Petition — Clay v. Bomar

Supreme Court, U.

LED

JAN 20 1978 |

!

ICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO. 77-1445

AMBROSE W. J. CLAY

Petitioner

VS

ROBERT L. BOMAR, JR., M.D.

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

CINCINNATI, OHIO

AMBROSE W.J. CLAY

PRO SE

P.O. BOX 22642

NASHVILLE, TENN. 37202

INDEX Page

Opinion Below

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THE FOLLOWING OPINIONS WERE NOT REPORTED:

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

AMBROSE W. J. CLAY , Dec. 2, 1976

¥. No. 76-310-NA-CV

ROBERT L. BOMAR. JR..MD. -

ORDER

In accordance with the Memorandum contempor-

aneously filed, it is ORDERED that this case is dismissed.

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

AMBROSE W. J. CLAY Dec. 2, 1976

¥. No. 76-310-NA-CV

ROBERT L. BOMAR. JR.. MD. -

MEMORANDUM

This civil action was filed by plaintiff Ambrose W. J.

Clay, against Robert L. Bomar, Jr., M.D.. seeking damages in

the total amount of $17,000.00. The complaint alleged no

jurisdictional grounds, but alleged generally that defendant.

a physician employed at the Veterans Administration Hos-

pital, Nashville, Tennessee, had prepared a memorandum. the

content of which plaintiff alleged would affect him adversely

in his capacity as an employee at the Veterans Administration

Hospital. Plaintiff further alleged that the defendant had acted

beyond the scope of his authority and that the content of the

memorandum was untrue.

Defendant filed a motion to dismiss the complaint,

or in the alternative, for a more definite statement. The grounds

for defendant’s motion to dismiss were that the Court lacked

jurisdiction over the subject matter of the complaint and that

the complaint failed to state a claim upon which relief can be

granted.

Defendant’s motion to dismiss was argued before the

Court on November 10, 1976. On that date in open codirt,

plaintiff stated that it was his intention to sue defendant per-

sonally, that he did not intend to make an employment com-

plaint against the Veterans Administration, and that he did

not intend to pursue any available administrative remedies

within the Veterans Administration. Plaintiff expressly alleged

that defendant was acting beyond the scope of his employment

at the times complained of in the complaint.

Plaintiff having clarified the allegations of his com-

plaint in the above manner, it is clear that this Court has no

jurisdiction of the subject matter of the complaint. Plaintiff

is attempting to bring a common law libel action against defen-

dant, and such an action may not be brought in this Court.

The United States Supreme Court has held that a

person’s interest in his reputation is simply one of a number of

interests which a state may protect against injury by virtue

of its tort law. Any harm to that interest, even when inflicted

by an officer of the state, does not rise to a deprivation of

“liberty” or “property” protected by federal law. See Paul

v Davis, US. 47 L.ed 2d 405 at 420

(1976)

Although Paul v. Davis .was specifically concerned

with an action brought pursuant to Title 42, United States

Code, Section 1983, its principle are applicable to this case.

Here defendant's alleged actions are not alleged to be attri-

butable to the government agency by which he is employed

or to be otherwise under color of law. Thus it is absolutely

clear that the subject matter of the complaint does not present

a federal question or arise under the Constitution or laws of the

United States. It is merely a tort action between private liti-

gants.

Furthermore, there is no diversity jurisdiction, in

that beth plaintiff and defendant are residents of the state of

Tennessee.

Accordingly, this civil action is dismissed.

s -

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

AMBROSE W. J. CLAY May 3, 1977

v. No. 76-310-NA-CV

ROBERT L. BOMAR. JR..M_D. :

ORDER

Based upon authority granted under Rule 11(d) of

thie Federal Rules of Appellate Procedure, it is hereby ORDER-

ED that the time for filing and docketing the record on appeal

herein be extended to and including July 21, 1977.

ENTER:

UNITED STATES DISTRICT JUDGE

No. 77-8036

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AMBROSE W. J. CLAY

Petitioner

V. ORDER

May 3, 1977

UNITED STATES DISTRICT COURT, .

MIDDLE DISTRICT OF TENNESSEE

Respondent

Before: WEICK, EDWARDS and ENGEL, Circuit Judges

Petitioner’s motion in this court is construed as a

petition for writ of mandamus to compel the district court to

empanel a jury and have his complaint filed therein considered

on the merits.

Because the district court, holding that the complaint

stated a claim cognizable only in the state courts, entered a

final judgment of dismissal, a direct appeal from that decision

was available to appellant and his motion is without merit.

Mandamus will not be granted to review issues which may be

raised on direct appeal.

The petition is denied.

ENTERED BY ORDEROF THE COURT

Clerk

NO. 77-1445

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AMBROSE W. J. CLAY Nov. 3, 1977

Plaintiff-Appellant

V. ORDER

ROBERT L. BOMAR.JR.. MD. -

Defendant-Appellee

Before: PECK, LIVELY, and ENGEL, Circuit Judges

Plaintiff-appellant’s petition for rehearing having

come on to be considered and of the judges of this Court who

ure in regular active service less than a majority having favored

ordering consideration en banc. the petition has been referred

to the panel which heard the appeal, and it further appearing

that the petition for rehearing is without merit.

IT IS ORDERED that the petition be, and it hereby

is denied.

ENTERED BY ORDER OF THE COURT

John P. Hehman, Clerk of Court

77-1445

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AMBROSE W. J. CLAY : Sept. 23, 1977

Plaintiff-Appellant

vs. ORDER

ROBERT L. BOMAR. JR..M_D. :

Defendant-Appellee

Before: PECK, LIVELY, and ENGEL, Circuit Judges

This matter is before the Court upon consideration

of the motion by the United States pursuant to Rule 8, Rules of

the Sixth Circuit, to dismiss the appeal for lack of jurisdiction

because of an untimely filed notice of appeal.

It appears from the record that the United States, an

officer or agency of the United States is not a party to this

cause and the United States is without standing to file the

motion to dismiss, and accordingly, it is ORDERED that the

motion be and is hereby denied.

It further appears from the record that appellant

failed to timely file his notice of appeal as required by Rule 4

(a), Federal Rules of Appellate Procedure, and there is no

finding by the District Court that excusable neglect would

allow an extension of the 30-day period.

The timely filing of a notice of appeal in compliance

with Rule 4(a), Federal Rules of Appellate Procedure, is man-

datory and jurisdictional which cannot be waived or extended

by this Court. Levisa Stone Corp. v. Elkhorn Stone Co., 411

F.2d 1208 (6th Cir. 1969), cert. den., 397 U.S. 925 (1970):

Rule 26(b), Federal Rules of Appellate Procedure. Accordingly,

the Court concludes the appeal must be dismissed for lack of

jurisdiction, pursuant to Sixth Circuit Rule 8.

Accordingly, it is ORDERED that the appeal be and

hereby is dismissed.

ENTERED BY ORDER OF THE COURT

Clerk

CASE CITATIONS

Cases:

Sioux City & P. Ry. Co. v. Stout, 1874-17 Wall 657,

664, 21 L. Ed2d 745

Edwards v. Elliott, 21] Wall. (88 U.S.) 532, 557 (1874);

Pearson v. Yewdall, 95 U.S. 294, 296 (1877)

Branham v. Commonwealth, 209 Ky. 273 S.W. 489,

490

Walker v. Sauvinet. 92 U.S. 90 (1876), Coates v. Law-

rence, D.C. Ga. 46 F. Supl. 414, 423

JURISDICTION:

Article III. Sec. 1. The judicial Power of the United

States, shall be vested in one supreme Court, and in

such inferior Courts as the Congress may from time

to time ordain and establish .. .

United Steelworkers v. United States, 361 U.S. 39

(1959) 29

FEDERAL STATUTES 28 (US.C.) Sec. 165(a) July 25, 1958

Pub. L. 85-554 Sec. 1, et seq. 72 Stat. 415, June 25, 1948,

Note Title 28 U.S.C. 2102(c)-

QUESTIONS PRESENTED:

No. |. Does the district court, has the right to deny

the appellant the right to a jury trial under the Constitution of

the United States of America?

No. 2. Does the district court has the right to deny

the appellant’s motion for default judgment and for granting

same, according to the law, when the appellee did not respond

to original complaint, according to the time prescribed by law,

and offered no grounds whatsoever, for not doing so.

No. 3. Does the Appellate Court has the right to

waive its responsibility under the provision of Title 28 Sec.

1331, to command jurisdiction over a Federal question?

No. 4. Does the Appellate Court has the right to

waive the provisions of Rule 4. (a) paragraph (2) under Rule

52(b) Rules of Appellate Procedure?

CONSTITUTIONAL PROVISONS INVOLVED:

The Seventh amendment to the Federal Constitutian

of the United States is involved, and the provisions and rights

guaranteed under it.

ISSUES INVOLVED:

1. Should the district court denied the appellant the

right to a jury trial on demand, and as provided by the 7th

amendment to the Const. of the United States?

2. If the United States, an officer or agency is not a

party to this complaint, and, is without standing to file a

motion to dismiss, motion being denied, than it appears that the

case should have been remanded for lack of representation on

the part of the defendant. (The Supreme Court should decided

the issue of whether the United States Government may repre-

sent a party, when the United States is not party to the Com-

plaint)

3. Should the district court deny the appellant mo-

tion for default judgment, when such motion was timely filed,

and the defendant deliberately failed to respond to appellant’s

complaint within the time prescribed by law?

4. Should the Appellate Court of Appeals by narrow

and strained manipulation of a rule of The Rules of Federal

procedure, deny the benefit of this to rule to appellant, when in

fact, the appellant abided by this rule in the proceedings of the

district court?

As to Issue No. |. See paragraph (1) Brief and Argu-

ment, Infra

As to Issue No. 2. This is a new issue, never before

presented to the Court, and therefore the Supreme Court

should decide this issue.

As to Issue No. 3.

The district court erred when it failed to grant the

motion for default judgment, on the basis of the pleadings.

The defendant failed to answer the complaint within the time

prescribed by law. When such motion is made, and a party is

entitled to judgment, the Court is responsible to give judgment.

N.Y. Code Civ. Proc Sec. 547 Sternbergy v. Levy. 159 Mo. 617,

60 S.W. 1114, 53 L.R.A. 438(1900) Le Breton v. Stanley

Contracting Co., 15 Cal. App. 429, 114 P. 1028 (1911)

The summon required the defendant answer within

20 days after being served, the defendant failed to do this. The

United States answered after the 20 days, but had no authority

to do this, not being a party to the complaint. (see Statement of

the case paragraph 11 infra)

As to issue No. 4.

See paragraph 12, Statement of the case infra. Par. 6

Argument and Authorities. It is therefore submitted that the

Courts erred regarding these issues, herein above stated.

STATEMENT OF THE CASE

This is a direct appeal by the plaintiff-appellant from

an adverse final decree entered by the United States District

Court for the middle district of Tennessee, Nashville Division,

the Honorable L. Clure Morton presiding, in open Court on

November 10, 1976, at which time the appellant cited the law

which gave the Court jurisdiction in this case, and in open Court

moved the Court for a jury trial according to the Seventh

Amendment to the Constitution of the United States.

The Court ignoring this motion and averring in open

Court that this case was an attempt by plaintiff to bring a com-

mon law libel action against defendant, and that such an action

may not be brought in his Court.

The plaintiff-appellant reiterated in open Court that

his original complaint contained issues of facts, and only facts,

and that his suit was a suit for damages for injuries received as

complaint clearly showed that his case was not a libel action as

the Court alleged, and, whereupon, the Court instructed the

Court reporter to write a memorandum dictated by the Court,

purporting to show that the Court has no jurisdiction in this

case, and that an order would be entered and contemporaneous-

ly filed dismissing this case.

On December 2, 1976, the Court subsequently or-

dered the case dismissed, by filing with the Clerk an Order and

3

memorandum purporting to show that this case was a libel

action.

The appellant was very aggrieved of the Court’s

action, and utilized all of the rules of law to keep his case

legally alive, and, after which, on April 22, a notice of appeal

and, cost bond was simultaneously filed and entered. On April

25, 1977, appellant moved the Court for an Order requiring the

Court Reporter to filed a certified record of the transcript of

the proceedings of November 10, 1976. This motion was denied.

On April 29, 1977, the Court Reporter filed a certi-

fied record of the proceeding. On May 2, 1977, the plaintiff-

appellant moved the Court for extension of time in which to

order transcript from the Court reporter, for filing and docket-

ing the record on appeal to the Sixth Circuit Court of Appeals,

Cincinnati, Ohio.

On May 3, 1977, the court Ordered that the time for

filing and docketing the record on appeal herein be extended

to and including July 21, 1977. Case Notice No. 12.

On May 4, 1977, plaintiff-appellant filed a Petition

with the Sixth Circuit Court of Appeals for writ of mandamus

to compel the district court to empanel a bi-racial jury to hear

the case. The Sixth Court denied this petition.

On July 12, 1977, the record was transmitted by mail

to the Sixth Circuit Court of Appeals, Cincinnati, Ohio.

On August 11, 1977, the United States Government

by its Attorney, filed a motion in behalf of defendant-appellee,

to dismiss, and memorandum of law in support of motion to

dismiss.

On August 15, 1977, the plaintiff-appellant respond-

ed to the motion to strike notice appeal and dismiss by filing

with the Sixth Circuit Court of Appeals a motion to overrule

motion to strike notice of appeal and to dismiss. Before the

Court acted upon the last motion filed by the appellant, on

September 22, 1977, the plaintiff-appellant submitted his brief,

transmitting 25 copies thereof to the Sixth Circuit Court of

Appeals.

The United States Sixth Circuit of Appeals, in the

meantime, on September 23, 1977, entered an order dismissing

the United States Motion to strike notice of appeal, saying:

“It appears from the record that the United States,

an officer “r agency of the United States is not a party to this

cause and the United States is without standing to file the

4

motion to dismiss, and accordingly, it is ORDERED that

motion be and is hereby denied.”

At the same time, the Court, dismissed plaintiff-

appellant case on the ground that appellant failed to timely

file his notice of appeal as required by Rule 4(a), Federal Rules

of Appellate Procedure, to which the appellant excepted.

And, whereupon the appellant petitioned the Court

for a hearing en banc.

This petition was filed on September 28, 1977. The

Court denied this petition on November 3, 1977. On November

22, 1977, a petition was filed with the Clerk of the Supreme

Court of the United States for transmitting the same to one of

the Justices of the Supreme Court for an extension of time in

which to file a petition for writ of certiorari.

On November the 29, 1977, the Clerk of the Supreme

Court of the United States informed the appellant that he had

ninety (90) days from the date rehearing was denied by the

United States Court of Appeals for the Sixth Circuit in which to

file his petition for writ of certiorari in the Supreme Court.

It is very clear that the court of appeals has decided

(by dismissing the United States Motion to dismiss) an impor-

tant question of federal law which has not been, but should be.

settled by this Court, and further, the court of appeals has

decided a federal question respecting the Constitutional rights

to a jury trial, in a way in conflict with applicable decisions of

this court, respecting this right.

ARGUMENT AND AUTHORITIES

An individual or citizen pro se complaint, is a right,

that must not be abridged, and particularly when said com-

plaint deals with factual materials, and when a demand is made

for a jury trial. U.S.C.A. Const. Amend. 7, CARL v. DE TOF-

FOL 25 N.W.2d 279 PEARSON v. YEWDALL. Sup. Ct. 297,

Oct. 1877. WRIGHT & MILLER, Federal Practice and Proce-

dure; Civil Sec. 2301-2307

The Court of Appeals was in error, when it dismissed

this case alleging no jurisdictions. The Jurisdiction of a Court of

Appeals is embodied in the U.S.C.A. Const. Art. 3, Sec. 1, and

451 of Title 28, and particularly, when a Federal question is

involved. Title 28 Sec. 1331.

The right to be heard by a jury in a Federal Court has

always been a protected right under the Constitution of the

5

United States, supra PEARSON v. YEWDALL.

Che Court of Appeals erred in denying the appellant

his rights under the due process clauses of the Fourteen Amend-

ment to the Constitution of the United States. The right to be

heard by a Jury on demand. is a due process clause affecting the

rights of citizens. In this demand. the appellant, requested a

bi-racial jury, for an equitable resolution of the case.

It was error, for the Court of Appeals to reduce the

benefit of the Federal Rules of Appellate Procedure to which

the appellant is entitled.

The jurisdictional requirement is waived by paragraph

2 of Rule 4(a), Rules of Appellate Procedure. Quote, “The run-

ning of the time for filing a notice of appeal is terminated as te

all parties by a timely motion filed in the district court by any

party pursuant to the Federal Rules of Civil Procedure hereafter

enumerated in this sentence, and the full time for appeal fixed

by this subdivision commences to run and is to be computed

from the entry of any of the following orders made upon a

timely motion under such rules: (2) granting or denying a

motion under Rules 52(b) to amend or make additional findings

of fact, whether or not an alteration of the judgment would be

required if the motion is granted . . .

The appellant complied with the above rule, as the

record will show.

For these and other reasons clearly demonstrated on

the records, the petition for a writ of certiorari should be grant-

ed.

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the United States Court

of Appeals, Sixth Circuit, and after review, the same should be

reversed and petitioner’s complaint affirmed, and/or the case

remanded.

CERTIFICATE

I hereby certify that three conformed copies of this

petition were mailed to Hon. Hal D. Hardin, United States

Attorney for the Middle District of Tennessee, at 879 U.C.

Courthouse, Nashville, Tennessee, this 17th day of January,

1978.

APPENDIX

PEARSON v. YEWDALL

1. Where a writ of error is defective in the statement of the parties thereto, the right

to amend is not absolute, under sect. 1005, Rev. Stat.: but the court, in its

discretion, may allow the requisite amendment to be made upon such terms as

it may deem just.

2. As both parties severally claim compensation for land taken by the city of Phila-

delphia for public use, the city, the only adverse party to them in the proceed-

ings below, is an indispensable party to the writ.

3. The court declines to allow an amendment making the city such party, inasmuch

as the questions made by the assignment of error have been settled by repeat-

ed decisions, and are no longer open to discussion here.

4. The seventh amendment to the Constitution, touching the right of trial by jury,

applies only to the courts of the United States.

5. The act of the General Assembly of the State of Pennsylvania, entitled “An Act

relating to roads, highways and bridges,” approved July 13, 1836, makes am-

ple provision for judicial inquiry into the matters therein mentioned, and is

due process of law, within the meaning of the Federal Constitution.

MOTION by the defendant to dismiss the writ of error to the

Supreme Court of Pennsylvania, and by the plaintiff to amend

the writ, by making the city of Philadelphia a party thereto.

The facts are stated in the opinion of the court.

The motions were argued by Mr. F. Carroll Brewster for the

plaintiff in error, and by Mr. William W. Wiltbank for the defen-

dant in error.

MR. CHIEF JUSTICE WAITE delivered the Opinion of the

court.

It having been suggested to us at the last term that the city

of Philadelphia was a party to this cause in the court below,

and adverse in interest to the plaintiffs in error. leave was grant-

ed the defendants in error to move to dismiss this suit, because

the city is not named in the writ: and for the city to appear by

counsel, to be heard in support of the motion. That motion has

now been made; and the plaintiffs in error, while resisting it,

ask leave, under sect. 1005 Rev. Stat.. to amend their writ by

naming the city as a defendant, in case it shall appear to be

necessary.

The city councils, by ordinance, ordered that Paschall Street

should be opened to public use. Thereupon the present defen-

dants in error, owning property which would be taken by the

opening, petitioned the Court of Quarter Sessions, conformably

to the act of the General Assembly of Pennsylvania regulating

such proceedings, to appoint proper persons to view the prem-

ises and assess their damages. In accordance with this petition,

the court appointed a jury of six men to view the premises,

and assess the damages which had been sustained. Notice of

their appointment and of the time and place they would meet

to perform their duties was served upon all the owners of

property through which the street would run. Availing them-

selves of this notice, the plaintiffs in error appeared among

others and presented their claims.

Notice of the meeting was also served, in accordance with the

further provisions of the statute, upon the law department of

the city; and the solicitor, who was charged by law with the

duty of representing and protecting the interests of the city in

all such matters, appeared before the jury in his official capa-

city. The viewers, after a hearing, made a report to the court of

their allowances to the several claimants. The plaintiffs in error

excepted to the report, for the reason, among others, that

the amount awarded to them was too small; and the city also

excepted, because it was too large. The Court of Quarter Ses-

sions overruled the exceptions of both parties, and confirmed

the report. The plaintiffs in error then appealed to the Supreme

Court; and the report being there again confirmed, they now

seek to bring the case here for review upon this writ.

There can be no doubt but that the city is an indispensable

party to this suit. The viewers were appointed at the instance

of the defendants in error; but they were appointed in a pro-

ceeding by the city, in its nature adverse to all the property

owners affected, for an appropriation of private property to

public use. It nowhere appears that the interests of the plain-

tiffs in error are adverse to those of the defendants in error.

They were both property owners, and both seeking compen-

sation for their property before it should be opened to the use

of the public. The city alone represented the public, and was,

therefore, the only party to the proceeding adverse to the

claimants. Under such circumstances, we cannot properly re-

view the judgment below in its adsence.

The question now arises, whether the plaintiffs in error shall

have leave to amend. Sect. 1005 of the Revised Statutes au-

thorizes this court in its discretion, and upon such terms as it

may deem just, to allow an amendment of a writ of error when

the statement of the parties thereto is defective. The right of

a party to amend is not absolute, but it is to be granted by the

court in its discretion. Whether it should be granted in a parti-

cular case must depend upon the attending circumstances.

In this case, we think the amendment ought not to be al-

lowed. We have looked carefully through the record. and can-

not find that any question is presented which has not been

many times decided. We have held over and Over again that

art. 7 of the amendments to the Constitution of the United

States relating to trials by jury applies only to the courts of the

United States, Edwards v. Elliott, 21 Wail. 557; and in the act

of the General Assembly of Pennsylvania. now under consider-

ation, ample provision is made for an inquiry as to damages

before a competent court, and for a review of the proceedings

of the court of original jurisdiction. upon appeal to the highest

court of the State. This is due process of law, within the mean-

ing of that term as used in the Federal Constitution. To grant

the amendment would. in our opinion, lead only to unnec-

essary delay and expense.

Writ dismissed.

WALKER v. WAINWRIGHT

Per Curiam.

WALKER v. WAINWRIGHT, CORRECTIONS DIRECTOR

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 786, Misc. Decided March 11, 1968.

Petitioner, under life sentence for murder, was later sentenced to five years for

assault, to commence when he had completed the murder sentence. Petitioner

challenged the murder conviction on constitutional grounds, but the District

Court denied a writ of habeas corpus on the sole ground that, in view of the

sentence for assault, a favorable decision would not result in the petitioner's

immediate release from prison, and that the court was therefore powerless to

consider his claims. The Court of Appeals rejected his application for a certificate

of probable cause Held. Whatever its other functions, the writ of habeas corpus is

available to test the legality of a prisoner's current detention, and it is immaterial

that another prison term might await him if he should establish the unconstitu-

tionality of his present imprisonment.

Certiorari granted: reversed and remanded.

PER CURIAM.

On September 30, 1960. the petitioner was convicted of first

degree murder and was sentenced to life imprisonment. On May

25, 1965, he was found guilty of aggravated assault and was

sentenced to five years in the state penitentiary, to commence

when he had completed serving the sentence for murder.

Having attempted without success to challenge his murder

conviction on federal constitutional grounds in the state courts,

the petitioner sought a writ of habeas corpus in the United

States District Court for the Southern District of Florida.

He contended that he had been deprived of counsel at his pre-

liminary hearing, that a coerced confession had been used

against him at trial, and thet he had been denied the right to

an effective appeal.

The District Court observed that, even if the petitioner’s

contentions were accepted and his murder convictions were

accepted and his murder conviction reversed, he would still

face a five-year prison term for aggravated assault. Because a

favorable decision on the murder conviction would not result

in the petitioner’s immediate release from prison, the District

Court thought itself powerless to consider the merits of his

claims and therefore denied his habeas corpus petition without

further consideration. In short, the District Court held that the

petitioner could not challenge his life sentence until after he

had served it. The United States Court of Appeals for the Fifth

Circuit summarily rejected the petitioner’s application for a

certificate of probable cause, and he then sought review in this

Court.

In reaching its conclusion, the District Court relied upon

McNally v Hill, 293 U.S. 131, for the broad proposition that

the “Writ of Habeas Corpus may not be used as a means of

securing judicial decision of a question which, even if deter-

mined in the prisoner’s favor, could not result in his immediate

release.” The McNally decision, however, held only that a

prisoner cannot employ federal habeas corpus to attack a

“sentence which [he] has not begun to serve.” 293 U. S.., at

138. Here the District Court has turned that doctrine inside

out by telling the petitioner that he cannot attack the life

sentence he has begun to serve — until after he has finished

serving it. We need not consider the continued vitality of the

McNally holding in this case, for neither McNally nor anything

else in our jurisprudence can support the extraordinary predi-

cament in which the District Court has placed this petitioner.

Whatever its other functions, the great and central office of

the writ of habeas corpus is to test the legality of a prisoner’s

current detention. The petitioner is now serving a life sentence

ee

imposed pursuant to a conviction for murder. If, as he con-

tends, that conviction was obtained in violation of the Con-

stitution, then his confinement is unlawful. It is immaterial

that another prison term might still await him even if he should

successfully establish the unconstitutionality of his present

imprisonment.

The motion for leave to proceed in forma pauperis and the

petition for certiorari are granted, the judgment is reversed,

and the case is remanded to the District Court for further

proceedings consistent with this opinion.

It is so ordered.

CARL v. DE TOFFOL

Cite as 25 N.W.2d 479

CARL v. DE TOFFOL et al.

No. 34217.

Supreme Court of Minnesota

Dec. 20, 1946

See 7. Jury 11(5)

Provision of federal Constitution preserving right of

trial by jury in courts of the United States is a limitation on

the federal government only and not on the states. and applies

only to jury trials in federal courts. U.S.C.A.Const. Amend. 7.