Opposition Brief — Cohen v. Hongisto

FN RE ALLEL. GROTTO Faso ‘“ A AMIN NA MGM PONTO vie AL TY SOY en

an i Sepnees Court of die

United States y 24

OCTOBER TERM, 1972

[ wvcenc ot

No. 72-274

ALLEN COHEN,

Petitioner,

Vs.

RICHARD HONGISTO, Sheriff of

the City and County of

San Francisco, et al.,

Respondents,

THE PEOPLE OF THE STATE

OF CALIFORNIA,

Real Party in Interest.

RESPONSE IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

EVELLE J. YOUNGER

Attorney General of the State of

the State of California

EDWARD A. HINZ, JR.

Chief Assistant

Attorney General——Criminal Division

DORIS H. MAIER

Assistant Attorney General— —Writs Secti«

EDWARD P. O'BRIEN

Assistant Attorney General

DERALD E. GRANBERG

Deputy Attorney General

CLIFFORD K. THOMPSON, JR.

Deputy Attorney General

6000 State Building

San Francisco, California 94102

Telephone: (415) 557-0204

SUBJECT INDEX

Page

I ea) So Fen he Or elaine ype eke on ee l

I esc Se aU nt street ure er rie oe l

Oe RE a Seat aed as eee ee P

Constitutional and Statutory Provisions Involved ...... 2

RE Hr I se oe ae a aie i we wera 2

EE ciate ag utr eat ree ee lon, ble a 3

One Sentenced to Pay a $50 Fine is Not “A

Prisoner” “In Custody” Within the Meaning of

ee a se ak ss re at ees 3

oe arts Ge a ren emt 7

This Case Is Not Ripe For Review ......... 7

RI Siero es co Cth Put en ee tae ce et 8

TABLE OF AUTHORITIES CITED

Adams v. United States ex rel. McGann, 317 U.S. 209, 273 (1942) 2... 5

Asgersinger v. Hamlin, 407 U.S. 25 (1972) ..,....++s0405 ene 7

Baldwin v. New York, 399 U.S. 66, 69 (1970) .................005, 6

Brotherhood of Locomotive Firemen v. Bangor & Aroostook R.R., 387

U.S. 327, 328 (1907)... 654600008 608 9a eee ee 7

Casafes v. LaValle, 391 U.S. 234, 236: (1966) ..... sss 00000 eeaweee 4,5

Choung v. Misterly, 456 F. 2d 176 (9th 1972) ..............0... 4,7

Darr v. Burford, 339 U.S. 200, 210-214 (1950) 2.0... cee ccceesscvee 5

Ex parte Bollman, 4 Cranch 75, 94 (U.S. 1807) .............0.0000. 5

Ex parte McCardle, 7 Wall, S06 (US. 1868) .....ceccsescesersessrd

Fay v. Noia, 372 U.S. 391, 435-436. (99G3) 0.6 6c eveeccsaneeaunaee 5

Glazier v. Hackel,440 F.2d 592, 594 (9th Cir. 971) .........0000.0, 4

Hensley v. Municipal Court, 453 F.2d 1252 (9th 1972) .............4

Johnson v. Avery, 393 U.S. 483, 485 (1969) ...... cc cece eee eseed 4

Jones v. Cunningham, 371 U.S. 236, 238 (1963) ...... 0.0... e ce eee 4

Matysek v. United States, 339 F.2d 389 (9th Cir. 1964). .........0.., 7

Settler v. Yakima Tribal Court, 419 F.2d 486 (9th Cir. 1969) ......, 6,7

United States ex rel. Wirtz v. Sheehan, 319 F.Supp. 146, 147 (E,

o Wie. 9A 2. we tek ew ee ee eee 4

Whitney v. Dick, 202 U.S. 132 (1906)... «01000 casei ee 5

United States Code STATUTES

Title 25,

Section TSB... 00505 4.00.68 08m & 09 Gao kone koe Rann 6

Title 28,

Section LZ54ER) «sow s.0 0000 iw 4901s wea lean capil ee te ice an |

Section 2241... . secs aseewea eeu gas 4 Sika ee rene

CONSTITUTION

United States Constitution:

Apticte 1. Section @ .. ou cos0050 450050055) 00a eee

2b 0646. L. Rev. 79, OO (IGRG) ... oe ce vnccscaassnaenee eee 4

Sokol, Federal Habeas Corpus, p. 66 (2d ed. 1969) ..........

RIEFED THROUGH POOR COPY

UGE Do A 8 me WA be OD WANTON LOA | ena Ad AMEN P RAAT RN NAAM ABNER SAORI cee WE RL RAT EES Nt SEI HE PHP EN SS ache

In the Supreme Court of the

United States

OCTOBER TERM, 1972

No. 72-274

ALLEN COHEN,

Petitioner,

Vs.

RICHARD HONGIS10, Sheriff of

the City and County of

San Francisco, et al.,

Respondents,

THE PEOPLE OF THE STATE

OF CALIFORNIA.

Real Party in Interest.

RESPONSE IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

OPINION BELOW

The order of the United States District Court for the

Northern District of California granting a writ of habeas

corpus on April 2, 1971, is Appendix B to the petition.

The unreported order of the United States Court of Appeals

for the Ninth Circuit vacating the above order of the

District Court on May 23, 1972, is Appendix A to the

petition.

JURISDICTION

The jurisdiction of this Court is invoked under Title 28,

United States Code section 1254(1).

5

QUESTIONS PRESENTED

1. Whether one who has been sentenced by a state cour

to pay a fine is “a prisoner” “in custody” under 28 U.S.C,

section 2241, and thus within federal habeas corpus

jurisdiction.

2. Whether this case is ripe for review by this Court in

light of the Court of Appeals’ order remanding the matter

to the District Court for initial consideration of the

jurisdictional question.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

United States Constitution, Article 1, section 9:

“The privilege of the writ of habeas corpus shall not be

suspended, unless when in cases of rebellion or invasion

the public safety may require it.”

Title 28, United States Code, section 2241:

“(c) The writ of habeas corpus shall not extend to a

prisoner unless -

(3) He is in custody in violation of the

Constitution or laws or treaties of the

United States... .”

STATEMENT OF THE CASE

On May 26, 1967, a jury in the Municipal Court of San

Francisco found petitioner guilty of distributing obscenity in

violation of California Penal Code section 311.2. On June

23, 1967, petitioner was fined $50.00 and placed on six

months’ probation. Execution of sentence was stayed and

petitioner was released on bail pending appeal. The

Appellate Department of the Superior Court for the City

and County of San Francisco affirmed the conviction on

March 6, 1970. The Appellate Department denied a

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Ce ee ea SEED 0 TT

rehearing and refused to certify the case to the California

Court of Appeal on March 27, 1970.

The Municipal Court further stayed execution of sentence

while Cohen petitioned the California Court of Appeal for a

writ of habeas corpus, denied on August 2, 1970.

Thereafter, the Municipal Court advised Cohen that sentence

would be executed on September 10, 1970. On that date

the United States District Court stayed execution of the

judgment and sentence against petitioner.

. habeas corpus without considering whether, under the

statute, it had jurisdiction to entertain the application. The

Appeals vacated the judgment of the District Court and

remanded the cause for initial consideration of the question

of jurisdiction. '

ARGUMENT

1

ONE SENTENCED TO PAY: A $50 FINE IS NOT “A

PRISONER” “IN CUSTODY” WITHIN THE MEANING

OF 28 U.S.C. Sec. 2241.

Title 28, United States Code section 2241 declares:

“(c) The writ of habeas corpus shall not extend to a

prisoner unless——

* * *

“(3) He is in custody in violation of

the Constitution or laws or treaties

of the United States..... "

“Certainly the writ’s great purpose is to test the

lawfulness of restrictions upon personal freedom, and both

the jurisdictional statute (28 U.S.C. Sec. 2241) and the

history of habeas corpus require that the petitioner be ‘in

'These facts are disclosed by the District Court's order granting a writ of habeas

corpus. Petition, Appendix B.

On April 2, 1971, the District Court granted a writ of

People appealed, and, on May 23, 1972, the Court of

ns oe |

ETO CN ORL NE RE ENTRANT NETS ELOY LOREM TIRES N° IRIE ROTI elle

4

custody’ when the application is filed.” Glazier v. Hackel,

440 F. 2d $92, 594 (9th Cir. 1971). Accord, Johnson y

Avery, 393 U.S. 483. 485 (1969): Carafas vy. LaVallee, 39

U.S. 234, 238 (1908): Note, 20 Md. L. Rev. 79, 80 (1966),

The term “custody” is synonymous with restraint of

liberty. United States ex rel. Wirtz v. Sheehan, 319 F.Supp.

146, 147 (E.D. Wis. 1970); Sokol, Federal Habeas Corpus,

p. 66 (2d ed. 1969). “To determine whether habeas corpus

could be used to test the legality of a given restraint on

liberty, this Court has generally looked to the common-law

usages and the history of habeas corpus both in England

and in this country.” Jones v. Cunningham, 371 U.S. 236,

238 (1963).

Petitioner asserts: that the Ninth Circuit’s order in his

case “places it in opposition to every Court of Appeals that

has recently considered the problem of the availability of

the writ... .” Petition, 8. In truth, no other federal court

has ever held that one required to pay a fine is “a

prisoner” or “in custody.” Nor can such precedent be found

in the history of the writ in this country or in England.

Petitioner's misleading contention that the instant order

creates a conflict between federal appellate courts is based

upon the discredited tactic of guilt by assocciation. He

attacks other Ninth Circuit decisions, Hensley v. Muncipal

Court, 453 F.2d 1252 (9th 1972), and Choung v. Misterly.

456 F.2d 176 (9th 1972), and cites conflicting authoritps

Neither Hensley nor Choung involved imposition of fines.

Petitioner seeks nothing less than judicial repeal of a

congressionally imposed limitation on federal habeas

jurisdiction. The term “custody” cannot be interpreted to

include fines unless congressional intent, the history of the

writ. and the ordinary meaning of the word are ignored. If

“custody” includes fines, it comprehends everything and

means nothing.

A)

This Court has always recognized, however, that Gongress

the writ. Article I. section 9 of the Constitution, the

Suspension Clause, is cast in negative terms. Federal courts

are empowered to grant the writ only by implication of the

Constitution. Therefore, as Chief Justice Marshall

acknowledged,

the United States. must be given by written law.” Ex

parte Bollman, 4 Cranch 75, 94 (U.S. 1807).

This Court has faithfully adhered to this view. Ex parte

McCardle, 7 Wall. 506 (U.S. 1868); Whitney v. Dick, 202

U.S. 132 (1906): Adams v. United States ex rel. McGann,

317 U.S. 269, 273 (1942): Darr v. Burford, 339 U.S. 200.

210-214 (1950). orerruled on other grounds, Fay v. Noia,

372 U.S. 391, 435-436 (1963): Brown vy. Allen, 344 U.S.

443. 448, 500 (1953). Development of the writ from a

limited jurisdictional concept to a broad constitutional

remedy at every stage has occurred within the limits and

intendments wf the existing statute. Brown vy. Allen, supra at

500; Fav v. Noia, supra at 409-410; Carafas v. LaVallee,

391 U.S. 234, 238 (1968).

Petitioner invokes Carayas to no avail. Petition, 11 n. 3.

This Court held there that “once federal jurisdiction has

attached in the District Court, it is not defeated by the

release of the petitioner pnor to completion of proceedings

on such application.” 394 U.S. at 238. The Court so held

because of collateral legal consequences flowing from a

felony conviction, none of which burden petitioner

following his misdemeanor conviction, and to avoid

transforming the Great Writ, in many cases, into an illusion.

Ironically, the single decision accepting Cohen’s statutory

construction was rendered by the Ninth Circuit. Alvin

has full authority to regulate the scope and procedure of

“{T]he power to award the writ by any of the courts of

PORNO ENE MONIT PRINT PICA DIY, LN yh ENACT ET IM TR ORY TS RPI DAP Te oa |

6

Settler, convicted and tried by the Yakima Tribal Court for

violating tribal fishing regulations, applied for federal habeas

corpus. The Ninth Circuit held the writ available

notwithstanding the statutory requirement of custody. At

the time, there existed no other mode of federal review of

tribal court actions. Settler v. Yakima Tribal Court, 419

F.2d 486 (9th Cir. 1969). “[I]f habeas corpus is not

available,” the court added, “the Yakima Indian Nation can

conceivably avoid the imposition of any due _ process

safeguards merely by rendering fines rather than prison

sentences.” Jd. at 490. Congress, however, has rested the

availability of the writ on the distinction between a fine, or

economic sanction, and a restraint of liberty. The Indian

Civil Rights Bill, 25 U.S.C. section 1303, provides: “The

privilege of the writ of habeas cerpus shall be available to

any person, in a court of the United States, to test the

legality of his detention by order of an Indian tribe.” If, as

this Court has repeatedly said, Congress has the power to

regulate the scope of the writ, Settler is indefensible.

Habeas corpus jurisdiction imposes a great burden upon

federal courts, tolerable mainly because personal liberty is at

stake. Abandoning the “custody” requirement would greatly

increase that burden and could entail federal review over

municipal traffic courts. Neither the framers of the

Constitution nor the Reconstruction Congress which first

enacted the “custody” requirement contemplated such an

expenditure of federal judicial energies. If the right to jury

trial and, perhaps, the right to counsel may depend upon

the severity of the penalty imposed for a state criminal

conviction, Baldwin v. New York, 399 U.S. 66, 69 (1970);

Argersinger v. Hamlin, 407 U.S. 25 (1972), so may the

availability of federal habeas corpus. Contrary to petitioner's

suggestion, Petition, 7, because of this Court’s certioran

jurisdiction state courts, unlike tribal courts, cannot insulate

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themselves from federal review by imposing fines rather than

detention.

The Ninth Circuit’s order here does not conflict with the

decision of any other federal court. To the extent that the

order implies that a fine is not a restraint on liberty, it is

correct.

i

THIS CASE IS NOT RIPE FOR REVIEW.

The Court of Appeals did not reverse the District Court’s

order granting the writ, but vacated that order and

remanded the cause for initial consideration of the

jurisdictional question in light of Choung vy. Misterly, supra,

Matysek v. United States, 339 F.2d 389 (9th Cir. 1964),

“and other relevant authority.”” Presumably, the District

Court may find Settler v. Yakima Tribal Court, supra, not

cited in the remand order, relevant authority on an issue

which it has never considered. Apposite here is the Court’s

comment in Brotherhood of Locomotive Firemen y. Bangor

& Aroostook R.R., 389 U.S. 327, 328 (1967):

“Petitioners seek certiorari to review the adverse

rulings made by the Court of Appeals. However, because

the Court of Appeals remanded the case, it is not yet

ripe for review by this Court. The petition for a writ of

certiorari is denied.”

Petitioner argues that the “custody” requirement is

satisfied by his fine alone. The District Court's order,

however, shows that Cohen was also placed on six months’

- probation. The conditions of his probation do not appear

from the record. The District Court’s order further reflects

that execution of sentence was twice stayed by the

sentencing court and subsequently by the District Court.

Se hs 2

RTE MRM MERLIN “A A RENAE RUE IN DARIN PSS NOH EN an

8

his habeas corpus petition, his probation had expired or had

been stayed by the sentencing court is unclear upon this

record. The Court of Appeals m»y have assumed that

probation no longer was a factor in determining jurisdiction.

However, the vitality and terms of the probation order are

proper subjects for inquiry by the District Court upon

remand.

CONCLUSION

For the stated reasons, the People of the State of

California respectfully urge this Court to deny the petition

for a writ of certiorari.

Dated: November 23, 1972.

EVELLE J. YOUNGER

Attorney General of the State of

California

EDWARD A. HINZ, JR.

Chief Assistant

Attorney General ——Criminal

Division

DORIS H. MAIER

Assistant Attorney General——Writs

Section

EDWARD P. O’BRIEN

Assistant Attorney General

DERALD E. GRANBERG

Deputy Attorney General

CLIFFORD K. THOMPSON, JR.

Deputy Attorney General

Attorneys for Real Party in Interest

Ss

ce ' ‘ <P SAaR NO ih ERA NG ENN NENT OLENA LLL SLT REID ELLIE |

Ress

CERTIFICATE OF SERVICE BY MAIL

ALLEN COHEN,

Petitioner,

vs.

RICHARD HONGISTO, Sheriff of

the City and County of

San Francisco, et al.,

Respondents,

THE PEOPLE OF THE STATE

OF CALIFORNIA,

Real Party in Interest.

we we ww ww Swe ewe we wee ee we we

CLIFFORD K. THOMPSON, JR., a member of the Bar of

the Supreme Court of the United States, states:

That his business address is 6000 State Building in

the City and County of San Francisco, State of California; that

on November 23, 1972, he served a true copy of the attached

Response in Opposition to Fetition for Writ of Certiorari in

the above-entitled matter on counsel for petitioner by placing

same in an envelope addressed as follows:

Paul N. Halvonik, Esq.

Friedman, Sloan & halvonik

680 Beach Street, Suite 436

San Francisco, California 94109

Said envelope was then sealed and deposited in the

United States mail at San Francisco, California, with the

postage thereon fully prepaid.

TA ee

L —ThOMPSon, JF.