# Petition — Brackett v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0118%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 968 ## Text 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0118%3A1. Public record. Not legal advice.