# Reply Brief — Brackett v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0118%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1978 - **Citation:** 435 U.S. 968 ## Text | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0118%3A4. Public record. Not legal advice.