# Petition — Clay v. Bomar

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 943

## Text

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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Constitutional Provisions Involved ...................05. 2
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PUIG nis camuduilese<ednndees-coecseoes 3
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SER ob anew sae wnddabedéidnts dkkdancsentedoul 8

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0367%3A1. Public record. Not legal advice.