Petition — Crisp v. Bromley

Supreme Court, U.S,

FILED

NO” 28 1977

Yue Supreme Cart of he Winsted EP

OcToBeR TERM, 1977

No. 2%-~7 64

_ RICHARD CRISP, Warden, Oklahoma State Penitentiary,

McAlester, Oklahoma, Petitioner,

VERSUS

LOUIS J. BROMLEY, Respondent.

STATE OF OKLAHOMA, Petitioner,

VERSUS

DAVID LEE GARNER, Respondent.

JERRY SUNDERLAND, Petitioner,

VERSUS

GARY MICHAEL RUTLEDGE, Respondent.

DAVE FAULKNER, Petitioner,

VERSUS

BILLY J. KILLION, DELMAR EUGENE HANLEY,

and DEREK LEE WILSON, Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

LARRY DERRYBERRY

Attorney General of Oklahoma

Kay KAREN KENNEDY

Assistant Attorney General

112 State Capitol Building

Oklahoma City, Oklahoma 73105

Attorneys for Petitioners

November, 1977

Cer er -—

UTTERBACK TYPESETTING CO.. S19 W. CALIF.. OKLAHOMA CITY. PH. 238-0030

SUBJECT INDEX

Opinions Below

Jurisdiction

Questions Presented

Statutory Provisions Cited

Statement

Reasons for Granting the Writ

Conclusion

Certificate of Service follows Brief.

APPENDICES

Appendix A—Opinion of the United States Court of

Appeals, Tenth Circuit (April 12, 1977) _..

Appendix B—Order of the United States District

Court for the Western District of Oklahoma in Case

No. CIV-75-0401-E, In the Matter of Louis Jay

Bromley, #87798, Petitioner, v. State of Oklahoma,

and Jerry Sunderland, Warden, Respondent

Appendix C—Order of the United States District

Court for the Western District of Oklahoma in Case

No. CIV-75-0556-E, In the Matter of Gary Michael

Rutledge, Petitioner, v. Jerry Sunderland, Warden,

Oklahoma State Reformatory, Respondent

Appendix D—Order of the United States District

Court for the Northern District of Oklahoma in

Case No. 75-C-220, In the Matter of Billie Jay Kil-

PAGE

13

A-1

C-1

— |

INDEX CONTINUED

lion and Delmar Eugene Hanley, Petitioners, v.

Dave Faulkner, Sheriff, Tulsa County, State of

Oklahoma, et al., Respondent |

Appendix E—Order of the United States District

Court for the Western District of Oklahoma in Case

No. CIV-74-336-E, In the Matter of David Lee Gar-

ner, Petitioner, v. The State of Oklahoma, Respon-

dent

Appendix F—Order of the United States District

Court for the Northern District of Oklahoma in

Case No. 75-C-227, In the Matter of Derek Lee Wil-

son v. Dave Faulkner, Sheriff. Tulsa County, State

of Oklahoma, et al., Respondent

Appendix G—Consolidation of 75-1593, 75-1830, 76-

1043, 76-1044, 75-1968, and 75-1988

Appendix H—Order Assuming Original Jurisdiction,

Denying Motion to Dismiss but Issuing Writ of

Mandamus (June 10, 1975)

Appendix I—Order Assuming Original Jurisdiction,

Denying Motion to Dismiss but Issuing Writ of

Mandamus (June 9, 1975)

Appendix J—Rutledge v. State, No. F-74-322

Appendix K—Order Affirming District Court’s Denial

of Post Conviction Relief (August 2, 1974)

PAGE

D-1

lies

AUTHORITIES

Cases CITED PAGE

Dean v. Crisp, 536 P.2d 961 (Okl. Cr. 1975) 9

Freshour v. Turner, 496 P.2d 389 (Okl. Cr. 1972) 9

Gosa v. —* 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d

873 (1973) - saoiesiteenhen ain elaine ° Uae

Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972) __...4, 12, 13

Lawrence v. Woods, 432 F.2d 1072 (7th Cir.), cert.

den. 402 U.S. 983 _ 9

Lefkowitz v. Newsome, 420 US. 283, 95 S.Ct. 886, 43

L.Ed.2d 196 (1975) - , 3,12

Linkletter v. Walker, 381 US. 618, 85 S.Ct. 1731, 14

L.Ed.2d 601 (1965) . 10

Long v. Robinson, 316 FSupp. 22 (D. ‘Ma. 1970),

aff'd 436 F.2d 1116 (4th Cir. 1971) _ seireiuiad 8

People v. Ellis, 57 I1L.2d 127, 311 N.E.2d 98 (S.Ct. Tl.

a a SS ae : ren . 8,11

Radcliff v. Anderson, 509 F.2d 1093 (10th Cir. 1975),

cert. den. 421 U.S. 939 - haiopeneds 4

Schaffer v. Green, 496 P.2d 375, at 377 seme! 378

(1972) _...... 8,11

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 LEd.

2d 1199 (1967) . _ RS ere 19

United States, ex rel. Watson v. emt 528 F.2d

259 (7th Cir. 1975) ~ inti "ws +

Williams v. State of Maryland, 324 A.2d 174 (Court

of Special Appeals of Maryland 1974), aff'd 344 A.2d

80 (Ct. of App. Md. 1975) ‘ - 8

Williams v. Maryland, 344 A.2d 80 (1975) 11

Williams v. United States. 401 U.S. 646, 91 S.Ct. 1148,

28 L.Ed.2d 388 (1971) = 10

{iy —

AUTHORITIES CONTINUED PAGE

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41

* £ fae ee 10

Woodall v. Pettibone, 465 F.2d 49 (4th Cir. 1972) 8

STATUTES CITED

10 OS. Supp. 1900, §1101_

10 O.S. Supp. 1969, § 1101 (a) 3,4

28 U.S.C., § 1254(1) .

Oruer AUTHORITIES CITED

Illinois Juvenile Court Act _. saieaiiaciasiiammmamiaaal 7

In the

Supreme Court of the United States

OcToBER TERM, 1977

SN atacidiaitionke

RICHARD CRISP, Warden, Oklahoma State Penitentiary,

McAlester, Oklahoma, Petitioner,

VERSUS

LOUIS J. BROMLEY, Respondent.

STATE OF OKLAHOMA, Petitioner,

VERSUS

DAVID LEE GARNER, Respondent.

JERRY SUNDERLAND, Petitioner,

VERSUS

GARY MICHAEL RUTLEDGE, Respondent.

DAVE FAULKNER, Petitioner,

VERSUS

BILLY J. KILLION, DELMAR EUGENE HANLEY,

and DEREK LEE WILSON, Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

Comes now the Attorney General of the State of Okla-

homa, on behalf of the petitioners, and respectfully prays

that a writ of certiorari issue to review the opinions of the

United States Court of Appeals for the Tenth Circuit en-

tered in the proceedings on April 12, 1977.

OPINIONS BELOW

The opinion of the Court of Appeals is not yet reported.

The opinion of the United States Court of Appeals for the

Tenth Circuit, sitting en banc, was rendered on the 12th

day of April, 1977 (Appendix A). A Petition for Rehearing

En Banc was timely filed. The Court denied rehearing in an

Order dated September 2, 1977. A corrected Order, also

denying the Petition for Rehearing was filed by the Court

on September 6, 1977; the Court in said Order amended

the original opinion of the Court inserting a new page 14

(the corrected opinion is reflected in Appendix A).

The opinion of the United States District Court for the

Western District of Oklahoma in the case styled Louis J.

Bromley v. State of Oklahoma, Case No. CIV-75-0401-E, is

unreported. The opinion, rendered by the Honorable Luther

B. Eubanks, was entered on the 30th day of June, 1975

(Appendix B).

The opinion of the United States District Court for the

Western District of Oklahoma in the case styled Gary

Michael Rutledge v. Jerry Sunderland, Case No. CIV-75-

0556-E, was rendered by the Honorable Luther B. Eubanks

on the 21st day of October, 1975 (Appendix C).

The opinion of the United States District Court for the

Northern District of Oklahoma in the cases styled Billy J.

Killion and Delmar Eugene Hanley v. Dave Faulkner, et al..

was rendered by the Honorable Allen Barrow on the 22nd

day of December, 1975 (Appendix D).

The opinion of the United States District Court for the

Western District of Oklahoma in the case styled David Lee

_

Curner v. State of Oklahoma, Case No. CIV-74-336-E, was

rendered by the Honorable Luther B. Eubanks on the 8th

day of September, 1975 (Appendix E).

The opinion of the United States District Court for the

Northern District of Oklahoma in the case styled Derek Lee

Wilson v. Dave Faulkner, et al., was rendered by the Hon-

orable Allen Barrow in Case No. 75-C-227 on the 22nd day

of December, 1975 (Appendix F).

On the 4th day of February, 1976, the Court of Appeals

for the Tenth Circuit ordered the companioning of the cases

for purposes of briefing and argument (Appendix G).

JURISDICTION

The opinion filed on April 12, 1977, is now presented

for review. This Petition for Certiorari was filed within

ninety (90) days of the date the appellate court denied the

Petitions for Rehearing. This Court’s jurisdiction is invoked

under 28 U.S.C., § 1254(1).

QUESTIONS PRESENTED

1. Should a decision which holds that a uniform age

of criminal responsibility must be sustained for both males

and females be given prospective application only?

2. Did the Court of Appeals misapply this Court’s de-

cision in Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886,

43 L.Ed.2d 196 (1975), and thereby err by failing to deter-

mine if the pleas of guilty waived the defects being

challenged by the habeas applicants?

=~

EEO —EEeoOrrrmL

- on

STATUTORY PROVISIONS CITED

Title 10 O.S. Supp. 1969. § 1101(a), stated in pertinent

part:

“The term ‘delinquent child’ means (1) any male

person under the age of sixteen (16) years and any

female person under the age of eighteen (18) years,

who has violated any federal or state law or municipal

ordinance, excepting a traffic statute or ordinance, or

any lawful order of the court made under this act;

(2) a child who has habitually violated traffic laws

or ordinances.”

STATEMENT

The six respondents initiated habeas corpus actions in

the respective federal district courts challenging numerous

criminal convictions on the ground that they were unconsti-

tutional due to a sex-based discriminatory provision of the

Oklahoma Juvenile Code which allowed male youths 16

and 17 years of age to be prosecuted as adults while females

of those ages were treated under the Juvenile Code unless

first certified to stand trial as adults (10 O.S. Supp. 1969,

$ 1101(a), and its predecessor 10 O.S. 1941, § 101). In Lamb

v. Brown, 456 F.2d 18 (10th Cir. 1972), the Tenth Circuit

Court of Appeals held the 1969 statute invalid under the

Equal Protection Clause of the United States Constitution

due to the age-sex discrimination. In Lamb v. Brown, the

* Court stated “this ruling shall not apply retroactively,” 456

F.2d at 20. However, in Radcliff v. Anderson, 509 F.2d 1093

(10th Cir. 1975), cert. den. 421 U.S. 939, the Court con-

cluded that the principles of basic fairness and essential

justice required retroactive application of the Lamb de-

vilien

cision and, thus, all criminal convictions rendered against

sixteen (16) and seventeen (17) year old males from 1969

to 1972 were void. In the cases at bar, the Tenth Circuit

Court again addressed the question of retroactivity and the

validity of the convictions; the Court extended the effect

of the Lamb decision retroactively to 1941. However, in this

last review, the appellate court stated that the criminal

convictions were not void per se but were voidable. The

Court adopted the position that nunc pro tunc hearings

could be held to determine if the habeas applicant would

have been certified as an adult. If such a determination was

made, the conviction would stand because the failure of

the State to afford a timely certification hearing was not

prejudicial.

The individual criminal cases involved in the habeas

challenges are as follows: Louis J. Bromley (District Court

No. CIV-75-401-E, Appellate No. 75-1593) challenged the

validity of four state convictions, to-wit: Case No. CRF-71-

2636 (Assault and Battery With a Dangerous Weapon);

CRF-74-403 and CRF-74-404 (Burglary in the Second De-

gree, After Former Conviction of a Felony); CRF-74-405

(Robbery With Firearms, After Former Conviction of a

Felony). Petitioner was under the age of 18 years at the

time of the 1971 convictions; the 1971 conviction was used

to enhance punishment in the 1974 convictions. All convic-

tions were obtained pursuant to pleas of guilty.

Gary Michael Rutledge (District Court No. CIV-75-

0556-E, Appellate No. 75-1968) challenged a recidivist con-

viction, State Case No. CRF-73-81, wherein he was convicted

for the offense of Distribution of a Controlled Dangerous

Substance, LSD, After Former Conviction of a Felony. Two

willie

prior convictions were used to enhance punishment, Case

Nos. CRF-70-66 and CRF-70-67. Rutledge maintained that

the 1970 convictions were obtained while he was under the

age of 18 years.

Billy J. Killion (District Court No. 75-C-220, Appellate

No. 76-1043) was challenging a 1959 case, Case No. 17,919,

wherein he was tried before a jury for the offense of

Murder. .

Delmar F.gene Hanley (District Court No. 75-C-220,

Appellate No. 76-1043) was challenging the validity of three

1968 convictions, to-wit: No. 23,363 (Robbery With Fire-

arms, a twenty-year sentence), No. 23,361 (Rape in the

Second Degree, a fifteen-year sentence), and No. 23,362

(Rape in the Second Degree, a fifteen-year sentence). All

sentences were to run concurrently and all convictions were

obtained pursuant to pleas of guilty.

Derek Lee Wilson (District Court No. 75-C-227, Appel-

late No. 76-1044) challenged the validity of five State con-

victions rendered in 1970 pursuant to pleas of guilty, to-wit:

CRF-70-1327 (Possession of Narcotics, a seven-year sen-

tence); CRF-70-1560 (Obtaining Property by False Pre-

tenses, a three-year sentence); CRF-70-1910 (Robbery With

Firearms, a twenty-five year sentence); CRF-70-1915 (Bur-

glary in the Second Degree, a five-year sentence); and CRF-

70-2012 (Robbery With Firearms, a twenty-five vear sen-

tence).

David Lee Garner (District Court No. CIV-74-336-E,

Appellate No. 75-1830) challenged the State conviction in

Case No. CRF-71-1580 wherein he was convicted for Rob-

bery With Firearms. Said conviction was obtained after

~~ =

trial by jury. In this action, the District Court conducted

a “nunc pro tunc” hearing and determined that “to a moral

and legal certainty” Garner would have been certified as

an adult and, thus, he was not prejudiced by the failure of

the State to afford him a certification hearing.

REASONS FOR GRANTING THE WRIT

I.

Rule 19(1)(b) of the rules of this Court states that

a writ of certiorari may be granted in those cases where a

court of appeals has rendered its decision in conflict with

the decision of another court of appeals in the same matter,

or the Circuit Court has decided an important question of

federal law which is in conflict with applicable decisions

of this Court.

The opinion of the Tenth Circuit Court of Appeals is

in conflict with decisions rendered by the Seventh and

Fourth Circuit Courts. There are also irreconcilable con-

flicts between the decisions of the Tenth Circuit Court and

the Oklahoma Court of Criminal Appeals and the Maryland

Court of Appeals. The conflicting decisions of the respective

courts are as follows:

The Tenth Circuit Court of Appeals has held that 19

O.S. 1941, § 101, and 10 O.S. Supp. 1969, § 1101, were un-

constitutional and, thus, all criminal convictions rendered

against 16 and 17-year-old males between 1941 and 1972

are void absent a showing by the State in a nunc pro tunc

certification hearing that the habeas applicant would have

been certified as an adult.

_

The Seventh Circuit Court of Appeals addressed the

same issue when the Illinois Juvenile Court Act, which

treated 17-year-old males differently than 17-year-old fe-

males, was challenged. The Seventh Circuit Court held that

the decision that a uniform age of criminal responsibility

must be sustained for both males and females does not

apply retroactively so as to entitle the habeas applicant

relief on equal protection grounds. United States, ex rel.

Watson v. Housewright, 528 F.2d 259 (7th Cir. 1975).

Accord, People v. Ellis, 57 111.2d 127, 311 N.E.2d 98 (S.Ct.

Il. 1974).

The federal courts within the Fourth Circuit have

issued numerous decisions regarding this same matter. The

Federal District Court of Maryland in Long v. hobinson,

316 F.Supp. 22 (D. Md. 1970), aff'd 436 F.2d 1116 (4th Cir.

1971), held a Maryland law unconstitutional which re-

quired 16 and 17-year-old persons in the City of Baltimore

to be tried as adults whereas other persons of that age in

the State of Maryland were under the juvenile court’s juris-

diction. In Long, supra, the District Court gave effect to

the decision declaring unconstitutional the statutory scheme

of age discrimination to “all cases not finally decided on

Mav 15, 1969, the date of the filing of this suit,” Long at 31.

However, in Woodall y. Pettibone, 465 F.2d 49 (4th Cir.

1972), the Circuit Court extended the effect of the Long

decision to all persons who were presently incarcerated by

virtue of the unconstitutional statute.

The state courts of Marvland have taken exception to

the federal rulings. In Williams v. State of Maryland, 324

A.2d 174 (Court of Special Appeals of Maryland 1974), aff'd

_

344 A.2d 80 (Ct. of App. Md. 1975), the court of Maryland

concluded that the federal circuit court misapplied this

Court’s decisions on retroactivity. The Maryland Court of

Appeals held that the benefits of the invalidation of the

Maryland statute would extend only to those convictions

which were not final before May 15, 1969.

The Oklahoma state courts have taken a similar pos-

ture regarding the effect of the federal decisions on the

Oklahoma convictions. As early as 1972, the Oklahoma

Court of Criminal Appeals, the highest state court hearing

criminal cases, determined that the invalidation of the age-

sex classification would not affect prior cases. See Schaffer

v. Green, 496 P.2d 375, at 377 through 378 (1972); Freshour

v. Turner, 496 P.2d 389 (Okl. Cr. 1972). In the most recent

decision involving the retroactive effect of the Federal Cir-

cuit’s holdings, the Oklahoma Court of Criminal Appeals

in Dean v. Crisp, 536 P.2d 961 (Okl. Cr. 1975), stated that

the state courts were entitled to a differing view on the

retroactivity problem, that the federal court decisions were

not binding and that only a decision by the Supreme Court

would resolve the conflict. The Tenth Circuit Court of Ap-

peals recognized the right of the State to maintain their

differing views on retroactivity in the opinion presently

before this Court.

Therefore, it is respectfully submitted there is a major

conflict in the decisions rendered by the circuit courts and

state courts. This conflict cannot be resolved by any further

litigation in the federal courts or the state courts. Decisions

of the United States District Courts and United States

Courts of Appeals, unlike decisions of the United States

Supreme Court, are not binding upon the state courts. Law-

= =

rence v. Woods, 432 F.2d 1072 (7th Cir.), cert. den. 402 U.S.

983. Only a decision by this Court can resolve the differing

views being expressed by the Tenth, Seventh and Fourth

Circuit Courts of Appeals and the state courts in Maryland,

Illinois and Oklahoma.

Petitioners also submit that the decision of the Tenth

Circuit Court of Appeals is in conflict with this Court’s

decisions regarding retroactive effect to be given new con-

stitutional pronouncements. This Court’s decisions have

been reviewed by the Tenth Circuit, Seventh Circuit and

Fourth Circuit Courts of Appeals and the highest courts

of the States of Illinois, Maryland and Oklahoma. Yet,

despite the extensive analysis made by the respective

courts, contrary conclusions have been reached.

Petitioners submit that the conclusion reached by the

Tenth Circuit Court is in conflict with the decisions of this

Court in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731,

14 L.Ed.2d 601 (1965); Williams v. United States, 401 U.S.

646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); Stovall v. Denno,

388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Gosa v.

Mayden, 413 U.S. 665, 93 S.Ct. 2936, 37 L.Ed.2d 873 (1973);

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d

935 (1974).

The court below found no defect, constitutional or

otherwise, in the criminal proceeding which resulted in the

convictions. Thus, it may be assumed that respondents re-

ceived the same constitutional protection afforded others

accused in criminal proceedings. The constitutional integrity

of the adjudicative process which convicted these respon-

dents is not in question. The accuracy of the fact-finding

process is not in question.

==} j

The purpose of the Lamb decision, supra, was to re-

quire that persons similarly aged be offered the equal pro-

tection of the juvenile court statutory scheme. This purpose

was fulfilled when the State Legislature established a uni-

form age for criminal responsibility in April of 1972.

As reflected by the facts of these cases, full retroactive

application of the Lamb decision affects all convictions of

males aged 16 and 17 years rendered between 1941 to 1972;

convictions which were enhanced by “pre-Lamb” convic-

tions; and, convictions which were “tainted” because a pre-

Lamb conviction was used to impeach the defendant's

credibility.

Reviewing the purpose to be served by the Lamb de-

cision, the extent of reliance by law enforcement authori-

ties, and the effect on the administration of justice, it is

submitted that the Lamb decision should have been given

prospective effect only. Such was the conclusion of the

Oklahoma Court of Criminal Appeals in Schaffer v. Green,

supra, the Seventh Circuit Court of Appeals in Watson v.

Housewright, supra, the Illinois Court of Appeals in People

v. Ellis, supra, and the Marylend Court of Appeals in Wil-

liams v. Maryland, 344 A.2d 80 (1975).

The conflicting decisions of the state and federal courts

can be resolved only by this Court; thus, it is submitted that

certiorari should be granted.

II.

The second issue presented in this Petition is whether

or not the appellate court erred by failing to decide if pleas

of guilty entered to the charges waived the defect being

— 12

challenged, e.g. the failure of the State to conduct certifica-

tion hearings. This question was presented to the Circuit

Court in the cases involving habeas applicants Wilson, Han-

ley, Rutledge and Bromley. The Court stated that specific

equal protection claims were considered on the merits by

the Oklahoma courts regardless of the pleas of guilty. The

Tenth Circuit Court of Appeals cited this Court’s opinion in

Lefkowitz v. Newsome, 420 U.S. 283, 292, Note 9, 95 S.Ct.

886, 43 L.Ed.2d 196 (1975), for the proposition that if the

state court has entertained a constitutional claim on the

merits, the federal court must also determine the merits of

the applicant’s claim.

A review of the opinions rendered by the State’s high-

est court entertaining the petitions for collateral relief

reflect that the Court disposed of the claims by relying

upon the Tenth Circuit Court’s prior statement that the

decision of Lamb v. Brown, supra, would not be given retro-

active effect (Appendices H, I, J and K). The Oklahoma

Court maintained that the convictions were valid and that

the argument was without merit. Thus, the Court did not

consider whether or not pleas of guilty were entered or

if there was a trial on the merits.

It is submitted that the Tenth Circuit Court miscon-

strued this Court’s decision in Lefkowitz v. Newsome and,

therefore, erred by failing to determine if the pleas of guiity

waived the alleged defects. In Lefkowitz, this Court held

that, when a state law permits a defendant to plead guilty

without forfeiting his right to judicial review of specific

constitutional issues, the defendant is not foreclosed from

pursuing those claims in a federal habeas corpus proceeding.

It is submitted that these cases at bar are distinguishable

=f

from the Lefkowitz case. In Lefkowitz there was a state

law which specifically allowed a defendant to enter a plea

of guilty and yet retain the right to appeal the alleged

errors. As noted by this Court, the plea was entered with

a clear understanding and expectation by the State, peti-

tioner and the court that the plea would not foreclose

judicial review on the merits of the alleged constitutional

violation. In the cases at bar, there is no analogous State

statute, nor was there any expectation by the State, the

respective petitioners nor the courts that judicial review

on the merits of the alleged constitutional violations would

be possible. The Oklahoma Court of Criminal Appeals, in

dismissing the request for collateral relief, did not “consider

the merits” of the respective cases. The Oklahoma court, at

most. made a determination that the convictions being chal-

lenged were “pre-Lamb” convictions and that the conten-

tion of the respective state petitioners were without merit

under the Court’s previous determination of non-retroactive

application of the Lamb decision. It is submitted that the

summary dismissal of the collateral proceedings did not

constitute a “consideration of the case on the merits,” as

contemplated by this Court in Lefkowitz.

Therefore, the Court of Appeals erred bv failing to

determine whether or not the pleas of guiltv waived the

defects being challenged.

Petitioners. respectfully submit that the questions pre-

sented to this Court have been addressed by numerous state

and federal courts within the last five vears. These cases

are exemplary of thousands of other convictions in the

+

aditic

States of Oklahoma, Illinois and Maryland which will be

affected by a ruling of this Court. Federal courts and state

courts are at an impasse.

The state courts of Oklahoma have determined that

the convictions challenged are valid for the reason that

there was, in fact, no denial of a constitutional right. The

courts have determined that the criminal defendants were

not statutorily entitled to a juvenile certification hearing;

thus, there was no constitutional deprivation. The Tenth

Circuit Court has held that there was a denial of equal

protection of the law and that the only recourse to validate

the conviction is to conduct nunc pro tunc hearings in the

thousands of convictions which will undoubtedly be chal-

lenged should this opinion be allowed to stand.

The conflict of opinions between the federal and state

courts can only be resolved by this Court.

Therefore, for the reasons set forth above, petitioners

urge that the writ of certiorari be granted.

Respectfully submitted,

LARRY DERRYBERRY

Attorney General of Oklahoma

Kay KAREN KENNEDY

Assistant Attorney General

112 State Capitol Building

Oklahoma City, Oklahoma 73105

Attorneys for Petitioners

November, 1977

CERTIFICATE OF SERVICE

This is to certify that three (3) true and correct copies

of the foregoing instrument were served upon:

Mr. Frederick P. Gilbert

1401 National Bank of Tulsa Building

Tulsa, Oklahoma 74103

Ms. Mary E. Bane

Bane and Williams

217 Investors Capitol Building

Oklahoma City, Oklahoma 73102

Mr. Andrew T. Dalton, Jr.

2536 East 51st Street

Tulsa, Oklahoma 74105

Mr. S. M. Fallis

District Attorney

496 Tulsa County Courthouse

Tulsa, Oklahoma

the only parties to be served, by mailing such true and

correct copies, postage prepaid, this day of Novem-

ber, 1977.

KAY KAREN KENNEDY

APPENDIX A

LOUIS JAY BROMLEY,

Petitioner-Appellant,

Vv.

RICHARD CRISP, Warden

Oklahoma State Penitentiary,

McAlester, Oklahoma,

Respondent-Appellee

DAVID LEE GARNER,

Petitioner-Appellant,

Ve

THE STATE OF OKLAHOMA,

Respondent-Appellee,

GARY MICHAEL RUTLEDGE,

Petitioner-Appellant,

Vv.

JERRY SUNDERLAND, Warden,

Oklahoma State Reformatory,

Respondent-Appellee,

FILED

APR 12 1977

HOWARD K. PHILLIPS

CLERK, UNITED STATES

COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ee ee

NO. 75-1593

(75-0401-E

W. D. Okla.)

NO. 75-1830

(74-336-E

W. D. Okla.)

NO. 75-1968

(75-0556-E

W. D. Okla.)

A-2

(APPENDIX)

BILLIE JAY KILLION, and

DELMAR EUGENE HANLEY,

Petitioners-Appellants,

Vv.

DAVE FAULKNER, Sheriff,

Tulsa County, State of Oklahoma,

Respondent-Appellee,

DEREK LEE WILSON,

Petitioner-Appellant,

Vv.

DAVE FAULKNER, Sheriff,

Tulsa County. State of Oklahoma,

Respondent-Appellee,

WILLIAM LYNN STRINGFIELD,

Petitioner-Appellee,

v.

JOHN GRIDER, Warden, Oklahoma

State Reformatory, Granite, Oklahoma

SAM ISAACS, Probation and Parole

Officer, Department of Corrections;

RICHARD R. WINTERS, Parole

Officer, Oklahoma Department

of Corrections,

Respondents-Appellants.

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APPEALS FROM THE UNITED STATES DISTRICT

NO. 76-1043

(75-C-220

N. D. Okla.)

NO. 76-1044

(75-C-227

N. D. Okla.)

NO. 75-1988

(72-C-236

N. D. Okla.)

COURTS FOR THE NORTHERN AND WESTERN

DISTRICTS OF OKLAHOMA

A-3

[APPENDIX)

Fred P. Gilbert, Attorney, Tulsa, Oklahoma, for Petitioners-

Appellants in Nos. 75-1593, 75-1830, 75-1968, 76-1043, 76-

1044, and for Petitioner-Appellee in 75-1988 (Andrew T.

Dalton, Jr., Tulsa, Oklahoma, on the brief)

Kay Karen Kennedy, Assistant Attorney General, Okla-

homa City, Oklahoma (Larry Derryberry, Attorney Gen-

eral of Oklahoma, on the brief) for Respondents-Appellees

in Nos. 75-1593, 75-1830, 75-1968, 76-1043, 76-1044, and for

Respondents-Appellants in No. 75-1988

Mary E. Bane, of Bane & Williams, Oklahoma City, Okla-

homa, for Petitioner-Appellant in No, 75-1968

Marvin E. Spears, Assistant District Attorney, Tulsa, Okla-

homa (S. M. Fallis, District Attorney, Tulsa, Oklahoma, on

the briefs) for Respondent-Appellee, Faulkner, in Nos. 76-

1043 and 76-1044

EN BANC

Before LEWIS, Chief Judge, HILL, SETH, HOLLOWAY,

McWILLIAMS, BARRETT and DOYLE, Circuit Judges

HOLLOWAY, Circuit Judge

These habeas suits present various questions arising

from the unconstitutionality of Oklahoma juvenile code

provisions which have been held invalid due to a sex-based

discriminatory provision allowing male youths 16 and 17

vears of age to be prosecuted as adults under the State

criminal laws while requiring that females of those ages

be treated under the juvenile code of Oklahoma unless first

certified to stand trial as adults. See 10 O.S.Supp. 1969

$ 1101(a). In Lamb v. Brown, 456 F.2d 18 (10th Cir.), we

held that statute invalid under the Equal Protection Clause

due to the sex-based discrimination since no adequate basis

A-4

[APPENDIX }

for the different treatment was shown. The Oklahoma court

made similar rulings on sexual disparities in the children’s

code. Schaffer v. Green, 496 P.2d 375, 377 (Okla.Crim.).

In Lamb v. Brown, we stated that “[t]his ruling shall

not apply retroactively.” 456 F.2d at 20. On varying theories,

the Oklahoma Courts have also held that the invalidation

of the sex-based differentiation does not affect prior cases.

See Schaffer v. Green, supra. 496 P.2d at 377-78; Freshour

v. Turner, 496 P.2d 389 (Okla.Crim.); Dean v. Crisp, 536

P.2d 961 (Okla.Crim.).! However, in Radcliff v. Anderson,

509 F.2d 1093 (10th Cir.), cert. denied, 421 U.S. 939, the

question of retroactivity of the equal protection holding on

the Oklahoma statute was presented for decision and we

concluded that principles of basic fairness and essential

justice required retroactive application of the Lamb de-

cision. Id. at 1096.°

The petitioners in these cases asserted claims in State

courts under the Lamb and Radcliff principles for relief

from prior convictions on the ground that their treatment

as adult males at 16 or 17 denied their equal protection

rights. After denial of State court relief these federal habeas

suits were brought in the Northern and Western Districts

o: Oklahoma, and the cases have now reached us.

As the trial court noted in the Garner case (No. 75-

1830). in a federal habeas suit the question whether the

' Dean v. Crisp overruled that part of the holdings in Schaffer and Fresh-

hour which had made some earlier non-discriminatory statutes applica-

ble to fill the “void” following the Lamb opinion. The Dean opinica

also recognized the invalidity of the discriminatory statutes in force

since 1941. It held, however, that these statutes were supplanted by the

1909 statute which defined a “delinquent child” as any child under 16

violating any federal or state law, or any city or village ordinance. See

536 P.2d at 964.

= We note that the Seventh Circuit has subsequently disagreed with our

retroactivity holding. United States ex rel Watson v. Housewright, 528

F.2d 259. The State here requests that we re-examine and alter our

Radcliff holding. (Brief of Respondents-Appellees, 37-38). However,

we remain convinced of its correctness.

A-5

[APPENDIX]

conviction can stand in view of the violation of the Equal

Protection Clause is a federal question, just as the meaning

of the Clause itself is a federal question. Chapman v. Cali-

fornia, 386 U.S. 18, 21. Hence the retroactivity of the Lamb

principal is a federal question. See Sessor v. Gunn, 529 F.2d

932, 935 (9th Cir.), cert. denied, _. US. _., 45 US.L.W.

3572. We recognize that the State Courts are fully entitled

to decide such federal questions when presented to them,

as they have, and we have carefully considered their opin-

ions on the retroactivity problem. We agree with the Okla-

homa Court of Criminal Appeals in its view in Dean v.

Crisp. supra, 536 P.2d at 963, that the Oklahoma Courts

may express their differing views on the retroactivity prob-

lem or similar federal questions until we are all guided by

a binding decision of the Supreme Court. See United States

ex rel Lawrence v. Woods, 432 F.2d 1072 (7th Cir.), cert.

denied, 402 U.S. 983. Nevertheless, when habeas cases are

properly before the federal courts they must decide federal

questions such as are presented here, giving the conclusion

of the State Court the weight of a decision of a court of

last resort of another jurisdiction.* See Fay v. Noia, 372

US. 391, 421-24: Brown v. Allen, 344 U.S. 443, 458; Sessor

v. Gunn, supra, at 935.

The seven cases before us now involve similar basic

problems flowing from the prior inequality of treatment of

male youths. In No. 75-1988, Stringfield v. Grider, the dis-

trict court granted the writ on the basis of the Radcliff

decision.’ In the remaining cases, federal habeas relief was

denied on different grounds which we will detail in discuss-

ing the appeals.

* See the discussion of the State court interpretations of Oklahoma law

subsequent to the Lamb decision in No. 76-1013 (Hanley) and Nov.

76-1044 (Wilson), infra.

4 The Radcliff opinion decided consolidated appeals of bo:h Stringfield

and Radcliff. It affirmed a ruling that Stringfield was cotitled to a wric.

The judgment finally entered granted a writ and other relief and the

respondent warden has appealed.

A-6

[APPENDIX )}

No. 75-1830—Garner v. State of Oklahoma

In 1972 at age 17, petitioner Garner was convicted in a

jury trial of robbery with firearms and sentenced to 18

years’ imprisonment. He was prosecuted as an adult, with-

out certification which was then required if a girl of that

age was to be prosecuted as an adult. His conviction was

affirmed on direct appeal. Garner v. State, 500 P.2d 1340

(Okla.Crim.). Garner then sought post-conviction relief in

the Oklahoma courts, which was denied.

This federal habeas action was then brought for relief

under the Equal Protection Clause, alleging discriminatory

treatment against Garner on the basis of sex. The trial court

conducted an evidentiary hearing. The court found that to a

moral and legal certainty no juvenile court would have

denied transfer for treatment as an adult, that the gravity

of the offense was such that it would be unreasonable to

assume that any court would have denied transfer. that the

crime was not an isolated incident but one of several similar

crimes, and that there was no reasonable doubt that certi-

fication would have been granted. (R. I., 137-38). The writ

was denied and this anneal followed.

We turn to the main points argued for reversal. A

brief of counsel and a pro se brief were combined for Garner

and we have reviewed al] the contentions raised.

gf

First, petitioner says there was absolutely no evidence

to support the district court’s finding, nunc pro tunc, that

he would have been certified to stand trial as an adult

Brief of Appellant Garner, 76-83). He argues that the

statutory standard in 1971 consisted solely of whether the

juvenile was capable of knowing right from wrong, that

there was no independent evidence of his mental or moral

state, and that certification had to be proven beyond all

doubt and contradiction, citing Ex parte Hightower, 165 P.

624. 626-27 (Okla.Crim.). which was not done.

A-7

[APPENDIX]

The State’s proof at the federal hearing showed the

following: The armed robbery offense in question occurred

on June 26, 1971, when petitioner was 17 years of age, his

birthdate being May 25, 1954. In 1969 at age 15 he had been

made a ward of the juvenile court for delinquency, the child

and parents being present. He and his parents were told

that the time during a subsequent investigation would be a

probationary period. In January, 1970, the child, parents

and their attorney were present and Garner admitted he

had been apprehended in a car he had taken unlawfully

and that he had also taken five other cars in November

and December. The court found he should not then be certi-

fied but should be given an opportunity in a children’s

institution and was in need of training to know the con-

sequences of his acts. (R. II, 200).

In January, 1971, he pled guilty to forgery in the sec-

ond degree and received deferred sentencing treatment,

to which conditions for good behavior were attached. In

June, 1971, he was then charged with the armed robbery

in question. He was also charged with two other offenses,

all three occurring on June 26 and 27, 1971. Following his

January 6, 1972, jury conviction on the instant robbery

charge, on February 10 Garner pled guilty, with counsel

present, to included offenses of concealing stolen property

on the other June, 1971, charges and received two year

concurrent sentences on each.*

On February 10, 1972, Garner also pled guilty, with

counsel present, to an application and charge to accelerate

sentencing on the earlier January, 1971, forgery offense.

5 We recognize that these February, 1972. pleas occurred after the Janu-

ary 6, 1972, trial and that a certification would have been considered

before that time. However we feel the trial court properly took all

these circumstances about the closely related offenses and the aceelera-

tion proceeding into account. If a certification proceeding had occurred

it is reasonable to assume that substantially all of these circumstances

surrounding the other offenses would have been developed for the judge

considering certification.

————————————————————EESEFe——aE OEE

A-8

[\APPENDIX}

This application alleged violation of the terms of the de-

ferred sentence by the three June, 1971, offenses. Garner

answered detailed questions in writing, saying that he

understood the charge of violation of the terms of his de-

ferred sentence. He pled guilty and received a further two-

year sentence.

Petitioner offered no evidence at the federal eviden-

tiary hearing other than giving his name and birthdate,

after which he claimed the privilege against self incrimina-

tion. His counsel challenged the sufficiency of the State’s

proof by proper motions.

As noted, the court found that there was no reasonable

doubt that certification would have been granted. We can-

not say the finding is clearly erroneous and believe the court

gave the problem proper consideration. He referred to peti-

tioner’s “full knowledge of the consequences” of his acts,

and we feel this was in line with the test for certifying

“ . . such child capable of knowing right from wrong,

and to be held accountable for his acts. . .” 10 O.S. 1971

$1112(b); Sherfield v. State, 511 P.2d 598, 601 (Okla.

Crim.).

Petitioner vigorously objects that jurisdictional prob-

lems bar any such procedure, that the Oklahoma rule is

that any adult conviction during the age of juvenility with-

out certification is void, and that the only State remedy

would be to start the process anew, not by such a nunc pro

tune finding.

We disagree. The State cases relied on such as Wi'scn

v. State, 82 P.2d 308 (Okla. Crim.) do treat the State’s fail-

ure to follow the statutory requirement as calling for invali-

dation of the conviction and a jurisdictional dilemma can

be constructed out of reasoning from the cases. We feel,

however, that in deciding these habeas cases and in fashion-

ing a remedy as “law and justice require,” 28 U.S.C.A.

¢ 2243. see Carafas v. LaVallee. 391 U.S. 234, 239. we can ex-

A-9

[APPENDIX]

ercise restraint and need not grant such “drastic relief” as

petitioner seeks for the denial of equal protection. See Kent

v. United States, 383 U.S. 541, 565. If the court is clearly

convinced that the juvenile court would have certified the

petitioner for treatment as an adult, we believe the essen-

tial justice and basic fairness standard of the Radcliff case

is satisfied, without violence to the habeas remedy or State

law.® This procedure is similar to that suggested in Kent v.

United States, supra, 383 U.S. at 564-65. See also Woodall

v. Pettibone, 465 F.2d 49, 52-53 (4th Cir.), cert. denied, 413

U.S. 922; Brown v. Cox, 481 F.2d 622, 627 (4th Cir.), cert.

denied, 414 U.S. 1136; Powell v. Hocker, 453 F.2d 652 (9th

Cir.), overruled on other grounds, 498 F.2d 579; Kemplen v.

Maryland, 428 F.2d 169, 178 (4th Cir.); Black v. United’

States, 355 F.2d 104 (D.C. Cir.); but see Mordecai v. United

© In this case the hearing has been held by the district court and the

proper determination has been made, which we feel is not in error. In

these circumstances we are satisfied we should affirm.

In cases where such a determination has not been made but is neces-

sary to dispose of a federal habeas petition, we feel it preferable that

the district court withhold judgment for a reasonable time to permit

the determination to be made in the State courts. See Kemplen v. Mary-

land, supra, 428 F.2d at 178; Booker v. Phillips, 418 F.2d 424, 427

(10th Cir.), cert. denied, 399 US. 910. If the State obtains in the

Oklahoma courts a determination that certification would have occur-

red, then on a showing of such determination, the federal district court

should deny the writ; if the State court finding is otherwise, the writ

should issue Further, failing a State court ruling as to whether peti-

tioner would have been certified, then the federal disirict court may

have the hearing and make the ruling as to whether or not the court

is clearly convinced that spo nyse would have been certified for

trial as an adult, and then proper disposition.

We recognize the fact that the determinations whether certifica-

tions would have been made will. in some of tivese cases decided today,

relate to circumstances a few or quite a number of years back. See

Pate v. Robinson, 383 US. 375, 387. However, the burden of proof

and persuasion will rest on the State. The court can take into account

all doubts that arise, and any weakness of proof, because of the passage

of time as factors against the State. This will afford substantial pro-

tection to the petirioners from the fact thar the deserminations will

concern circumstances in carlier vears.

A-10

[APPENDIX)}

States, 421 F.2d 1133, 1135, 1138-39 (D.C. Cir.), cert. denied.

397 U.S. 977; and Wilson v. Reagan, 354 F.2d 45, 46 (9th

Cir.). Where the judge in the federal habeas case is clearlv

convinced that certification would have been made in the

State court, the conviction need not be set aside in these

circumstances.

Petitioner Garner maintains that the Lamb and Rad-

cliff opinions themselves rejected the possible procedure

of a hearing to determine whether he would have been

certified. (Brief of Appellant Garner, 2-4). While the opin-

ions did not discuss the possibilities of such procedures in

Radcliff,’ we did affirm the granting of a writ to Stringfield

and its practical effect was to rule out the further hearings

we are providing for in these cases. However, in reviewing

these problems again, en banc, we feel it proper to consider

the advisability of such hearings which can provide for a

fair disposition without summarily granting the writs.

Further, Garner argues that in any event no procedure

for certification or for a determination as was made in the

district court is possible because the certification statute.

10 O.S. 1971 § 1112(b), is void for vagueness. The statute

essentially provides a standard for the court in its discre-

tion to certify “such child capable of knowing right from

wrong, and to be held accountable for his acts. . .” In Sher-

field v. State. supra, 511 P.2d at 602, the same point was

considered and rejected, and we agree. The statute is suffi-

ciently clear under due process standards.

Petitioner Garner also claims error in the refusal of

the trial court to grant a continuance so that he could ubtain

statistical data to support his claim that the juvenile certifi-

cation statute was unconstitutional as applied. The argu-

* In Judge Seth's dissent we nore the staternenr tha: “[i}t is still an un.

known factor and ignored by the majority whether the juvenile cour:

would nevertheless have certified these or many others of the many of-

fenders as adults.” 509 F.2d at 1099.

A-11

[APPENDIX]

ment essentially made the point that no girls had been

certified over the 30 years when the discriminatory treat-

ment existed and that these facts should be developed.

(R. IV, 2-3 et seq.). Reference is also made to figures

concerning Tulsa County appended to the briefs filed in

Radcliff, supra. There was not, however, any persuasive

showing to the trial court of probable proof to be developed

to actually demonstrate any constitutional wrong. We find

no abuse of discretion or error in the ruling of the court.

Lastly, Garner argues vigorously that a denial of equal

protection also occurred in the admission of a confession by

him contrary to 21 O.S. 1971 $ 1109(b). The statute essen-

tially bars admission into evidence of any statement “gained

by questioning a child” unless it is in the presence of the

“child’s parents, guardian, attorney or the legal custodian

of the child.” Garner says that since no 17 year old girl

could have had the confession used against her, a 17 year old

boy was entitled to the same treatment. The statute, how-

ever, made no such unequal provision at the time of Gar-

ner’s offense and trial. Despite the sexual disparity in 10

O.S. 1971 $$1101(a) and 1101A in defining “delinquent

child,” the definition of “child” generally appeared uniform

—“any person under the age of eighteen (18) years.” 10

O.S. 1971 § 1101A (emphasis added), and any error of State

law in applying the statute would not be cognizable in a

federal habeas suit. Pierce v. Page, 362 F.2d 534. 535 (10th

Cir.). However. Garner’s counsel] points out that a State

three-judge district court panel held § 1101A invalid in No-

vember, 1971, prior to Garner’s January, 1972 trial. The

upshot was that in the countv of his trial, Garner may have

peen subject to an age-sex disparity in the application of

the statute barring admission of children’s confessions not

made under prescribed conditions. *

: See Opinion of the Judges. No. 185000. District Court of Oklahoma

County (unpublished). This opinion held ¢L101A (defining child 2;

ary person unter 18) invalid under she Stave constitutional provisions

A-12

{APPENDIX}

Nevertheless we agree with the federal district court

that exhaustion of State remedies has not occurred on this

claim. There is no showing that Garner asserted in his di-

rect appeal or his State post-conviction case that £ 1109(a)

barred admission of the confession—or that any claim was

made of denial of equal protection in its admission.“* Thus

no equal protection claim was made in the State court which

is substantially equivalent to that made here. See Picard v.

Connor, 404 U.S. 270, 278; Pritchess v. Davis, 421 U.S. 482.

487. Moreover we feel that the State courts can best deter-

mine whether an actual age-sex discrimination occurred in

these circumstances. *”

In sum, we feel that the district court properly con-

sidered the equal protection claim and find no error on any

of the grounds argued. The record supports the court’s find-

* (Continued )

on subject matter and titles of legislative acts. as did Schafter v. Green.

496 P.2d 375 (OklaCrim.), two months after Garner's trial.

We cannot be sure. however, that an actual age-sex discrimination

was practiced at the time of Garner's trial under the §1109(a) restric-

tron on use of children's confessions. The three-judg: opinion decided

the question whether males 16 and 17 had w be certified for adult

trial and had limiting language on the scope of its ruling on the un-

constitutionality of $1101A. It is nor clear that this ruling was applied

to the definition of child for the purposes of §1109(a).

“*The claim of denial of equal protection in admission of the confession

was not made in Garner's direct a or State post-conviction case.

In Garner's post-conviction case he directed an equal protection claim

solely at the disparity of certification ages. In his direct appeal the

confession’s admission was challenged. bui no: under $1109(a) nor

as a denial of equal protection. The challenge made t the «> fassion

was rejected on the ground that Garner made an understanding saiver

of his rights. See 500 P.2d at 1341-42

“Garner argues that exhaustion of State processes should not be required

because they would be futile in view of Dean v. Crisp. «pra, inicr alia

However, we find no Oklahoma case dealing with the +!110)ia) con-

fession statute and an equal protection claim such as Garner's. In view

of the uncertainties clouding the problem, we cannot agree that State

processes would clearly be unavailing See Wade v Mayo. 344 US.

(72. 679.

A-13

{APPENDIX}

ing that Garner would have been certified in any event for

trial as an adult. We, therefore agree with the trial court’s

conclusion that the conviction in question should not be

held invalid. and affirm the judgment in this case.

No. 75-1593—Bromley v. Crisp

No. 75-1968—Rutledge v. Sunderland

These cases involve questions flowing from pleas of

guilty, along with common equal protection problems, and

thus can conveniently be treated together.

In January, 1971, when he was 17 and represented by

counsel, Rutledge pled guilty to two counts of grand lar-

ceny. This was an adult prosecution without certification

for treatment as an adult. He was sentenced to two concur-

rent 2's year terms. In 1973, he was convicted after a not

guilty plea of possession of a controlled substance after

former conviction of a felony. He received the minimum

sentence for this conviction—10 years. This conviction was

affirmed on direct appeal. Rutledge v. State, 527 P.2d 1373

(Okla. Crim.).

Rutledge unsuccessfully sought post-conviction relief

in the State district court, claiming violation of the Equal

Protection Clause in the use of the 1971 conviction to

premise the 1973 recidivist convictions. He then asserted

his constitutional claim in this federal habeas action where

relief was denied on the ground that his pleas of guilty had

waived earlier defects in the State court proceedings. This

appeal followed.

The Bromley case has a similar background. In 1972,

while he was 17 and represented by counsel, Bromley pled

guilty to a charge of assault and battery with a dangerous

weapon. He received a suspended sentence. In March, 1974,

he pled guilty to two charges of second degree burglary

after former conviction of a felony, and to one charge of

robbery with firearms after former conviction of a felony.

A-14

[APPENDIX]

He received three concurrent 22-year sentences. The for-

mer conviction premising all three of these recidivist con-

victions was the assault and battery conviction in 1972 when

he was prosecuted as an adult without certification for such

treatment.

After the 1974 convictions, Bromley unsuccessfully

sought post-conviction relief in the State courts, asserting

that the former enhancing conviction was invalid under the

Lamb equal protection holding. He then brought this fed-

eral habeas suit where his constitutional claim was rejected

on the ground that the plea of guilty had waived the prior

defects alleged. This appeal followed.

The State argues that the rulings were correct. saying

that the guilty plea prevents assertion of claims of earlier

deprivation of constitutional rights. It relies on Brady v.

United States, 397 U.S. 742: McMann v. Richardson, 397

U.S. 759; and Parker v. North Carolina, 397 U.S. 790. and

the more recent decision in Tollett v. Henderson, 411 U.S.

258, as well as Acuna v. Baker, 418 F.2d 639 (10th Cir.)

(en banc) and similar cases in our court.

The Brady trilogy has been said to have “announced

the general rule that a guilty plea, intelligently and volun-

tarily made, bars the later assertion of constitutional chal-

lenges to the pretrial proceedings.” Lefkowitz v. Newsome,

420 U.S. 283, 288; see also Tollett v. Henderson, 411 U.S.

258, 267. Our holdings in Chlaunch v. Page. 427 F.2d 841,

843 (10th Cir.), cert. denied, 401 U.S. 957; Acuna v. Baker,

supra, 418 F.2d at 640, and Salazar v. Rodriguez. 371 F.2d

726 (10th Cir.), were to the same general eect. On the

other hand, petitioners point to Blackledge v. Perry, 417

U.S. 21, and Menna v. New York, 423 U.S. 61, and maintain

that the preclusive effects of guilty pleas do not apply where

the constitutional claims go “to the very power of the State

to bring the defendant into court to answer the charge

brought against him.” Blackledge. supra at 30. And we note

that the Court has said that Tollett, Brady and McMann do

A-15

[APPENDIX}

not “stand for the proposition that counseled guilty pleas

inevitably ‘waive’ all antecedent constitutional violations.”

Menna, supra at 62n.2.

We feel that disposition of these conflicting arguments

is not required in these appeals. The petitioners make a

narrower contention that their specific equal protection

claims were considered on the merits by the Oklahoma

courts despite the guilty pleas and that, in such event, the

federal court in a habeas corpus suit should likewise enter-

tain the claims. We must agree that this position has merit.

In Lefkowitz v. Newsome, supra, 420 U.S. at 292n.9,° a

guilty plea case, the Court admonished that:

In Fay v. Noia, supra the Court held that a federal

habeas judge may deny relief to an applicant who has

deliberately bypassed the orderly state-court pro-

cedures for reviewing his constitutional claim. But the

Court also held that if the state courts have entertained

the federal constitutional claims on the merits in a sub-

sequent proceeding, notwithstanding the deliberate by-

pass, the federal courts have no discretion to deny the

applicant habeas relief to which he is otherwise en-

titled. It would seem to follow necessarily that when

there is no bypass of state appellate procedures, delib-

erate or otherwise, and the state courts entertained the

* The Court held in Lefkowstz, supra at 293, thar:

.. . when state law permits a defendant to plead guilty without

forfeiting his right to judicial review of specified constitutional

issues, the defendant is not foreclosed from pursuing those con-

stitutional claims in a federal habeas corpus proceeding.

Because of the icular facts before us in the Bromley and Rut-

ledge cases, we not detrmine whether the Oklahoma rule on con-

sideration of such claims after guilty pleas comes within this holding.

as petitioners . Compare Ex parte Brown. 278 P. 671 (Okla.

Crim.) with McFarlin v. State, 554 P.2d 56, 62 (Okla. Crim.). Our

disposition on the guilty plea questions in these cases is made insteac

on the basis of the fact that the constitutional claims in these very

cases were considered on the merits by the Srate courts.

A-16

[APPENDIX] .

federal claims on the merits, a federal habeas,orpus

court must also determine the merits of the a ant’s

claim. (Emphasis added) (citations omitted).

We have a further reminder that constitutional claims

are not to be rejected in federal habeas suits on grounds

of waiver where the state courts have considered the claims

on their merits: “In a case where the state courts have de-

clined to impose a waiver but have ccnsidered the merits

of the prisoner’s claim, different considerations would, of

course, be applicable. See Lefkowitz v. Newsome, 420 U.S.

283.” Francis v. Henderson, 425 U.S. 536, 542n.5. The Court

recently applied this rule for entertaining constitutional

claims on the merits in federal habeas suits where the state

courts have thus considered them in Newman v. Henderson,

425 U. S. 967, vacating a judgment and remanding a Fifth

Circuit case for further consideration in light of the state-

ments from the Lefkowitz and Francis cases we have quoted

above.!® See also Estelle v. Williams, 425 U.S. 501, 525

(dissenting opinion of Mr. Justice Brennan).

The facts on the State court treatment of the equal

protection claims of these petitioners are not in dispute.

In the direct appeal from Rutledge’s recidivist convictions,’

the court considered and rejected the constitutional claim

on its merits. See Rutledge v. State, 527 P.2d 1373, 1375

(Okla.Crim.). Rutledge also brought a state post-conviction

proceeding in which his claim was rejected on the authority

'"Francis and Newman were cases which the Fifth Circuit had considered

together, applying the waiver rule of Davis v. United S ares, 411 US.

233, in both of the habeas appeals. See Newman v. Henderson, 496

F.2d 896, 898-99. In the Supreme Court the result was that where

Francis had not received consideration of his constitutional claim on

the merits by the state courts, the Fifth Circuit's ruling was affirmed.

423 US. at 542. But where the merits of Newman's claim had been

ruled on by the state court, the judgment was vacated and the case

remanded. 425 US. 967. Disposition of the constitutional claim on

the merits followed in the Court of Appeals. See Newman v. Hender-

son. 539 F.2d 502, 504 (Sth Cir.).

A-17

[APPEND!X}

of the adverse ruling in his direct appeal. In Bromley's

federal habeas case he alleged earlier rejection of his claim

on the basis of Freshour v. Turner, 496 P.2d 389 (Okla.

Crim.) by the State district and appellate courts. The order

of the Court of Criminal Appeals, No. PC-74-474, confirms

that the disposition of the constitutional claim was on the

merits. In these circumstances we feel that the constitu-

tional claims of both petitioners must likewise be considered

on their merits in these federal habeas suits, despite the

guilty pleas. Lefkowitz, supra at 292n.9; see Fay v. Noia,

372 U.S. 391, 439.

Accordingly, the judgments in Nos. 75-1593 and 75-1968

are vacated. These cases are remanded for further proceed-

ings in accordance with the procedure outlined in the Gar-

ner case, note 6, supra. As there discussed, the trial court

should withhold judgment for a reasonable time to permit

a State court determination to be made as to whether peti-

tioners would have been certified, or failing that, the fed-

eral court may itself make a determination as to whether

or not it is clearly convinced that certification would have

occurred, and make proper disposition of the petitions

thereafter.

No. 76-1043—Hanley v. Faulkner

No. 76-1044—Wilson v. Faulkner

These cases have a somewhat complicated background

but for our purposes the facts can be siraplified as follows:

In 1968 Hanley, then 16, pled guilty to two counts of

rape and one of robbery with firearms. He was sentenced to

two 15-year terms and one 20-year term. In 1970 Wilson,

then 17, pled guilty to possession of narcotics, obtaining

property by false pretenses, second degree burglary, and

two counts of robbery with firearms. He received sentences

of 7, 3, 5, 25 and 25 years, respectively, to be served concur-

rently. Both petitioners were prosecuted as adults without

certification for such treatment.

A-18

(APPENDIX)

After temporary release from custody in 1975, by State

court orders following our Radcliff decision, both Hanley

and Wilson were taken into State custody again after the

decision in Dean v. Crisp, 536 P.2d 961 (Okla.Crim.). Both

petitioners then brought these habeas suits in the Northern

District of Oklahoma where relief was denied. These ap-

peals followed.!

In denying the petitions, the trial court reasoned that

the State court’s interpretation on State law jurisdictional

points was binding on the federal court; that Schaffer v.

Green, 496 P.2d 375 (Okla.Crim.) had held that the void

existing after the Lamb decision invalidated 10 O.S. Supp.

1969 $1101(a) was filled by 21 O.S. § 152 (originally en-

acted in 1910); and that under the resulting state of the

law, as so interpreted, all persons over the age of 14 were

within the jurisdiction of the State courts for prosecution

as adults, without regard to sex. Hence. it was held that

relief should be denied.

We cannot agree. Without doubt, the State courts are

fully empowered to construe their statutes and to determine

rules of State law and we must accept those determinations.

However, we are faced with a substantial federal question

as to whether at the time the challenged convictions were

imposed there was a violation of the Equal Protection

Clause by reason of disparity in treatment of male and

female youths. The reality of State law as it then existed

and was applied controls, and not an ex post facto restruc-

turing of the statutes. We are persuaded by the reasoning

of the district court in No. 75-1830, Garner v. State of

Oklahoma: —

11Although pleas of guilty were centered in these cases, the State court

considered the equal protection claim of both petitioners on the merits

as in the Bromley mt Rutledge cases. Hence we must reject any argu-

ment for affirmance based on the theory that the guilty pleas preclude

assertion of the equal protection claim.

A-19

[APPENDIX]

The fact is, and it is undeniable, that at the time of

petitioner’s conviction Oklahoma did accord to girls

the favored treatment. This petitioner was discrimi-

nated against by the State. There was a denial by the

State of equal protection to the petitioner,.and the taint

of discrimination is not removed from the conviction

by the retrospective view that he received all the pro-

tection he was entitled to under a proper interpretation

of constitutionally sound Oklahoma law. The fallacy of

such view lies in its disregard of the federal constitu-

tional reality. He was entitled to equal protection. He

was entitled to the same treatment as the favored class.

In short, it was the treatment that he received which

flaws the proceedings.

The State clearly may make the necessary statutory

repairs or judicial interpretation of State law to remove

unconstitutional inequities after an equal protection viola-

tion is recognized. See Craig v. Boren, 96 Sup. Ct., 451,

463n.24; Stanton v. Stanton, 421 U.S. 7, 17-18. Nevertheless,

it remains a federal question, which is now before us,

whether the past convictions were afflicted by a denial of

equal protection so that they cannot stand. See Chapman v.

California, 386 U.S. 18, 21. We must decide this question

on the basis of the laws actually applied when the chal-

lenged convictions occurred. Cf. Yick Wo v. Hopkins, 118

U.S. 356, 373-74. In view of the fact that there was actual

discriminatory treatment under the statutes then in force.

we hold that there was a violation of the Equal Protection

Clause.

In Hanley’s case, 10 O.S. 1961 § 101 is involved, and not

the 1969-1972 statute held invalid in Lamb. Nevertheless,

we see no justification for a difference in result, and the

State offers none. In fact, the Oklahoma Court held that

similar statutes on the books from 1941 to 1972 were invalid

due to the sexually discriminatory provisions. Dean v. Crisp,

supra, 536 P.2d at 964. We must agree and conclude that the

A-20

(APPENDIX)

discriminatory 1961 statute applicable in Hanley’s case

caused a denial of equal protection to him.

Accordingly these judgments must be vacated as to

petitioners Hanley and Wilson, and the cases are remanded

to the trial court for further proceedings as outlined in

Bromley—No. 75-1593, Rutledge—No. 75-1968, and Garner

—No. 75-1830, note 6, supra, with respect to the challenged

1968 and 1970 convictions.

No. 76-1043—Killion v. Faulkner

In 1959, at age 17, Billie Jay Killion was convicted of

murder and received a life sentence. This was an adult

prosecution, without certification for treatment as an adult.

After our Radcliff decision, Killion unsuccessfully sought

post-conviction relief in the State courts, challenging his

conviction under the Lamb and Radcliff decisions.

Petitioner Killion then joined Hanley in bringing a

habeas proceeding in the Northern District of Oklahoma.

As noted above, the trial court denied relief on that petition

on the basis that it was bound by the interpretation of state

law in Schaffer v. Green, 496 P.2d 375 (Okla.Crim.). The

reasoning was that in view of the State Court’s interpreta-

tion that older statutes without any inequity as to sex (21

O.S. § 152), see Schaffer v. Green, supra at 377, applied to

fill the void after the Lamb ruling, there was no equal pro-

tection problem. Killion appealed.

We discuss his case separately because of procedural

differences we should note. Killion was tried under statutes

with special population provisions resulting in the creation

of juvenile courts in Tulsa and Oklahoma Counties. See 20

O.S. 1951 § 771 et seq. Parts of the special statute would

have treated both males and females as juveniles until the

age of 18, therefore making certification of both groups

necessary before prosecution as adults. See 20 O.S. 1951

$$ 772-74. However before Killion was tried, these sections

of the statute were held invalid as a “special law” under

ee ak

- ees ee

A-21

[APPENDIX)

the State Constitution. Anderson v. Walker, 333 P.2d 570,

575 (Okla.Crim.); Killion v. Walker, 334 P.2d 454, 455

(Okla.Crim.). The result was that the general laws, 10 O.S.

1951 $101, applied in Killion’s case and this section con-

tained a provision with the fatal inequality in treatment of

the sexes.

Thus the same basic equal protection problem is in-

volved, although here the 1951 statute is in question, not

the 1969-1972 statute invalidated in Lamb. Again we see no

reason why there should be a difference in result. As noted

above, the Oklahoma Court held the statutes on the books

from 1941 until 1972 were invalid due to sexually discrimi-

natory provisions. Dean v. Crisp, supra, 536 P.2d at 964.

We conclude that the discriminatory 1951 statute, applicable

in Killion’s case, caused a denial of equal protection to him.

Furthermore, as discussed in treating the Hanley and

Wilson cases, we cannot agree that there was no denial of

equal protection on the theory that an earlier, non-discrimi-

natory statute filled the void of the invalid one. The reality

of the law as it existed and applied controls, under which

the denial of equal protection is clear.

For reasons stated, we hold that there was a denial of

equal protection in the proceeding where Killion’s convic-

tion was obtained. Accordingly, the trial court’s judgment

is vacated as to Killion and the case is remanded for further

proceedings as in Bromley—No. 75-1593, Rutledge—No. 75-

1968, and Garner—-No. 75-1830, note 6, supra. With the bur-

den of proof and persuasion resting on the State to demon-

strate that such certification would have occurred, we feel

there is sufficient protection for the petitioner. We are

aware of the difficulty of the determination whether certifi-

cation would have been made in 1959 before Killion’s trial.

However. for reasons given in note 6, supra, we feel this is

the best solution in a difficult situation, balancing the

interests of the State and the individual.

A-22

[APPENDIX]

No. 75-1988—Stringfield v. Grider

In March, 1971, petitioner Stringfield, who was then

17, pled guilty to the charge of second degree burglary. The

imposition of sentence was deferred for two years under

Oklahoma’s “deferred sentencing” law then in effect. 22

O.S. 1971 § 991(a). However, in August, 1971, the imposi-

tion of his sentence was “accelerated” and he was sentenced

to five years’ imprisonment. He then unsuccessfully sought

review of the conviction on his guilty plea in the Oklahoma

Court of Criminal Appeals. A subsequent application for

post-conviction relief in the State district court was denied.

Stringfield then sought federal habeas relief. His peti-

tion was granted by the district judge who held that our

decision in Lamb v. Brown should be applied retroactively:

The court concluded that petitioner’s conviction was “void”

and that the writ should be granted. However, since String-

field was then out on parole, the court stayed formal issu-

ance of the writ pending the disposition of the State’s

appeal. The appeal was decided in Radcliff v. Anderson,

supra, which affirmed the district court’s judgment. 509

F.2d at 1096.

After issuance of the mandate the district court en-

tered a “Final Judgment on Remand.” The order provided,

inter alia, that the journal entry in the Lamb case would be

adopted; that the purported felony conviction of Stringfield

was “vacated, quashed, set aside, and held for naught, with

prejudice”; that a writ of habeas corpus “do issue”; and

that all public, official and quasi-official records relating to

the conviction be expunged. This appeal followed.

The State urges several grounds for reversal, but a

preliminary issue must be considered first. Petitioner con-

tends that principles of res judicata and the law of the case

bar consideration of the State’s claims of error in granting

the writ. While we are not persuaded bv the res judicata

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A-23

[APPEND!IX)

argument in this habeas case, see Fay v. Noia, 372 U.S. 391,

423, we are convinced that we should apply the doctrine

of the law of the case.

“In the absence of statute the phrase, law of the case,

as applied to the effect of previous orders on the later

action of the court rendering them in the same case, merely

expresses the practice of courts generally to refuse to re-

open what has been decided, not a limit to their power.”

Messenger v. Anderson, 225 U.S. 436, 444. The practice is

not rigidly binding, but generally an appellate court will

not depart from a rule of law established on an earlier

appeal in deciding the same issues, except for cogent rea-

sons. United States v. Fernandez, 506 F.2d 1200, 1203-04

(2d Cir.); 1B Moore’s Federal Practice 90.404[10] at 573-74.

The rule has been applied in habeas cases. E.g., McClellan

v. Heritage, 234 F.Supp. 219, 220 (N.D. Ga.), aff'd 337 F.2d

239 (5th Cir.).

It is clear from the disposition in the earlier appeal

that we affirmed the grant of the writ to Stringfield and the

determination that his conviction was void, which is the

law of the case. No persuasive reason is advanced why we

should alter the prior judgment. No supervening events,

such as a change of law, have been demonstrated. See Davis

v. United States, 417 U.S. 333, 342. It is true that this dis-

position differs from that in the other cases being decided

today in that we allow the determination to be made as to

whether the petitioners in those cases would have been

certified, with the possibility that their convictions mav

stand. Nevertheless, Stringfield prevailed on the earlier

appeal and we then were not persuaded to modify the dis-

trict court’s order granting the writ. The circumstances

surrounding his conviction of second degree burglary, from

which he is on parole, do not convince fs now to reopen

the judgment in this respect. Therefore, we leave undis-

turbed the affirmance of the grant of the writ and the

holding that the conviction was void.

A-24

[APPENDIX]

The State further contends that the district court erred

in not withholding the issuance of the writ to permit the

State to retry Stringfield. It is true that we have held it

an abuse of discretion to order immediate release when

constitutional defects may be remedied by further proceed-

ings in the criminal case. Gurule v. Turner, 461 F.2d 1083.

1084 (10th Cir.). In Stringfield’s case. however, we affirmed

the ruling that he was entitled to a writ and gave no direc-

tions for withholding the writ, as we have done in other

cases. E.g., Booker v. Phillips. 418 F.2d 424, 427 (10th Cir.).

cert. denied, 399 U.S. 910; Lesley v. Oklahoma, 407 F.2d

543. 544 (10th Cir... Under our judgment affirming the

grant of the writ and our mandate, the district court did not

err in the issuance of the formal writ.'?

Further, the State claims error in the district court's

order that the records concerning Stringfield’s prosecution

be expunged. It says the order was an abuse of discretion

and was entered without a proper hearing.

At the outset we note that this portion of the judgment

is on a different footing than the part granting the writ.

As stated earlier, we view the habeas relief itself as prop-

erly granted under the mandate in the first appeal. The

order to expunge the records, however, was additional relief

not within the terms of the mandate. We do not say that

it was improper to consider such relief in this habeas action,

but the claim for such relief requires further examination.

We have recognized that the power to order the ex-

punging of such records exists. See United States v. Linn,

513 F.2d 925, 927 (10th Cir.). It has been cxercised to

remove the effects of unconstitutional prosecution. United

'2As noted earlier, the district court did stay formal issuance of the writ

order made provision for a stay only until our disposition of that ap-

peal. The record contains no indication that the district court or this

court, at the time of our decision of the first appeal. contemplated that

issuance of the writ would be further delayed.

A-25

[APPENDIX]

States v. McLeod, 385 F.2d 734, 750 (5th Cir.). Nevertheless,

the power is a narrow one, reserved for extreme cases. See

United States v. Linn, supra at 927; United States v. Sea-

sholtz, 376 F.Supp. 1288, 1289 (N.D. Okla.). There should

be a balancing of the interests of the State in maintaining

records for law enforcement against the individual’s rights.

From the terms of the judgment, we find it clear that

the district court ordered expungement and other relief for

Stringfield because the court felt bound to follow the judg-

ment in Lamb. This was understandable in that the en banc

order denying rehearing in Radcliff said that “[b]asic fair-

ness and essential justice demand that these petitioners be

treated no differently than the petitioner in Lamb.” 509

F.2d at 1096.

However, we do not feel that this carried beyond the

basic habeas relief itself. We feel that as to the further

relief of ordering expungement, the court should balance

the equities and exercise discretion, which the district court

apparently did not do. Accordingly, we vacate that portion

of the judgment and remand for further proceedings on the

request for expungement of the records.

Lastly, the State complains that the court erred in

providing in the judgment that Stringfield’s prior convic-

tion was “vacated, quashed, set aside and held for naught,

with prejudice.” The “with prejudice” provision is chal-

lenged as error for barring the right to retry Stringfield.

We must agree. While there are cases where a ruling in a

habeas suit may bar further prosecution, we must agree

that holding a conviction invalid and granting the writ do

not generally bar retrial on the original charge. See Black-

ledge v. Perry, 417 U.S. 21, 31n.8.'* Therefore, the pro-

vision that the conviction was set aside “with prejudice”

must also be vacated. This judgment is therefore affirmed

135We do nor, of course, intimate any view as to whether other rules of

state law may be an impediment to a rerrial.

A-26

[APPENDIX]

in part, vacated in part as stated, and the case is remanded

for further proceedings.

It is so ordered.

Nos. 75-1593, 75-1830, 75-1968, 76-1043, 76-1044 and 75-1988.

HILL, Circuit Judge, dissents for the reasons stated by

Judge Seth and Judge Barrett.

Nos. 75-1593—BROMLEY v. CRISP; 75-1830—GARNER v.

OKLAHOMA; 75-1968—RUTLEDGE v. SUNDERLAND:

76-1043—KILLION & HANLEY v. FAULKNER; No. 76-

1044—WILSON v. FAULKNER; 75-1988—STRINGFIELD

v. GRIDER.

SETH, Circuit Judge, dissenting:

I must dissent from the majority, and adhere instead

to the decision of the panel of this court in LAMB v.

BROWN on the prospective application of that decision

as a proper judicial determination.

Nos. 75-1593, 75-1830, 75-1968, 76-1043, 76-1044 and 75-1988.

BARRETT, Circuit Judge, dissenting:

I respectfully dissent. In my view we should re-adopt

the statement contained in our ruling in Lamb v. Brown,

456 F.2d 18 (10th Cir. 1972), i.e., that the voiding of 10 Okl.

St.Ann. § 1101 on constitutional grounds shall not be applied

retroactively. I would apply the same ruling to other Okla-

homa statutes challenged in these consolidated cases based

upon Fourteenth Amendment Equal Protection rounds.

The reasons therefor have been detailed in dissenting opin-

ions filed by Judge Seth and this writer in Radcliff v. Ander-

son, 509 F.2d 1093 (10th Cir. 1974), cert. denied, 421 US.

939 (1975).

In my judgment, non-retroactive application is on “all

fours” with the considerations determinative of retroactive

versus prospective application of a new constitutional rul-

A-27

[APPENDIX)

ing, ie.: (a) the purpose to be served by the new rule;

(b) the extent of reliance placed on the old rule; and (c)

the effect on the administration of justice. In respect to the

latter consideration, I believe that our Radcliff decision has

created unjustified havoc and consequences upon the ad-

ministration of Oklahoma’s criminal laws spanning a period

in excess of thirty years, notwithstanding that no challenges

have ever been raised—nor are they before us now—involv-

ing the accuracy and fairness involved in the fact-finding

processes, the procedural validity of the proceedings had,

or the guilt of the male offenders.

APPENDIX “B”

FILED

JUN 30 1975

Rex B. HAWKS

CLERK, U.S. DISTRICT COURT

By Zeta M. Cowan

Deputy

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

LOUIS JAY BROMLEY, +87798,

Petitioner,

Vv. No. CIV-75-0401-E

STATE OF OKLAHOMA, and

JERRY SUNDERLAND, Warden,

Respondent.

ORDER

This is another habeas case spawned by the decisions

of the Court of Appeals in Lamb v. Brown, 456 F.2d 18 (CA

10 1972), and Radcliff v. Anderson, 509 F.2d 1093 (CA10

1975). It comes to this Court in this context. On June 28,

1972, the petitioner, who was then 16 years of age and repre-

sented by counsel, entered a plea of guilty to the charge of

Assault and Battery with a Dangerous Weapon in Case No.

CRF-71-2636, District Court of Oklahoma County, Okla-

homa. He received a suspended sentence of three years.

On March 12, 1974, the petitioner again appeared in the

District Court of Oklahoma County with counsel and en-

tered pleas of guilty in the following cases: CRF-74-403,

Second Degree Burglary After Former Conviction of a

Felony; CRF-74-404, Second Degree Burglary After For-

mer Conviction of a Felony; and CRF-74-405, Robbery with

Firearms After Former Conviction of a Felony. These reci-

divist convictions were premised upon his prior conviction

)

)

)

)

)

)

)

)

B-2

[APPENDIX]

in said Case No. CRF-71-2636 and the petitioner received

concurrent sentences of 22 years’ imprisonment in each

case. As a result of these latter convictions, the suspended

sentence was also revoked in the former case. The petitioner

is presently confined in the Oklahoma State Reformatorv

at Granite, Oklahoma.

The petitioner contends that his former conviction in

said Case No. CRF-71-2636 was constitutionally void under

Lamb and Radcliff and its use to enhance his punishment

in said Cases No. CRF-74-403, CRF-74-404, and CRF-74-405

fatally tainted the proceedings in those cases.

On June 26, 1974. the petitioner filed an Application

for Post-Conviction Relief in the District Court of Okla-

homa County. which was denied on July 15, 1974. In Case

No. PC-74-474, this Order was appealed to the Oklahoma

Court of Criminal Appeals. On the 2nd day of August, 1974.

the appellate court affirmed the denial of post-conviction

relief. In these proceedings the same allegations contained

in his petition in this court were presented to the Oklahoma

court. The respondents concede that state remedies have

been exhausted, but suggest that the Court of Criminal

Appeals in the context of a direct appeal in another case

had indicated its willingness to further consider the impact

of Lamb and Radcliff. The respondents’ conclusion that.

therefore, the petitioner may have further state remedies

available is questionable in the light of recent action by the

Oklahoma Court of Criminal Appeals in other cases. See,

e.g.. Dean v. Crisp, 46 O.B.J. 1052, decided June 2. 1975. In

any event the issues in this case have been fairly and

squarely presented to the Oklahoma courts by this peti-

tioner and it is recognized by respondents that no relief

was afforded. Under the circumstances, no more is required.

See Picard v. Connor, 404 U.S. 270 (1971).

Petitioner does not contend that his pleas of guilty in

any of the cases were involuntary or that he was incom-

petently advised. He simply argues that by virtue of the

- B-3

f[APPEND!X)

ruling of the 10th Circuit in Lamb and Radcliff his former

conviction is constitutionally invalid and therefore his pres-

ent detention is unlawful. We do not agree. In Lamb, de-

cided March 16, 1972, the Court declared void as violative

of the equal protection clause of the Fourteenth Amend-

ment, 10 O.S.A. § 1101 (a), enacted January 13, 1969, which

provided in pertinent part:

“The term ‘child’ means any male person under the

age of 16 years and any female person under the age

of 18 years.”

Radcliff decided that the decision in Lamb should be applied

retroactively. The constitutional violation to which the

petitioner was subjected in the criminal proceedings cul-

minating in his guilty plea in said Case No. CRF-71-2636

was the denial of benefits under the Oklahoma statute per-

taining to juveniles which were available to females of the

same age. He had no constitutional right as such to be

treated as a juvenile. Smith v. Yeager, 459 F.2d 124 (CA3

1972). He did have a constitutional right under the Four-

teenth Amendment to equal treatment. These benefits

which were impermissibly denied to him include as pointed

out in Radcliff, “form of petition (§ 1103), custody (§ 1104),

release to parents (§ 1107), temporary detention (§ 1108),

conduct of hearings, including a provision for privacy

($1111), and discretionary certification for adult proceed-

ings after a preliminary hearing ($ 1112 (b).)” 509 F.2d at

1095. These procedural deprivations occurred prior to the

petitioner’s counseled plea of guilty. Such procedural rights

under the State Juvenile Laws are analogous to the right

of a preliminary examination in adult criminal proceedings

under State law. There is no federal constitutional right to

a preliminary hearing. Ramirez v. Arizona, 437 F.2d 119

(CA9 1971); Collins v. Swenson, 443 F.2d 329 (CA8 1971);

Pearce v. Cox, 354 F.2d 884 (CA10 1965), cert. denied, 384

U.S. 976 (1966). If a preliminary hearing, however, is pro-

vided for under State law, it is then federally guaranteed

B-4

(APPENDIX|

as a part of the due process of the State which must be

afforded equally to all defendants. Guerra v. Rodriguez, 372

F.2d 472 (CA10 1967). An intelligent and voluntary plea

of guilty nevertheless waives the absence of a preliminary

hearing. Pearce v. Cox, supra. See also, Cindle v. Page, 452

F.2d 752 (CA10 1971) and Guerra v. Rodriguez, supra. So

too, such a plea of guilty waives procedural infirmities of

constitutional magnitude in juvenile proceedings. Smith v.

Yeager, supra. See also, Wilhite v. U.S., 281 F.2d 642 (CA

D.C. 1960).

In Brady v. United States, 397 U.S. 742 (1970): Mc-

Mann v. Richardson, 397 U.S. 759 (1970), and Parker v.

North Carolina, 397 U.S. 790 (1970), the Supreme Court

considered the effect of a plea of guilty on an assertion in a

collateral proceeding of infringements of constitutional

rights allegedly preceding the guilty plea and in each case

concluded that it foreclosed a direct inquiry into the merits

of the claimed antecedent constitutional violations. In

Tollett v. Henderson, 411 U.S. 258 (1973). a State habeas

petitioner sought relief on the basis that the systematic

exclusion of Negroes from grand jury service rendered his

conviction upon a counseled plea of guilty invalid. The

Court said this was insufficient:

“We hold that after a criminal defendant pleads

guilty, on the advice of counsel, he is not automatically

entitled to federal collateral relief on proof that the

indicting grand jury was unconstitutionally selected.

The focus of federal habeas inquiry is the nature of

the advice and the voluntariness of the plea. nct th

existence as such of an antecedent constitutional in-

firmity.” 411 U.S. at 266.

“!A] guilty plea represents a break in the chain of

events which has preceded it in the criminal process.

When a criminal defendant has solemnly admitted in

open court that he is in fact guilty of the offense with

which he is charged, he may not thereafter raise inde-

B-5

(APPENDIX)

pendent claims relating to the deprivation of constitu-

tional rights that occurred prior to the entry of the

guilty plea. He may only attack the voluntary and

intelligent character of the guilty plea by showing

that the advice he received from counsel was not

within the standards set forth in McMann.” 411 U.S.

at 267.

The conclusion was not premised on a waiver rationale:

“If the issue were to be cast solely in terms of

‘waiver’, the court of appeals was undoubtedly correct

in concluding that there had been no such waiver

here.” 411 U.S. at 266.

The broad scope of the rule was explained by Justice White

in his dissenting opinion in Lefkowitz v. Newsome, US.

(Feb. 19, 1975):

“Under Tollett’s interpretation of the trilogy, and

under Tollett itself, federal constitutional principles

simply preclude the setting aside of a state conviction

by a federal court where the defendant’s guilt has

been conclusively established by a voluntary and in-

telligent plea of guilty. Labels aside, a guilty plea for

federal purposes is a judicial admission of guilt con-

clusively establishing a defendant’s factual guilt.”

The rule compels the conclusion here that the petitioner is

not automatically entitled to habeas relief simply because

he did not receive the same procedural rights afforded fe-

male juveniles. He is seeking to do precisely that which

Tollett forbids. He asserts an independent claim of consti-

tutional infirmity in the proceedings which preceded his

decision to plead guilty.

It cannot be urged here as in Backledge v. Perry, 417

U.S. 21 (1974), that petitioner’s claim goes “to very power

of the State to bring the defendant into court to answer

the charge brought against him.” There can be no question

B-6

[APPENDIX]

of the power of the District Court of Oklahoma County

to try the petitioner even though he was only 16 years of

age. The tainted proceedings could have been “cured” if

the petitioner had been certified as an adult or otherwise

treated the same as females.

The conclusive effect of petitioner’s plea of guilty in

said Case No. CRF-71-2636 becomes even more unassailable

in the light of his later guilty pleas in said Cases No. CRF-

74-403, CRF-74-404, and CRF-74-405. A plea of guilty has

the effect of admitting all material facts alleged in the

charge. Kahl v. United States, 204 F.2d 864 (CA10 1953).

When the petitioner intelligently and voluntarily entered

his pleas of guilty in said Cases No. CRF-74-403, CRF-74-

404, and CRF-74-405, one of the elements of the offense

which he admitted was the fact of a valid prior conviction.

Therefore, it would not be accurate to say that the State

used the previous Oklahoma County conviction to enhance

the petitioner’s punishment because no proof was required

and none was introduced by the State. Further, the pleas

of guilty in said Cases No. CRF-74-403, CRF-74-404 and

CRF-74-405 constituted a waiver of all non-jurisdictional

defenses. United States v. Soltow, 444 F.2d 509 (CA10 1971);

Adkins v. State of Kansas, 386 F.2d 819 (CA10 1967); Mah-

ler v. United States, 333 F.2d 472 (CA10 1964), cert. denied,

379 U.S. 993. In Brady v. United States, supra. the Supreme

Court declared:

“!T}he plea is more than an admission of past con-

duct; it is the defendant’s consent that judgment of

conviction mav be entered without trial...” 579 U.S.

at 748.

Directly in point on this issue of the effect of a guilty plea

to an enhancement charge is Zales v. Henderson, 433 F.2d

20 (CA5 1970), wherein the court persuasively reasons:

“1, 2] A guilty plea ‘differs in purpose and effect

from a mere admission or an extrajudicial confession;

ms cee wert ee —

B-7

[APPEND!X}

it is itself a conviction. Like a verdict of a jury it is

conclusive. More is not required; the court has nothing

to do but give judgment and sentence.’ Kercheval v.

United States, 1927, 274 U.S. 220, 223, 47 S.Ct. 582, 583,

71 L.Ed. 1009, 1012. And in the leading exposition of

this Court on the effect of a guilty plea, we stated:

‘It is settled by a host of authorities that a judg-

ment on a plea of guilty which has been entered vol-

untarily on advice of counsel is not rendered invalid

because the defendant had previously made a con-

fession under circumstances which might have ren-

dered it inadmissible in evidence if the defendant

had pleaded not guilty and had gone to trial. This

is so because the plea, if voluntarily and under-

standingly made, is conclusive as to the defendant’s

guilt, admitting all the facts charged and waiving all

non-jurisdictional defects in the prior proceedings

against him. The judgment and sentence which fol-

low a plea of guilty are based solely upon the plea.

Busby v. Holman, 5 Cir., 1966, 356 F.2d 75, 77-78.

Guided by Busby we have often enumerated the kinds

of defects that a defendant waives when he pleads

guilty. See, e.g., Brown v. Beto, 5 Cir., 1967, 377 F.2d

950 (illegal confession plus no counsel when it was

taken); Hamilton v. Florida, 5 Cir., 1968, 390 F.2d 872

(illegal detainment, incompetent counsel, warrantless

arrest); Askew v. Alabama. 5 Cir., 1968, 398 F.2d 825

(denial of the right to counsel and to confront witnesses

at a preliminary hearing); White v. Beto, 5 Cir., 1968.

399 F.2d 302 (conviction based on insufficient evi-

dence); Chandler, note 7, supra (denial of preliminary

hearing); Todd v. United States, 5 Cir., 1969, 418 F.2d

134 (defense of insanity); Frye v. United States, 5 Cir..

1969, 411 F.2d 562 (alibi defense); Rice v. United

States, 5 Cir., 1969, 420 F.2d 863 (denial of bail, wrong

offense in indictment).

B-8

[APPENDIX]

[3] Thus it is Zales’ guilty plea at the habitual of-

fender hearing that separates his case from Burgett.

Zales waived any complaints he may have had con-

cerning the former offenses which were set out in the

enhancement charge. On the other hand, had the plea

been not guilty, it would have put in issue all matters

going to the validity of the prior convictions including

the presence of counsel at the previous trial. If Zales

had proved that no counsel had been present he then

could have been possibly the first to argue the retro-

activity of Gideon. Or Zales could have raised the Bur-

gett question before Burgett did.

The information of the prosecutor clearly accused

Zales of four felonies. His plea admitted those acts.

He now seeks to show that his convictions for those

acts are invalid for lack of counsel. But the Supreme

Court has answered:

‘We find no requirement in the Constitution that a

defendant must be permitted to disown his solemn

admissions in open court that he committed the act

with which he is charged simply because it later

develops that the State would have had a weaker

case than the defendant had thought. . .’

Brady, supra, 397 U.S. at 757, 90 S.Ct. at 1474.” (Foot-

notes omitted) 433 F.2d at 23 and 24.

A court is not required to consider a petitioner’s challenge

to his former convictions if he has voluntarily and know-

ingly plead guilty to the enhancement charge. Price v. Beto,

436 F.2d 1070 (CA5 1971).

Accordingly since the files and records examined by

the Court conclusively show the petitioner is not entitled

to relief and there are no material issues of fact which re-

quire an evidentiary hearing, the Petition for Writ of

Habeas Corpus will be denied.

IT IS SO ORDERED.

ee

SS -

a

B-9

[APPENO!IX)

Dated this 30th dav of June. 1975.

s Luther B. Eubanks

UNITED STATES DISTRICT JUDGE

ENTERED IN JUDGMENT DOCKET ON JULY 30. 1975

ADELAIDE HOLSTON, DEPUTY

bs

~— wee

a rn ed

“APPENDIX “C”

FILED

OCT 21 1975

Rex B. HAWKs

CLERK, U.S. DISTRICT COURT

By Zeta M. Cowan

Deputy

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

GARY MICHAEL RUTLEDGE. )

Petitioner, )

)

Vv. ) No. CIV-75-0556-E

)

JERRY SUNDERLAND, Warden, )

Oklahoma State Reformatory, )

)

Respondent.

ORDER

The petitioner, Gary Michael Rutledge, a prisoner in

the Oklahoma State Reformatory at Granite, Oklahoma, has

submitted to this court his Petition for Writ of Habeas Cor-*

pus challenging his detention by virtue of the judgment and

sentence of the District Court of Beckham County, Okla-

homa, in Case No. CRF-73-81. The respondent has filed a

Response by and through the Attorney General of the State

of Oklahoma and submitted in support thereof the original

record and transcript of petitioner’s trial.

The petitioner alleges that his conviction is constitu-

tionally invalid because:

“2. Petitioner was denied equal protection of the

laws under the Fourteenth Amendment of the United

States Constitution in that the former convictions re-

lied upon to enhance punishment in the present case,

and which were also used to impeach Petitioner’s testi-

mony, were committed when Petitioner was 16 years

C-2

[APPENDIX)

of age; guilty pleas were entered by the Petitioner on

January 8, 1971, when he was 17 years of age, and that

under 10 O.S. 1101, a female of the same age could not

have been convicted of the same offenses as those for

which Petitioner was convicted.

3. Petitioner was further denied his right to a

speedy trial and due process as guaranteed by the

United States Constitution in that the crime with

which he was charged was allegedly committed on

January 24, 1973, in the presence of ARTHUR LIN-

VILLE, an agent of the Oklahoma State Bureau of

Investigation, but the Defendant was not arrested on

on the charge until October 10, 1973, 259 davs or over

eight and one-half months later.

4. Petitioner was further denied his right to due

process under the Constitution of the United States

in that the former convictions relied upon to enhance

punishment in this case were not introduced at trial:

the prosecutor further did not show that Petitioner

was represented by counsel or had properly waived

counsel on entering the pleas, and did not show that

the pleas of guilty of the Petitioner on the former con-

victions were knowingly and intelligently entered.”

From the court’s examination of the records it appears

that the petitioner was convicted in said Case No. CRF-73-

81 after a trial by jury in a two-stage proceeding of the

offense of Distribution of a Controlled Dangerous Substance

L.S.D. After Former Conviction of a Felony. In accordance

with the verdict of the jurv he was sentenced on January 25,

1974, to a term of 10 vears imprisonment. A direct appeal

was perfected to the Oklahoma Court of Criminal Appeals

in which the petitioner presented his equal protection and

speedy trial claims. On October 29. 1974, the appeals court

affirmed the jucgment and sentence. Rutledge v. State, 527

P.2d 1373. The petitioner thereafter filed an application for

post conviction relief in the District Court of Beckham

C-3

(APPENDIX)

County on substantially the same grounds presented in his

petition herein. The District Court denied relief without

an evidentiary hearing on January 14. 1975. There was no

appeal from this order.

The respondent asserts that the petitioner has not

exhausted his state remedies since he did not specifically

allege in his post conviction application that the former

convictions used to impeach and enhance punishment were

constitutionally invalid because obtained in violation of the

Equal Protection Clause and he did not appeal the denial

of his post conviction relief. The respondent does concede

that the equal protection claim was squarely presented on

direct appeal. Although the allegations in the post convic-

tion application do not specifically refer to the Equal Pro-

tection Clause the facts alleged leave no doubt as to the

basis for the claim. Moreover, since both the equal protec-

tion and speedy trial issues were decided on direct appeal

the petitioner was not required to appeal to the Court of

Criminal Appeals from the denial of post conviction relief

in order to exhaust his state remedies on these grounds.

Cochran v. Rodriguez, 438 F.2d 926 (CA10 1971). It is true

that the petitioner’s contention concerning the sufficiency

of the proof as to his former convictions in the second

stage of the trial was not included in the direct appeal. How-

ever, we cannot conclude on the record before us that the

failure of the petitioner to avpeal on this ground constituted

a deliberate bypass. The order did not advise the petitioner

of his right to appeal. The order was enterec January 14.

1975. and this cause was not commenced until July 9, 1975.

almost five months after the time for appeal had expired.

The test for “deliberate bypass” includes an awareness of

availability of the state remedy and a decision not to use it

made by the petitioner himself. Watkins v. Crouse. 344 F.2d

227 (CA10 1965). Cf. Kanan v. Denver District Court, 438

F.2d 521 (CA10 1971) where the petitioner was informed

of the proper procedure before the time for appeal had

expired.

C-4

[APPENDIX]

The facts which give rise to petitioner’s first proposition

are not in dispute. On January 8, 1971. the petitioner, who

was then 17 years of age and represented by counsel, en-

tered a plea of guilty to the charge of grand larceny in Case

No. CRF-70-66, District Court of Beckham County and like-

wise entered a plea of guilty in another charge of grand

larceny in Case No. CRF-70-67. He received concurrent

sentences of two and one-half years in each case. In the

first stage of his trial in Case No. CRF-73-81 the petitioner

took the stand and admitted these two former convictions

and that he had plead guilty in each case. In the punish-

ment phase of the trial the court relied upon these prior

admissions to establish the former convictions for enhance-

ment purposes.

The petitioner does not contend that his pleas of guiltv

were involuntary or that he was incompetently advised.

In apparent reliance upon Lamb v. Brown, 456 F.2d 18 (CA

10 1972) and Radcliff v. Anderson, 509 F.2d 1093 (CA10

1975) he simply concludes that such convictions were con-

stitutionally invalid because he was only 17 at the time and

a female of the same age could not then under the Okla-

homa law have been convicted of the same offenses. The

petitioner assumes too much. In Lamb, decided March 16,

1972, the Court declared void as violative of the equal pro-

tection clause of the Fourteenth Amendment, 10 O.S.A.

£1101(a), enacted January 13. 1969, which provided in

pertinent part:

“The term ‘child’ means anv male person under the

age of 16 vears and anv female person under the ace of

18 years.”

Radcliff decided that the decision in Lamb should be applied

retroactively. The constitutional violation to which the pe-

itioner was subjected in the criminal proceedings culminat-

ing in his guilty pleas in said Cases No. CRF-70-66 and CRF-

70-67 was the denial of benefits under the Oklahoma statute

a.

a te = =

“oe

C-5

{APPENDIX}

pertaining to juveniles which were available to females of

the same age. He had no constitutional right as such to be

treated as a juvenile. Smith v. Yeager, 459 F.2d 124 (CA3

1972). He did have a constitutional right under the Four-

teenth Amendment to equal treatment. These benefits

which were impermissibly denied to him include as pointed

out in Radcliff, “form of petition (§ 1103), custody (§ 1104),

release to parents (§ 1107), temporary detention (§ 1108),

conduct of hearings, including a provision for privacy

($1111), and discretionary certification for adult proceed-

ings after a preliminary hearing (§ 1112(b) ).” 509 F.2d at

1095. These procedural deprivations occurred prior to the

petitioner’s counseled pleas of guilty. Such procedural

rights under the State Juvenile Laws are analogous to the

right of a preliminary examination in adult criminal pro-

ceedings under the State law. There is no federal constitu-

tional right to a preliminary hearing. Ramirez v. Arizona,

437 F.2d 119 (CA9 1971); Collins v. Swenson, 443 F.2d 329

(CA8 1971); Pearce v. Cox, 354 F.2d 884 (CA10 1965), cert.

denied, 384 U.S. 976 (1966). If a preliminary hearing, how-

ever, is provided for under State law, it is then federally

guaranteed as a part of the due process of the State which

must be afforded equally to all defendants. Guerra v. Rodri-

quez, 372 F.2d 472 (CA10 1967). An intelligent and volun-

tary plea of guilty nevertheless waives the absence of a

preliminary hearing. Pearce v. Cox, supra. See also, Cindle

v. Page, 452 F.2d 752 (CA10 1971) and Guerra v. Rodriguez.

supra. So too, such a plea of guilty waives procedural in-

firmities of constitutional magnitude in juvenile proceed-

ings. Claunch v. Page, 427 F.2d 841 (CA10 1970); Acuna v.

Baker, 418 F.2d 639 (CA10 1969); Salazar v. Rodriquez, 371

F.2d 726 (CA10 1967). Smith v. Yeager. supra. See also

Wilhite v. United States, 281 F.2d 642 (CA D.C. 1960).

In Brady v. United States, 397 U.S. 742 (1970); Mc-

Mann v. Richardson, 397 U.S. 759 (1970); and Parker v.

North Carolina, 397 U.S. 790 (1970). the Supreme Court

considered the effect of a plea of guilty on an assertion in

C-6

[APPENDIX]

a collateral proceeding of infringements of constitutional

rights allegedly preceding the guilty plea and in each case

concluded that it foreclosed a direct inquiry into the merits

of the claimed antecedent constitutional violations. In Tol-

lett v. Henderson, 411 U.S. 258 (1973), a State habeas

petitioner sought relief on the basis that the systematic

exclusion of Negroes from grand jury service rendered his

conviction upon a counseled plea of guilty invalid. The

court said this was insufficient:

“We hold that after a criminal defendant pleads

guilty, on the advice of counsel, he is not automatically

entitled to federal collateral relief on proof that the

indicting grand jury was unconstitutionally selected.

The focus of federal habeas inquiry is the nature of

the advice and the voluntariness of the plea, not the

existence as such of an antecedent constitutional in-

firmity.” 411 U.S. at 266.

“| A] guilty plea represents a break in the chain of

events which has preceded it in the criminal process.

When a criminal defendant has solemnly admitted in

open court that he is in fact guilty of the offense with

which he is charged, he may not thereafter raise inde-

pendent claims relating to the deprivation of constitu-

tional rights that occurred prior to the entry of the

guilty plea. He may only attack the voluntary and

intelligent character of the guilty plea by showing that

the advice he received from counsel was not within

the standards set forth in McMann.” 411 U.S. at 267.

The conclusion was not premised on a waiver rationale:

“If the issue were to be cast solely in terms of

‘waiver’, the court of appeals was undoubtedly correct

in concluding that there had been no such waiver

here.” 411 U.S. at 266.

+ See hy eas ee ee ee alten i LENT NRG

rare te

C-7

(APPENDIX)

The broad scope of the rule was explained by Justice White

in his dissenting opinion in Lefkowitz v. Newsome, 420 U.S.

283, 299 (1975):

“Under Tollett’s interpretation of the trilogy, and

under Tollett itself, federal constitutional principles

simply preclude the setting aside of a state conviction

by a federal court where the defendant’s guilt has been

conclusively established by a voluntary and intelligent

plea of guilty. Labels aside, a guilty plea for federal

purposes is a judicial admission of guilt conclusively

establishing a defendant’s factual guilt.”

The rule compels the conclusion here that the petitioner is

not automatically entitled to habeas relief simply because

he did not receive the same procedural rights afforded fe-

male juveniles. He is seeking to do precisely that which

Tollett forbids. He asserts an independent claim of con-

stitutional infirmity in the proceedings which preceded his

decision to plead guilty.

It cannot be urged here as in Blackledge v. Perry, 417

U.S. 21 (1974), that petitioner’s claim goes “to very power

of the State to bring the defendant into court to answer the

charge brought against him.” There can be no question of

the power of the District Court of Beckham County to try

the petitioner even though he was only 17 years of age. The

tainted proceedings could have been “cured” if the peti-

tioner had been certified as an adult or otherwise treated

the same as females.

We conclude, therefore, that petitioner’s former con-

victions were not constitutionally invalid.

The petitioner’s speedy trial complaint is without

merit. The offense was committed on January 24, 1973. The

prosecution was not commenced until the preliminary in-

formation was filed on October 10, 1973. He objects to the

eight and one-half months delay between the date of the

offense and his arrest on October 10th. He does not claim

C-8

[APPENDIX}

that the Sixth Amendment was violated by the three month

delay between his arrest and trial. The challenged period

is not subject to speedy trial requirements. As pointed out

in United States v. Marion, 404 U.S. 307, 320 (1971):

“(I]t is either a formal indictment or information

or else the actual restraints imposed by arrest and

holding to answer a criminal charge that engages the

particular protections of speedy trial provisions of the

Sixth Amendment.”

There are no allegations establishing substantial prejudice

to petitioner’s right to a fair trial or that the delay was a

purposeful device by the prosecution to gain tactical advan-

tage over petitioner so as to violate the Due Process Clause

of the Fifth Amendment.

The final contention of the petitioner concerning the

proof of convictions to enhance punishment does not raise

a federal constitutional question. He does not deny the con-

victions and does not allege that the convictions themselves

were constitutionally infirm by reason of denial of counsel.

Cf. United States v. Tucker, 404 U.S. 443 (1972) and Burgett

v. Texas, 389 U.S. 109 (1967). He objects only on the basis

that copies of the convictions were not introduced at trial

and the prosecution did not affirmatively show that the

petitioner was represented by counsel or that his pleas

were knowingly and intelligently entered. No objections

were made in the second stage of trial to the action by the

court in treating petitioner’s admissions in the first stage

as adequate proof to enhance punishment. The conrstitu-

tional vice is the use of constitutionally invalid convictions.

The obvious reason that the petitioner does not attack the

convictions themselves but limits his challenge to the pro-

cedure followed is that, as shown by certified copies of the

judgments in each case attached to the Response, petitioner

was, in fact, represented by counsel. The federal Constitu-

tion does not prescribe the manner in which constitutionallv

unassailable convictions may be proved or utilized to en-

a adh ottites

C-9

[APPENDIX]

hance punishment. Once the issue of guilt of the accused

has been determined the proper procedure to invoke the

application of the Enhancement Statute is a matter of Okla-

homa law and is properly for the determination of State

courts. A federal court must accept their interpretation of

the State law unless they are inconsistent with the funda-

mental principles of liberty and justice. Goldsmith v.

Cheney, 447 F.2d 624 (CA10 1971); Francia v. Rodriguez,

371 F.2d 827 (CA10 1961); Ratley v. Crouse, 361 F.2d 320

(CA10 1966) and Mesmer v. Raines, 298 F.2d 718 (CA10

1961). No such showing is made here.

Since the application together with the files and rec-

ords examined by the court conclusively show the petitioner

is entitled to no relief and there are no material issues of

fact an evidentiary hearing is not required. Boyd v. State

of Oklahoma, 375 F.2d 481 (CA10 1967).

Accordingly, the Petition for Writ of Habeas Corpus

will be denied.

IT IS SO ORDERED.

Dated this 21st day of October, 1975.

s‘ Luther B. Eubanks

LUTHER B. EUBANKS

UNITED STATES DISTRICT JUDGE

ENTERED IN JUDGMENT DOCKET ON OCT. 21, 1975

By:

PRR A ee

J WO Cee @ OR

APPENDIX “D”

FILED

DEC 22 1975

JACK C. SILVER, CLERK

U. S. DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

BILLIE JAY KILLION and )

DELMAR EUGENE HANLEY, )

Petitioners, )

vs, ) No. 75-C-220

)

DAVE FAULKNER, Sheriff, Tulsa )

County, State of Oklahoma, et al., )

Respondent. )

ORDER

The Court has for consideration the petition for writs

of habeas corpus pursuant to 28 U.S.C. § 2241, et seq., of

Billie Jay Killion and Delmar Eugene Hanley. Having ex-

amined the file, heard the argument of counsel and had the

benefit of copius briefs of the parties, the Court, being

fully advised in the premises, finds that:

1. Billie Jay Killion was born January 3, 1942, and at

age seventeen was convicted following a plea of not guilty

of the offense, under the laws of the State of Oklahoma, of

murder. He was sentenced on September 24, 1959, to life

imprisonment on said conviction.

2. Delmar Eugene Hanley was born January 26, 1952,

and at age sixteen was convicted following his pleas of

guilty of the offenses under the laws of the State of Okla-

homa of second degree rape, second degree rape, and rob-

bery with firearms. He was sentenced on September 6, 1968,

to respective terms of imprisonment for fifteen vears, fifteen

years, and twenty years, on the convictions.

D-2

[APPENDIX]

3. Petitioners Killion and Hanley remain in custody

in the State of Oklahoma as the result of their convictions

and sentences set forth above. Their State remedies effec-

tively exhausted, they seek release by Order of this Court

on the ground that their constitutional rights to equal pro-

tection of the law were violated in that they were prose-

cuted and sentenced as adult offenders and not as juveniles

when women for like crimes would have been treated as

juveniles because of a disparity in the age classification

between 16-18 vear old males and 16-18 year old females

under 10 O.S.A. $1101 (Supp. 1969).

4. In Lamb v. Brown, 465 F.2d 18 (10th Cir. 1972), it

was held that 10 O.S.A. § 1101 (Supp. 1969) was violative

of the equal protection clause of the Constitution of the

United States of America because of the disparity therein

in the age classification between 16-18 year old males and

16-18 year old females. The appellate Court in Lamb, at p.

19, recognized the principle that “wide discretion is vested

in a state’s legislative body relating to the establishment of

reasonable classifications for purposes of promoting the

health, safety and welfare of those within its jurisdiction.”

This discretionary power is recognized, secured and pro-

tected by the Tenth Amendment to the Constitution of the

United States.

The appellate Court in Radcliff v. Anderson, 509 F.2d

1093 (10th Cir. 1974), where it dealt only with the retro-

activity of Lamb, reaffirmed the unconstitutionality of 10

O.S.A. $1101 (Supp. 1969), and in applying Lamb retro-

actively the Circuit Court reiterated that the purpcse of

Lamb “was to end sex discrimination in juvenile proceed-

ings.” Lamb and Radcliff are the settled law.

4. The State of Oklahoma has recognized that 10 O.S.A.

$1101 (Supp. 1969) was unconstitutional and the extent

and retroactive application of the Lamb and Radcliff de-

cisions. The State Legislature, subsequent to the Lamh

decision, has enacted a new law which includes no differen-

Po ne eT oe ee

D-3

[APPENDIX}

tiation between the sexes in regard to the ages of persons

qualifying for such proceedings. 10 O.S.A. $1101(a), Eff.

April 4, 1972. Further, the Courts of the State of Oklahoma

in proceedings following the Lamb and Radcliff decisions

have met and exceeded the minimum established in Rad-

cliff where “The reliance on § 1101 was confined to the

period between January 13, 1969, its effective date (see

statement preceding § 1101 in 1 O.S. 1971), and the March

16, 1972, decision in Lamb.” See Radcliff, infra, p. 1095. The

State Courts have held in Schaffer v. Green, Okl. Cr., 496

P.2d 375 (1972), that to fill the legislative void created by

Lamb until the House and Senate of the Oklahoma State

Legislature had acted, it became the responsibility of the

Courts to determine if there were effective legislation de-

fining the age and classifications of persons responsible and

not responsible for criminal acts as adults within the con-

stitutional requirements of the Fourteenth Amendment.

It was the Court’s determination that 21 O.S. § 152, origi-

nally enacted in 1910 and in conformity with the common

law tradition, never having been expressly repealed. was

then still effective; and that law defined the jurisdiction of

the Courts of Oklahoma with respect to criminal capacity

as being anyone over the age of seven but under the age

of fourteen where there is showing such persons knew the

wrongfulness of the act, and all persons over the age of

fourteen.

5. The Federal Courts are generally bound by the in-

terpretation of the highest Court of the State regarding

jurisdictional questions. See Anderson v. Gladden, 293 F.2d

463, 467 (9th Cir. 1961). The Tenth Circuit follows this rule.

Francia v. Rodriguez, 371 F.2d 827 (10th Cir. 1967), Mesmer

v. Raines, 298 F.2d 718 (10th Cir. 1961).

6. The Lamb and Radcliff decisions are being followed

by the State Courts of Oklahoma, and the unconstitutional

provisions of Oklahoma law dealt with in said decisions

have been eliminated. Further, the high Court of the State

D-4

[APPENDIX]

of Oklahoma, in defining the criminal jurisdiction of Okla-

homa Courts has determined that between 1910 and March

16, 1972, persons accused of crime who were over the age

of seven and under the age of fourteen in whose cases there

was showing that the accused knew the wrongfulness of the

alleged criminal act, and all persons over the age of four-

teen, were the proper objects of criminal prosecution in

the Oklahoma State Courts. This Court deems that holding

of the high Court of the State of Oklahoma in regarding

this jurisdictional question binding upon this Court, and

although the lengthy and involved arguments of the parties

have been carefully studied and weighed, the Court finds

that the State Court’s interpretation of its jurisdiction in

such matters does not offend the basic principles of fairness

and justice so as to require the relief prayed herein. The

petition for writs of habeas corpus of Billie Jay Killion and

Delmar Eugene Hanley should be denied.

IT IS, THEREFORE, ORDERED that the petition for

writs of habeas corpus of Billie Jay Killion and Delmar

Eugene Hanley be and it is hereby denied and the case is

dismissed.

Dated this 22nd day of December, 1975, at Tulsa,

Oklahoma.

s‘ Allen E. Barrows

CHIEF JUDGE, UNITED STATES

‘DISTRICT COURT FOR THE

NORTHERN DISTRICT OF

OKLAHOMA

APPENDIX “E”

FILED

SEP 8 1975

Rex B. HAWKS

CLERK U. S. DISTRICT COURT

By Zeta M. Cowan

Deputy

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

DAVID LEE GARNER, )

Petitioner, )

-VS- ) No, CIV-74-336-E

)

THE STATE OF OKLAHOMA, )

Respondent.

ORDER

On the 29th day of August, 1975, this cause came on

for evidentiary hearing. Petitioner appeared in person and

with his private attorney, Fred Gilbert. Kay Karen Ken-

nedy, Assistant Attorney General for the State of Okla-

homa, appeared for the respondent. Pursuant to this Court’s

Memorandum and Order issued on August 15, 1975, said

evidentiary hearing was conducted to determine if the

petitioner was improperly prejudiced by the failure of the

state court to accord to him the same benefits which a 17

year old female would have received in like circumstances.

On the evidence presented toc the Court, the following

findings of fact, are made herein:

1. Petitioner’s date of birth was May 25, 1954.

2. Petitioner was 17 years of age when the crime, as

charged in CRF-71-1518, was committed.

3. At the age of 15 years, petitioner was referred to

the Juvenile Division of the Oklahoma County District

Court. After a hearing by that court, petitioner was adjudi-

E-2

[APPENDIX]

cated a juvenile delinquent. Petitioner was placed on pro-

bation from August, 1969 to January, 1970. Due to further

criminal misconduct, petitioner was incarcerated in a state

training school.

4. On January 22, 1971, petitioner pled guilty to the

criminal charge of Forgery in the Second Degree. Peti-

tioner, then 16 years of age, was given a deferred sentence.

The deferred sentence was accelerated on February 21,

1972; plaintiff received a two year sentence.

5. In January, 1972, petitioner was tried on the charge

of Robbery with Firearms in Case No. CRF-71-1518. Peti-

tioner was convicted and sentenced to a term of 18 vears

imprisonment.

6. Concurrent to the charge filed in CRF-71-1518,

petitioner was charged in Cases No. CRF-71-1515 and CRF-

71-1520 with the crime of Robbery with Firearms. Subse-

quent to the conviction in case No. CRF-71-1518, petitioner

entered pleas of guilty in CRF-71-1515 and CRF-71-1520

to the included offense of Concealing Stolen Property.

Petitioner received two two year terms of imprisonment.

the sentences to run concurrently.

7. The only testimony petitioner gave at the eviden-

tiary hearing was his name and date of birth. Upon the

advice of his attorney, petitioner refused to answer ques-

tions and stated that he wished to invoke his Fifth Amend-

ment rights. Petitioner failed to offer any evidence which

would have established that he was improperly prejudiced

by the failure to be certified as an adult. Petitioner also

failed to show that he had been harmed by the failure of

the State to extend to him the benefits that a female the

same age would have received. Therefore, petitioner’s evi-

dence fell far short of a showing that he was entitled to

release from custody.

8. After a careful review of the facts and circum-

stances of this case, this Court has no difficulty in finding

E-3

[APPENDIX]

to a moral and legal certainty that no Juvenile Court, on

the record in this case, would have denied transfer. The

petitioner, in proceedings before the Juvenile Court con-

ducted prior to the filing of the 1970 charge, had been

adjudicated a juvenile delinquent and incarcerated in a

detention home. Petitioner was afforded several opportuni-

ties to take advantage of the rehabilitative programs

afforded juvenile offenders. However, petitioner, with full

knowledge of the consequences of his acts, continued to

violate the penal laws of the State of Okla!oma.

9. This Court concludes that such circumstances

made transfer inevitable when petitioner was subsequently

charged with Robbery with Firearms. The gravity of the

of ense was such that it would be unreasonable to assume

that any court would have denied transfer. It should also

be noted that the crime was not an isolated incident, but

one of several similar crimes committed by the petitioner.

10. Based upon the record in this case, the Court finds

that there is no reasonable doubt that certification would

have been granted and the adult conviction obtained.

THEREFORE, IT IS BY THE COURT ORDERED

THAT petitioner’s writ of habeas corpus be denied.

s’ Luther B. Eubanks

LUTHER B. EUBANKS

UNITED STATES DISTRICT JUDGE

ENTERED IN JUDGMENT DOCKET ON SEPT. 8, 1975

By:

APPENDIX “F”

FILED

DEC 22 1975

JACK C. SILVER, CLERK

U. S. DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

DEREK LEE WILSON, )

Petitioner, )

Vs. ) No. 75-C-227

)

DAVE FAULKNER, Sheriff, Tulsa )

County, State of Oklahoma, et al., )

Respondent.

ORDER

The Court has for consideration the petition for writ

of habeas corpus, pursuant to 28 U.S.C. § 2241, et seq., of

Derek Lee Wilson. Having examined the file, heard the

argument of counsel and had the benefit of copious briefs

of the parties, the Court, being fully advised in the prem-

ises, finds that:

1. Derek Lee Wilson was born September 24, 1953,

and at age seventeen was convicted following his pleas of

guilty of the offenses under the laws of the State of Okla-

homa of possession of narcotics, obtaining property by false

pretenses, robbery with firearms, second degree burglary.

and robbery with firearms. He was sentenced on November

10, 1970, to respective terms of imprisonment for seven

years, three years, twenty-five years, five years, and twenty-

five vears, on the convictions.

2. Petitioner Wilson remains in custody in the State

of Oklahoma as the result of said convictions and sentences,

and State remedies effectively exhausted he seeks release

by Order of this Court on the ground that his constitutional

F-2

(APPENDIX)

right to equal protection of the law was violated in said

proceedings in that he was prosecuted and sentenced as an

adult offender and not as a juvenile when a woman for like

crimes would have been treated as a juvenile because of a

disparity in the age classification between 16-18 year old

males and 16-18 vear old females under 10 O.S.A. § 1101

(Supp. 1969).

3. In Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972), it

was held that 10 O.S.A. § 1101 (Supp. 1969) was violative

of the equal protection clause of the Constitution of the

United States of America because of the disparity therein

in the age classification between 16-18 year old males and

16-18 year old females. The appellate Court in Lamb, at

p. 19, recognized the principle that “wide discretion is

vested in a state’s legislative body relating to the establish-

ment of reasonable classifications for purposes of promoting

the health, safety and welfare of those within its jurisdic-

tion.” This discretionary power is recognized, secured and

protected by the Tenth Amendment to the Constitution of

the United States.

The appellate Court in Radcliff v. Anderson, 509 F.2d

1093 (10th Cir. 1974), where it dealt only with the retro-

activity of Lamb, reaffirmed the unconstitutionality of 10

O.S.A. § 1101 (Supp. 1969), and in applying Lamb retro-

actively the Circuit Court reiterated that the purpose of

Lamb “was to end sex discrimination in juvenile proceed-

ings.” Lamb and Radcliff are the settled law.

4. The State of Oklahoma has recognized that 10

O.S.A. $1101 (Supp. 1969) was unconstitutional and the

extent and retroactive application of the Lamb and Radcliff

decisions. The State Legislature, subsequent to the Lamb

decision, has enacted a new law which includes no differen-

tiation between the sexes in regard to the ages of persons

qualifying for such proceedings. 10 O.S.A. § 1101(a), Eff.

April 4, 1972. Further, the Courts of the State of Oklahoma

in proceedings following the Lamb and Radcliff decisions

F-3

[APPENDIX]

have met and exceeded the minimum established in Rad-

cliff where “The reliance on § 1101 was confined to the

period between January 13, 1969, its effective date (see

statement preceding § 1101 in 1 O.S. 1971), and the March

16, 1972, decision in Lamb.” See Radcliff, infra, p. 1095. The

State Courts have held in Schaffer v. Green, Okl. Cr., 496

P.2d 375 (1972), that to fill the legislative void created by

Lamb until the House and Senate of the Oklahoma State

Legislature had acted. it became the responsibility of the

Courts to determine if there were effective legislation de-

fining the age and classifications of persons responsible and

not responsible for criminal acts as adults within the con-

stitutional requirements of the Fourteenth Amendment. It

was the Court’s determination that 21 O.S. § 152, originally

enacted in 1910 and in conformity with the common law

tradition, never having been expressly repealed, was then

still effective; and that law defined the jurisdiction of the

Courts of Oklahoma with respect to criminal capacity as

being anyone over the age of seven but under the age of

fourteen where there is showing such persons knew the

wrongfulness of the act, and all persons over the age of

fourteen.

5. The Federal Courts are generally bound by the in-

terpretation of the highest Court of the State regarding

jurisdictional questions. See Anderson v. Gladden, 293 F.2d

463, 467 (9th Cir. 1961). The Tenth Circuit follows this

rule. Francia v. Rodriguez, 371 F.2d 827 (10th Cir. 1967),

Mesmer v. Raines, 298 F.2d 718 (10th Cir. 1961).

6. The Lamb and Radcliff decisions are being followed

by the State Courts of Oklahoma, and the unconstitutional

provisions of Oklahoma law dealt with in said decisions

have been eliminated. Further, the high Court of the State

of Oklahoma, in defining the criminal jurisdiction of Okla-

homa Courts has determined that between 1910 and March

16, 1972, persons accused of crime who were over the age

of seven and under the age of fourteen in whose cases there

F-4

[APPENDIX]

was showing that the accused knew the wrongfulness of

the alleged criminal act, and all persons over the age of

fourteen, were the proper objects of criminal prosecution

in the Oklahoma State Courts. This Court deems that hold-

ing of the high Court of the State of Oklahoma regarding

this jurisdictional question binding upon this Court, and

although the lengthy and involved arguments of the parties

have been carefully studied and weighed, the Court finds

that the State Court’s interpretation of its jurisdiction in

such matters does not offend the basic principles of fairness

and justice so as to require the relief prayed herein. The

petition for writ of habeas corpus of Derek Lee Wilson

should be denied.

IT IS, THEREFORE, ORDERED that the petition for

writ of habeas corpus of Derek Lee Wilson be and it is

hereby denied and the case is dismissed.

Dated this 22nd day of December, 1975, at Tulsa,

Oklahoma.

s’ Allen E. Barrows

CHIEF JUDGE, UNITED STATES

DISTRICT COURT FOR THE

NORTHERN DISTRICT OF

OKLAHOMA

APPENDIX “Q”

JANUARY TERM — February 4, 1976

Before Honorable David T. Lewis, Chief Judge

LOUIS JAY BROMLEY,

DAVID LEE GARNER,

Plaintiffs-Appellants,

VS.

STATE OF OKLAHOMA,

Respondent-Appellee.

BILLIE JAY KILLION and

DELMAR EUGENE HANLEY,

DEREK LEE WILSON,

Petitioners-Appellants,

VS.

DAVE FAULKNER, Sheriff,

Tulsa County, State of Oklahoma,

Respondent-Appellee.

GARY MICHAEL RUTLEDGE,

Petitioner-Appellant,

WILLIAM LYNN STRINGFIELD,

Petitioner-Appellee,

vs.

JERRY SUNDERLAND, Warden,

Oklahoma State Reformatory, et al.

Respondents-Appellants,

in Case No. 75-1988,

Respondents-Appellee

in Case No. 75-1968.

No. 75-1593

No. 75-1830

No. 76-1043

No. 76-1044

No. 75-1968

No. 75-1988

G-2

[APPENDIX)

The Court, upon its own motion, has for consideration

the matter of the expeditious preparation and presentation

of these appeals which involve issues sufficiently related to

warrant companioning for the purposes of economy in brief-

ing, oral argument and perhaps record preparation. The

Court notes that some of the cases need calendar assign-

ment, some need a change of calendar assignment and some

need the appointment of counsel for the indigent appellants.

Upon consideration whereof, it is the order of the Court

as follows:

1) The calendar assignment of appeal No. 75-1593.

Bromley v. State of Oklahoma and of appeal No. 75-1830,

Garner v. State of Oklahoma, are changed from Calendar D

to Calendar B.

2) Appeal No. 76-1043, Killion and Hanley v. Dave

Faulkner, Sheriff, and appeal No. 76-1044, Wilson v. Dave

Faulkner, Sheriff, are assigned to Calendar B.

3) Appeal No. 75-1968, Rutledge v. Jerry Sunderland,

Warden and appeal No. 75-1988. Stringfield v. Jerry Sun-

derland, Warden. shall remain assigned to Calendar B.

4) The six cases are companioned and, at the con-

venience of counsel, may be briefed individually or in

combinations so as to allow the presentation of the common

issues without repetition and the individual issues sepa-

rately in a single brief bearing all or a portion of the num-

bers as counsel elects.

5) There being no present attorney appointed b-- th’s

Court to represent the appellant Bromley in appeal No.

75-1593, Bromley v. State of Oklahoma and appellant Gar-

ner in appeal No. 75-1830, Garner v. State of Oklahoma,

it is the order of the Court that Fred Gilbert, Esquire, is

appointed to represent the appellants in these cases. The

clerk shall furnish Mr. Gilbert with a voucher Form CJA

evidencing his appointment.

ON ee —

G-3

(APPENDIX)

6) The captioned cases shall be placed on the calen-

dar for oral argument and submission as soon as the prin-

ciple briefs have been filed.

s/ Howard K. Phillips

HOWARD K. PHILLIPS

Clerk

APPENDIX “H”

FILED

In Court of Criminal Appeals

of the State of Oklahoma

JUN 10 1975

Ross N. LILLARD, JR.

CLERK

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

STATE OF OKLAHOMA, ex rel.,

S. M. FALLIS, JR., DISTRICT

ATTORNEY OF TULSA COUNTY,

OKLAHOMA,

Petitioner,

-VS- ) No. O-75-246

HONORABLE MARGARET LAMM,

DISTRICT JUDGE, TULSA COUNTY,

OKLAHOMA,

Respondent.

ORDER ASSUMING ORIGINAL JURISDICTION,

DENYING MOTION TO DISMISS BUT ISSUING

WRIT GF MANDAMUS

On the 28th day of May, 1975, there came on for hear-

ing pursuant to setting Petitioner’s application to assume

original jurisdiction and for writ of mandamus, the parties

appearing as follows: Petitioner by Marvin Spears; the de-

fendant, Derek Lee Wilson, in the lower court appearing

by and through his attorney, Mr. Fred Gilbert; and the said

Respondent not appearing in any marner, although duly

notified by this Court.

The Court, after hearing statements and arguments of

counsel and being fully advised in the premises, finds:

H-2

[APPENDIX]

THAT this Court should and does hereby assume orig-

inal jurisdiction herein and proceeds to hear and dispose

of the petition for writ of mandamus as follows:

THAT in the District Court of Tulsa County, Derek

Lee Wilson, hereinafter referred to as defendant, was

charged in Case No. CRF-70-1327 with Burglary, Second

Degree; Case No. CRF-70-1560 with Obtaining Property by

False Pretense; Case No. CRF-70-1910 with Robbery with

Firearms; Case No. CRF-70-1915 with Possession of Nar-

cotic Drug; and Case No. CRF-70-2012 with Robbery with

Firearms, whereafter he entered a plea of guilty in each

case and was sentenced to serve a term of seven (7) years,’

three (3) years, twenty-five (25) years, five (5) years, and

twenty-five (25) years, respectively, with sentences to run

concurrently. Subsequently on the Ist day of May, 1975,

the defendant filed a second application for post conviction

relief. Whereafter on the 9th day of May, 1975, the Respon-

dent granted the defendant relief but stayed the execution

of said order until the 3rd day of June, 1975. The District

Court’s order also provided the defendant bail in the nature:

of his own recognizance to his attorney and to his mother.

Petitioner now seeks mandamus relief.

The Petitioner asserts the trial court erred in releasing

the defendant to bail while staying the execution of the

judgment and sentence.

This Court directs the Respondent’s attention to Rule

4.1(C) of the Rules of this Court wherein it states:

“Bail Not Allowed. No applicant for Post-Conviction

Relief filed under the provisions of 22 O.S. 1971, § 1080

et seq. shall be entitled to bail by the trial court or the

Court of Criminal Appeals pending the hearing of said

Application, nor shall the provisions of 22 O.3. 1971,

$ 1080, be construed to vest the trial court with the

authority to set bail.”

H-3

[APPENDIX]

We, therefore, find Judge Margaret Lamm was withou*

authority to grant the defendant bail during the pendency

of the appeal of the lower court’s order granting post con-

viction relief to defendant.

The State of Oklahoma further asserts the trial court

erred in finding that Lamb v. Brown, 456 F.2d 18 (10th Cir.,

1972) and Radcliff v. Anderson, 509 F.2d 1093 (10th Cir.,

1975) are the law of the State of Oklahoma thus rejecting

Schaffer v. Green, Okl.Cr., 496 P.2d 375 and Freshour v.

Turner, ‘Okl.Cr., 496 P.2d 389. The defendant contends, to

which the lower court agrees, that his convictions in Case

Nos. CRF-70-1327, CRF-70-1560, CRF-70-1910, CRF-70-1915

and CRF-70-2012 should be vacated because said convictions

were obtained under a statutory procedural process that

was patently unconstitutional and deprived the defendant

of equal protection of the laws. Judge Lamm entered an

order wherein it stated:

“The Court having read said Application, the re-

sponse thereto and having examined the files and rec-

ords in each of these causes and being fully advised

in the premises,

“FINDS:

_ “J. The defendant’s Application raises no substantial

issues of fact.

“2. That the defendant was present with his pri-

vately retained counsel.

“3. The defendant alleges in his Application for

Post-Conviction Relief the following:

“*That at the age of 16 and 17 as a male he was

prosecuted as an adult whereas a similarly-offending

female would have been processed as a juvenile. 10

O.S. 1970 Supp., 1101. Lamb v. Brown (10th Cir., 1972),

456 F.2d 18; Radcliff v. Anderson (10th Cir., 1975), 509

F.2d 1093, cert. den. April 21, 1975, Wah inns

H-4

[APPENDIX )

“4. The defendant was over sixteen (16) years of

age but under eighteen (18) years of age at the time of

the commission of offenses charged and to which the

defendant entered his pleas of guilty and was sentenced

without prior certification.

“5. That based on the citations of the petitioner that

Post-Conviction Relief should be granted.

“6 That due to the citations of the State of Oklahoma

and the Motion of the State advising this Court that the

State intends to appeal this judgment, this Court finds

that in the interest of justice that the execution of judg-

ment should be staved until the 3rd day of June, 1975.”

“IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that the defendant’s Application for Post-

Conviction Relief is hereby granted and the Judgment

and Sentence in this cause is hereby vacated, and that

this Order is stayed until the 3rd day of June, 1975.

State allowed exception.

“IT IS FURTHER ORDERED. ADJUDGED AND

DECREED that the defendant is hereby released from

custody. State allowed exception.

“Done in open Court this 9th day of May, 1975.”

This Court finds the record indicates that the defendant

was of the age of sixteen (16) and seventeen (17) years at

the time of said convictions. Thus we find the defendant

was, and properly so, dealt with as an adult at the time of

his convictions, and it was, therefore, not recessary to

afford a certification hearing on juvenile status in light of

our recent decision in Dean v. Crisp, Okl.Cr., P.2d

We, therefore, find Judge Margaret Lamm erred in entering

an order granting the defendant post conviction relief in

said convictions.

IT IS, THEREFORE, THE ORDER O ~ THIS COURT

that Judge Margaret Lamm vacate her orde - of the 9th dav

H-5

[APPENDIX}

of May, 1975, granting the defendant post conviction relief

in Case Nos. CRF-70-1327, CRF-70-1560, CRF-70-1910, CRF-

70-1915, and CRF-70-2012.

IT IS THE FURTHER ORDER OF THIS COURT that

Judge Margaret Lamm proceed in the above styled and

numbered cases with immediate action not inconsistent

with this order.

IT IS FURTHER ORDERED that the defendant’s mo-

tion to dismiss be DENIED.

WITNESS OUR HANDS, and the Seal of this Court,

this 10th day of June, 1975.

s/ C.F. Bliss, Jr.

C. F. BLISS, JR., JUDGE

s‘ Hez J. Bussey

HEZ J. BUSSEY, JUDGE

ATTEST:

s/ Ross N. Lillard, Jr.

CLERK

| Seal]

APPENDIX “I”

FILED

In Court of Criminal Appeals

of the State of Oklahoma

JUN 9 1975

Ross N. Lillard, Jr.

CLERK

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

STATE OF OKLAHOMA, ex rel., )

S. M. FALLIS, JR., DISTRICT )

ATTORNEY OF TULSA COUNTY, )

OKLAHOMA, )

Petitioner, )

-VS- ) No. O-75-247

)

HONORABLE ROBERT G. GREEN, )

DISTRICT JUDGE, TULSA COUNTY, )

OKLAHOMA, )

)

Respondent.

ORDER ASSUMING ORIGINAL JURISDICTION,

DENYING MOTION TO DISMISS BUT ISSUING

WRIT OF MANDAMUS

On the 28th day of May, 1975, there came on for hear-

ing pursuant to setting Petitioner’s application to assume

original jurisdiction and for writ of mandamus, the parties

appearing as follows: Petitioner by Mr. Marvin Spears; the

defendant, Delmer Eugene Hanley, in the lower court ap-

pearing by and through his attorney, Mr. Fred Gilbert; and

the said Respondent not appearing in any manner, although

duly notified by this Court.

The Court, after hearing statements and arguments of

counsel and being fully advised in the premises, finds:

I-2

[APPENDIX]

THAT this Court should and does hereby assume orig-

inal jurisdiction herein and proceeds to hear and dispose of

the petition for writ of mandamus as follows:

THAT on the 16th day of May, 1975, Petitioner filed

in this Court for a writ of mandamus requesting this Court

to issue an order vacating the order of The Honorable Rob-

ert G. Green, District Judge, Tulsa County, releasing on

bond the defendant, Delmer Eugene Hanley, in Case Nos.

23,361, 23,362, and 23,363, pending the District Court’s con-

sideration and final decision of defendant’s application for

post conviction relief.

THAT Petitioner asserts that the District Judge ex-

ceeded his authority in allowing bond on an application

for post conviction relief. This Court agrees and directs the

Respondent’s attention to Rule 4.1(C) of the Rules of this

Court wherein it states:

“Bail Not Allowed. No applicant for Post-Conviction

Relief filed under the provisions of 22 O.S. 1971, § 1080

et seq. shall be entitled to bail by the trial court or the

Court of Criminal Appeals pending the hearing of said

Application, nor shall the provisions of 22 O.S. 197).

$ 1080, be construed to vest the trial court with the

authority to set bail.”

This Court finds that Respondent, The Honorable Rob-

ert G. Green, District Judge, Tulsa County. was without

authority to issue an order granting the defendant bond on

the pendency of the defendant’s application for post convic-

tion relief.

In passing we note the defendant’s application for post

conviction relief, now pending in the District Court of Tulsa

County requests relief based on the decisions in Lamb vy.

Brown, 456 F.2d 18 (10th Cir., 1972) and Radcliff v. Ander-

son, 509 F.2d 1093 (10th Cir., 1975). This Court directs the

Respondent’s attention to this Court’s recent decision in

Dean v. Richard Crisp and The State of Oklahoma, Okl1.Cr.,

I-3

(APPENDIX)

_... P.2d _., for appropriate disposition of defendant’s

application.

IT IS, THEREFORE, THE ORDER OF THIS COURT

that the Respondent, The Honorable Robert G. Green, Dis-

trict Judge, proceed immediately in the above styled and

numbered cases to vacate his previous order granting the

defendant bail and to proceed further with an appropriate

action not inconsistent with this order.

IT IS THE FURTHER ORDER OF THIS COURT that

defendant’s motion to dismiss in the above styled and num-

bered cause be, and hereby is, DENTED.

WITNESS OUR HANDS, and the Seal of this Court,

this 6th day of June, 1975.

s/ C. F. Bliss, Jr.

Cc. F. BLISS, JR., JUDGE

s/ Hez J. Bussey

HEZ J. BUSSEY, JUDGE

ATTEST:

s/ Ross N. Lillard, Jr.

CLERK

a es

APPENDIX “J”

Gary Michael RUTLEDGE, Appellant,

v

The STATE of Oklahoma, Appellee.

No. F-74-322.

Court of Criminal Appeals of Oklahoma.

Oct. 29, 1974.

An appeal from the District Court, Beckham County;

Charles M. Wilson, Judge.

Gary Michael Rutledge, appellant, was charged, tried

in a two stage proceeding and convicted of the crime of

Distribution of a Controlled Dangerous Substance, LSD,

After Former Conviction of a Felony. His punishment was

assessed at ten (10) years in the State Penitentiary and he

appeals. Judgment and sentence, affirmed.

Mary E. Bane and Thomas A. Williams, Bane & Wil-

liams, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., James L. Swartz, Asst.

Atty. Gen., for appellee.

OPINION

BLISS, Presiding Judge:

The appellant, Gary Michael Rutledge, hereinafter re-

ferred to as defendant, was charged, tried in a two stage

proceeding before a jury and convicted in the District Court

of Beckham County, Oklahoma of the crime of Distribution

of a Controlled Dangerous Substance, LSD, After Former

Conviction of a Felony, in Case number CRF-73-81. Punish-

ment was assessed at ten (10) years in the State Peniten-

tiary. From a judgment and sentence in conformance with

said verdict, the defendant has perfected his timely appeal.

J-2

(APPENDIX)

Briefly stated the evidence adduced at trial is as fol-

lows: Undercover agent Arthur Linville of the Oklahoma

State Bureau of Investigation testified that in Elk City,

Oklahoma, on January 24, 1973, he, in the presence of Nancy

Standifer and others, purchased 12 tablets of what the

defendant referred to as purple acid. After the tablets were

properly marked and preserved, they were taken on the

29th day of January to the office of the Oklahoma Bureau

of Investigation in Oklahoma City for chemical analysis.

Linville received a copy of the chemist’s analysis of the

tablets on or about the 24th day of May, 1973. The tablets

contained LSD.

On the 10th day of October, 1973, Linville and another

agent went to Elk City to look for the defendant. On the

10th they found him at work at a local furniture manufac-

turing plant and arrested him for illegal distribution of a

controlled dangerous substance. Linville testified that the

delay from the January purchase to the October arrest was

because there was a continuing investigation in the Beck-

ham County area and that the arrest of the defendant prior

to October would have allowed people to know that he was

an undercover agent. Linville further stated that he re-

turned to Beckham County only two times during the

interim, that he could not remember the dates, and the

Rutledge case was the only case growing out of his investi-

gation in the area.

William J. Caveny, a forensic chemist with the Okla-

homa State Bureau of Investigation, then testified that he

ran chemical tests on the tablets and came to the conciusion

that the tablets contained LSD. His report was completed

on May 30, 1973. The State then rested with reference to

the first stage of the two stage proceeding.

The defendant, testifying in his own behalf. related

that he had lived in the Elk City area most of his life, and

that in 1970 when he was sixteen years of age he was ar-

rested on two counts of grand larceny, subsequently plead-

J-3

(APPENDIX)

ing guilty to both charges and serving a 2% year sente::ce

at Granite Reformatory. The defendant denied ever meet-

ing Linville prior to his arrest and further denied meeting

Ms. Standifer. He further stated that after his release from

the reformatory he made up his mind not to get in trouble

again, got married and had begun going to church.

Robert J. Young, a minister in Elk City, testified that

he was acquainted with the Rutledges and had officiated at

their wedding. He further stated that Gary had begun com-

ing to church on his own and that he was well thought of

by those in the church. The defendant’s wife then testified

that she and the defendant had recently married, that she

married him knowing of his previous troubles and that he

worked everyday.

On rebuttal the State called Nancy Standifer who tes-

tified that she knew Agent Linville and the defendant, that

she met the defendant on January 24, 1973, in Elk City at

an apartment, and that while there Linville purchased some

tablets from the defendant. The defendant then took the

stand and denied that he had seen Ms. Standifer at an apart-

ment in Elk City on January 24, 1973.

After a verdict of guilty was returned, the second stage

of the proceeding commenced and the jury assessed punish-

ment at ten (10) years in the State Penitentiary.

Defendant’s first proposition in error urges that the

trial court committed reversible error in allowing evidence

of prior felony convictions when defendant was seventeen

years of age to be introduced to impeach the defendant’s

credibility and to enhance his punishment under 21 OS.

1971, $51. In support of his argument the defendant con-

tends that since he was only seventeen years old at the

time of his former convictions, those convictions could not

be used either to impeach his credibility or to enhance his

punishment, basing his argument on the decision of the

Tenth Circuit United States Court of Appeals in Lamb v.

Brown, 456 F.2d 18. The defendant further contends that

J-4

(APPENDIX)

to use the pre-Lamb convictions to enhance punishment is

a violation of the equal protection provisions of the United

States Constitution.

[1] With these contentions we do not agree. In Fields

v. State, Okl.Cr., 506 P.2d 219, we specifically held that pre-

Lamb final judgments may be used to enhance punishment

for post-Lamb convictions.

[2] The application of Lamb was held in the Circuit

Court to be prospective and not retroactive. The federal

Constitution does not compel in every case the retroactive

application of a “new” constitutional ruling such as Lamb.

See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.

2d 601, and Williams v. United States, 401 U.S. 646, 91 S.Ct.

1148, 28 L.Ed.2d 388. The Lamb court evidently considered

a non-retroactive application of its decision to be warranted

in light of all the circumstances. It is therefore our opinion,

in light of Lamb and Fields, supra, it is not a violation of

the equal protection clause to permit final pre-Lamb judg-

ments to serve as the basis for post-Lamb enhancements

of punishment and post-Lamb impeachments of credibility.

The defendant's last proposition in error urges that

the defendant was denied his right to a speedy trial because

of the lapse of time between the alleged commission of the

offense and his arrest. The record reflects that the purchase

was made on the 14th day of January, 1973, and the com-

plaint was filed on the 10th day of October, 1973, some 81;

months later. In support of his proposition the defendant

cites Grace v. Harris, Okl.Cr., 485 P.2d 757, which holds as

follows:

“Where the state knows of the commission of a

crime, its apparent perpetrator, knows of the accused’s

location and even has custody of him on another charge,

and fails to file a charge for nine months without show-

ing good cause, the prosecution must be dismissed as

a denial of the right to a speedy trial and due process

of law.”

J-5

[APPENDIX]

However, Grace, supra, is factually distinguishable

from the instant case in that it dealt with the inferential

penalization of a defendant for appealing a conviction in a

related case.

[3] It is the opinion of this Court that if an informa-

tion is filed well within the statute of limitations then a

delay between the date of the commission of the alleged

crime and the filing of said information would not constitute

a denial of one’s own constitutional right to a speedy trial

or be violative of the principles of due process unless it was

shown at trial that said delay caused substantial prejudice

to defendant’s right to a fair trial and that said delay was

not reasonable. See United States v. Marion, 404 U.S. 307.

92 S.Ct. 455, 30 L.Ed.2d 468; Kovash v. State, Okl.Cr., 519

P.2d 517; and Delaney v. State, Okl.Cr., 507 P.2d 564.

[4] In the instant case the defendant wholly fails to

show wherein the delay complained of prejudiced any sub-

stantial right of the defendant. Therefore, defendant’s last

proposition in error is without merit.

For the reasons set out above, the judgment and sen-

tence appealed from is, accordingly, affirmed.

BRETT, J., concurs in part, dissents in part.

BUSSEY, J., concurs.

BRETT, Judge (concurs in part and dissents in part).

I concur that there was sufficient evidence before the

jury to find the defendant guilty of unlawful distribution

of LSD, and that under the cricumstances of this case the

information was properly filed; but I respectfully dissent

to that part of the majority decision which authorizes the

use of the convictions sustained by the defendant when he

was sixteen years old to enhance the punishment.

I believe further that the trial court committed error

when the jurv was instructed on the second stage of the

J-6

[APPENDIX]

proceedings; consequently, the prosecution failed to meet

its burden of showing the sufficiency of the former convic-

tions. The jury was left to presume, and this Court is asked

to further presume from a silent record, that defendant’s

former convictions were proper. “Presuming waiver from a

silent record is impermissible.” Carnley v. Cochran, 369

U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70.

The record before this Court reflects that defendant

testified on cross-examination that he was convicted on two

charges of grand larceny when he was sixteen years old.

At the time the court instructed the jury that the testimony

was being admitted only to test defendant’s credibility.

However, at the second stage of the trial the court instructed

the jury, “The defendant admits in open court the prior

convictions so no evidence will be presented to you to estab-

lish this fact and you are to take as admitted facts such

convictions.” Consequently, the prosecutor did not intro-

duce the judgments and sentences or make any showing

that the defendant was represented by counsel or properly

waived counsel at the time, or that the pleas of guilty were

knowingly and intelligently entered. All that was shown

was that the defendant admitted the convictions, and that

he was sixteen years of age when he entered his pleas of

guilty.

Likewise, I believe this decision should be held in

abeyance until the Tenth Circuit, United States Court of

Appeals resolves the question of retroactivity of Lamb v.

Brown, 10 Cir., 456 F.2d 18 (1973). That Court presently

has before it on rehearing its consolidated decision in Rad-

cliff v. Anderson, No. 73-1520, and Stringfield v. Grider,

73-1550. In the original decision, which was withdrawn,

that Court commented “The statement that its ruling should

not apply retroactively, see [Lamb v. Brown] 456 F.2d at

30, is dictum which arises no higher than ‘comment merely

obiter,’”’ and held that “here fairness” plus “essential jus-

tice” require that the Lamb decision be applied retroac-

J-7

[APPENDIX}

tively. Should the Honorable Circuit Court maintain that

position on rehearing, the question which this majority de-

cision purports to settle, and others pertaining to juvenile

convictions, will again become viable. Therefore, discretion

dictates that the majority decision in this appeal is prema-

turely rendered.

I concur that the conviction for distribution of LSD

should be affirmed, but I dissent to the enhancement of

punishment on the juvenile convictions, and would modify

the sentence imposed.

APPENDIX “K”

FILED

In Court of Criminal Appeals

of the State of Oklahoma

AUG 2 1974

Ross N. Lillard, Jr.

CLERK

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

LOUIS JAY BROMLEY, )

Appellant, )

-Vvs- ) No. PC-74-474

)

THE STATE OF OKLAHOMA, )

)

Appellee. )

ORDER AFFIRMING DISTRICT COURT’S DENIAL OF

POST CONVICTION RELIEF

In the District Court of Oklahoma County, Case No.

CRF-71-2636, Appellant was convicted for the offense of

Assault and Battery with a Dangerous Weapon. His pun-

ishment was fixed at three (3) years imprisonment. There-

after, he filed an application for post conviction relief in

the District Court of Oklahoma County wherein the court

denied said request. From said denial, Appellant has per-

fected a timely appeal to this Court.

Appellant alleges that he was under the age of eighteen

(18) years at the time he entered his plea of guilty for the

above offense. He was not certified by the juvenile division

of the District Court to be tried as an adult, and conse-

quently, the District Court of Oklahoma County was unable

to receive his plea of guilty as it did not maintain jurisdic-

tion over his person. In light of the decision in Lamb v.

Brown, 456 F.2d 18 (Tenth Circuit, 1972) which has heen

8 ODE POD EP OF ON OE GRA EDT Se Vw aes

o- .* ot oe : . =e ~

we =e

K-2

[APPENDIX].

held retroactive by two recent decisions of the Tenth Cir-

cuit, we find the District Court did not err in denying said

relief.

Noting first that the decision in Lamb v. Brown recites

that said holding is not to be retroactive and that the au-

thority cited by Appellant is not final authority, said cases

still pending rehearing by the Tenth Circuit in banc, we

find the language in Lamb v. Brown, which cites it is not

to be retroactive still the law which prevails over the

instant case. Secondly, we note we are constrained to fol-

low our holding in Schaffer v. Green, Okl.Cr., 496 P.2d

375 (1972) and Freshour v. Turner, Okl.Cr., 496 P.2d 389

(1972), wherein we held the issue of retroactivity to be

moot in light of those decisions.

IT IS, THEREFORE, THE ORDER OF THIS COURT

the District Court’s denial of post conviction relief be, and

hereby is, affirmed.

WITNESS OUR HANDS, and the Seal of this Court,

this 2nd day of August, 1974.

s/ C. F. Bliss, Jr.

C. F. BLISS, JR., PRESIDING JUDGE

s/ Hez J. Bussey

HEZ J. BUSSEY, JUDGE

ATTEST:

s/_ Ross N. Lillard, Jr.

CLERK

[Seal]