# Petition for Writ of Certiorari — Myers v. Gockley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0278%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 404 U.S. 1063 ## Text LIBRARY SUPREWviE COURT, U. S$ in the Supreme njted States Supreme Court, U.S. FILED NOV 6. 197) VER, CLERK the No. —— Term, 1971 vd 1 " 627 DAVID N. MYERS, Superintendent State Cor- rectional Institution, Graterford, Pennsylvania, VS. Petitioner UNITED STATES OF AMERICA ex rel. EDWIN GOCKLEY PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT RoBert L. VANHOOVE, District County, GRANT E. WESNER, Attorney, Berks Deputy District Attorney for Law, _ ARTHUR Ep SAYLOr, Special Assistant District Attorney, Attorneys for Petitioner Court House, Reading, Pa. 19601 A TN TS A — LT A AARNE RS ATER, 2 RSA TESS STE ASA Murrelle Printing Co.. Law Printers, Box 100, Sayre, Pa. 18840 TABLE OF CONTENTS BRIEF FOR PETITIONER: Petition for Writ of Certiorari ............... Citations to Opinions Below ................. i eee en erage ba ah we Os Ree cf es ee PE Wr TID oh 6 oak oe ieee se seciens Reasons for Granting the Writ ................ Opinions of the Court of Appeals ........... ae TABLE OF CITATIONS ' CASEs: Com. ex rel. Fox v. Maroney, 417 Pa. 308, 207 A. Ff Sf Eee errr rrr Tree Com. v. Gockley, 411 Pa. 437, 192 A. 2d 693 Er rT ercrr TS Teter ee re Com. ex rel. Smith v. Rundle, 433 Pa. 93, 223 A. ee es PRL ewe emcee Delaney v. Gladden, 397 F. 2d 17 (9th Cir. 1963) Jackson v. Denno, 378 U.S. 368 (1964) ........ Mallony v. U. S., 354 U.S. 499 (1957) ........ McNabb v. U. S., 318 U.S. 332 (1943) ........ U. S. ex rel. Gockley v. Myers, 378 F. 2d 398 (3rd RRR I S ae aee PAGE oanaouwnth NS 10 oon COC & Lo) Wilkes v. Maroney, 423 Pa. 113, 222 A. 2d 856 SEE SAE RUSDDKR SORA SSC OOo RO Cee ee ae Wong Sun v. U. S., 371 U.S. 471 (1963) ...... MISCELLANEOUS: SP SE cc cc cheb nee wnbedn eeetees so repugnant to our system of government convictions ought not be ATER NETS DE: MRR 50 Opinions of the Court.of Appeals based upon them. See Culombe v.:Connecticut, supra. However, this is not a case like Fay v. Noia, supra, where the statements were extracted by “satanic”. means,“ or where only one of three defendants remained in jail be- | cause his counsei failed to pursue certain procedural. — steps, taken by the other two defendants.” Regardless of | how the factual and legal issues presented here ar re~ { solved, unless Gockley is innocent his conviction can’ ~* hardly be called an affront ‘‘to the conscience of civilized society,” which is the manner in which the Supreme Court described the petitioner’s plight in Fay v. Noia, supra, at 441. The actions of the Reading police, even if irregu- 24372 U.S. at 396, n. 2, quoting United States ex rel. Cami- nito v. Murphy, 222 F. 2d 698, 701 (2nd Cir. 1955). In Caminito, Noia’s two co-defendants were ordered released. 25 372 U.S. at 395, n. 1. History, as well as a close reading of the opinion, teaches us that at least some of the Justices form- ing the majority of the Supreme Court in Fay v. Noia were moti- vated by considerations additional to the “satanic” means utilized to coerce the confession and Noia’s subsequent inability to chal- lenge his incarceration. The basic injustice behind that case was that Noia, who did not appeal because of his fear of the death penalty, remained in jail while his co-defendants were eventually freed. And even though Noia protested his innocence throughout and the state had no evidence that he was guilty other than the coerced confession, there was no procedural avenue available to afford relief. ‘‘It was under these circumstances, strongly appeal- ing to the Court’s sense of what justice required, that this Court held that Noia was entitled to challenge his convictions even though it had previously become ‘final.’’’ Kaufman v. United States, 394 U.S. 217, 285 (1969) (Black, J., dissenting). 26 Gockley has never denied killing Clement Smith. His ap- parent defense at trial was that the killing was — accidental or justifiable. 51 Opinions of the Court of Appeals : lar or indeed illegal, may not accurately be characterized as “satanic.” The concept of allowing a guilty person to remain in jail after his conviction is final because the procedure on direct appeal has been concluded is hardly novel or medie- val. Justice Black has asserted that before he would al- low a collateral attack to succeed he “would always re- quire that the convicted defendant raise the kind of con- stitutional claim that casts some shadow of a doubt on his guilt.” Kaufman v. United States, 394 U.S. 217, 242 (1969) (dissenting opinion). He further stated that one of the “vital considerations” is the defendant’s “guilt or innocence.” Id. at 235.” Judge Friendly has stated that innocence should not be irrelevant on collateral attack | even though it may be on direct appeal; to the extent we Shaye gone beyond this, the system nseds revision to pre- verit abuse, a waste of the limited resources available for the criminal process, and public disrespect for the judg- ments of courts. Js Innocerice Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142, 172 (1970). . _ _T am not suggesting that the federal habeas petitioner must prove his innocence by a preponderance of the evi- cence in order to be entitled to relief, but only that he demonstrate that the constitutional violation resulted in error which makes questionable the factual accuracy of wa a earn te lial ee hE SA AI dae whital ia Se as oe Re SAE WOR Eat cee ke ase eanbeb ee *t Justice Black raised this matter, as well as the issue of ‘ the overall scope of federal habeas corpus, again in Whitely v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 576, 574- 75 (1971) (dissenting opinion). Although Mr. Justice Blackmun agreed with much of Justice Black’s opinion, the majority opinion did not deai with either matter. 52 Opinions of the Court of Appeals the guilty verdict. Coupled with this demonstration of uncertainty as to guilt, the petitioner should affirmatively assert that he is innocent, for if he is not innocent, society has a strong interest in his continued incarceration. More than a not guilty plea is required, because that plea - does not necessarily mean that the pleader is asserting his innocence, but only that he is challenging the prosecution to prove its case beyond a reasonable doubt. . This seems consistent with Section 2243, which spe- cifically provides that the court shall “dispose of the mat- ter [i.e. the petition for habeas corpus] as law and justice requires.” 28 28 Another aspect of the problem of collateral attack im a criminal connection is addressed by Justice Harlan in -United States v. United States Coin and Currency, 401 U.S. 715 (1971), when he considered whether the Marchetti-Grosso rule should be retroactive. Marchetti v. United States, 390 U.S. 39 (1968) and Grosso v. United States, 390 U.S. 62 (1968) held that where one statute requires the report of an act which another statute makes criminal, the fifth amendment privilege against self-incrimination may be interposed as a defense to a prosecution for failure to comply with the reporting requirement. Justice Harlan concluded that the retroactivity cases fall into two classes: those which hold prior decisions non-retroactive because they were concerned with the implementation of a procedural-rule which does not undermine the basic accuracy of the fact-finding process at trial’’, and those which require retroactivity ‘‘because the failure to employ such rules at trial meant there was a significant chance that innocent men had been wrongfully punished ir the past.’’ In Coin & Cur- rency, this classification was not useful beeause the majority granted retroactivity on the rationale that the conduct for which punishment was sought was constitutionally protected. The clas- sification referred to by Justice Harlan has utility in determining whether collateral attack shouid be permitted; for the competing interests are similar in both retroactivity and habeas corpus cases. 53 Opinions of the Court of Appeals In this case, it cannot be said that Gockley’s conduct in shooting Clement Smith was constiiutionally protect- ed. Nor can it be said that the grant of the writ will en- sure that his retrial would provide a more accurate fact- finding process. And, quite apart from Gockley’s failure to assert his innocence, there is sufficient evidence to preclude anyone from contending that Gockley had not committed the act for which he was punished. Although Justice Harlan and Justice Stewart, both of whom dissented in Fay v. Noia, did not concur with Jus- tice Black in Kaufman as to the importance of innocence, nevertheless they do contend that the scope of habeas corpus re-examination of convictions should be narrowed. Kaufman v. United States, supra, at 242-243 (Harlan & Stewart, JJ., dissenting). In his concurring and dissenting opinion in Mackey v. United States, 401 U.S. 667, 692- 93 (1971), Justice Harlan asserted that the writ of habeas corpus ought issue only on substantive due process grounds, citing United States v. United States Coin & Currency, 401 U.S. at 722 (1971), or on procedural grounds which meet the test of Palko v. Connecticut, 302 U.S. 319, 325 (1937). He explained that when there Those interests may be summarized as finality on one hand, see Mackey v. United States, 401 U.S. 667, 675 (1971) (Harlan, J., concurring and dissenting opinicn), and the correction of constitu- tional error on the other. Sec Kaufman v. United States, 394 U.S. 217 (1969) ; Brown v. Allen, 344 U.S. 443 (1953). The need for finality has been eloquently expressed many times, and it is not necessary to reiterate those arguments. 2° Palko held that a state could appeal a conviction of second degree murder, retry the defendant, and sentence him to death for first degree murder because this kind of double jeopardy was not such that it violated the fundamental principles which under- lay our civil and political institutions. 302 U.S. at 328. 54 Opinions of the Court of Appeals occurs nonobservance of those procedures “implicit in the concept of ordered liberty,” or where “time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, .. . alter our understanding of the bedrock procedural ele- ments that must be found to vitiate the fairness of a par- ticular conviction,” habeas corpus is an appropriate remedy. But I respectfully suggest that such standards are not satisfied unless the petitioner asserts his innocence and demonstrates that the police procedures have de- creased the reliability of the fact-finding process. Appli- cation of the criteria suggested by Justice Harlan to the facts of this case fails to show that the procedures em- ployed either vitiated the fairness of Gockley’s conviction or offended principles “implicit in the concept of ordered liberty.” It is significant here that Gockley has not asserted his innocence in either his petition or brief before this Court. Since the evidence of his guilt is substantial, it would seem preferable to save judicial time and energy to consider the case of one who contends he is innocent or whose conviction is based upon methods which cast doubt on the validity of the facts as found or affront the con- science of civilized society. I do not suggest that the vast majority of prisoners who would be unable to qualify for relief under the tests set forth herein should be without remedy. I am assert- ing only that this remedy should lie elsewhere than within the province of a collateral attack in the federal courts. Perhaps the proper party to implement the post-conviction correction of errors similar to those at issue here is the governor of the applicable state, or an agency fulfilling a et 55 Opinions of the Court of Appeals similar position. See, Fay v. Noia, supra, 372 US. at 476 (Harlan, J. dissenting). In particular, an enlightened state pardons board; which would screen petitions and recommend clemency in deserving cases, would provide a viable alternative avenue of relief, and would greatly aid in stemming the flood of federal habeas corpus petitions. The responsibility of the state in the administration of criminal justice extends further than the function of prose- cution, and the federal judiciary should not become en- cumbered by the state’s abdication of these other func- tions. The crux of the matter is that as the scope of the federal habeas corpus remedy has been ever expanding, the need for it has been continually contracting. Today, nearly every criminal defendant other than the traffic violator is represented by counsel.” The Supreme Court, over the years, has appropriately enlarged and protected the rights of the accused at every important stege in the criminal process.** In short, the accused citizen is af- forded a full panoply of procedures, including the right to suppress probative but illegally obtained evidence and the 80 Fay v. Noia was decided in 19U3, the same vear that the Supreme Court required counsel be appointed for all persons charged with felonies. Gideon v. Wainwright, 372 U.S. 335 (1963). Noia had been convicted some 20 years earlier, where counsel was not appointed except in capital cases, and then only for the trial stage of the proceedings. 31 See e.g., United States v. Wade, 388 U.S. 218 (1967) (line- up); Miranda v. Arizona, 384 U.S. 436 (1966) (custodial inter- rogation) ; Escobedo v. Illinois, 378 U.S. 478 (1964) (custodial interrogatigi\; Douglas v. California, 372 U.S. 353 (1963) (coun- sel on appeal) ;-Griffin v. Illinois, 351 U.S. 12 (1956) (transcript for appeal), OSes cen nea renoreee 56 Opinions of the Court of Appeals Veh. he UK a0 ht Opportunity for extensive discovery, regardless of his ‘ Stature in the community. Furthermore, the accused, if convicted, can argue for vindication throughout the ap- pellate process, all the way to the Supreme Court of the United States. Following the exhaustion of direct appel- late remedies, the convicted defendant may begin the pro- cess anew by seeking relief under the appropriate state post-conviction hearing act. It seems unreasonable, and perhaps destructive of long range judicial values, that the process should be repeated again and again in the federal courts absent some showing that the habeas petitioner has been convicted cither for a constitutionally protected act, because of some procedural defect which casts doubt on his guilt, or by violence to our minimum standards of fair treatment. SGA ANINCE, V For all the foregoing reasons, I would affirm the dis- trict court and deny the petition for habeas corpus. ee Ts A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit. __ 32Tt was the denial of this opportunity because of Noia’s failure to appeal which in part shaped the decision in Fay v. Noia. See 372 U.S. at 426-434. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0278%3A1. Public record. Not legal advice.