Opposition Brief — Clarke v. Ross

Supreme Court, U.S,

FILED

JUN 6 1991

OFFICE OF THE CLERK

No. 90-1432

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

HAROLD W. CLARKE, THE WARDEN OF THE

NEBRASKA STATE PENITENTIARY, Petitioner,

Vv.

WELDON ROSS, Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Danene J. Tushar,

#18416

1227 Lincoln Mall, P.O. Box 81686

Lincoln, Nebraska 68501

(402) 475-4240

Counsel for Respondent

June 6, 1991

TABLE OF CONTENTS

QUESTIONS PRESENTED ce Se ee ie ee be eee ie

LIST OF PARTIES tum. es & 2 eo ele BAe Oe ee ee

TABLE OF AUTHORITIES ..... «+ « 6 © © © © © © «

OPINIONS BELOW ...+ +++ « © © © © © © © © © «6

JURISDICTION .. +++ 2 © © © © © © © © © © © ©

CONSTITUTIONAL PROVISIONS INVOLVED .....+.6-s

STATEMENT OF THE CASE “a ok oe ee oh oe A ee, ee ee a

a a ee a ee ee oe ee ee Me oe oe ee ee ee a

I. THE QUESTION WHICH IS THE SUBJECT OF THIS

PETITION FOR WRIT OF CERTIORARI IS MOOT

II. THE BETTER REASONED DECISIONS HOLD THAT

A DEFENDANT UNABLE TO MAKE BAIL DUE TO

INDIGENCY IS ENTITLED TO CREDIT FOR

“ TIME SERVED PRIOR TO SENTENCING REGARDLESS

OF WHETHER THE SENTENCE IMPOSED IS LESS

THAN THE STATUTORY MAXIMUM FOR THE OFFENSE

CONCLUS ION * . . . . * . . * . + 7 . 7 . . . . * *

11

vd

QUESTIONS PRESENTED

i. Whether the question which is the subject of this

Petition for Writ of Certiorari is moot as the respondent Weldon

Ross served his full sentence and was discharged on December 13,

1990.

2. Whether or not there is a Fourteenth Amendment

constitutional right to credit for presentence incarceration, when

the prisoner is held for a bailable offense, the prisoner is unable

to make bail because of indigence, and upon conviction the prisoner

is sentenced to less than the statutory maximum and/or said

sentence in addition to the presentence incarceration time does not

exceed the statutory maximum sentence for such offense.

LIST OF PARTIES

Respondent accepts petitioner's list of parties.

ii

TABLE OF AUTHORITIES

CASES:

, 391 U.S. 234, 88 S.Ct. 1556,

20 L.Ed. 2d 554 (1968) . . o e . 7 . . 7 a . o .

Faye v. Gray, 541 F.2d 665 (7th Cir. 1976) ....

Johnson v. Prast, 548 F.2d 699 (7th Cir. 1977) ..

Johnson v. Riveland, 855 F.2d 1477 (10th Cir. 1988)

King v. Wyrick, 516 F.2d 321 (8th Cir. 1975) ...

Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71

Rr kg a we we 6 6 oS ee

404 U.S. 244, 248, 92 S.Ct.

402, 405, 30 L.Ed.2d 413 (1971) oe ot ee oe A

“Nn

, 392 U.S. 40, 88 S.Ct.

1989, 20 L.Ed.2d 917 (1968) “ek Se oe ae Ge ek ee

Vv , 219 U.S. 498,

31 S.Ct. 279, 55 L.Ed. 310 (1910) oe * + * 6 «

, 319 U.S. 41, 63

S.Ct. 910 87 L.Ed 1199 (1943) “Ne Say te ae tae Re ee

, 415 U.S. 452, 94 S.Ct. 1209,

10, 39 L.Ed.2d 505 (1974) ‘ie a Ce On ae ae a

Tate v. Short, 401 U.S. 395, 91 S.Ct. 668,

28 L.Ed.2d 130 (1971) “th 3 eo ee a: Oe oe ee oe ek ee ee

Vasquez v. Cooper, 862 F.2d 250 (10th Cir. 1988) .

Weinstein v Bradford, 423 U.S. 147, 149, 96 S.Ct. 347,

348, 46 L.Ed.2d 350 (1975) .. 2... «© « © « «

Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018,

26 L.Ed. 2d 586 (1970) . . . . . . . . . aa . . .

iii

OPINIONS BELOW

Respondent accepts petitioner's statement of the opinions in

the District Court and Court of Appeals.

iv

JURISDICTION

Respondent accepts petitioner's statement of Jurisdiction.

CONSTITUTIONAL PROVISION INVOLVED

All persons born or naturalized in the United States and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make

or enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection

of the laws.

U.S. Const. Amend. XIV, § 1.

vi

ARGUMENT

I.

THE QUESTION WHICH IS THE SUBJECT OF THIS PETITION FOR WRIT OF

CERTIORARI IS MOOT.

As correctly set forth by Petitioner Harold Clarke, the

Respondent Weldon Ross was discharged from the Nebraska State

Penitentiary and from the authority of the Nebraska Department of

Correctional Services on December 13, 1990, after satisfying his

full sentence. It is respondent's position that the United States

Supreme Court should not grant a writ of certiorari for this action

as there no longer remains a subject matter on which the judgment

of this Court could operate. See St. Pierre v. United States, 319

U.S. 41, 63 S.Ct. 910, 87 L.Ed 1199 (1943). Further, there are no

circumstances present which would allow this appeal to fall within

the exceptions to the mootness doctrine.

Petitioner Clarke argues that the analysis of Sibron v. State

of New York, 392 U.S. 40, 88 S.Ct. 1989, 20 L.Ed.2d 917 (1968), and

those relevant cases decided prior to Sibron, are applicable to the

question of whether the present action is moot. Clarke sets forth

two exceptions to the mootness doctrine as set forth in Sibron and

St. Pierre; namely that a state cannot thwait access to appellate

review until a prisoner has been released, then argue mootness, and

secondly, that penalties or disabilities can be imposed as the

result of a judgment which has been satisfied so that there would

remain a live controversy for review. Clarke concludes that the

present action is not moot as "[{i]}t cannot be clearly demonstrated

that there is no possibility that any legal consequences would be

1

imposed on the basis of the challenged conviction.” (Petition For

Writ at 14).

Decided after Sibron and not addressed by petitioner Clarke,

is Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508

(1982). In Lane, the defendants had pleaded guilty in state court

prosecutions for burglary but were not informed of the mandatory

parole tern. The defendants completed their sentences, were

paroled, then incarcerated once again for parole violations.

The Lane respondents filed habeas corpus actions alleging a

violation of due process because of the failure of the trial court

to advise him of the parole requirements. The court ordered

specific performance of the bargained sentences rather than

requiring that defendants plead their cases anew. Later, the

defendants were released from custody.

On appeal to the Supreme Court or the United States, the

former inmates pursued their claim that their constitutional rights

had been violated. However, this Court held that the question was

moot because the defendants chose to challenge the alleged

constitutional violation in a manner by which the consequence for

their harm would be removed, and in the course of their challenge,

the harm expired on its own. The Lane Court further provided that

"(njullification of a conviction may have important benefits for a

defendant ... but urging in a habeas corpus proceeding the

correction of a sentence already served is another matter." Id. at

631, 102 S.Ct. at 1327 (quoting North Carolina v. Rice 404 U.S.

244, 248, 92 S.Ct. 402, 405, 30 L.Ed.2d 413 (1971)).

The Lane Court also examined holdings of the previous Courts

in Carafas v. LaValle, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554

(1968), and Sibron, stating that the holdings of those cases were

inapplicable to the case before it because in Sibron, and in

Carafas, the underlying convictions were challenged, and the

permanence of such convictions held sufficient collateral effects

to keep the cases from being moot. The Lane Court further stated

that no civil disabilities such as those present in Carafas were in

existence in the case at hand.

Finally, the Lane Court held that the case before it was not

a case "capable of repetition yet evading review". Southern

Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283,

55 L.Ed. 310 (1910). The Lane Court stated that the Southern

Pacific doctrine is applicable only where there is a “reasonable

expectation that the same complaining party would be subject to the

same action again." Jd. at ___, 102 S.Ct. at 1328, (quoting

Weinstein v Bradford,423 U.S. 147, 149, 96 S.Ct. 347, 348, 46

L.Ed.2d 350 (1975)). The Court reasoned that the respondents would

be aware in the future that any sentence would include a mandatory

parole term, the problem of advising them in a plea would not again

present itself. The Court also concluded that "[(tjhe possibility

that other persons may litigate a similar claim does not save this

case from mootness." Jd.

In applying the analysis of Lane to the present action,

because Ross served his full sentence and was discharged, and due

to the fact that Ross attacked only the computation of his

ee a ee

sentence, there are no disabilities or adverse consequences which

would flow from having thie case declared moot. Thus, Ross urges

this Court to follow the reasoning in Lane, and declare the present

appeal moot.

Since Lane, this Court has not addressed a question of

mootness applicable to the present case. However relying on Lane,

the Tenth Circuit in Johnson v. Riveland, 855 F.2d 1477 (10th Cir.

1988), addressed a habeas corpus petition for jail time credit

prior to sentencing for a state prisoner who had been paroled. The

Tenth Circuit found that the case was moot, and remanded the same

with directions to dismiss for mootness.

In Johnson, the petitioner was a state prisoner who filed a

habeas corpus action asserting he was denied credit for time spent

in pretrial confinement for both sentences involving a maximum term

and a minimum term. Although the petitioner was paroled while his

habeas petition was pending in federal district court, the district

court, under the Equal Protection Clause, granted the requested

relief for both the maximum and minimum terms to which petitioner

had been sentenced.

As previously set forth, the Tenth Circuit on its own motion,

dismissed the appeal for mootness. The court, citing Steffel v.

Thompson, 415 U.S. 452, 459, n.10, 94 S.Ct. 1209, 1216 n.10, 39

L.Ed.2d 505 (1974), stated as follows:

A federal court's inability "to review moot

cases derives from the requirement of Article

III of the Constitution under which the

exercise of judicial power depends upon the

|

|

existence of a case or controversy."

| {citation omitted]. [F]ederal courts are

without power to decide questions that cannot

affect the rights of litigants in the case

before them." [citation omitted].

Id. at 1480. Further, the court noted that although discrimination

against indigents in sentencing was a matter of public interest,

the court could not "ignore the requirements of Article III under

which the exercise of judicial power depends upon the existence of

a case or controversy." Id.

In its analysis, the court reviewed other federal court

decisions relating to habeas challenges and mootness. Included in

its review, the Tenth Circuit examined the Carafas decision that

the end of a habeas petitioner's sentence did not terminate

jurisdiction because of the "disabilities and burdens" which could

flow from the conviction. The Tenth Circuit also reviewed the

holding in Lane wherein the petitioners' claims were moot for the

reason that they were only challenging their sentences, not their

convictions and were urging the "correction of a sentence already

served." Id. at-1481 (quoting Lane, supra at 631, 102 S.Ct. at

1327).

In holding that "Lane dictated dismissal of [the petitioner's]

claim regarding credit against the minimum sentence," the Tenth

Circuit stated as follows:

[The petitioner Johnson] is not challenging

his convictions or sentence, but only the way

that his minimum sentence was computed.

{citation omitted]. Johnson has already

served the minimum sentence as commuted and

has not shown any direct or collateral

consequences that will survive his release on

parole. [citation omitted]. Johnson's claim

for relief does not come within the exceptions

to the mootness doctrine. He is not

5

challenging the underlying conviction or

sentence, which even if completely served,

imposes collateral legal consequences and

disabilities. {citation omitted].

Additionally, Johnson's claim for post-parole

credit to be applied toward his minimum

sentence does not fit within the exceptional

cases which are not class actions but are

“capable of repetition, yet evading review."

Johnson has obtained parole and will not face

again the issue of serving the minimum

sentence which is determinative of an initial

parole date.

Id. at 1481-82.

The court, after addressing matters relating to the parole of

petitioner, concluded as follows:

We have no reason to doubt the State's

profession that Johnson's’ entitlement to

presentence credit against the maximum

sentence will be respected. Johnson does not

claim any impropriety in the manner in which

this credit has been calculated. Lacking any

basis for assuming the State will arbitrarily

revoke that which has been granted and

represented to this court as an unchallenged

issue, we find no live controversy warranting

a decision on the merits. Any future

relitigation of this issue between the parties

is unhindered if we vacate the district

court's judgment and remand with directions to

dismiss for mootness. [citation omitted].

Id. at 1484-85.

As set forth in Lane and Johnson, Ross did not challenge his

conviction, but only the computation of his sentence. Further, he

will not suffer any direct or collateral consequences from not

having the circumstances prompting his petition for habeas corpus

relief reviewed by this Court as he fully served his sentence and

there is née chance of being incarcerated on the offense for which

he fully served his sentence. Further, there is no reasonable

expectation that Ross will be arrested, held due to inability to

post bail because of indigency, sentenced to a term less than the

statutory maximum, and with a sentencing court refusing to grant

credit for the time served.

II.

THE BETTER REASONED DECISIONS HOLD THAT A DEFENDANT UNABLE TO MAKE

BAIL DUE TO INDIGENCY IS ENTITLED TO CREDIT FOR TIME SERVED PRIOR

TO SENTENCING REGARDLESS OF WHETHER THE SENTENCE IMPOSED I8 LESS

THAN THE STATUTORY MAXIMUM FOR THE OFFENSE.

Notwithstanding the issue of mootness, the petitioner is

requesting that this Court grant a Writ of Certiorari to review

whether the Eighth Circuit was correct in granting habeas corpus

relief to respondent Ross. Specifically, the petitioner challenges

whether Ross was entitled to credit for time served prior to

sentencing due to his indigency when he did not receive the

statutory maximum sentence for his offense.

In granting respondent Ross' claim for relief, the Eighth

Circuit relied on its holding in King v. Wyrick, 516 F.2d 321 (8th

Cir. 1975). (Appendix to Petition for Writ of Certiorari,

p.la). In King, an inmate in the state prison system initiated

a habeas corpus proceeding in which it was asserted that jail time

credit should have been awarded by the sentencing judge on two

concurrent prison sentences. The petitioner in King argued, inter

alia, that the denial of the credit was a denial of his equal

protection rights because a wealthier person would not have had to

serve the additional jail time due to the ability to post bail. In

its opinion, the King court first acknowledged that the rationale

of the decisions of the United States Supreme Court in Williams v.

7

Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and

Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971),

extended to credits for presentence jail time served due to an

inability to post bail. The Eighth Circuit then provided an

analysis of the Equal Protection Clause of the Fourteenth Amendment

and its application where the indigent prisoner is denied jail time

credit on a prison term which is less than the statutory maximum

term. The central point to this analysis was that an indigent

prisoner would have to spend a longer period of time incarcerated

than a wealthier prisoner able to post bail and avoid the same

incarceration. In so holding, the Eighth Circuit stated that its

result followed from the holding in Williams v. Illinois, in that

"the Equal Protection Clause of the Fourteenth Amendment requires

that the statutory ceiling placed on imprisonment for any

substantive offense be the same for all defendants irrespective of

their economic status." Jd. at 323 (quoting Williams v. Illinois,

399 U.S. 235, 244, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586).

Petitioner Clarke contends that the King court exceeded this

Court's decision in Williams v. Illinois, for the reason that there

is "not a constitutional right not to be subjected to imprisonment

beyond the statutory maximum solely because of indigence."

(Petitioner's Petitioner for Writ of Certiorari at 8-9).

Respondent Ross does not dispute that he received less than the

statutory maximum term for being sentenced as a habitual criminal

under the Nebraska statutes. Ross does dispute however, the

limited interpretation of Williams v. Illinois urged by Clarke

ignores the plain language set forth in Williams. As further

stated in Williams, 399 U.S. at 242, 90 S.Ct. 2018, 2023, 26

L.Ed.2d 586,

{[b)y making the maximum confinement contingent

upon one's ability to pay, the state has

visited different consequences on two

categories of persons since the result is to

make incarceration in excess of the statutory

maximum applicable only to those without the

requisite resources to satisfy the money

portion of the judgment.

The Williams court “simply held that when an indigent prisoner

would end up serving a prison term longer than the statutory

maximum, converting a fine into imprisonment works an ‘invidious

discrimination.'" Vasquez v. Cooper, 862 F.2d 250 (10th Cir. 1988)

(Logan, J., dissenting). Williams does not limit, as Clarke

contends, the availability of when an indigent person must receive

credit for time served prior to sentencing to sentences for the

statutory maximum term only.

Clarke also contends that the later holding of this Court in

Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971),

also limits jail time credits for indigent prisoners to when

prisoners receive the maximum sentence. As set forth in the

dissent to Vasquez v. Cooper, Tate can be analyzed as follows:

[The] question is not whether the defendant

always has a constitutional "right" to have

pre-conviction time credited against the

eventual sentence, but rather whether an

indigent defendant suffers invidious

discrimination in violation of the Equal

Protection Clause when the court expressly

refuses to credit pre-conviction incarceration

time even though a wealthier defendant could

have posted bail and thus would serve less

time in prison for the same offense than the

indigent defendant.

Id. at 257.

Respondent concedes that the Eighth Circuit holding in King v.

Wyrick conflicts with the holdings in certain other circuits which

have decided cases with similar issues. However, the Eighth

Circuit is joined by the Seventh Circuit in the case of Johnson v.

Prast, 548 F.2d 699 (7th Cir. 1977), in which it was held that the

Equal Protection Clause requires that a state sentencing judge

consider presentence custody in sentencing even though the total

time imposed does not exceed the statutory maximum tern. The

Seventh Circuit based its ruling in Johnson and its predecessor

case, Faye v. Gray, 541 F.2d 665 (1976), on the reasoning from

Williams v. Illinois, cited above.

The better reasoned decisions, which are based on the

decisions of this Court in Williams and Tate, simply provide that

a sentencing judge must grant the indigent defendant, who was

unable to post bail due to that indigency, credit for time served

prior to sentencing regardless of whether the sentence imposed was

less than the statutory maximum tern. The reason for this

requirement is that if such credit were not granted, an indigent

defendant would have spent more time incarcerated than a wealthier

defendant for the same offense and such differing treatment

violates the Ecial Protection Clause of the Fourteenth Amendment.

10

CONCLUSION

For the foregoing reasons, respondent Ross respectfully

requests this Court deny the Petition for Writ of Certiorari and

enter an Order for the same.

Respectfully submitted,

WELDON ROSS, Respondent,

BY: DANENE J. TUSHAR

His Attorney

1227 Lincoln Mall

P.O. Box 81686

Lincoln, Nebraska 68501

(402) 475-4240

BY: U/ML [eo terre

Danene J. Tushar -#18416

11