Amicus Curiae Brief — Maleng v. Cook

inayat 1999

No. 88-357 JA 3

a er 0b, JR.

CLE SK

IN THE bees

Supreme Court of the United States

OCTOBER TERM. I988

NORM MALENG. King County Prosecuting Attorney; AMOS

E. REED. Secretary of the Washington State Department of

Social & Health Services; KENNETH O. EIKENBERRY, Attorney

General.

Petitioners,

MARK EDWIN COOK.

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF THE NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION AS AMICUS CURIAE

ALAN RAPHAEL

Counsel of Record

Loyola University of Chicago

School of Law

| East Pearson Street

Chicago, Illinois 60611

(312) 670-2935

National Legal Aid and

Defender Association

1625 K Street N.W.

8th Floor

Washington, D.C. 20006

Page

TABLE OF AUTHORITIES .... ii

STATEMENT OF INTEREST OF

AMICUS CURIAE * . >. . >. * . . i

STATEMENT. «. © © © © © © © »@ 3

INTRODUCTION AND SUMMARY

OF ARGUMENT. . .. ++ «© « « 4

ARGUMENT

I. THE NINTH CIRCUIT CORRECTLY

REVERSED THE TRIAL COURT'S

DISMISSAL FOR LACK OF SUBJECT

MATTER JURISDICTION BECAUSE MR.

COOK WAS IN CUSTODY WHEN HE

FILED HIS PETITION FOR HABEAS

CORPUS ...+«++-+e++ee 8

II. THIS COURT SHOULD CONTINUE TO

LIMIT THE COLLATERAL USE OF

INVALID PRIOR CONVICTIONS TO

ENHANCE PUNISHMENT FOR A

SUBSEQUENT OFFENSE. .. . 11

III.THIS COURT SHOULD FOLLOW THE

HOLDINGS OF THE VAST MAJORITY

OF CIRCUITS WHICH ALLOW HABEAS

CORPUS JURISDICTION TO

CHALLENGE A PRIOR FULLY SERVED

SENTENCE USED TO ENHANCE A

LATER CONVICTION. ... . 15

CONCLUS ION >. 7 >. > . >. * . > * 25

Cases

Anderson v. Smith, 751 F.2d 96

(2nd cir. 1984) > * > * > > Ll -15,

Aziz v. Leferve, 830 F.2d 184

(llth Cir. 1987) ..... :

Burgett v. Texas, 389 U.S. 109

Di i ate o- 6 « ¢ «6 © 0 Ve

12, 13

, 406 F.2d

Cappetta v. Wainwright

1238 (Sth Cir.), cert. denied,

396 U.S. 846 (1969). ....

Carafas v. LaValee, 391 U.S.

234 (1968) . 2. 2 ee ee eee

, 847 F.2d 616

Cook v. Maleng

(9th Cir.), cert. granted, 109

S. Ct. 363 (1988). ......

Cotton v. Mabry, 674 F.2d 701

(8th Cir.), cert. denied, 459

U.S. 1015 (1982) .......

, 458 F.2d 1131

(Sth Cir. 1972). ...+++6+-s

Easterling v. Wilkins 303 F.2d

883 (2nd Cir. 1962)......

Gideon v. Wainwright, 372 U.S.

DTM « 6 6 @ ¢ ¢ © ¢ e «

ii

PAGE

17, 18

15

8, ll,

17

7, 21

17

18

11

PAGE

Hanson v. Circuit Court, 591 F.2d

404 (7th Cir.), cert. denied, 444

U.S. 907 (1979). ... 23

Harris v. Ingram, 683 F.2d 97

EM: « « © « ¢ © ¢ 22, 23

Harrison v. Indiana, 597 F.2d

115 (7th Cir. 1979). .... . 15, 18, 19

Harvey v. South Dakota, 526 F.2d

840 (8th Cir. 1975), cert. denied

426 U.S. 911 (1976). .... "21

Vv j .

411 U.S. 345 (1973)... .. .6, 7, 9, 22

Jackson v. Louisiana , 452 F.2d

451 (5th Cir. 1971)...... 17

Jones v. Cunningham, 371 U.S.

Ds «62 os 6 6 « 6 « « ..

Lewis v. United States, 445 U.S.

De « < @ 6 © ¢ © ¢ e ¢ 12

, 435 F.2d 1214

(34 Cir. 1970) . ..-. .... 15, 19, 20

Noll _v. Nebraska, 537 F.2d 967

Sem Gab. BOVGde 2 © ce co 23

Peyton v. Rowe, 391 U.S. 54

(1968) . >. . >. . . . . . . >. . 10

Preisery. Rodrigues, 411 U.S.

475 (1973)... : — 6, 11

iii

PAGE

Thacker v. Garrison, 527 F.2d 1006

(4th Cir. 1975) o a — — . > _ . 24

Thacker v. Peyton, 419 F.2d 1377

(4th Cir. 1969) . . . . . . . . 15, 23

Townsend v. Burke, 334 U.S. 736

(1948) >. >. e o _ >. > . > — _ 7 12

Tucker v. Peyton, 357 F.2d 115

(4th Cir. 1966). . . 2. ss - 24

United States ex rel. Durocher v.

LaVallee, 330 F.2d 303 (2nd Cir.)

(en banc), cert. denied, 377 U.S.

998 (1964) . . > . >. >. > . 18

United States v. Morgan, 346 U.S.

502 (1954) o > . >. . >. . > . . 4, 14

United States ex rel. Di Rienzo_

, 423 F.2d 224

v. New Jersey

(3d Cir. 1970) . > >. > .* >. > >. 20

United States v. Tucker, 404 U.S.

443 (1972) . . . . . . . > o 4, 7, 8, 12

Ward v. Knoblock, 738 F.2d 134

(6th Cir. 1984), cert. denied, 469

U.S. 1193 (1985)... . ‘ 24

Williams v. Coiner, 392 F.2d 210

(4th Cir. 1968) ....... 23

, 821 F.2d 1133

Young v. Lynaugh

(Sth Cir.), cert. denied, 108

= Y errr 15, 16

iv

Statutes

28 U.S.C.

28 U.S.C.

§ 2241)c).

§ 2254

PAGE

19

No. 88-357

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

NORM MALENG, King County Prosecuting

Attorney; AMOS E. REED, Secretary of the

Washington State Department of Social &

Health Services; KENNETH 0. EIKENBERRY,

Attorney General,

Petitioner,

MARK EDWIN COOK,

Respondent.

ON WRIT CF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF THE NATIONAL LEGAL AID

AND DEFENDER ASSOCIATION AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

STATEMENT OF INTEREST OF _

AMICUS CURIAE

The National Legal_Aid and Defender

Association (NLADA) is a private, non-

profit organization located in

Washington, D.C., whose purpose is to

ensure the availability of quality legal

services in civil and criminal cases to

all persons unable to retain counsel.

NLADA has a membership of 2,300 legal aid

and defender offices employing

approximately 25,000 professionals and,

in addition, over 1,000 individual

members. The membership of NLADA includes

most public defender offices and legal

service agencies in the nation, as well

as assigned counsel plans and individual

practitioners.

Accordingly, NLADA is vitally

interested in ensuring that indigent

habeas corpus petitioners will continue

to have access to the federal courts to

challenge unconstitutionally obtained

convictions, including convictions used

to enhance later sentences. Counsel for

each of the parties to this case has

consented in writing to the filing of an

amicus curiae brief on behalf of the

NLADA.

STATEMENT

Petitioner, Mark Edwin Cook, was

convicted of armed robbery in 1958. In

1976, Mr. Cook was convicted of

Washington state crimes. In imposing

sentence in 1978, the Washington trial

court lengthened Mr. Cook's minimum

sentence by two and one-half years

because of his prior convictions.

In his petition for habeas corpus, Mr.

Cook alleged that his 1985 conviction was

invalid because he never received a

competency hearing which had been ordered

by the trial court. He claims that a

determination that his 1958 conviction

was unconstitutional would result in a

reduction of his 1978 sentence.

The district court found no

jurisdiction to consider the challenge to

the 1958 conviction. The United States

Court of Appeals for the Ninth Circuit

reversed. This Court granted certiorari

to address whether a district court has

subject matter jurisdiction over a § 2254

challenge to a prior fully-served

conviction used to enhance a subsequent

unrelated state sentence.

This Court has consistently held that

federal district courts have habeas

corpus jurisdiction to review a

prisoner's constitutional challenge to a

fully served conviction which lengthened

the sentence currently being served. See

United States v. Tucker, 404 U.S. 443,

448 (1972); United States v. Morgan, 346

U.S. 502, 512 (1954). Mr. Cook's

petition presents a compelling case for

habeas corpus relief because the minimum

duration of his 1978 Washington sentence

was increased by several years as a

result of his 1958 conviction. Cook v.

Maleng, 847 F.2d 616, 617 (9th Cir.),

cert. granted, 109 S. Ct. 363 (1988).

The increase in the minimum term on the

1978 sentence requires that the federal

court review his challenge to the 1958

conviction.

The instant petition falls squarely

within the traditional scope of habeas

corpus jurisdiction. The federal habeas

corpus statute requires that the

applicant must be "in custody" when the

application for habeas corpus is filed.

28 U.S.C. § 2241(c), 28 U.S.C. § 2254.

The custody requirement of the statute is

designed to preserve the writ of habeas

corpus as a remedy for severe restraints

on individual liberty. Hensley v.

Municipal Court, 411 U.S. 345, 352

(1973). In the present case, the

additional time Mr. Cook will spend in

prison as a result of the 1958 conviction

is a severe restraint on his individual

liberty.

Both the language of the statute and

the common law history of the writ reveal

that the essence of habeas corpus is an

attack by a person in custody upon the

legality of that custody, and that the

traditional function of the writ is to

secure release from illegal custody.

Preiser v. Rodriguez, 411 U.S. 475, 485

(1973).

In the present case, this Court need

not expand the limits of the "in custody"

requirement. See Hensley v. Municipal

Court, 411 U.S. 345 (1973) (custody found

for petitioners released on bail);

Carafas v. LaValee, 391 U.S. 234 (1968)

(custody found for petitioners released

during habeas review); Jones v.

Cunningham, 371 U.S. 236 (1963) (custody

found for petitioners serving a term of

parole). Mr. Cook's petition presents a

clear-cut case of custody resulting from

an earlier sentence which, if invalid,

prolongs illegally his stay in prison.

See United States v. Tucker, 404 U.S.

443, 448 (1972). See also Burgett v.

Texas, 389 U.S. 109, 115 (1967).

Because the use of a prior,

unconstitutional sentence to enhance a

subsequent sentence revives the earlier

violation of the accused's constitutional

rights, the federal courts should retain

habeas corpus jurisdiction to review such

enhanced sentences.

I. THE NINTH CIRCUIT CORRECTLY REVERSED

THE TRIAL COURT'S DISMISSAL FOR LACK

OF SUBJECT MATTER JURISDICTION BECAUSE

PETITIONER WAS IN CUSTODY WHEN HE

FILED HIS PETITION FOR HABEAS CORPUS.

The minimum duration of Mr. Cook's

1978 Washington sentence was increased by

several years because of his 1958

conviction. As a result, the federal

district court has jurisdiction over his

challenge to the constitutionality of his

1958 conviction. If the prior conviction

was obtained unconstitutionally, then the

sentence imposed for the 1978 conviction

was improperly long, an error clearly

appropriate for habeas corpus relief.

See United States v. Tucker, 404 U.S.

443, 448 (1972); see also Burgett v.

Texas, 389 U.S. 109, 115 (1967). As the

United States Court of Appeals for the

Ninth Circuit recognized in this case,

habeas corpus jurisdiction extends to

only a limited class of fully served

prior convictions:

{wje do not hold that jurisdiction

afforded by section 2254(a) extends to

all constitutional challenges to prior

convictions upon a showing of some

unfavorable collateral consequence

flowing from the challenged

conviction. The question presented

for our decision is a narrow one,

namely, whether the custody

requirement for habeas corpus relief

is satisfied where a prisoner's prior

conviction, although expired, is used

to enhance the sentence on a current

or future term. We conclude the

custody requirement is satisfied in

such a case. Where the state uses a

prior conviction to enhance a present

or future sentence, fairness requires

that such restraints on individual

liberty be justified.

Cook v. Maleng, 847 F.2d 616, 619 (9th

Cir. 1988), citing Hensley v. Municipal

Court, 411 U.S. 345, 350-351 (1973).

Amicus curiae asserts that habeas corpus

petitioners are entitled to relief when a

fully-served sentence resulting from an

unconstitutionally obtained conviction

causes a separate conviction or sentence

to be enhanced. Recognizing this right

serves the core purpose of habeas corpus:

preventing illegal detention of an

individual.

In Peyton v. Rowe, 391 U.S. 54 (1968),

this Court held that a prisoner may

attack on habeas corpus the second of two

consecutive sentences while still serving

the first. The Peyton Court indicated

that the federal habeas corpus statute

"does not deny the federal courts power

to fashion appropriate relief other than

immediate release." Id. 391 U.S. at 66.

Such relief is required not only when a

prisoner seeks immediate discharge from

confinement but also when he seeks to

diminish the length of that sentence.

10

See Preiser v. Rodriguez, 411 U.S. 475,

483 (1973) (habeas corpus and not § 1983

is the sole federal remedy to challenge

duration of imprisonment when relief

sought is speedier release).

II. THIS COURT SHOULD CONTINUE TO LIMIT

THE COLLATERAL USE OF INVALID PRIOR

CONVICTIONS TO ENHANCE PUNISHMENT FOR

A SUBSEQUENT OFFENSE.

This Court has held consistently that

an invalid prior conviction may not be

used to enhance a subsequent conviction.

There is no persuasive reason to abandon

this rule. In Burgett v. Texas, 389 U.S.

109 (1967), this Court held that a prior

felony conviction, invalid because of a

violation of the right to counsel as

enunciated in Gideon v. Wainwright, 372

U.S. 335 (1963), could not be used to

support guilt under an enhancement

statute. The Burgett Court concluded

that the use of an unconstitutional prior

11

conviction “either to support guilt or

enhance punishment" revives the violation

of the accused's constitutional rights.

Burgett, 369 U.S. at 115. See also Lewis

v. United States, 445 U.S. 55, 60 (1980).

In United States v. Tucker, 404 U.S.

443 (1972), this Court held that

uncounseled prior convictions could not

be used as factors in sentencing for a

subsequent offense. In Tucker, the

habeas corpus petitioner was sentenced in

federal court on the basis of two fully

served convictions regarding which he had

been denied the right to counsel. This

Court stated that a sentence must not be

based on "misinformation of a

constitutional magnitude." Tucker, 404

U.S. at 448. Accord Jones v. Cunningham,

371 U.S. 236, 243 (1963). See also

Townsend v. Burke, 334 U.S. 736 (1948)

12

(prisoner was sentenced on the basis of

assumptions concerning his criminal

record which were materially untrue).

Like the sentence in Tucker, Mr. Cook's

current sentence was in fact enhanced by

a prior, fully-served conviction.

The requirement of both Burgett and

Tucker is that a habeas corpus

petitioner, in custody as a result of an

enhanced sentence, must not have his or

her sentences determined on the basis of

prior unconstitutionally obtained ‘

conviction. Because the use of a prior

unconstitutional sentence to enhance a

subsequent sentence revives the earlier

violation of the accused's constitutional

rights, the federal courts should retain

habeas corpus jurisdiction to review such

enhanced sentences. See Burgett v.

Texas, 389 U.S. 109, 115 (1967).

13

In a case nearly identical to the case

at bar, this Court granted a writ of rit. THIS COURT SHOULD FOLLOW THE

HOLDINGS OF THE VAST MAJORITY OF

error coram nobis to a petitioner CIRCUITS WHICH ALLOW HABEAS

CORPUS JURISDICTION TO CHALLENGE

sentenced as a recidivist on the basis of A PRIOR FULLY SERVED SENTENCE

USED TO ENHANCE A LATER

a fifteen-year-old fully served CONVICTION.

conviction. United States v. Morgan, 346 The vast majority of appellate courts

U.S. 502 (1954). The Court stated: which have considered the enhancement

Although the term has been served, issue have held that there is habeas

the results of the conviction may

persist. Subsequent convictions may corpus jurisdiction for prisoners to

carry heavier penalties, civil rights ;

may be effected. As the power to attack a prior fully-served conviction

remedy an invalid sentence exists, we

think, respondent is entitled to an used to increase the severity of charges

opportunity to attempt to show that

this conviction was invalid. or sentences. Aziz v. Leferve, 830 F.2d

Morgan, 346 U.S. at 512-13. 184 (11th Cir. 1987); Young v. Lynaugh,

In Morgan, the district court had 821 F.2d 1133 (Sth Cir.), cert. denied,

jurisdiction because the prior sentence 108 S. Ct. 503 (1987); Anderson v. Smith,

enhanced the later conviction. Id. at 751 F.2d 96 (2nd Cir. 1984); Thacker v.

503-04. The case at bar presents a Peyton, 419 F.2d 1377 (4th Cir. 1969).

similar case for jurisdiction. See also Harrison v. Indiana, 597 F.2d

115 (7th Cir. 1979); Lyons v. Brierly,

435 F.2d 1214 (3d Cir. 1970).

14 15

In a decision involving the same issue

as the instant case, the Fifth Circuit

held that a petitioner is "in custody" to

attack a prior fully-served offense used

to enhance a later sentence. In Young v.

Lynaugh, 821 F.2d 1133 (5th Cir. 1987),

the petitioner challenged a 1963

conviction allegedly involving an

improper and uncounseled guilty plea

which resulted in his receiving a life

sentence in 1978 as a habitual offender.

The Court of Appeals stated that "in

custody" for jurisdiction does not

necessarily mean “in custody for the

offense being attacked." Young, 821 F.2d

at 1137. The Young court held that a

federal district court has jurisdiction

when there is "a positive and

demonstrable nexus between a petitioner's

current custody and the allegedly

16

~— =

unconstitutional conviction." Id. See

Craig v. Beto, 458 F.2d 1131, 1134 (5th

Cir. 1972) (petitioner in custody if

serving enhanced sentence at time of

filing petition); Jackson v. Louisiana,

452 F.2d 451, 452 (5th Cir. 1971) (same);

Cappetta v. Wainwright, 406 F.2d 1238,

1239 (5th Cir.), cert. denied, 396 U.S.

846 (1969) (petitioner in custody if

prior conviction delayed start of a later

conviction).

In Anderson v. Smith, 751 F.2d 96 (2d

Cir. 1984), the Court of Appeals found

jurisdiction for a challenge to a fully-

served sentence for possession of

weapons, alleged to have been based on a

Fifth Amendment violation, which could

have lengthened a contemporaneous felony

murder sentence. The habeas corpus

petition was filed more than four years

17

after the completion of the sentence for

illegal possession of weapons. Anderson,

751 F.2d at 190. See also United States

ex rel. Durocher v. LaVallee, 330 F.2d

303, 306 (2d Cir.) (en banc), cert.

denied, 377 U.S. 998 (1964) (petitioner

confined as recidivist, whose sentence

might be reduced if successful in

attacking fully-served convictions is in

custody); Easterling v. Wilkins, 303 F.2d

883, 884 (2nd Cir. 1962) (same).

In Harrison v. Indiana, 597 F.2d 115

(7th Cir. 1979), the Seventh Circuit held

that a prisoner confined pursuant to one

conviction may attack the validity of a

separate, prior conviction if it prolongs

the period of his confinement. In

Harrison, an invalid 1966 conviction

postponed the beginning of petitioner's

1971 sentence. 597 F.2d at 116. Tae

18

Harrison court stated that the invalid

sentence would unlawfully prolong the

restraint on petitioner's liberty, so

that he was effectively "in custody” on

the earlier conviction. Id. at 116-17.

Thus, Harrison was found to be "in

custody” for purposes of federal habeas

corpus jurisdiction. Id. at 117.

Accord Lyons v. Brierly, 435 F.2d 1214,

1215-16 (3d Cir. 1970) (petitioner in

custody to challenge validity of fully-

served sentence which petitioner had been

required to complete and which thereby

postponed commencement of a later

sentence).

In the present case, Mr. Cook does not

seek any expansion of the meaning of the

"in custody” jurisdictional requirement

of 28 U.S.C. § 2254 for habeas corpus

relief. As the Third Circuit indicated

19

in finding jurisdiction in a similar

case:

we do not deal with the outer limits

which the "in custody” requirement

places on jurisdiction to entertain

writs of habeas corpus. Here the

earlier sentence which is under attack

directly and indubitably affects the

duration of petitioner's confinement

under the second sentences. This is a

clear cut case of custody resulting

from an earlier sentence which if

invalid prolongs illegally

petitioner's stay in prison.

Lyons, 435 F.2d at 1215-16. Accord

United States ex rel. Di Rienzo v. New

Jersey, 423 F.2d 224 (3d Cir. 1970).

The cases cited by the State of

Washington in support of a contrary rule

are not persuasive. The court in Cotton

v. Mabry, 674 F.2d 701 (8th Cir. 1982),

cert. denied, 459 U.S. 1015 (1982), ruled

that a petitioner was not in custody to

challenge a prior conviction even if that

conviction prolonged two present

sentences. The Cotton court erroneously

20

relied on Harvey v. South Dakota, 526

F.2d 840, 841 (8th Cir. 1975), cert.

denied, 426 U.S. 911 (1976), for the

proposition that "[t)he collateral

consequences of conviction only kept the

case from becoming moot; they did not

suffice to give the federal courts

jurisdiction." Cotton, 674 F.2d at 703.

In fact, the petitioner in Harvey merely

challenged a fully served sentence, not

one used to enhance a later sentence.

526 F.2d at 841. Thus the Harvey

petitioner was not in custody and this

Court's decision in Carafas v. LaValee,

391 U.S. 234 (1968), was fully

dispositive of the issue. Carafas held

that a prisoner is in custody if the

petition was filed before his or her

release from prison or parole. 391 U.S.

at 237-38. Because the petitioner in

21

Harvey Was no longer in custody when he

filed his habeas corpus petition, the

district court lacked jurisdiction over

the petition.

Unlike the situation in Harvey, the

restraints on liberty in a case involving

enhancement are both severe and immediate

because the duration of present custody

continues to be determined by the prior

conviction. See Hensley v. Municipal

Court, 411 U.S. 345, 352 (1973).

The state cites Harris v. Ingram, 683

F.2d 97 (4th Cir. 1982), as support for

its proposition that custody is not

reestablished by the use of a fully-

served conviction to enhance a later

sentence. Harris, however, is concerned

with venue ar? not jurisdiction. The

Harris court held that a federal district

court in one state may not consider a

habeas petition challenging a prior

fully-served state conviction in that

state when the petitioner is imprisoned

in another state on an unrelated charge.

683 F.2d at 98. Both the decisions on

which Harris relied concerned the proper

venue to challenge a fully-served out-of-

state conviction used to enhance another

state's sentence. See Hanson v. Circuit

Court, 591 F.2d 404 (7th Cir.), cert.

denied 444 U.S. 907 (1979); Noll v.

Nebraska, 537 F.2d 967 (8th Cir. 1976).

Furthermore, the Fourth Circuit has held

consistently that a prisoner is in

custody for purposes of habeas corpus

jurisdiction to attack a fully served

sentence used to enhance a subsequent

conviction. See Thacker v. Peyton, 419

F.2d 1377 (4th Cir. 1969); Williams v.

Coiner, 392 F.2d 210 (4th Cir. 1968);

23

Tucker v. Peyton, 357 F.2d 115 (4th Cir.

1966). See also Thacker v. Garrison, 527

F.2d 1006 (4th Cir. 1975).

Finally, the State relies on Ward v.

Knoblock, 738 F.2d 134 (6th Cir. 1984),

cert. denied, 469 U.S. 1193 (1985), which

is not an enhancement case at all but

concerns collateral consequences in the

parole setting.

24

The judgment of the United States

Court of Appeals for the Ninth Circuit,

holding that the custody requirement for

habeas corpus jurisdiction was satisfied

when a petitioner's prior conviction,

although expired, was used to enhance his

current sentence, should be affirmed.

Respectfully submitted,

ALAN RAPHAEL

Loyola University of Chicago

School of Law

1 East Pearson Street

Chicago, Illinois 60611

(312) 670-2935

COUNSEL OF RECORD FOR AMICUS

CURIAE, National Legal Aid and

Defender Association

Dated: January 31, i989

25