Reply Brief — Brackett v. United States

| Supreme fou

Supreme Court, U.S - \

| FILED

MAR 27 1979

IN THE MICHAEL RODAK, JR.. CLERK

Suprenw Court of the United States —

OCTOBER TERM, 1977

No. 77-763

WALTER 8S. BRACKETT,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

REPLY IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

TIMOTHY N. BLACK

JOHN H. HARwWoop II

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D. C. 20006

Counsel for Petitioner

—

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

INDEX

Page

ee Cy Ga ct ; II

Fer te ERS APPS Reet Des EDIE EITM at Pa! in Pe Phe 1

6

I

TABLE OF AUTHORITIES

CASES: Page

Blackledge V. Perry, 417 U.S. 21 (1974) —............ 3

Brady Vv. United States, 397 U.S. 742 (1970). _.... 3

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

denied, 414 U.S. 1136 (1974) ... Fao CN 2

Hamilton v. Alabama, 368 U.S. 52 (1961) lat 2

Journigan V. Duffy, 552 F.2d 283 (9th Cir. 1977) .. 3

Kent v. United States, 383 U.S. 541 (1966) _..... 2

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

McMann V. Richardson, 397 U.S. 759 (1970) _....... 3

Mempa V. Rhay, 389 U.S. 128 (1967)... 2

Menna V. New York, 423 U.S. 61 (1975) ......... ee 3

Parker v. North Carolina, 397 U.S. 790 (1970) 3

Sanders v. United States, 373 U.S. 1 (1963)... —s_ 4, 5

Smith v. Yeager, 459 F.2d 124 (3d Cir. 1972) 2

Tollett v. Henderson, 411 U.S. 258 (1973) ......... 2

United States v. Sams, 521 F.2d 421 (3d Cir.

TEED nn-ovsse+o~crmsesansnnncseasinsaprenenrsnesseibereininisemesisonnsasnne 3

United States v. Tucker, 404 U.S. 443 (1972) ....... 3,4

Wilhite v. United States, 281 F.2d 642 (D.C. Cir.

ED ncncscwscsiansencustoenereseoroorenesnidieseiensccentisnensemencunsnsta 2

In THE

Supreme Cowt uf the Uuited States

OcTOBEB TERM, 1977

No. 77-763

WALTER S. BRACKETT,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

REPLY IN SUPPORT OF P&TITION.

FOR WRIT OF CERTIORARI

Argument

In its brief opposing grant. of the petition for certio-

rari in. this. ease, the United States has painted with too

broad: a brush. It argues. in: effect that decisions articu-

lating constitutional rights may be given retrospective

effect only when those rights are designed to protect the

factfinding proeesses on which the aecuracy of determi-

nations of factual guilt or inneeence must depend. The

Government also would dismiss the petitioner’s retroac-

tivity claims on the ground that they are “of diminishing

importance.”

The short answer to these contentions is that this Court

has neither fashioned nor applied the overly simply retro-

activity rule that the Government espouses. The Court

2

has not given retroactive effect only to those constitutional

rules that are critical to assuring the accuracy of the

finding that a defendant has or has not actually com-

mitted a charged offense. The Court has also made retro-

active those rules that affect the extent, if any, to which

the defendant may be punished as a criminal for such

an offense. See McConnell v. Rhay, 393 U.S. 2 (1968);

Mempa v. Rhay, 389 U.S. 128 (1967); Hamilton v. Ala-

bama, 368 U.S. 52 (1961).

Furthermore, all retroactivity issues are “of diminish-

ing importance” in that the number of cases presenting

them dwindles as the decisions on which they rely recede

in time. The amount of recent litigation surrounding the

issues here raised demonstrates their still current impo-

tance. The underlying constitutional rights are also of

very real importance to this petitioner.

For a full treatment of these questions, we refer the

Court to the petition.

Two assertions in the Government’s brief, however,

require response.

1. The United States’ leading argument on the Kent '

retroactivity question is that

“by pleading guilty in the adult court, petitioner

waived his claim that his juvenile waiver hearing

did not meet statutory or constitutional standards.”

(Brief for the United States in Opposition (“Opp.”)

at 4.)

The cases on which the Government relies are simply

inapposite.* All except Wilhite, where no ratio decidendi

was set forth, depend upon the theory of Tollett and of

1 Kent v. United States, 383 U.S. 541 (1966).

2 Tollett v. Henderson, 411 U.S. 258 (1973); Brown v. Coz, 481

F.2d 622 (4th Cir. 1973), cert. denied, 414 U.S. 1136 (1974) ; Smith

v. Yeager, 459 F.2d 124 (3d Cir. 1972); Wilhite v. United States,

281 F.2d 642 (D.C. Cir. 1960).

3

the Brady trilogy.’ Those cases stand only for the propo-

sition that “a counseled plea of guilty is an admission of

factual guilt so reliable that, where voluntary and intelli-

gent, it. . . removes the issue of factual guilt from the

case.”’ Menna v. New York, 423 U.S. 61, 62 n.2 (1975)

(emphasis added). Thus, “a guilty plea... simply ren-

ders irrelevant those constitutional violations not logically

inconsistent with the valid establishment of factual guilt

and which do not stand in the way of conviction, if fac-

tual guilt is validly established.” Jd.

This Court has held, however, that a guilty plea is no

bar to a claim that a court is, ab initio, “precluded by

the United States Constitution from haling a defendant

into court on a charge... .” Menna v. New York, 423

U.S. at 62, citing Blackledge v. Perry, 417 U.S. 21, 30

(1974). Petitioner’s Kent argument in this case is just

such an assertion: that because the juvenile court’s waiver

of jurisdiction over petitioner was constitutionally defec-

tive, the trial court lacked jurisdiction over petitioner.

The application of Blackledge and Menna to this case

could not be more straightforward. Here, as there, “the

claim is that the [trial court could] not convict petitioner

no matter how validly his factual guilt is established.”

Menna v. New York, 423 U.S. at 62 n.2.*

2. The Government concedes that, if petitioner had

presented with specificity his claim under United States

v. Tucker, 404 U.S. 443 (1972), petitioner would have

been entitled to a hearing on that portion of his § 2255

motion. The Government maintains, however, that the

District Court “was correct in not holding a hearing,”

because petitioner’s motion did not contain “sufficient fac-

8’ Parker v. North Carolina, 397 U.S. 790 (1970); McMann v.

Richardson, 397 U.S. 759 (1970) ; Brady v. United States, 397 U.S.

742 (1970).

*See also Journigan v. Duffy, 552 F.2d 283 (9th Cir. 1977);

United States v. Sams, 521 F.2d 421 (3d Cir. 1975).

4

tual allegations to support the claim for relief.” (Opp. at

14.) In particular, citing Sanders v. United States* and

lower court eases, the Government faults petitioner for

failing “to allege specifically what prior convictions the

court had relied on and in what manner the court had

relied on them.” (Opp. at 14; emphasis added. )

But Sanders does not govern the instant case. The

petitioner in Sanders “alleged no facts but merely the

conclusions that (1) the ‘Indictment’ was invalid, (2)

‘Appellant was denied adequate assistance of Counsel as

guaranteed by the Sixth Amendment,’ and (3) the sen-

tencing court had ‘allowed the Appellant to be intimi-

dated and coerced into intering [sic] a plea without Coun-

sel, and any knowledge of the charges lodged against the

Appellant.’ 373 U.S. at 5. This Court upheld dismissal

of the motion because it “stated only bald legal conclu-

sions with no supporting factual allegations.” Jd. at 19.

The § 2255 motion of petitioner in this case asserted

markedly more than “only bald legal conclusions.” Peti-

tioner argued as follows in his pro se motion:

“At the time of sentencing the trial judge took

into consideration past convictions of plaintiff even

though he was a juvenile and was not represented

by counsel. This cannot be done under United States

v. Tucker, 404 United States 443 (1972). By this

ruling a trial judge during the sentencing process

cannot take into consideration any prior convictions

when the accused was not represented by counsel.

United States v. Tucker was reinforced by Arger-

singer V. Hamlin, 407 United States 25 and Arger-

singer was made fully retreactive by the very recent

ease of Berry v. City of Cincinnati decided by the

Supreme Court of the United States on November 5,

1973. See also the recent case of Brown v. United

States of America, CCA 4 decided August 1, 1973

° 373 U.S. 1 (1963).

5

(72-1312). See also the frequently cited case of Lips-

comb v. Clark, 468 F (2) 1821 CCA 5 (1972). This

principle of law is fully retroactive.” (A. 52.)

Thus, petitioner alleged specific facts and contended that

those facts entitled him to relief under applicable law.

Moreover, the transcript of the sentencing proceeding,

which consisted of enly five typewritten pages and was

before the District Court that dismissed petitioner’s mo-

tion, confirmed at least some of petitioner’s factual asser-

tions. The transcript contains the following statements

by the trial court concerning the records of petitioner

and one of his codefendants:

“They were prisoners in the National Training School

for Boys, having been committed under the Federal

Juvemie Delinquency Act for stealing automobiles.

Each of them has a bad record before this present

commitment.” (A. 42.)°

The readily available sentencing transcript itself, there-

fore, in large part answers the objections of the Govern-

ment here and below (A. 64) that petitioner’s motion

failed to specify what convictions the sentencing court

considered and in what manner it relied on them. In

these circumstances, it would be an absurd allocation of

burdens to demand more specificity of petitioner’s motion

before he is even accorded a hearing. His motion alleged

facts; the sentencing transcript alone substantiated some

of those facts; this was enough to entitle him to a hear-

ing. Sanders is not to the contrary.

®* The court was here referring to petitioner’s juvenile convictions

for motor vehicle (one motor bike and two automobiles) thefts and

juvenile home escape attempts. Court records of at least one of the

convicting tribunals—the Family Court, Greenville County, South

Carolina—reveal that no lawyer appeared for petitioner, who was

then 12 years old. See Brief for Petitioner-Appellant, September 8,

1975, at 42 n.17.

6

We accordingly submit that the appropriate relief here

is summary reversal with direction that a hearing be

held. Petitioner should not again have to run the risk of

denial of the hearing to which the Government concedes

he is entitled.

CONCLUSION

For the reasons set forth above and in the Petition,

the Court should grant the Petition for Writ of Certiorari

in this case. ;

Respectfully submitted,

TIMOTHY N. BLACK

JOHN H. HARwoop II

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D. C. 20006

Counsel for Petitioner

March 27, 1978