Appendix — Peyton v. Rowe

APPENDIX I

_ VIRGINIA:

In the Supreme Court of Appeals held at the Supreme.

_ Court of Appeals Building in the City of Richmond on

W ednesday the 27 th day,of April, 1966.

Robert Elmer Rowe,

Petitioner,

against pare sew :

C. C. Peyton, Superintendent of the -

Virginia State Penitentiary, —

} Respondent.

Upon a Petition for a Writ of Habeas Corpus

Upon mature consideration of the petition of Robert

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, and the petitioner’s

reply 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; having been 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 validity “ the petitioner’ s present

detention.

For the foregoing 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 the petitioner his. costs by him expended about his de-

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

>

| ‘App.2 ;

appointed i. this. couri to bine 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 unpaid fees and costs in this cause which are to

| be taxed by the clerk.

Teste: .

/s/ H. G. TuRNER ©

‘ + Clewte

Respondent’s Costs: ° ,

-Attorney’s fee _ $50.00

| @mmonwealth’s costs: beak.

Tax ve ‘$-100-- .

Clerk’s fee ; 10.00.

Fee allowed court- “eee

- appointed attorney 100.00

Testee:

/s/ H. G. TURNER

| Clerk

APPENDIX II

In THE UNITED States District Court —

For THE WESTERN District OF VIRGINIA

HARRISONBURG DIVISION ©

ROBERT ELMER ROWE

ae v.

- _C. C. PEYTON, Superintendent of the

Virginia State Penitentiary

66-C-27-H —

P ) ,

ApS

Memorandum Order ;

Petitioner was convicted of rape in the Circuit Court of

Augusta County en June 18, 1963 and is- presently serving

a valid thirty year sentence imposed upori 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

is 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

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

it is

ORDERED.

that prisoner’s petition for a writ of habeas corpus is Crnsed

and it is s further Me.

ORDERED

that the petitioner be and hereby is granted — 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

> eee

that if the petitioner wishes ‘to appeal, an application for a

certificate of probable cause will be denied by this Court.

¢

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

is 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

md the Attorney General of Virginia.

ENTER $ October 26, 1966.

/s/ THOMAS J. MicHIE

United ee District Judge

A TRUE COPY, TESTE: . : :

. “Leigh B. Hanes, Jr., Clerk

_ By: /s/ Datsy H. NALLE

Deputy Clerk -

APPENDIX III -

In THE UNITED StTATEs District Court

For THE EASTERN District OF VIRGINIA

Richmond Division 7

oe Civil-Action —

No. S011

' CLYDE MASON THACKER.

<i

C. C. PEYTON, Superintendent of* the

Virginia State Penitentiary

App. 5

Memorandum Of The Court | =

Clyde Mason Thacker’s ‘application for a writ of habeas

_ . corpus will be denied without préjudice.

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 oa

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 proc ings. - . :

Thacker is not pkesently serving these sentences. The

respondent i is detaining him pursuant to a judgment of the

Circuit Court of Buckingham County entered Septemb@r

17, 1964, which sentenced him to a term’ of four years #h

the penitentiary upon omen of breaking and entering.

The sentence Thacker presently is serving will expire —

April 7; 1967. Thereafter he will begin service of a one-

year sentence 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 County

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,

Ath Cir.

ms 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 —

P

_—

CP ae

ig cee

a

are the sentences imposed in the Circuit Court. of Hanover

County. He will not begin serving ae sentences until

November 8, 1997.

Both the respondent and Thacker are in agreement that

the sentences which he attacks do not prevént 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 expressé® |

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

limitations upori Martin are clearly stated in Tucker v.

Peyton, 357 F.2d 115, 117 we. <e; 1966), where the —

- court said: a

we Jeababiss PoCae ee eee ee

emer ee Ne es

| ee [W]e elie told 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, hé would be eligible for parale if the ques-

tioned sentence were invaljd. Petitions for the writ

> need not require adjudication of academic questions,

but they should be readily er tas toa -

Dade

: i conviction which currently substantially ‘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 Thacker’ s

' reapplication at the proper time. 7

Ls/ Joun D. Burzner, nm

United States District Judge-

A}

Se a

al .

» February 1, 1967.

a

| App.7

| _ APPENDIX IV » |

- UNITED STATES COURT OF APPEALS

- FOR THE FOURTH CIRCUIT

v

~~ No. 11,072.

Robert Elmer Rowe,

- Appellant; —

7 versus | >

C..C. Peyton, Superintendent of the

Virginia State Penitentiary,

' Appellee.

-

THE WESTERN DISTRICT OF VIRGINIA, A

APPEAL: FROM THE UNITED STATES DistRict CourT FOR

THOMAs J. MicuieE, District.

DGE.

No. 11,217.

Clyde Mason Thacker, -

Appellant,

wes.

C. C. Peyton, Superintendent of the

Virginia State Penitentiary,

Appellee.

HARRISONBURG. .

Ape.

APPEAL FROM THE UNITED STATES District CouRT FOR

. THE EASTERN» DISTRICT OF VIRGINIA, AT RICHMOND.

— D. Butenzs, Jr., District Jones:

(Argued June 19, 1967. | ' Decided August 28, +1967. )

Before iavnwncnie: Chief silaee and Seentane, Bore-

MAN, BRYAN, WINTER and Craven, Circuit Judges, sitting.

_ en banc. |

John J. Kirby, |» (Gouressigne’ counsel) for Appellants, .

and Reno S. Harp, III, Assistant’ Attorney General of —

~ Virginia, (Robert Y. Button, Attorney General of Vir-

| ginia, on brief) for Appellee. |

F

HaynswortH, Chief Judge:

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 the clearly present need- |

of a procedural device to test the legality of: these conivic-

_ 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 intent to defile the |

same female of: whose « ‘rape he had been: convicted .in

App: 9.

upon, on advice of counsel, Rowe tendered a plea of guilty.

Rowé alleged that he had been told by his lawyer that any:

sentence imposed upon hin’ in Waynesboro would be.re-

aa 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-

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

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 in Waynesboro for abduction until the year 1993.

Because, under 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 in 1975. If the second sentence is invali- .

dated, Rowe’s eligibility for parole 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-

. gtantiated at a hearing, would require that the conviction:

. ‘be vacated. 3

I

In 1964 Clyde Thacker was committed to the Virginia

State 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

PMT CN REPS TS

Pe

ee

of -

commence in sérvice in 1994 and to end in the year 2004.

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

E The suspe was revoked in 1956. |

Because of the rule of eligibility for consideration for

parole. 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.

Thacker seeks to: attack these three sentences 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, wére the alleged facts established in a hearing,

Thacker would be entitled to have those sentences vacated.

As in Rowe’s case, the Commonwealth concedes. that

Thacker’s petition sufficiently states a constitutional claim —

and cannot be dismissed without a hearing if there i is any

= remedy. :

“Til

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

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

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

‘oe

)

cA

terms of an immediate potential iarole. The answer in-

volves a more fundamental question, whether the courts are:

~*~

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 an 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 depart .

from the former course of its decisions.‘

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 developed 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 speed and: le ts an exceptionally able.

- 3 That is the rule in Vergiate, Peyton, v. a 206 Va. 595, 145

S.E. 2d 147 (1965). -

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

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 ©

an available remedy some le years hence.

App. 12

_ lawyer who has filed a very ,enlightening brief. While

academicians .may speculate about a. decision of a court

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.

If the qyestion was clearly tendered, as it was 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

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

__. prehensive 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 performance 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

ina particular case. Even when lawyers perform superbly,

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

- not be found in the briefs.

.; oi

_ 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

served in the future.

The “Great Writ” has deep adtecedents in the English _

tending the jurisdiction of courts. As an effective weapon,

for the protection of individual liberties from monarchial

common law as a procedural device for protecting and ex-

interference, it evolved in the Seventeenth Century, in the

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

5 Fora very perceptive review of the writ’s history see J. D. Meador,

(1966):

oo

- Habeas Corpus and Magna ay University. of Virginia Press -

on

App.13 | ;

ported into this country as a shield against authoritarian

commitments under orders of the Crown. Available, too,

for the procurement of bail for bailable offenses,® and for . |

_ the questioning of private restraints upon individual liber-

ties, it was not envisioned as an instrument for quéstioning

judicial authority except in the narrowest of jurisdictional -

' senses. The writ was unavailable to one held for trial or

convicted of a felony in a court shaving jurisdiction 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, thére was.no justiciable problem of sen-

tences to be served in the future.

When, by the Act of February 5, 1867,° ‘the federal writ

was‘extertded 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 right have been construed more broadly; the cur-

rent understanding of the limitations of the writ was so

definitive that the jurisdictional concept remained in full

flower. A state court’s commitment was not questionable

in a federal habeas corpus proceeding if the offense was —

‘triable in the ge tpn and the prisoner subject to its

_ power.? There was no substantial crack in that conceptual

limitation until 1915 when, in Frank vy. Mangum,"® the

Se

6 See the Habeas Cavin Act of 1679, 31 Car. I C7, 8 Statutes at

‘Large 432-39 (1763).

_7 Ex parte Parks, 93 U.S. 18 (1876) ; nied parte Watkins, 28 U.S.

“(3 Pet.) 193 (1830).

8 14 Stat. 385 (1867). The present version is 28 U.S. isd A. 88 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 Patks, 93 U. ! 18 (1876).

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

100 U.S. 371 (1879), and Ex parte Lange, 85 USS. (18 Wall.) 163

(1873).

-- ° : =:

nal .

| App. 14° ~

Court assumed that a state court having jurisdiction might -

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

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

viewed some judgments as void, rather’ than voidable, the

writ offered little encoufagement to a prisoner oppressed

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

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

the ‘Supreme Court in 1934.” 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 i in the indictment was not so egregious as to

a. °

8

-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 considered i in

detail hereafter. ~ 2

It was not until Brown v. Allen" that any avant vista was

opened to state prisonets 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."®

i Sean so, ‘the question of the mob’s influence was held: to have teen

* 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.,69F.2d38.

14 344 U.S. 443 (1953):

Bele Brown v. ‘Allen gical Allen), 344 U.S. 443, 482-87 (1953).

ie

ad

-

RR eM Se

App. 15°

Meanwhile, t there had beén a iia expansion of the .

‘meaning of the due process: and equal protection clauses. of

the Fourteenth Amendment. A state prisoner had no iricen-

tive to question his convictjon upon 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 fhat.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 issyes afising during the state court pro-. .

a

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

technical limitations arising out of state court procedural

requirements,'® ‘combined with the currently proceeding a

reinterpretation of the due process and equal protection *.’

' Clauses of the Fourteenth Amendment, to include within

their reach many things now becoming to be regarded as of

fundamental fairness.” -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“fbund attacks upon successive and subse-

- quent sentences. — :

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 problem arises.

16 372 U.S. 391 (1963).

17 Brown v. Allen, 344 U.S: 443 (1953).

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

19 See generally, Meador, supra, note 5.

"

.

?,

App-16 -

, t st : /

As we have noted, the Supreme Court dealt with ‘this

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

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

7. was serving the sécond of three consecutive sentences when

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

enough of the second sentence to be.eligible for considera-

tion for parole if the third sentence were invalid, but, since

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 hel that habeas, corpus was

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

habeas corpus was to establish his eligibility for parole, and’

_ thé Supreme Court thought that might be done by a peti-

_ tion for mandamus to require the Parole Board to entertain

@ petition for’ parole. The Supreme Court thought McNally

should have an available remedy, but held habeas corpus

the wrong route.

Since McNally v. Hill the Supreme. Court. has ‘not dealt

directly with the problem, 21 but it has embraced a fhore .

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

approach is thoroughly inconsistent with the narrowly t tech-

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

“21 Tt cane close to it ‘in Ex Parte Hull, 312 U.S. 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

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. Ps five |

members ‘of the Court were of the opinion that relief was urtavailable

== U.

S.C.A. § 2255.

6 4 : . - : *

> eres : 7 * S$. -

° -* - 4 “ ° A .

App. 17.

© 9s

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 Cotrt, but there are

occasional situations in which subsequent Supreme Court

‘opinions have so eroded an older case, without explicitly

overruling it, as to warrant 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

mitting a prisoner to attack a future sentence, though he

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

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

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

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 i in McNally. We considered

dit no longer controlling authority, and we will adhere to

_that view until the Supreme Court has an opportunity to

declare what, if any; vitality that case presently retains.

Certainly, McNally’s doctrinaire approach and its dealing

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

i yond the strict limits of our hoidings in Martin and Wi1l-

liams, for the future sentences under attack here have no

‘ nf

‘with the problem i in terms: of the old jurisdictional ‘toncept ~

have been thoroughly ee by the args Court in -

" recent cases.

present effect upon their. being considered for parole. While _

Martin and Williams represent a significant departure from

22 4 Cir., 349 F.2d 781.

234 Cir., 372 F.2d 216.

Q

App. 18.

the historic conception. that the writ of habeas corpus was

available only if the court’s order. would procure the iffi-

mediate release of the prisoner, they were. founded upon the

- notion that the future sentence under attack had an-imme-

diate inhibiting effect upor the petitioner’s chang

- 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 release 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 deter-

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 burdens. If he is -

compelled to wait the many years until he commences -

service of them; or-even for those several years until the

future sentente has an adverse impact upon hjs being con-

sidered for parole, all responsible officials who) participated

in the trial, judge, prosecittor, lawyer, clerk~and reporter,

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

memories that they could contribute nothing as witnesses. ©

_ Lf 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 i is a present

_ remedy by which the substantive questions can ba raised, no

court has authority to require production of a ‘transcript of .

such proceedings..

Enforced delay from. lack of a remedy over a ear of

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

. =

.

‘

‘

.

a

of ob-

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

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 is the —

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 isa legislativs matter, With this, we must

disagree.

The writ of habeas corpus is: not the creature ofa legis-

lature. It was a device fashioned by the common ~ courts

to protect and extend their own jurisdiction. . a

In the Seventeenth Century it developed into the “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,” and it recéived

-24 We have previously. expressed the great desirability of remedial |

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

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

v. 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 ir 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

_ mature and scope of the writ was to be found neither in -

Article I of the cee aa nor in the Judiciary me of

1789. ‘ =

Until 1867 the writ was available in a federal 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 authority 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 authorization, now em-

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

congressional extension of the federal writ to react: cases of |

state. custody, but it was not immediately recognized as —

having expanded the scope of the writ or altered. its other

procedural requirements.

This, it was held i in Ex pate Parks,*° just as it had been ,

~ 2% 31 Car. II c7, 8 Statutes at Lents 432-39 (1763).

~ 271 Stat. 81 c. 20 § 14 (1789).

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

parte Milligan, 71 U.S. (4 Wall. ) 2 (1866) ; Ex parte Merryman, ‘17

Fed. Cas. 144 (No. 9487) (Cir. Ct. D.Md. 1861) (Chief Justice

Taney). ©.

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

' 3093 U.S. 18 (1876).

App. 21

held eather 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 thé scope of the writ was the

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

~ oner. This is clear from the statute.*?

In the remainder of the Nineteenth Century there was

little advance from that level, except that. certain major

defects were treated as jurisdictional.*?

The great floweririg of the writ was a mid-Twentieth.

Century phenomenon: starting: tentatively with Frank v.

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

Fay v. Noia. Those tremeridous 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 ecw es discoverable only- by Twentieth rervatd

judges.**

When the writ: as jit 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 iene urgent, and recognized, .

even by the state.

We need not speculate sine. 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 purpose.’’*> The statement

.2 28 U.S. (3 Pet.) 193 (1830).

32 See also Ex parte Bridges, 4 Fed. Cas. 98, 106 (No. 1862) (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 ee U. S.

(18 Wall.) 163 (1873).

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

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

App. 22 — | ,

is hunorienty. 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

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

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

‘thipg. There is nothing in that history to suggest that it

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

Taking our diréction 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 habeas 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 US. 391, 424 (1963).

37 Td. at 435.

ee > 2

. ’

App. 23

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

historic requirement limit us to the Martin: and Witliams

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 of the Constitution or jaws or treaties of the —————

~ United States :.2*-The statute: ‘says nothing about the

court’s order being able to procure a prisoner’s immediate

release, and the statutory requirement of custody is subject

to. reasonable interpretation consistént with the general ;

purpose of the writ and its development in more recent

cases inthe Supreme Court. =~» oi

*In:a technical sense, each of the prisoners here i 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 parole or by ne sentence

service. ; *

_ The administrative. computation of the sequence of sen- |

tence service isa flitnsy basis’ to determine the right 0

access to the courts for a ‘determifiation 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, mechanical thing subject to

subsequent variation and adjustment. When.-the one im-

' portant, stibstantive 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 tq 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 seritence 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 Supreme Court dealt i in Ex parte 7 312 U. S. 546

, A a

é

App. 25

_ plied in this country in a-mechanical and restricted way. In

‘The custody:requirement Of the statute has not been ap-

-fones V.. Cunningham,” a parolee was held‘ in sufficient

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

v. Cunningham, recognized the predominating, substan-

_ tive 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 service’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 comphitment, would result in his immediate

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

. of service to invalid sentences and his current service toa

concededly valid sentence did not prevent our going to the

“ substance of the matter:

We come 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

of then 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. ities vt

44 Id. at 69. : a

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

o> RYN

MOLE LIN a ors

r ° oe -

Piatt uO eg a ab A —

at « ° « - > ’ . 2

- 4 .

es yee | . \

?

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 niatter and the

relevant precedents of more recent, years lead us here: to the

same result we reached in Martin. ard 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 un-

- conscionable and injudicious delay of many yedrs in the

adjudication of justiciable claims of constitutional dimen-

sions. :

VII

Having reached the conclusion that habeas corpus is

availaple 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.

. - 47See Note, Postconviction Remedies: The N sed for Legislative

Change, 55 Geo. L.J., 851, 875-6 (1967).

a)

‘a

mee

: from the siietatneuttve a and, henceforth, to h

_ the prisoners for service of the valid convictions only.**

e~For the foregoing reasons, we conclude that ‘the orders

dismissing these petitions ee a hearing wer€ erroneous. ._

Reversed and. remanded. ;

« 2

3

aN

48 We have 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. |

Betas cathe Sones diet ’

? \ ©

pp. 28

APPENDIX V |

' ‘UNITED STATES COURT OF APPEALS

: TENTH CIRCUIT

May TERM 1967

—

No. 9195 - -

x

CHRISTOFORO RAMON VIALPANDO, ‘~

7 , - Appellant,

_ VS. Sige

Wayne K. Parrerson, Warden of the

‘Colorado State Penitentiary, 8

Appellee.

ae APPEAL FROM THE UNITED STATES District Courr FOR

THE DIsTRICT OF COLORADO

Cannon Harvey (Judson W. Detrick on the brief) for

Appellant.

James F. Pamp (Duke W. Dunbar, Aiteoiieg General ;

Frank E, Hickey, Deputy Attorney General; James F.

Pamp, Assistant Attorney General, on the brief) for

Appellee.

Before Jones*, SETH and isc. Circuit Judges.

* of the Fifth Circuit, sitting by designation.

_ App. 29°

*PenContaes | pS

The appellant, while serving a. sentence ‘of a court of

Colorado i in a prison of that state, attempted to escape and

was sentenced, following a plea of guilty, for felonious

escape. He was given a five year sentence to run consecu--

tively with the sentence previously given. His good time

accrual under his. first sentence was forfeited by the at-_

tempted escape. He asserted,,by a petition for habeas cor-

pus, that because of the forfeiture of good time, he was

placed in double jeopardy when charged for the escape as a

separate offense. He also claims the information against

. him was improper, insufficient. and violative of the Due

Process Clause of the Federal Constitution.

The appellant is now. confined by. the State of Ceiceds

« under the first sentence. The validity « of this sentence is not

questioned, Granting the writ as to the’ second sentence

‘would not effect the appellant’s release.

In a leading case the Supreme Court, citing or making ©

‘reference to Bacon’s Abridgment, Hale’s Pleas to the

Crown, Coke’s Institutes and many recent authorities, stated |

‘the principle in these words: -

“The purpose ie the proceeding : . was -to inquire

into the legality of the detention, and the only judicial

relief authorized was the discharge of the prisoner

or his admission to bail, and that only if his detention

was found to be unlawful.” McNally v. Hill, 293 U.S.

131, 55 S.Ct. 24, 79 L.Ed. 238. -

In another leading case it was stated: - :

“Habeas lies to énforce the right of personal liberty;

when that -right is denied and a person confined, the,

_ federal court has the power to release him. ‘Indeed,

App. 30-

it has ‘no sie power ; it cannot révise the state court

judgment; it can only act on the body of the petitioner.”

| B37 v. Nola, he tiie 391, 83. S.Ct. 822, ? ‘L.Ed.2d

% ”*Ximong the many cases of this Court in which the dentin

'. has been stated and applied are Carpenter v. Crouse, 10th

Cir. 1966, 358 F.2d 701; Osborne v. Taylor, 10th Cir.

1964, 328 F.2d 131, cert. den. 377 U.S. 1002, 84 S.Ct.

+ 1936, 12 L.Ed.:2d 1051, reh den. 379 U.S. 874, 85 S.Ct.

25, 13 L.Ed: 2d 82; McGann v. Taylor, 10th Cir. 1961,

289 F.2d 820, cert. den. 368 U.S. 904,.82 S.Ct. 182, 7

L.Ed. 2d98.

Since the district court 1 was without power to discharge .

the prisoner from custody, its order denying’ the petition

for habeas corpus was a proper one..-

That order is

AFFIRMED. ans