# Opposition — Missouri v. Crews > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1346%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1981 - **Citation:** 452 U.S. 957 ## Text a a la aoa roe THY — Rh my. —— jaa bs ad Wwe ba teats Ah hi ola ( eX - bee. Oe oy AG hy ; : eh, ; Number 80-139 IN THE~ SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 i. STATE OF MISSOURI, Petitioner, Vs. ate WILLIE TUNSTALL, ET AL., Respondents. BRIEF IN OP! OSITION TO GRANTING PETITION FOR WRIT OF CERTIORARI The Respondent, Willie Tunstall, in opposition to the granting of the Petition for Writ of Certiorari in this case, states as follows: QUESTIONS PRESENTED ‘ ‘ 1. Whether the Writ of Certiorari should not issue because ? Petitioner has not established the source of this Court's juris- diction, the threshold inquiry appropriate to the disposition of this case. 2. Whether the Writ of Certiorari should not issue because the decision issued by the Supreme Court of Missouri refusing to transfer the decision of the Missouri Court of Appeals was based upon the authority of Sours v. State, 593 S.W. 2d 208 (Mo. en banc 1980); vacated and remanded, 445 U.S. , 64 L.Ed. 24 820, - . affirmed after remand, 603 S.W. 2d 592 (Mo. en banc 1980), cert. .2 + denied, U.S. , No. 80-571 (Jenuary 26, 1981), which moots the issue raised herein. aa. eS Le eee eS ey i iE Pe ae . on We » sae i. 7 ea D = © mys Pe é a ode ah > . REASONS FOR DENYING THE WRIT “” TRE WRIT OF CERTIORARI SHOULD NOT ISSUE BECAUSE PETITIONER HAS NOT ESTABLISHED THE SOURCE OF THIS COURT'S JURISDICTION AS REQUIRED BY RULE 21.1(e) OF THE RULES OF THE SUPREME COURT. " .¢ State of Missouri, Petitioner herein, has filed its Petition for Certiorari which does not set out, as required by the Rules of the Supreme Court, the source of this Court's jurisdiction. Rule 21 of the Rules of the Supreme Court provides in perti- nent part: 1. The Petition for Writ of Certiorari shall contain in the order here indicated: (e) A concise statement of the grounds on which the jurisdiction of this Court is in- voked showing: (i) The date of the judgment or decree sought to be reviewed, and the time of its entry; “i (ii) The date of any order respecting oy" a rehearing, and the date and terms of any ; order granting an extension of time within which to petition for certiorari; and (iii) Where a cross-petition for writ *s of certiorari is filed under Rule 19.5, reliance upon that Rule shall be expressly noted and the cross-petition shall state the date of receipt of the petition for certiorari in connection with which the cross-petition is filed; (iv) The statutory provision believed to confer on this Court jurisdiction to re- view the judgment or decree in question by writ of certiorari, , 5. The failure of a petitioner to present with accuracy, brevity, and clearness whatever is essential to a ready and adequate understand- ing of the points requiring consideration will be a_ sufficient reason for denyin is petition. (Emphasis supplie The threshold inquiry necessary to the disposition of every case that comes before the Supreme Court is the source of this * Court's jurisdiction. See Brown Shoe Co. v. United States, 370 U.S. 294, 305-06 (1962). ~ ee es eee each ae Sede 0 Pa ieee r es: NE Na sage ag a es ES Rel aS OR a iia a Ne AER Ly, she ¢ ; Ye embodied i Fase This principl aaa ih. tet EY Bis) found in Missouri's armed criminal statute. Sours v. State, 603 S.W. 24 at 593. | The Michigan Supreme Court, in Wayne County Prosecutor =: Recorder's Court Judge, 406 Mich. 374, 280 N.W. 2d 794 (1979), held, in essence, that the Michigan felony firearms statute created a separate and distinct crime from the underlying felony so that the two (2) offenses were not the same. This is contrary to the Missouri Supreme Court's holding that, based on state law, the armed criminal action statute and robbery first degree by means Of a dangerous and deadly weapon are the same offen e. The construction of the armed criminal action statute by the Missouri Supreme Court is binding upon this Court because the United States Supreme Court lacks jursidiction to construe state laws. United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, rehearing denied, 403 U.S. 924 (1971); Coleman v. Alabama, 399 U.S. 1 (1970). As was stated in Memorial Hospital v. Maricopa County, supra at 256, "(I)t is not our function to construe a state statute contrary to the construction given it by the highest court of a state. See also, O'Brien v. Skinner, supra. It is of no import that the Sours court went on to also base its decision on federal constitutional grounds. It is undoubtedly “'the settled rule that where the judgment of a state court rests upon two grounds, one of which, is federa]. and the other non-federal in character, our jurisdiction fails is the non-federal ground is independent of .the federal ground and adequate to support the judgment. ‘Fox Film Corporation v. Muller, 296 U.S. 207, 210, (80 L.Ed. ’ Cramp v.-Board of Public Instruct §.Ct. oSOe ° ion, 368 U.S. 278, 281 Jankovich v. Indiana Tol). Road Company, 379 U.S. 487 (1965). _ In the same manner, the writ of certiorari shovld not issue in In Jankovich, the Indiana Supreme Court invalidated a city: ordinance a& authorizing an unconstitutional taking without compensation. The decision was based upon both the Indiana con- stitution and the United States Constitution, This Court held that the ruling was based upon adequate state grounds and there- fore dianiseed the writ of certiorari as improvidently granted. the case at hand. 4 : The Missouri Supreme Court based its decision on adequate, independent state grounds. This is not a case .. . where the lower court opinion as a whole “leaves the impression that the court probably felt constrained to rule as it did because of (decisions applying the 14th Amendment) ," Minnesota v. National Tea Company, supra, 309 U.S. at 554-555, 64 L.Ed. at 922, OF | Bnele it felt under complusion of federal law as enunciated by this Court so to hold,” Mississippi ex rel. Southern Railroad Company v. Mayfield, 340 U.S. 1, 5, 95 L.Ed. 3, 8, 71 S.Ct. Le arth the result that the state and federal grounds are "so interwoven that we are unable to conclude that the judgment rests upon an independent interpretation of the state law," State Tax Commissioner v. Van Catt, 306 U.S. 511, 514, 83 L.Ed. 950, 952, 29 S.Ct. 605. Jankovich, supra, at 443, In order to follow the established practice of avoiding con- stitutionai decisions where possible, United States v. Simpson, 435 U.S. 6 (1978), the writ of certiorari should not issue because the lower court's decision is stpported by adequate state grounds. The Supreme Court's power “is to correct wrong judgments, not to revise opinions." Zacchini v. Scripp-Howard Broadcasting Company, 433 U.S. 562, 53 L.Ed. 2d 965, 970 (1977). Finally, this Court's summary dismissal of Brintley v. Michigan, © supra, does not require the granting of the petition for certiorari in this case, as Petitioner suggests. An unexplicated dispusition of a lower court's decision settles the case for the parties but does not necessarily determine the validity of the lower court's reasoning as expressed in its opinion, Mandel v. Bradley, 432 U.S. 173 (1977). Brintley, supra, presented the question whether separate convictions and consecutive sentences for both a felony and for felony firearm violate the Michigan and the United States : constitutional prohibitions against double jeopardy. The federal constitutional issue was never reached, however, for the case was decided as a matter of Michigan's highest court construing its . own statute in light of its own laws. Michigan is entitled to reach a decision different from that reached by Migsouri and the principle | involved in the two cases remains unchanged -- since the decisions ~ were reached by ruling upon adequate, independent state grounds, a ae a ee ee and ¥ ~ DE Ae RE EE ON, eee ads gee ee rn there ts no substantial fcderal question. # ; : “This Court's recent decision in Albernaz v. United s . No. .79-1709 (March 9, 1981), does not dictate a contrary result with respect to the issues raised herein. The holding in Albernaz jon was based on the finding of the Suprere Court ‘that the statutes in question represented two (2) separate offenses. Justices Stewart, Marshall, and Stevens, who joined in the majority opinion in whafen, supra, concurred in the judgment in Albernaz, supra, stating that a legislature may not provide cumulative sentences for the same : crime. ‘ Thus, the result reached by the Missouri Supreme Court in Sours II, remains unchanged by the holding in Albernaz. CONCLUSION For the foregoing reasons, the Petition for Writ of Certiorari should not be granted. ‘Respectfully submitted, or Y Attorney-at-Law Missouri Bar No. 27345 Municipal Courts Building 1320 Market Street St. Louis, Mo. 63103 Attorney for Respondent ee ee a ee gt eee ee, Oe, TE ee ae er es > Re pee eo Sees Puy | 5 need da en OC erry Vad OF aS Gee . Rule 21 The Petition for Certiorari 1. The petition for writ of certiorari shall contain, in the order here indicated: (a) The questions presented for review, expressed in the terns and circumstances of the case but without unnecessary detail. The statement of the questions should be short and concise and should not be argumen- tative or repetitious. The statement of a question pre- sented will be deemed to comprise every subsidiary ques- tion fairly included therein. Only the questions set forth in the petition or fairly included therein will be considered by the Court. (b) A list of all perties to the proceeding in the court whose judgment is sought to be reviewed, except where the caption of the case in this Court contains the names of all parties. This listing may be done in a footnote. (c) A table of. contents and table of authorities, if ‘required by Rule 33.5. (dad) A reference to the official and unofficial reports of any opinions delivered in the courts of administrative agency below. (e) A concise statement of the grounds on which the jurisdiction of this Court is invoked showing: (i) The date of the judgment or decree sought to be reviewed, in the time of its entry; (ii) The date of any order respecting a rehearing, and the date and terms of any order gcanting an . extension of time within which to petition for cer- tiorari; and (iii) Where a cross-petition for writ of certiorari is filed under Rule 19.5 reliance upon “that Rule shall be expressly noted and the cross-petition shall © state the date of receipt of the petition for certi- orari in connection with which the cross-petition. *“S 3° “is filed; (iv) The statutory provision believed to confer on this Court jurisdiction to review the Sudpeant or” decree in question by wait of bak eickeck: (f£) The constitutional provisions, treaties, statutes, Ordinances, and regulations which the case involved, set- , ting them out verbatim, and giving the appropriate cita- tion therefor. If the provisions involved are lengthy, their citation alone will suffice at this point, and their. pertinent. text then shall he set forth in the appendix: referred to in subparagraph 1 (k) of this Rule, (g) A concise statement of the case containing the facts material to the consideration of the questions presented. (h) If review of the judgment of a state court is sought, the statement of the case shall also specify the state in the proceedings, both in the court of first instance and in the appellate court, at which the federal questions sought to be reviewed were raised; the method or manner of raising them and the way in which they were passed upon by the court; such pertinent quotation of specific por- tions of the record, or summary thereof, with specific reference to the places in the record where the matter appears (e€.g., ruling on exception, portion of court's charge and exception thereto, assignment of errors) as will show that the federal question was timely and properly raised so as to give this Court jurisdiction to review the judgment on writ of certiorari. Where the portions of the record relied upcn under this subparagraph are voluminous, they shall be included ‘ny the appendix referred to in subparagraph 1 (k) of.this Rule. e (i) If review of the judgment of a federal court is 4 sought, the statement of the case shall also show the basis for federal “poche 3 in the court of first instance. 7 ig : rs es P i a oka Kept, 2D) Pea The wie ee 2s * (j) A direct and concise argument amplifying the rea- sons (k) If what is required by this paragraph or by subparagtapbs 1(f) and is voluminous, it may, if more convenient, be separately presented. 2. The petition for writ of certiorari shall be produced in conformity with Rule 33. The Clerk shall: not accept any petition for writ of certiorari that does not comply with this Rule and with Rule 33, except that a party proceeding in forma pauperis may proceed in the manner provided in Rule 46. 3. All contentions in support of a petition for writ of cer- tiorari shall be set forth in the body of the petition, as pro- , Peet, ae ee Bib 3 : é. | a ie en ee. ae ee ee ee ee ae eer, relied on for the allowance of the writ. See Rule 17. An appendix containing, in the following order: (i) Copies of any opinions, orders, findings of fact, and conclusions of law, whether written or oral (if recorded and transcribed), delivered upon the render- ' ing of the judgment or decree by the court whose decision is sought to ve reviewed. (ii) Copies of any other such opinions, orders, find- ings.of fact, and conclusions of law rendered by courts or administrative agencies in the case, and, if refer- ence thereto is necessary to ascertain the grounds of the judgment or decree, of those in companion cases. Each of these documents shall include the caption showing the name of the issuing court or agency and ‘ the title and number of the case, and the date of its entry. (iii) A coer of the judgment or decree sought to be reviewed and any order on rehearing, including in each the caption showing the name of the issuing court or agency, the title and number of the case, and the date of entry of the judgment, decre@, or order on rehearing. x (iv) Any other appended materials. (h) of this Rule, to be included in the petition 27 beh Be we Tet ed vided in subparagraph 1 (j) of this Rule. No separate bricf in support of a petition for a writ of certiorari will be received, and the Clerk will refuse to file any petition for a writ of cer-- tiorari to which is annexed or appended any supporting brief. 4. The petition for writ of certiorari shall be as short as possible, but may not exceed 30 pages, excluding the subject index, table of authorities, any verbatim quotations required _ by subparagraph 1 (f) of this Rule, and the appendix. 5. The failure of a petitioner to present with accuracy, brevity, and clearness whatever is essential to a ready and ade- guate understanding of the points requiring consideration will be a sufficient reason for denying his petition. — 7 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1346%3A4. Public record. Not legal advice.