Appendix — Peyton v. Rowe

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PAE RE COMET «

ore,

__ JOHN F. DAVE, @LERA

- Supreme Court of the United States

October Term, 1967

No. 802 |

C. C. PEYTON, SUPERINTENDENT OF THE

VIRGINIA STATE PENITENTIARY,

: . Petitioner.

ROBERT ELMER ROWE.

ee _Respondent.

~.C. C. PEYTON, SUPERINTENDENT OF THE .

VIRGINIA STATE? PENITENTIARY,

: Petitioner.

_V. rk

~ CLYDE MASON THACKER.

i Respondent.

APPENDIX.

TABLE OF CONTENTS

Page

APPENDIX c

Opinion of Supreme Court of Appeals’ of Vingitta in case of-

Rowe v. PN oc cstidbeas: silat aiahineacianeaanassanisatienviaiscatmshioes

APPENDIX II:

Memorandum Order of United States District Court for the

Western District of Virginia, Harrisonburg: ‘Division, in case

I Re Fs I scicigrcneen cesrvieosentapnonsindescnsdilicckoninniaianicte Steeda piel *

Appénpix III: ‘y oor

Memorandum of the United States District Court for the

‘Eastern District of Virginia, Richmond Divison, in case of

Thacker RII eptencsscetcnteh naarsetsinilneetassanciontininccinhmie =n

Abenions IV:

Opinion of United States Court of neal for the Fourth

‘ Circuit in case of Rowe v.- dice and Thacker v. Pas peste hele

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ee » , APPENDIX I |

VIRGINIA: > Si Ca @

‘In the Supreme C wae of Appeals held’ at the Supreme

Court of. Appeals Building in: the City of Richmond on

W evr: the 27th day of April, 1 a 4

, Robert Elmer Rowé, | |

ne

C.C. Peyton, Superin endent of the

ieee State Pe itentfary,

Respondent.

‘Upon a Petition fora Writ of Habeas Corpus »

Upon mature consideration of the petition of Rokert

| Elmer Rowe for. a writ of habeas corpus ad subjiciendum,

_.and the answer of. the respondent to the rule to show cause .,.

entered herein on December 2, 1965, arid the petitioner’ S

teply thereto, the court doth find that the petitioner is

presently detained pursuant to a judgment. of the Circuit —

- » Court of Augusta County on June’18, 1963, wherein he .

was sentenced to serve a term of thirty years in the Virginia

State Penitentiary, havingeen convicted of rape}. that

’ the petitioner is not now detained in pursuance to the judg-

ment of which he complains, and the writ of habeas corpus

lies only to attack the = sah the petitioner’s present

detention.

For. the Sepags reasons, the court is of opinion that

the-writ should not issue as prayed, It is, therefore, adjudged

and ordered that the petition for a writ of habeas corpus be

dismissed, the rule discharged, that the respondent recover

of thé petitioner/his: costs by him expended about his de-

fense herein, and that Bernard H. Cross, Esquire, who was

SMe 2.

appointed by this court to represent the said petitioner in

this proceeding, be allowed the sum of $100, for services

rendered herein, his costs and necessary expenses, which -

amount shall be. recovered by the Commonwealth, ‘together

with all tinpaid fees and tosts in this cause which are to

4 be taxed by the clerk. , °

| i A.Copy,

wees ,

_/s/H.G. Turner’ 7 —

es Bliss el Clerk

Respondent’s Costs: oe nie

Attorney’s fee * $50.00 7

= Commonwealth’s costs: | Seen a

Waals) z $100, | |

Clerk’s fee. , 710,00 -

Fee allowed court- ¢

appointed attorney 100.00

Testee: =.

- Yfs/ H. G. TURNER - :

s an | Clerk 7

seer APPENDIX IT,

In- THE Unitep States District Court

For THE WESTERN District OF VIRGI NIA

~ HARRISONBURG Division

ROBERT ELMER ROWE

C. C. PEYTON, Superintendent of the ~~ _

Virginia State Penitentiary —

66-C-27-H

ame wt

oP

Safe Coe ol na

art)

ae , 7 Memorandum Order

Petitioner's was convicted of rape in the Circuit Court of

_ Augusta County on June 18, 1963 and is presently serving —

- a valid thirty. year sentence imposed. upo him at that time.

- After exhausting his ‘state habeas corpus remedies, he

“! comes before this-court and collaterally attacks another

“sentence imposed upon him by the Waynesboro City Circuit

Court on June 24, 1963 for secreting a female. If this ‘

. second sentence barred. his present eligibility for parole, the’

"ground for his attacking it could be considered, but: this

-%4iS not the case. The record shows that if Rowe’s twenty —

(20) - year sentence imposed by. the Circuit Court of.

..' Waynesboro City on June 24, 1963 did not exist, his

parole eligibility date would be August 24, 1969. Whether

‘he has a valid ground for attacking his second sentence ‘is

not now relevant because his attack is premature. McNally

it is .

bed

ORDERED |

that prisoner ’s petitfon nor a writ of habeas corpus is denied ee

and it is further °

5 @ ide :

“that the petitioner be and hereby is granted leave) to pro-

ceed on appeal in forma pauperis from this order.

It appearing” to the Court that the petitioner, raises no

substantial question, it is further

ORDERED. ° 4

that if the petitioner éwishes to appeal, an application for a |

certificate of probable cause will be denied by this Court.

= et

v. Hill, 293 U.S. 131 (1934). In accordance with the above -

™

App. 4

‘If the petitioner wishes to appeal, he- must file’ written

“notice of appeal with this Court within thirty days from

_ the entry of this order.

_ If the petitioner wishes to appeal, the. Clerk of this Court _

ds directed to transmit the record on appeal to the United

States Court of Appeals for the Fourth Circuit.

‘Let the Clerk send copies of this order to the petitioner ‘e

; and the Attorney General of Virginia.

_ ENTER: October 26, 1966.

. /sf Tuomas J. Micum

oy = | _ United States District Judge

! A TRUE COPY, TESTE: | i |

7 Leigh B. Hanes, Jr., Clerk |

By:/s/ Daisy H. NALLE

Deputy Clerk |

APPENDIX Ir .

IN THe Unitep States District CouRT

For THE-EasTeERN District OF VIRGINIA .

Richmond Division

Civil Action

No. 5011

_@° + CLYDE MASON THACKER

: 4 . v. - ~ “ae 3

C. C.. PEYTON, Superintendent of the

Virginia State Penitentiary

%

— App. 5

Memorandum Of The Court

‘Clyde Mason Thacker’ S. application for a writ of bibene

eons will be denied without prejudice.

..* Thacker was permitted to proceed in forma pauperis.

The respondent answered and Thacker replied.

Thacker attacks three sentences imposed by the Circuit

Court of Hanover County on November 16, 1953, on pleas

of. guilty. Each sentence was for five years suspended. The.

" suspensions were revoked March 19,1956. :

Thacker contends that these sentences are invalid be-

cause he had no legal counsel until the day of trial, he was

coerced into pleading guilty, and had no counsel at the

revocation proceedings. : .

Thacker is not presently serving these sentences. The

respondent is detaining him pursuant to-a judgment of the

Circuit Court of Buckingham County! entered’ September

17, 1964, which sentenced him to a: term: of four years in

_ the penitentiary upon conviction of breaking and entering.

The sentence Thacker presently is serving will expire .

April 7, 1967: Thereafter he will begin service of a one-

year setitence imposed by the Circuit Court of the City of

Charlottesville, which will be followed by additional sen-

tences. imposed by that court and the Circuit Court’ of

Greene County, the Circuit Court of Albemarle Ceaty

and the Circuit Court of Madison County.

The court considered the validity of these sentences in a

plenary hearing, Thacker v. Peyton, Civil Action No.

4628-M, July 12, 1966, now pending on appeal, No. 10,949, .

4th Cir. | oe

On December 23,. 1964 a parole which had previously

been given to Thacker was.revoked. He has to serve nearly .

twenty-seven years upon the revocation. Included in this

&. . os

App.6

are the sentences imposed in the Circuit Court of Hanover. -

County. He will not begin — these sentences until

November 8, 1997. |

- Both the respondent and Thacker are in agreement that

- the sentences which he attacks do not. prevent him from

_ being eligible for parole. If the sentences were declared in-

valid, he still would not be eligible for parole. Thacker can-

’ not attack these sentences under the principle expressed

in Martin v. Virginia, 349 F.2d 781 (4th Cir. 1966). The

limitations upon Martin are clearly stated in Tucker v.

Peyton, 357 F.2d 115, 117 (4th Cir. 1966), ‘where the

courtsaid: -- .

“* * * [We recently held in Martin v. Com. of

Virginia, 4 Cir., 349 F.2d 781, that a prisoner could

attack a sentence he.had not yet begun to serve if, at

the time, he would be eligible for parole if the ques-

tioned sentence were invalid. Petitions for the writ

need not require adjudication of academic questions,

but they should be readily entertained if directed to a

~ conviction which currently substantially i impinges upon

the applicant’s liberty. That is the plain teaching of ©

Jones v. Cunningham [371 U.S. 236 (1962)].”

The writ will be denied without prejudce to Thatcke:’s |

reapplication at the proper time. |

/s/ Joun D. Burzum, Jr.

_ United States District Judge

February 1, 1967

4 pp.7

APPENDIX IV.

oe i UNITED STATES COURT OF APPEALS

| _ FOR THE FOURTH CIRCUIT ~

No. 11,072.

_ Robert Elmer Rowe,

. Appellant, °°

; versus.

f. G Peyton, Superintendent of the

Virginia State Penitentiary,

- Appellee.

_APPEAL FROM THE UNITEb States District Court FOR

THE WESTERN DISTRICT OF VIRGINIA, AT HARRISONBURG. 2

_. THomAs J. Micuieg, District JUDGE.

ae eae

'- Clyde Mason Thacker,

” Appellant,

Versus

C C.. Peyton, Superintendent ofthe

_. Virginia State Penitentiary, .—

_ Appellee. -

Haynsworrs, Chief Judges -- —--~*

App. 8

APPEAL FROM THE UNITED STATES DIsTRICT CourT FOR

THE :EASTERN. DISTRICT OF VIRGINIA, AT RICHMOND.

Joun D. Butzner, Jr., becixae- weed JUDGE.

(Argued June‘19, 1967, Decided August 28, 1967.).

Before Haynswortn, Chief Judge and SoBELOFF, Bore-

MAN, BryAN, WINTER and CRAVEN, Circuit Judges, sitting .

en banc. acs

John J. Kirby; Jr., (Court-assigned counsel) for Appellants,

and Reno: S. Harp, III, Assistant Attorney General of

Virginia, (Robert Y. Button, ae General of Vir-

om, on brief ) for Appellee. ,

‘We.are asked to decide whether or not any remedy is

available to state prisoners seeking to attack, on constitu-

tional grounds, state sentences to be served in the future

which have ‘no present effect upon consideration of the

prisoners for parole. We think that the traditional writ of -

- habeas corpus-is available to serve thé clearly present need

of a procedural device to test the legality of these convic-

tions under the Constitution of the United States.

I

_In 1963 Rowe was convicted of rape in Staunton, Vir-

ginia and a sentence of 30 years was imposed upon him. .

Three days later, in ‘Waynesboro, Virginia, he was ar-

-_raigned for the felonious abduction with in‘ent to defile the

same’ female of whose rape he had been convicted in

ANp.9

_ Staunton. A plea of former jeopardy was overruled, where-

'. upofh, on advice of counsel, Rowe tendered a plea of guilty.

' Rowe alleged that he had been told by his lawyer that any.

sentence imposed upon him in Waynesboro would be re-

_ quired to run concurrently with the thirty year sentence

imposed upon him in Staunton for the rape. However, the

Court imposed upon him a sentence of.20 years to run con-

secutively to the sentence on the rape charge, and he was

committed to the penitentiary to serve the two consecutive

sentences totalling fifty years.

Rowe will not begin to serve the sentence. imposed upon

him ith _Waynesboro_for—abduction until the year 1993. .

~~ Because, undér Virginia law, a prisoner, regardless of the

length of his sentence, may be considered for parole after |

serving twelve years, Rowe is presently scheduled to become

eligible for parole i in 1975.-If the second-sentence is sé is invali-_

dated, “Rowe’s eligibility for : will be advanced to

- late 1970 or early 1971.

Rowe has not attacked the first conviction for rape. He

~ has.sought to attack in the state and federal courts his

second conviction, the one for abduction, on grounds of

former jeopardy and of involuntariness of his guilty plea

which, he alleged, was induced by the misadvice given him

and the indifference of his trial counsel. Virginia concedes

that, on the merits, the petition states a prima facie claim

of invalidity of the abduction conviction which, if sub-

- stantiated at a hearing, would require that the conviction

be vacated. * .

II

In 1964 Clyde Thacker was “committed to the Virginia

ret Penitentiary to serve a number of sentences totalling

_ sixty years, four, months and sixteen days, He seeks to

attack three’ sentences which are presently scheduled to

i itl

App. 10

" commence in service in 1994 and to.end in tlie year 2004.

‘ They were imposed, upon him in 1953, but were suspended.

The suspension was revoked in 1956. :

Because of the rule of eligibility for consideration ine oR,

role:after service of twelve years, Thacker will become

‘technically eligible ‘for such consideration in 1976. That

date will not be advanced even if the three sentences under.

attack are vacated. pet

Thacker seeks to attack these three. sentenites upon the

ground of inadequate representation by‘his trial counsel at

the time of his convictions in 1953. The factual allegations

facially show such gross neglect by the lawyer of his client’s

interests that, were the alleged facts established ina hearing, /

|. Thacker would be entitled to have those sentences vacated,

_ As iti Rowe’s case, ‘the Commonwealth concedes that .

Thacker’s petition sufficiently states a constitutional ‘claim

and cannot be dismissed without a hearing if there is aad :

ee remedy.

III

It is thus apparent that in 1971 when Rowe’s conviction

)-_ for abduction begins to affect his eligibility for considera- °

tion of parole, he will be permitted to attack that.convic-

tion.’ On the basis of the allegations of his present petition

he will be entitled to a hearing.

‘When Thacker becomes eligible for parole in 1976 he, -

too, will be allowed to attack his 1953 convictions for, while

‘these convictions.do not. affect the parole eligibility date,

their presence on his record is strongly calculated to weigh

heavily against the grant of parole.” The question is

whether, meanwhile, Rowe and Thacker must patiently

- wait until the challenged convictions begin to hurt.them' in

_ l Martin v. Virginia, 4 Cir., 349 F.2d 781.

2 Williams v. Peyton, 4 Cir:, 372 F.2d 216.

4 PP. é 1

terms of an immediate eee isi The answer in-

volves a more fundamental.question, whether the courts are

powerless to provide an effective remedy to vacate constitu-

tionally defective convictions -at a time-when witnesses are ©

' available and their ‘memories -relatively fresh, when it is

certain that, if the { prisoner survives so long, there will be

andvailable remedy some years hence. ay

IV

At the outset it is objected that Thacker has. not pur-

sued available state remedies. It is true that he has not,

but Rowe has, His petition was rejected by the Supreme "

Court of Appeals of Virginia without ari opinion, but in

light of the factual allegations’ of the petition, that rejection

must have been upon the procedural ground that Rowe was

not presently serving ‘the sentence he seeks to attack,’

Thacker should not be required to travel the same road

through the state courts to present a question which the |

Virginia Supreme. Court of Appeals has so recently decided, |

when there is no indication that it is now prepared to al

from the former coursé of its détisions.*

; V

It is further objected by the Commonwealth that the

question of availability of remedies has not been presented

to.the Supreme Court of Appeals of Virginia in the lucid

- fashion in which it has been developéd in this Court. This

Court was concerned about the question and undertook to

have it fully developed here by granting certificates of prob-

able cause to appeal and appointing an exceptionally able

3 That is the rule in Virginia, Peyton v. Williams, 206 Va. 595, 145

S.E..2d 147 (1965). ° ¢.

. 4Evans v. Cunningham, 4 Cir., 335 F.2d 491.

“s

ene ae | App. 12

i]

¢ lawyer ws: has filed” a very eiighaening brief. While: “\

academicians may speculate about a decision of a court

a in light of the quality of the advocacy as indicated by the

‘ briefs filed in the case, that is'a role we should not under-

take in resolving questions of exhaustion of state remedies.

. -lf the ‘question was clearly. tendered, ag itywas in Rowe’s

and other cases, and decided by the State Court, we must

accept the decision as an authoritative declaration of state

+- law even if, upon an examination of the briefs. filed in the

_ 4. state court, we are of the opinion that they were less com-.

sid Ghaive and less helpful than the briefs which have been

| filed in this Court. Appellate courts can be greatly assisted

by inspired counsel, but counsel’s performgnce contains

* . neither the measure nor the limit of the court’s perception

or analysis ;.Judges may know and understand many rele-

| vant things that are not intelligently discussed by lawyers

4 ina particular case. Even when lawyers perform superbly,

| as they have in this case, all of the tools of detision may

not be found i in the briefs. .

y ee VI |

We thus reach the merits of the procedural question of

| -present availability of a federal remedy for the adjudica-

} _ tion’ of constitutional validity of these state sentences to be

} © servedinthefuture. .

_ The “Great Writ” ‘has deep antecedents in the English

‘common law as a procedural device for protecting and ex-

‘tending the jurisdiction of courts. As an effective weapon,

for the protection of individual liberties from monarchial —

interference, it evolved in the Seventeenth Century, in the.

course of a great constitutional crisis. : As such it was im-

5 For a.very perceptive review of the writ’s tianey see J. D. Meador,

Habeas Corpus ond ane Carta, University of Virginia Press

(1966). . . |

*

A pp. 13

LN

ported into this country as a shield against guthoritarisn

commitments under orders. of the Crown- Available, too,

for the procurement of bail for bailable offenses,° and for.

' the questioning of private restraints upori individual liber- ©

ties, it was not envisioned as an instrument for questioning.

judicial auffiority except in the narrowest of jurisdictional_

senses. The writ was unavailable to one\held for trial ok °

convicted of a felony in a court having a aicion of, the

offense and of the person of the ‘petitioner.” When no °

sentence of a court having jurisdiction was subject to attack

on habeas corpus, thete was no — problem of sen-

tences to be served in the future. -

When, by the Act of February 5, 1867,® the federal writ

was, extended to persons held under state commitments in

violation of the Constitution, laws or treaties of. the United

States, our present problem-still did not arise. While the

statute might. have been construed more broadly, the cur-

rent understanding of thedimitations of the writ was so

definitive that the jurisdictional concept remained ip full

flower. A state court’s commitment was not questionable

_ inva federal habeas corpus proceeding if the offense was

triable in the state court and the prisoner subject to its

power.? There was no substantial crack in that conceptual

limitation until 1915 when, in Frank v. sent ti ° the

6 See the Habeas Corpus Act of 1679, 31 Car. II c.7,; 8 Statistes at

Large 432-39 (1763). °°

7 Ex parte Parks, 93 US. 18 (1876) ; Ex parte Watkin’, 28 U. S.

.. (3 Pet.) 193 (1830).

8 14 Stat. 385 (1867). The present version is 28 U.S.C.A. §§ 2241,

2243 (1958).

9 Ex parte Bridges, 4 Fed. Cas. 98, 106 (No: 1862) (Cir. Ct! N.D.

Ga. 1875) (Mr. Justice Bradley). The same rule applied to federal

' prisoners. Ex parte Parks, 93 U 3. 18.(1876):

10 237 U.S. 309 (1915). It had some precursors in Ex parte Siebold,

100 U.S. 371 (1879), and Ex il Lange, 85 U.S. (18 is 163

(1875).

t

App. 14:

Court assumed that a state court having jurisdiction might

be ousted of it by the overriding influence of a mob." us

. Even under this relaxing concept of “jurisdiction,” which

arma some judgments as void, rather than voidable, the

writ offered little encouragement to_a prisoner. oppressed

with a sense of injustice in the imposition of a sentence to

be served in the future. Nevertheless, such 4 case did reach

the Supreme Court in 1934.2 McNally complained of a

sentence imposed upon him on.the third count of a three

count indictment. His contention was.that the third count

- was so defective as to oust the court of jurisdiction to impose

' any sentence. He lost in the lower courts on the ground

that the defect in the indictment was not so egregious as to

make the sentence void, rather than voidable,” but the

Supreme Court, bypassing: that question, held that the writ

was unavailable to question a sentence to be served in the

_ future. That holding, so:crucial here, ‘will be c« considered i in

detail hereafter.

It was not until Brown v. Allen" that. any great vistawas

opened to state prisoners seeking federal habeas corpus to .

attack state court convictions, It was then held that the |

writ was available to state court prisoners complaining of |”

denials of federal constitutional rights in their trials. That

“ vista, however, was greatly circumscribed by the limitation

- that the federal claim must have been clearly raised and

prosecuted through the state courts.’® It was not until 1963.

that the circumscriptions of Brown v. Allen (Daniels v.

Allen) were clearly and finally abandoned i in Fay v. Noia."®

11 Even so, the question of the mob’s influence was held to ‘hove been

‘foreclosed by the state appellate court’s negative appraisal of it. ©

12 McNally v. Hill, 293 U.S. 131 (1934).

"13 McNally v. Hill, 3 Cir., 69 F.2d 38.

- 14344 U.S. 443 (1953). |

15 Brown v. Allen (Daniels v. Allen), 344.U.S. 443, 482-87 7 (i980),

4

?

— .

App. 15

Meanwhile,” -thete: had been a rapid expansion of the

meaning of the due process and equal protection clauses of

the Fourteenth Amendment. A state:prisoner had no incen-

tive to question .his conviction tipon grounds of absence of

counsel, inadequate performance of counsel or a multitude

. of other grounds until decisions came down making such

deprivations matters of constitutional dimension.

It is thus apparent that the present procedural problem

had no immediate urgency until *very recently when ‘the

extension of the writ to obtain federal adjudication of fed-

eral constitutional issues arising during the state court-pro-

ceedings’” and the freeing of the writ’s availability from .

* teclhinical limitations arising out of state court procedural

requirements,"* combined with the currently proceeding —

reinterpretation’ of the, due ‘process and equal protection |

claises of the Fourteenth Amendment to include within

their reach many things now becoming to be regarded as of |

fundamental faifness."® A few years ago, the question

whether habeas corpus was available to attack a sentence to

be served in the future was of little more than academic

interest ;.today it has become a question of pressing impor-

tance to vast-numbers of prisoners with colorable claims

upon which to found attacks upon successive and subse~ , :

quent sentences. > f

The problem we face simply did not exist in the Seven-

teenth Century. Now that recently it has arisen, if there

_ is a substantive right crying for a remedy, it seems most

inappropriate to approach a solution in terms of a Seven-

teenth Century technical conception which had no relation

to the context in. which today’s s problem arises. ks

16 372 US. 391 (1963). ;

7 Brown v. Allen, 344'U.S. 443 (1953).

18 Fay v, Noia, 372 U.S. 391 (1963).

19 See generally, Meador, supra, note 5.

Stic

App: 16

As. we have noted, ‘the Susie Court dealt with this

problém in 1934, before it became acute, in McNally v.

Hill,” and it then supplied the doctrinare answer. McNally

was serving the second of three consecutive sentences when

he sought-habeas corpus to attack the third. He had served

enough of the second sentence to be eligible for considera-

tion for parole ithe third sentence were invalid, but, since

4 he was being held under the concededly valid second sen-.

tence and his immediate release could not be ordered by .

_»the court, the Supreme Court held that, habeas corpus was

unavailable to’ him. The prisoner’s. only” purpose in seeking

_. habeas corpus was to establish his eligibility*for parole, and -

. the Suprerhe Court thought that might be done by a peti-

. tion for mandamus to require the Parole Board to entertain

a petition for parole, The Supreme Court thought McNally

should have an available remedy, = held. habeas corpus .

- the wrong route. .

Since McNally v. Hill the aiieany Court has not dealt

directly with the problem,”’ but it has embraced a more

liberal, less technical concept of the writ. This is exempli-

fied in such cases as Jones v..Cunningham, 371 U.S. 236

(1963), and Fay v. Noia, 372 U.S. 91 (1963). The new

appreach is thoroughly inconsistent with the narrowly tech-

20 McNally v, Hill, 293 U.S. 131 (1934).

21 Tt came close to it in Ex Parte Hull, 312 US. 546 (1941), in

‘which a prisoner was allowed to-attack a second conviction which re-

sulted in revocation of his parole and his recommitment under the

earlier sentence, though he was held under the concededly -valid first

sentence. Ex parte Hull is not necessarily inconsistent with McNally

ft v. Hill, but it was a Significant departure from a mechanistic applica-

tion of the old rule that habeas corpus is unavailable unless the court’s

order will procure the prisoner’s immediate release. Heflin v. United

. States, 358 U.S. 15 (1959), may be regarded as an affirmation of

McNally v. Hill, for while the federal prisoner there was allowed to

attack the future sentence under Rule 35 of Fed. R. Crim. P., five

members of the Court were of the opinion that relief was unavailable

er eae

App. 17

nical one of McNally. The change. seemed so apparent. to

us that, in Martin v. Commonwealth of Virginia,” when

we were faced with the precise McNally ‘v. Hill issue, we

concluded that the Supreme Court today would not follow

it when the conviction under attack had a present adverse

effect upon the prisoner’s eligibility for parole. This Court,

of course, must follow the Supreme Court, but there are

occasional situations in which subsequent Supreme. Court

opinions: have so eroded an older case, without explicitly

overruling it, as to warr&nt a subordinate court in pursuing

what it conceives to be a clearly defined new lead:from the

Supreme Court to a conclusion inconsistent with an older

Supreme Court case. That we did in Martin, and we took

the matter one furthet step in Williams v. Peyton,” in per-

mitting a prisoner to attack a future sentence, though he |

was already eligible for parole, since the fact of the future

sentence to be served was strongly calculated to influence

the Parole Board’s action. In each of these cases we de-

parted from the strict holding in McNally. We considered

it. no longer controlling authority, and we will adhere to

that view until the ig em Court has an opportunity to

declare what, if any, Vitality that case presently retains.

_ Certainly, McNally’s doctrinaire approach and. its dealing

_with the problem in terms of the‘ old jurisdictional concept

have been thoroughly rejected by hae Ras oh Court in

_ recent cases.

Here, we are asked by the prisoners, of course, to go be-

yond the strict limits of our holdings in Martin and W1l-

liams, for the future sentences under attack here have no

present effect upon their being considered for parole. While

Martin and Williams represent a significant departure from _.

- 22.4 Cir., 349 F.2d 781.

23 4 Cir., 372 F.2d 216.

- App.18

the historic conception that the writ of habeas corpus was

available only if the court’s order would procure the im-

mediate release of the prisoner, they were founded upon the

notion that the future sentence under attack had an imme-

diate inhibiting effect upon the petitioner’s chances of ob-

taining conditional release on parole. To the extent that

the .future sentences had such an effect in Martin and in

Williams, their vacation would procure the prisoner’s im-

mediate reledse from them. The. further step we are asked

to take in this case cannot be founded upon precisely the

same rationale, but we have concluded that taking it is both’

logical and necessary. :

Virginia’s Attorney General ‘seems to recognize in this

case the desirability of some present remedy by which the

constitutionality of these future sentences may be deéter-.

‘mined. It is certain that each of these prisoners will suffer

decided detriment from them in the future, unless death

in the interim relieves -him of all of his burdéhs. If he is

compelled to wait the many years until he commences

service of them, or even for those several years until the

. ‘future sentence hasan adverse impact upon his -being con-

sidered for parole, all responsible officials who participated

in the trial, judge, prosecutor, lawyer, clerk and reporter,

may have died, or the case have become so dim in their

‘memories that they could contribute nothing as witnesses.

_ If there is not now a transcript of stenographic notes of the

proceedings, there is great likelihood that it would be un-

available many years hence, ‘and unless there is a present

remedy by which the substantive questions can be raised, no

court has authority to require emia of a regain of |

such proceedings. .

- Enforced delay from lack of a remedy over a period of

"many years is, itself, a decided detriment to the prisoner.

| App. 19

.. He may lose the only means. by which he may substantiate

~-his claim. It is an even greater potential detriment to Vir-

'. ginia. Years hence, the prisoner, at least, may be expected

‘ to give testimonial support to the allegations of his petition,

but if they are false in fact, the Commonwealth of Virginia

may be unable to refute them because of the unavailability

of records, and of the testimony of responsible officials and

s participants in the trial. The greater the lapse of time, the

more unlikely it becomes that the state could reprosecute

if retrials are held to be necessary. It is to the great interest

of the Commonwealth and to the, prisoner to have these

matters determined as soon as possible when there isthe

greatest likelihood the truth of the matter may be estab-

lished. Justice delayed for want of a procedural, remedial

device over a period of many years is, indeed, justice denied

to the prisoner and, in an even larger degree, to Virginia.”

While agreeing that provision of a present remedy would

_ be a desirable reform, however, the Commonwealth sug-

gests that it is a legislative matter. ‘With mm, we must

_ ,disagree. .

The writ of habeas corpus is not the creature ny a legis-

_ lature. It was a device fashioned by the common law courts

_ to protect and extend their own jurisdiction. _ os

In the Seventeenth Century it developed intgthe “Great

Writ” so prized in Colonial America. In the ‘process, it

was assisted by the Petition of Right, enacted by the Parlia-

ment in 1728 to extend the writ to bring into question com-

mitments under orders: of. the Crown, 25 and it received ©

24.We have previously expressed the great ‘desirability of remedial

procedures to achieve an early disposition of collateral attacks on crim- ;

inal judgments. Sée Williams v. Peyton, 4 Cir., 372 F.2d 216; Mathis

y. United States, 4 Cir., 369 F.2d 43; Martin v. Virginia, 4 Cir., 349

F.2d 216. So has the ‘Supreme | Court. United States v. ‘Smith, 331

U.S. 469, 476 (1947). .

25 See generally ; Meador, supra, Note 5.

App. 20

procedural assistance in its codification in the Habeas

Corpus Act of 1679,”* but the writ was essentially the prod-

_ uct of judicial innovation.

In this country, in Article I Section 9 of the Constitution,

. it was provided that the privilege of the writ shall not be

suspended except when required by the public safety in

times of rebellion or invasion. The Judiciary Act of 1789”

authorized the federal courts to grant such writs, but the

nature and scope of the writ was to be found neither in

Article I of the Constitution nor in the Judiciary Act of

1789.

‘Until 1867 the writ was available i ina Sedeeal court only

to question federal detention. Occasions for its use were

infrequent, and in most instances it was employed to ques-

tion detention of individuals by the military acca acting .

under executive orders.”

By the Act of ‘February 5, 1867” the federal writ was

extended to procure the release of persons held in state

custody in violation of the Constitution, laws or treaties of :

the United States. That statutory aythorization, now em-

’ bodied in 28 U.S.C.A. § 2241, was, unquestionably, a

congressional extension of the federal writ to' reach cases of

state custody, but. it was not immediately recognized as

having expanded the scope of the writ or altered its other

_ procedural requirements.

Thus, it was held in Ex parte Parks, 5 - as it had been

26 31 Car. II c.7, 8 Statutes at Large, 432-39 (1763).

27 1 Stat. 81 c. 20 § 14 (1789).

28 See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869) ; Ex ©

parte Milligan, 71 U.S. (4 Wall.) 2 (1866) ; Ex parte Merryman, 7

Fed. Cas: 144 (No. 9487) sed Ct. D.Md. 1861) (Chief ee

Taney).

29 14 Stat. 385 c. 28 (1867):

3093 U.S. 18 (1876).

A pp. 21 |

| held earlier in Ex parte Watkins,™ that a prisoner serving

a sentence imposed by a court of competent jurisdiction had

- no recourse to habeas corpus. Ex parte Parks was concerned

_ with a federal prisoner, but the scope of the writ was the

same whether the petitioner was- .. state or a federal pris-

oner. This is clear from fhe statute.*? .

In the remainder of the Nineteenth Century tilere was .

little advance from that level, except. that certain major

defects were treated as jurisdictional.**

The great flowering of the writ was a mid-Twentieth

Century phenomenon starting tentatively with Frank v.

Mangum, budding i in Brown v. Allen and blossoming with

Fay v. Noia. Those tremendous developments. of the writ

"_ were entirely judicial, not legislative, and if. they owe some

debt to a permissive construction of the Act of 1867, it was

a construction discoverable only by Twentieth Century

judges.” :

When the writ as it is known today, therefore, is almost

entirely the product of judicial innovation. and adaptation —

to fit it to new situations and newly felt needs, judges

should not hesitate to take a further step to adapt it to meet

yet.another need which is prepent, urgent, and ies dite ;

even by thestate. |

‘ We need not speculate: about ‘the matter; however; the

Supreme Court has declared that habeas corpus “is not now

- and never has been a narrow, formalistic remedy; its scope |

has grown to achieve its grand a. The statement

3128 U.S. (3 Pet.) 193 (1830)..

32 See also Ex parte Bridges, 4 Fed. Cas. 98, 106 (No. 162) (Cir.

Ct. N.D. Ga. 1875) (Mr. Justice Bradley), which did involve a state .

prisoner.

_ 33 Ex Parte Siebold, 100 U.S. 371 (1879) ; Ex parte Lange, 85 U.S.

(18 Wall.) 163 (1873).

34 See United States v. Hayman, 342 U.S. 205 (1952).

35 Jones v. Cunningham, 371 U.S. 236, 243 (1963).

App. 22 -

is ‘historically accurate,- and it epitomizes the governing

; principle of our decision.

The law today abhors a right without a remedy just as

the common law did..The genius of the common law was

the improvisation of remedies to obtain adjudication: of

substantive rights. The generative capacity did not .end

with the first or second generation. It is vigorously present

_ today. If common law pleading became overly technical

and debate tended to veer toward appropriateness of the

writ the suitor had invoked, we,.in this day of simplified

pleading, should not lose sight of our judicial heritage of a —

continuing evolution of remedial processes to right asserted

‘wrongs. If, despite the general abandonment of the tech-

nically difficult common law pleading in favor .of a system

in which the court supplies the appropriate remedy for the

right asserted, we would be untrue to our judicial inheri- .

tance if we dealt ungenerously with rights still affected by

the vestiges of technical limitations applied in an earlier era

to common law pleadings. Our recitation of its history dis-

closes that the writ of habeas corpus has not been a static

thing. There is nothing in that history to suggest that it

‘ should be restricted to the need of a much earlier time.

Taking our direction from Jones v. Cunningham’s decla-

_ration of the potentiality for growth of the writ of habeas.

corpus to achieve its purpose, and from Fay v. Noia’s assur-

ance of “the fullest opportunity for plenary federal judicial ;

review’ and the necessity for “swift and imperative justice ~,

on habeds corpus,”*” we conclude that we are not bound in ©

the circumstances of these cases by the historic requirement

for availability of the writ that the court’s order may pro-

36 372 U.S. 391, 424 (1963).

* 37Jd.at435. ; | 7 .

a

cure the immediate release of the prisoner.** Nor does that

historic requirement limit us to the Martin and Williams

situations in which the sentence under attack: prevents the .

prisoner’s being considered for parole or has an inhibiting

effect upon the granting of parole. So far as the historic

limitation is concerned, we conclude that the writ is avail-

able to’ attack any sentence, service of which will be re-

quired in the future by the same custodian who presently

detains the prisoner. . ,

This is not the,end of our inquiry, however, for the

statute provides that “(c) The writ of habeas corpus shall

not extend to a prisoner unless— . . . (3) He is in custody

in violation ofthe Constitution or laws or treaties of the

United States ... .’%® The statute says nothing about the

court’s order bicing. able.to procure a prisoner’s immediate

release, and the statutory requirement of custody is subject

to reasonablg interpretation consistent. with the general

purpose of the writ and its development in. more recent

cases in the Supreme Court. |

In.a technical sense, éach of the prisoners here is pres-

‘ently serving only one of the sentences imposed to run con-

secutively, but in a substantive and practical sense Rowe is

serving a total commitment of 50 years and Thacker one

of more than 64. For .purposes of determining parole

eligibility, Virginia treats the aggregate time imposed by

consecutive sentences as “the term of imprisonment.””° To

_ the prisoner, members of his family, and: fellow prisoners

it matters little how the order of sentence service is listed by

the clerk in the superintendent’s office. The one significant,

38 See also Ex parte Hull, 312 U.S. 546 (1941), in which,as we

have noted, the Supreme Court departed from that requirement.

39 28 U.S.C.A. § 2241 (1958).

40'Va. Code Ann. § 53-251-(1967). °

“=

| App. 24

substantive thing is the aggregate length of his successive

_ sentences to be served, for they govern entirely his hope ‘for

ultimate release whether by —_ or by complete sentence,

service.

The administrative computation of the sequence of sen-

tence service is a flimsy basis to determine the right of

access to the courts for a determination of substantial con-

stitutional claims. Virginia might, if it. wished, have them

served in inverse order, and an interruption in service does

result in substantial changes in the order of service. In one

of the cases here, Thacker seeks to attack convictions .im-

‘posed upon him in 1953, but he is administratively said to

be serving a sentence imposed upon him much later.*! For

_a number of reasons, there must be an administrative de-

termination of the sequence of sentence service, but however .”

it is done, it is an arbitrary, mechanicaf thing subject to

subsequent variation and adjustment. When the one im-

portant, substantive fact is the aggregate of-all'of the suc-

cessive sentences a prisoner is required to serve, his right of |

access to the. courts should not be conditioned upon the

sequence in which the state chooses to list consecutive or

successive sentences for service.

It is only i in a highly technical sense, therefore, that each

of these prisoners may be said not to be, serving the sentence

he seeks to attack. In a substantive sense, each is serving

each of the sentences for the service of which he was com-

mitted, regardless of the’ sequence in which Virginia has

listed them for service.

41 See Peyton v. Williams, 206 Va. 595, 145 S.E.2d 147 (1965),

upholding postponement in service of an earlier sentence from ‘which

the prisoner had been ‘released on parole until completion of service

of a_later sentence which occasioned his recommitment and, later,

parole revocation. The converse procedure occasioned the question _

with which the _——— Court dealt i in Ex parte Hull, 312 U.S. 546 —

(1941).

App. 25°’

. ar

~The coltaty requirement of the statute has not been ap-

plied in this country ina mechanical and restticted way. In

Jones v.*Cunningham,” a parolee was held in sufficient

custody to meet the requirements of the writ. We, in Thomas

. Cunningham, recognized the predominating, substan- -

ive fact that a prisoner is in custody for the service of

future sentences as well-as the one he is administratively

considered to be serving. Of. the six consecutive two year

sentences imposed upon Thomas, we said: “Furthermore,

every preceding term was a factor in the detention under

_ every succeeding one, because Thomas was held not only

for service of the current term but as well to satisfy the sub-

sequent terms.’** We have also felt ourselves so unrestricted ©

by administrative determination of sentence setvice as to

' permit a prisoner to attack a sentence which, according to

the administrative record, had been fully served but the

removal of which from the record, with advancement of the

commencement of service of the valid terminal sentence to

the time of commitment, would result in his immediate

release.** The fact that Virginia attributed his earlier years

of service to invalid sentences and his current. service to a

concededly valid sentence did not prevent our going to the —

. substance of the matter. : ‘

We comte to a similar conclusion here. Virginia is hold-

ing both of these prisoners not only for service of the sen-

tence which administratively each is said to be currently\,

serving, but for service of the subsequent ones as well. Each 3

of them is in ‘custody within the meaning of the statute | .

under each of the consecutive sentences for the service of ~ \

42 371 U.S. 236 (1963).

43 4 Cir., 335 F.2d 67.

44 Td. at 69.

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

App. 26

which he was/ committed, ‘and he is presently entitled to -

_ test the constitutionality of any such sentence. |

While, as we observed earlier, the rationale of Martin

and Williams does not dictate. our conclusion here, for

neither of these prisoners, in any event, will be eligible for

parole; that circumstance ‘is not crucial to the conclusion

| ° that Virginia is holding these prisoners for service of the

aggregate terms of all sentences under which they have’

been committed. A substantive view of the matter and the

relevant precedents of more recent years lead us here to the.

same result we reached in Martin and Williams.

Ours is a reasonable interpretation of the custodial re-

quirement of the statute.*° It-is made particularly appro-

priate by the necessity of a present remedy to avoid up-

conscionable and injudicious delay of many years in the

adjudication of justiciable claims of constitutional dimen-

sions. .

| VII

'. Having reached the conclusion that habeas corpus is

available to these prisoners, we have no occasion to con-

sider the alternative contention that they are entitled to a

. declaratory judgment. The. alternative contention ‘poses a

number of difficult problems; the remedy to serve the

pressing need for an undelayed judicial. determination of

these substantial claims of constitutional deprivations should

be the traditional one in this area, habeas corpus. If, after

a hearing, any of these convictions under attack is found

to be invalid, the court may order the Warden to strike it

- 46 See also note 48, infra.

47 See Note, Postconviction Remedies: The Need for Legislative

Change, 55 Geo. L.J., 851, Ady (1967).

App. 27

from the administrative records and,‘henceforth, to ‘hold

the prisoners for service of the valid convictions only.” .

_ For the foregoing reasons, we conclude that the orders

dismissing these petitions without a hearing were erroneous.

Reversed and remanded.

7 | Fe

48 We liave been concerned with the construction of 28 U.S.C.A.

§ 2241, which has been construed in pari materia with 28 U.S.C.A.

§ 2255.: The latter section extends the writ to a federal prisoner

“in custody . . . claiming the right to be released . . .,” and it has-been

suggested that the right to release clause of § 2255 poses some concep-

tual difficulty in the way of our construction of -§ 2241. If, as we have

.seen, however, the detention in a substantive sense is under each of

two consecutive sentences, the prisoner may be effectively released

' from all of the burdens of the invalid sentence by the writ’s execution.

The right to release clause need not be construed as requiring a claim _

that he be set outside the prison’s walls free of the restraint of the

other valid sentence. Surely, it would not be given that construction if

the sentence under attack was the one which the Warden said adminis-

tratively was the one then being served. As we have said, the Warden’s

administrative determination of .the sequence of sentence service is a

technical irrelevance. ar © ;

n° OT ay Ig