

decision is a determination that Tucker should not be

given retrospective application—an issue briefed before

the Court of Appeals. Such a result, however, is con-

trary to the principles of retroactivity articulated in the

decisions of this Court and is in conflict with the decisions

of other Circuits and of the state supreme courts.”

This Court’s decisions reflect the special importance of

the right to representation by counsel at trial. The Court

has held that, in the absence of waiver, a conviction of

“an offense, whether classified as petty, misdemeanor, or

felony” is invalid if it was obtained in a court that de-

nied the defendant the assistance of a lawyer. Argersinger

v. Hamlin, supra; Gideon Vv. Wainwright, supra. And the

Court has held this rule to be fully retroactive.”

This Court has also made clear that convictions invalid

under Argersinger or Gideon may not be relied on in

later prosecutions to prove guilt or to increase punish-

ment. Thus, in Burgett v. Texas, 389 U.S. 109 (1967), the

Court reversed a conviction obtained in the following

‘4 If the Court of Appeals had based its affirmance on the conten-

tion made by the Government before the trial court, summary re-

versal would be appropriate here.

85 There is also a conflict in the Circuits on the question whether

a habeas petitioner must, before obtaining relief under Tucker in

the federal courts, exhaust all his state remedies, including all ave-

nues of collateral attack under state law. That question is not

presented here, since petitioner Brackett was tried, convicted, and

sentenced in the United States District Court for the District of

Columbia where he subsequently filed the Section 2255 motion that

led to this review proceeding.

% See Pickelsimer Vv. Wainwright, 375 U.S. 2 (1963), and Kitch-

ens V. Smith, supra, respecting the retroactivity of Gideon; Berry

v. City of Cincinnati, supra, holding Argersinger retroactive.

27

circumstances: An indictment charging petitioner with

assault contained allegations of previous felony convic-

tions—allegations that, if proved, would have increased

the punishment under the state recidivist statutes. The

indictment was read to the jury at the beginning of the

trial, and records of the convictions were offered in evi-

dence during trial, although it appeared that at least one

conviction had been obtained in violation of Gideon. The

Court held:

“To permit a conviction obtained in violation of

Gideon Vv. Wainwright to be used against a person

either to support guilt or enhance punishment for

another offense (see Greer Vv. Beto, 384 U.S. 269)

is to erode the principle of that case. Worse yet,

since the defect in the prior conviction was denial of

the right to counsel, the accused in effect suffers

anew from the deprivation of that Sixth Amendment

right.” 389 U.S. at 115 (emphasis added).

In United States v. Tucker, 404 U.S. 443 (1972), the

Court applied Burgett to hold that a sentence imposed by

a judge who “gave explicit attention” to prior convictions

that were void under Gideon is also invalid.*’ Thus,

Burgett and Tucker make clear that neither the jury nor

the judge can consider prior invalid convictions in any

context—recidivist statutes or sentencing—that could re-

sult in increased punishment.

The Tucker rule clearly warrants retrospective applica-

tion. Its underpinning—the Burgett holding—has already

been applied retrospectively. See Loper v. Beto, 405 U.S.

473 (1972). Indeed, in Tucker itself the rule of the

Burgett case was applied to a sentence that antedated the

1967 Burgett decision. Moreover, the Courts of Appeals *

8? The Chief Justice and Mr. Justice Blackmun concurred in the

principle enunciated by the Court in Tucker but dissented with re-

spect to its application to particular facts of Tucker’s case.

38 E.g., United States v. Walters, 526 F.2d 359 (3d Cir. 1975);

Irby Vv. Missouri, 502 F.2d 1096 (8th Cir. 1974), cert. denied, 425

28

and the state supreme courts * have uniformly treated

Tucker as retroactive. The Court of Appeals’ failure here

to remand for a hearing on petitioner’s Tucker allegations

was, therefore, clear error and should be reversed.

CONCLUSION

For the reasons set forth above, this petition for writ

of certiorari should be granted.

Respectfully submitted,

TIMOTHY N. BLACK

JOHN H. HAarwoop II

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

Counsel for Petitioner

November 28, 1977

U.S. 997 (1976); Collins v. Buchkoe, 493 F.2d 343 (6th Cir. 1974);

United States Vv. Radowitz, 507 F.2d 109 (5th Cir. 1974); Mitchell

v. United States, 482 F.2d 289 (5th Cir. 1973); Craig v. Beto, 458

F.2d 1131 (5th Cir. 1972); Garrett v. Swenson, 459 F.2d 464 (8th

Cir. 1972); Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972);

Russo V. United States, 470 F.2d 1357 (5th Cir. 1972).

* E.g., Commonwealth vy. Calvert, 344 A.2d 797 (Pa. 1975);

People Vv. Moore, 391 Mich. 426, 216 N.W.2d 770 (1974); Howard

v. State, 280 So.2d 705 (Fla. Ct. App. 1973); Towers v. Director,

Patuxent Institution, 16 Md. App. 678, 299 A.2d 461 (Ct. Spec.

App. 1973); Crowe v. State, 194 N.W.2d 234 (S. Dak. 1972).