# Amicus Curiae Brief — Harris v. Nelson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0067%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1969 - **Citation:** 394 U.S. 286 ## Text ———e OL? € [Lets ewe .!.UCC Office-Sup-eme Court, US. FILED AUG 26 1968. {PHB xf. DAVIS, CLERK ° In THE Supreme Court of the United Ocroser Term, 1968 . ‘No. 199 Gzorce B. Harris, Petitioner, — Lovis NELson, - x Respondent. -F BRIEF AMICI CURIAE OF THE N.AA.C,P. LEGAL. DEFENSE AND EDUCATIONAL FUND, INC.,_ AND THE NATIONAL OFFICE FOR THE | ; RIGHTS OF THE INDIGENT — JACK GREENBERG James M. Nasazirt, III MicHaEL MELTSNER | _ Jack HimMetsrern 10 Columbus ‘Circle New York, New York 10019 Antuony G. AMSTERDAM ' . 3400 Chestnut Street Philadelphia, Pa. 19104 Attorneys for the N.A.A.C.P. Legal Défense and Educational é. Fund, Inc., and the National . Office for the Rights of the Indigent ce ’ ‘TABLE OF CONTENTS — Statement of Interest of the POE SERN SON Re Saeed : ' ARGUMENT— II. CONCLUSION ......2........ oe anes Meena PL I OT Ae Introduction and Summary ......... satiated I. The Federal Habeas Corpus Jurisdiction Should Be Administered by Modern, Efficient and Evolving Procedures Which Effectuate Its Purpose—the Vindication of the Right Against Unconstitutional Restraint ....... 2 Rule 81(a)(2) Makes the Federal Rules of Civil Procedure Applicable in Habeas Corpus Except When a Statute Governs or When’ a Distinct, Traditional Practice of Habeas Pro- cedure Variant From the Procedure in Ordi- : nary Civil Actions Manifests Unique Charac- | , teristics of the Writ That Make the Rules Unserviceable.: In Any Event, Federal Trial - Courts Are Empowered to Adopt the Proce- dures Described in the Rules as a Consequence of Their Undeniable Power to Formulate Ade- quate Procedures for the. Administration of the ° ‘ Habeas Corpus Jurisdiction .................22..-2.22.2---. ge ii a8 Sioa | a ’ : . Tasie or AUTHORITIES nas ‘ Cases: i cere , PAGE" Abel v. Tinsley, 338 F.2d 514 (10th Gir: 1964) ....:... 26 Adderly v. — 272. F. Supp: 530 (M.D. Fla. , er RGAE. BOs Sa — ee 0 Rowdidgs v. : tata, 252 F. 2d 366.(6th Cir. 1958) .. 26, 27 . Bowen v. Boles, 258 F. Supp. 1#1 (N.D. W. Va. 1966) ..... 26 Bowen v. Johnston, B06 U.S, 19 (1939) ° dcnncn.n.n-encece-oes 34 - Brown v.- Allen; 344 U.S. 443 (1953) .......... hanes ae Bruner v. United States, 348 bi 112 (1952) - eoianies 8 Gevalia v. LaVallee, 394 US. 234 (1968) SESE ERO er 5 Coleman v. Alabama, 377 U.S. 129 (1964) .................-- 34 . Commonwealth ex rel. Herman v. - Olandy, 350 U.S. di inscddians : a Copenhaver ' v. Bennett, 355 ¥'.2d 417 (8th Cir. 1966) =. Moe te 7 Darr ny Darford, 339 US. 200 ES aR eee 2 Dodd v. United States, 321 F.2d 240 (9th Cir. 1963)... Dorsey v. Gill, 148 F.2d 857 (D.C. Cir. 1945) .0000000....... re Dengan v: Louisiana, 391 U.S. 145 — ite pia Uses . Ex parte Baih, 121 U.S. 1 (1887) 1. EC ewe ORO itso 6 Ex parte Bigelow, 113 U:S. 328 (1885) - piecaaeceatieeitaiain oe ? Ex parte Bgllman, & Craneh 76 (1007). 3B Ex parte Clark, 100 U.S. 399 (1879). shichemnlanincleiinnedsnn _8i 2 - Bx parte Collett#337.U.8. 55 (1949) 8 Ex parte’ Collins, 154 Fed. 980 (C.C: N.D. Cal. 1907), afd, 234 U.S. 118 (1909) . 5... ae Ex parte Hawk, 321 U.S. 114 (1944) 02. ations 6 Ex parte Lange, 18 Wall. 163 (1873) 2.2... 6 . Ex. parte Mitsuye Endo, 323 U.S. 285 (1944) inttosm OA Ex parte Parks, 93 US. 18 sila Listed me eile a 6 CRITE TP aE ctacnad aman saan deat meade SRN RSS EET RONEN HATER RONEN RRES ERS ENT RAMEE ce: ka ac Rats sla aia sitet ‘ simaiacecaanaaais ° ; . a. . ‘ ; PAGE Ex parte Siebold; 100 U.S. 371 (1879) 2.0 6 Ex parte eee 3 Pet. 193 (1830) - cee: = | Fay v: Noia, 372 US. 391 (1963) © 6, 11, 90, 34. Fortner v. Balkcom, 380 F.2d 816 oth Cir. 1967) ....22, 27 ‘Frank v.- Mangum, 237 U.S. 309 (1915) -...... Livin ae ~ Frisbie v. Collins, 342 U.§. 519 (1952) ...................- — Georgia v. Rachel; 384 UgS. 780 (1966) ........... ae Gideon v. Wainwright, 3 ‘S. 335° (1968) anne Risteneion “5 ” Hamilton v. Hunter, 65 F. iene 319 (D. Kan. 19469 ... 26 Hardison AL Dunbar, 256 F. Dapp: 412 > D. Calif. IY "acre sansa ieriedlipabcnnlamprninmnantctonessmedcersianicaniassoeapesinnine 32 . Hickman v. Taylor, 329 U.S. 495 (1947) pyecctecceceeeen 12 ' Hill v. Nelson, 272 F. Supp. 790 (N.D. Cal. 1967) ........ 32 Hill v. Nelson, N.D. Gal., No. 47318, unreported order ° . of Chief J udge Harris, February 5, 1968 .................... 32. . Holiday v. Johnston, 313 U.S. 342 (1941) . NE aN vlan 24 In re Burwell, 350 U. s. 521 (aR rane Pace oe ae In re ragnanad S Petition, 23 13D F. Supp. 262 (N.D. on 41964) . . 26 In re nsw, 120 U.S. 274 (1887) SERIE eanatgieen oo. 6 In re Wood, 140 US. 278 (1891) | cecseetnnetennceeneeeeneetcee . 6 esa v, Cunhingham, 371 U.S. 236 (1963) .....4...5, 12, 29 Johnson v. Zerbst, 304 Us. 200 (008) ...........:........1 é 10 Johnston v. Marsh, 227 F.2d 528 (3d me. 1955) .. eee "31 Knowles v. Gladden, 254 F.Supp. 643 (D. Ore. 1965) a Lyles v. Beto, 32-F.R.D. 248 (S.D. Tex.-1963) 26. lv - me — ~Mapp v. Ohio, 367 U.S. 643 (1961) ........... caer * McGarrah v. Dutton, 381 F.2d 161 (5th Cir. 1967) .... “9¢ is Medley, Petitioner, 134 U.S. 160 (1890) 000.02 e 2... 6 Miller v. Pate, 386 U.S. 1 (1967) 20020. 5 Miranda v. Arizona, 384 U.S. 436 (1966) .....2............ —~=45 - Molignaro v. Dutton, 373 F.2d 729 (5th Cir. 1967) .... 27 Moore v. Dempsey, 261 U.S. 86 Cae). ‘silica eaisianiicaanete 7 Pate v: Robinson, 383 U.S. 375 (1966) iecccidianeamenttamets 5 ~ Peyton v. Rowe, 391 U.S. 54 (1968), .................... 5, 12, 15, 30 "Pointer v. Texas, 380 U.S. 400 (1965) 2... 5 Price v. Johnston, aut U.S. 266 (1948) SA eRe eh OPW Dian 30 Rodgers v. Bennett, ee ‘F.2d 83 (8th: Cir. 1963) 14,27 — ; Russell v. United States, 321 F.2d 533 (9th,Cir. 1963) .. 14 siesta vy. United States, 373 US. 1. (1963) eae 14, 30, 34 - Sheppard-v. Maxwell, 384 U.S. 333 (1966) 2.200... 5 NN ‘ Sisquoc’Ranch Co. v. Roth, 153 F.2d 437 (9th Cir. 1946) 31 Smith v. Bennett, 365 U.S. 708 (1961) oo .ececneeelesceeen tans 34 Specht 'v. Patterson, 386 U.S. 605 (1967) c..--cs-ecccon--- oe Sullivan v. United States, 198 F. Supp, 624 ies D. N.Y.: 1 NBL) aan Raa Gee 32, United Stateg e ex rel. cian v. flerold, 39 F. R.D. 570. ee esc cone aneciee 26 _ United States ex rel. sored v. Harpole, 249 F. 2d 417 (5th Cir. 1957) sateeeasuaiamiiaiis saiisageaidineaiseceniinaions 32 s % az all ‘ PAGE United States ex rel. Jelic v. United States, 106 F. 2d et ne enne ieisnahasbeaucsiedseiliek 32" United States éx rel. Seals v. Win, 304 F.2d re “(5th Cir. 1962) oat 27 United States ex rel. Tillery v. Sonik 294 F. 2d 12 *(8q Cir. 1961) an . 26 Waley v. Johnston, 316 U.S. 101 (1942) 2. g Whitten v. ener 160 U.S. 231 (1895) -..4..........:. 6 Wilson v. Harris, 378 F.2d 141 (9th Cir. 1967) ....10, 12,24 | Statutes: a 28: U.S.C. §2241 (1964), ~........ preted OpRN AS I Rn: .a- PUA Oe 31, 33 ‘SUAS. WN OM) 8 --28 U.S.C. §2255 (1964) 2... suidhceeniieinitnae aa ' Wed. B. Civ. Pod cece sin’, 22 Pet. B. Ow. P. 6 0b) ns . oe Seen 22 I NE vicinuitanctieioumeuu es at, 32 PE BD oiripeicnntarinernitnsittecsencct 3, 22 AS OP OM oo cs Fed. BR. Civ: P. 53... iP ERED eevee 24 Fed. R. Civ. P. 59 (B) ...... Saas Fed. BR. Civ. Ps 81 (a) (2) 122 esceocteecceeneeen 3, 4, 8, 9, 10, 11, Hg . 12, 17, 18, 20, 23, 24, 25, 26, on 27,28, 29, 35 © T vi: _ Other Authorities: © ; | : a | a Pace ‘American Bar Association Project On’ Minimum Stan- ~ dards For Criminal Justice; Standards Relating to Post-Conviction Remedies, Tentative Draft, Janu- ary 1967 (Professor Curtis Reitz, Reporter) ........ 16; 27 Becker, ‘Collateral Post; Conviction Review of State * and Federal Criminal I udgments on Habeas Corpus and on-Section 2255 Motions—View of a District _ * Judge, 33 F.R.D. 452 (1963) Rae Ro eR 16, 31 8 Blackstone, €ommentaries (6th ed., Dublin 1775) .... Breitenstein, Remarks in Recent. Post-Conviction De. cisions, 33 F.R.D. 434 (1963) eee 16 Brennan, Federal Habeas Corpus and State Prisoners: An Exercise-in Federalism, 7 Utah L. Rev. 423 (1961) © eile biased dilated Mi ainieesibii AE 30 Carter, Pre-Trial Suggestions for Section 2255. —— Under Title 28, United States _— 32 F. R.D. 391 (1968) La Se ate 16 Chaffee, dine —— Rights Got _— The Constitu- tion (1952) ia Se OO ON 30: Fox, Process of Imprisonment af’ Common Law, 39 L. Q. Rev. 46 (1933)... sessemsitarseoee: OD. 9 Holdsworth, A History of English Law (1926) ieee 30 ‘J enks, The Story of the Habeas Corpus, 18'L. Q. Rev. 64, (1902) ee cnet 7 NOT 30 : Lorigsdorf, Habeas Corpus—A Protean Writ and Remedy, 8 F.R.D. 179 (1949) penn iceeniaioenaeting 32 _ Note, Civil Discovery in Habeas Conan, 67 Colum. L. Rev. 1296 (1967) ........ See Sree Se 17 bss "» Note, The Freedom Writ--The Expanding Use of Fed- eral Habeas Corpus, 61 Harv. L. Rev. 657 (1948) .... Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv. L. Rev: 1315 (1961) ~ Reitz, Federal Habeas Corpus: Post:Conviction Rem- edy for State Prisoners, 108 Uz. Pa..L. mis ‘461 - (1960) LET es Ae a Wright and Sofaer, Federal Habeas Corpus for State | Prisoners: The Allocation of Fact-Finding Respon- sibility, 75 Yale L. J. 895 (1966) ieee cartes snssovilt wie FI ee bi ian bey 5 lo “— Kmcihas In THE ‘Supreme Court of the finited States / | ioe Term, 1968 ~~ No. 199 Gzorce B. Hanais, Petitioner, —vi— | - _ Louis. Nezson, Respondent.. * BRIEF AMICI CURIAE OF THE N.A.A.C.P. LEGAL ' DEFENSE AND EDUCATIONAL FUND, INC., ' AND THE NATIONAL OFFICE FOR THE RIGHTS OF THE INDIGENT. Statement of Interest of the Amici ~ . The N A.AC.P. Legal Defense and Educational Fund, Inc., is a non-profit corporation, incorporated under the laws of the State of New York in 1939. It was.formed to assist Negroes to. secure their constitutional rights by the prosecution of lawsuits. Its charter declares that its pur- poses include rendering legal aid gratuitously to Negroes suffering injustice by reason of race who-are unable, on account of poverty, to employ legal counse) on their. own behalf. The charter was approved by a New York court, authorizing the organization to serve as a legal aid society. _ - The N.A.A.C.P. Legal Defense and Educational Fund, Inc. (LDF), is independent of: other organizations and is sup- 2 ported by contributions from the public. For many years - its attorneys have represented parties in this Court and. the lower courts, and it has participated as amicus curiae in this Court and other courts, in matters resulting in de- cisions that have had a profoundly reformative effect upon _the administration of criminal justice. A central purpose of the-Fund is the legal seit of practices in our society that bear with discriminatory harshness upan Negroes and upon the poor, deprived, and : friendless, who too often are Negroes. In order more effectively to achieve this purpose, the LDF in 1965 estab- lished as a separate corporation movant National Office for the Rights of the Indigent (NORE), which organiza- tion has joined in the filing of this, brief. This organization, | whose income is’ provided initially by a grant from the _ Ford Foundation, has among its objectives. the provision of legal representation to the poor in individual cases and. the presentation to appellate courts of arguments for ' changes and developments in legal doctrine. ‘which unjustly | affect the poor. ; | LDF and NORI shenlien hive reyresiated many pris- ouers in petitions for- writs of habeas corpus in thefederal courts, and amici are therefore acutely aware of the essen- tial role of habeas. corpus in the_criminal process. Habeas corpus is clearly one of the most vital remedies for the ‘ protection of. constitutional: rights, and resolution of the issue: raised in this case will determine whetler habeas corpus is to be an effective remedy. The parties have consented to the filing of ‘an amicus curiae brief by the N A.A.C.P. Legal Defense and Educa- tional Fund, Inc. Copies of their letters of consent will be —- to the Clerk with this brief. om DOT A ARGUMENT Introduction. outa Summary In this case, a- panel of the Court of ‘Appdals for the © Ninth Circuit issued the prerogative writ of mandamus - against the Chief Judge of the United States District Court for the Northern District of California on the theory that a federal district judge entertaining a petition for a writ of habeas corpus entirely lacks power to permit the use of interrogatories foridiscovery purposes. Specifically, the _ Court of Appeals held that written interrogatories pro- pounded by an irnprisoned petitioner to a respondent custodian are not authorized in federal habeas corpus pro- ceedings either by statute or by Rules 33 and 81(a)(2) of the Federal Rules of Civil Procedure, hence that a district court may not lawfully allow such interrogatories. : The opinion‘ of the Court of Appeals does not discuss the question whether, if interrogatories.in habeas corpus © proceedings are not authorized by the applicable federal statutes ahd rules, a district court could nevertheless ap- prove their use, in an appropriate case, in the exercise of its inherent power to manage proceedings before it and to fashion efficient and practicable forms of procedure in habeas corpus matters. But the issuance of a mandamus plainly implies that no source of authority legally avail- able-to the district judge was deemed sufficient to empower | him to order a party -to respond to discovery interroga- tories in any habeas ‘case. — Such a decision has grave importance beyond the dis- allowance of interrogatories in this particular prisoner’s case. The Ninth Circuit bases its result upon its construc- ' tion of Federal Civil Rule 81(a) (2), the rule which governs ace o 4 aka the applicability of the Rules of Civil Diesidare pone in habeas corpus proceedings, The effect. of its construc- tion is to deny the federal habeas courts the ‘use “of any of the modern procedures, prescribed: by the Civil Rules, unless it can be shown either that the particular procedure in habeas corpus practice prior to 1938 (the year. of initial promulgation ofthe Rules), and that such habeas’ corpus practice had, by 1938, developed identically to that in ordi- é nary eivil actions. Amici contend’ that. this< reading | of Rule 81(a)(2) is unduly restrictive and would seriously impair the administration of the federal habeas corpus | J jurisdiction. s ; : We show: first, in Part I infra, the onergus. consequences _ of the Ninth Circuit’s ruling for habeas _corpus litigants and for the federal district courts which bear the greatest share of the burden of implementing the Great Writ. In | Part IT, @ show that these consequences are as unnecessary as they are undesirable, since riothing in law compels the Ninth Circuit’s treatment of Ryle 81(a)(2) either as ex- - cluding the direct application of appropriate Federal Civil Rules in habeas corpus, or-as hobbling the power of a district judge to adopt appropriate provisions of - the Rules as the procedures for ne | _ habeas corpus a is expressly- authorized by statute oF ‘that it was in use . a Va The Federal abeas Corpus “facta Should Be ‘. ° Administered by lodern, Efficient and “Evolving Pro- sow cedures Which Effectuate Its Purpose-—the Vindicax \ ; * tom of the Right: Against Usiconstitutional Restraint. e a + We begin our submission from premisés which we think are indisputable, and which we therefore state summarily. | First, the business of the federal habeas _corpus courts| has multiplied in the past few. years, and is ngw: con- siderable. It is likely. to continue to multiply in’ the im- '”- mediate future. This development is the. product of a ' number of factors. It responds to the evolttion of “gub- we ‘stantive constitutional doctrin® by this Court, which das - Increasingly civilized the administration of American crim- ’ -- inal justice by the application to the States of Due Process and Bill of. Rights guarantees for the criminal accu8ed. It reflects also ‘a growth in-the conception of the officqyof the federal writ of habe&s corpus, in séveral related : as-- | pects. ‘Thefe has been a ‘Progressive broadening” of the 7 categories of illegal féstraint against which the Great Writ affords relief.2 There has been a broadening of the :sorts of fedéral rights which the writ lies to secure, so i 1E.g., Miller v., Pate, 386 U.S. 1 (1967) ; Sheppard v: Maxwell, 384 US. 333 (1966) ; Pate v. Robinson, 383 U.S: 375 (1966) ; Specht: v. Patterson, 386 U.S. 605 (1967) ; Gideon v. Wainwright, 372 U.S.-335 (1963) ; Mapp v. Ohio, 367 U.S. 643 (1961) ; Miranda v. Arizona, 384 U.S. 486 (1966); Pointer v. Texas, 380 U.S.. 400 (1965) ; Duncan v. Loufsiana,-391 U.S. 145° (1968). : . 2 It is now available, for example, to parolees, Jones v. Cunning- ham, 371 U.S. 236 (19638), to prisoners challenging a commitment oe unter “circumstances gvhere the vindication of their constitutional a claims will not result in immediate. release from incarceration, —* Peyton v. Rowe, 391 U®. 54 (1968), and notwithstanding a-pris- oner’s incarceration terminates by reason of the expiration of his 7 eritence before final adjudication of his habeas application, — v. LaVallee, 391 U. S. an (1968). . : . that, far from relieving (as-once it did) wi against “juris. dictional” ‘defects in the- conyjction court, habeas corpus is now available for the vindication of any federal consti- tutional violation occurring in a prisoner’s trial or appeal.’ ‘And, finally, there has been a progressive appreciation of: the function of federal habeas corpus as an independent forum for adjudication by the federal judiciary of a state -. prisoner’s federal claims—a function which: requires that the federal judges make their own determination of the © validity of those claims, ‘whatever view the state courts. : may earlier have prepeunced upon them.‘ Second, this development of the federal writ has involved . not merely a numerical increase in the’ volume of cases ‘processed, but also a shift in the subject matter of the bulk of cases, entailing a redirection of the kind of * processing which the cases must receive. Thirty years ago, ie - 3 This Court’s — decisions, in cases involving both federal and state prisoners, held that the only claims which could be raised on habeas corpus were those that went to,the jurisdiction of the con- victing court. Ex parte Watkins, 3 Pet. 193 (1830) (federal pris- - oner); Bz parte Parks, 93 U.S. 18 (1876) (federal prisoner) ; Ez parte Bigelow, 113 U.S. 328 (1885) (federal prisoner) ; In re _ Wood, 140 U.S. 278 (1891) (state prisoner) ; Whitten v. Tomlin- son, 160 U.S. 231 (1895) (alternative. grqund) (state prisoner) ; ’ Frank v. Mangum, 237 U.S., 309 (1915) (state prisoner). The’ “jurisdictional” concept was first stretched, in both classes of cases, by the: fiction.-of calling grave constitutional defects “jarisdic- tional.” Ex parte Lange, 18 Wall. 163 (1873) (federal prisoner) ; ‘ In re* Snow, 120_U.S. 274 (1887) (federal prisoner) ; Ex parte *Bain, 121 U.S. 1 (3887) (federal prisoner) ; Ex parte Siebold, 100 U.S. 371 (1879) (federal prisoner); Johnson v. Zerbst, 304 U.S. 458 (1938); Medley, Petitioner, 134 U.S. 160. (1890) (state pris- oner). Later, following the Johnson v. Zerbst decision, the fiction was abandoned, and it was recognized that habeas corpus (or, in the case of federal: prisoners, its statutory counterpart, 28 U.S.C. §2255) -was available to 1isse any -claim of fundamental constitu- - tional error in the conviction process. ~Waley v. Johnston, 316 U.S. 101 (1942) (federal prisoner) ; Fay v. Nowa, 372 — 391 — - “(state prisoner). * Ex parte Hawk, 321 US. 114 (1944) ; ; Brown v. Allen, 344 U.S. 443 (1953) ; Townsend v. Sain, 372 U.S. 293 (1963). a ‘ m 7 | + for example, evidenti@ty hearings in habeas corpus were ; exceedingly rare, ‘because the “jurisdictional” issues which _ were then thought to be the unique province of habeas ' - corpus did not often give rise to factual disputes; because;- ‘if they did, the state courts were thought to -be the ‘only - forum empowered to resolve them, provided that the state procedures for their, resolution themselves complied with due process of law; and because, as a practical: matter, the substantive federal constitutional protections available to a state prisoner and likely to give rise to .evidential controversies, were rudimentary. Today, “ ‘it is the typical, not the rare case in which constitutional claims turn upon’ the resolution of cqntested factual issues’” requiring an - evidentiary hearing in the fedegal habeas corpus forum. Townsend v. Sain, 372 U.S. 293, 312 (1963). In this aspect, as in others, the new functions which preoccupy federal] habeas corpus, in these late 1960’s, require sorts of in- quiries and procedures different, in the vast majority of cases, than,those common in writ proceedings a third or even a quarter of a century ago. Third,.the federal statutes specifically governing. pre cedure in habeas corpus matters are almost entirely sileu. on all of the details of practice which are vitally important to the efficient, routine processing of: large: numbers of ‘eases making new- demands upon, and requiring new sorts _ of factual and legal inquiry by, the federal trial courts. - - The sections of the Judicial Code that are found between 28 U.S.C. §2241 8? 28 U.S.C. §2254 may be searched in vain for provisions’ governing the principal - aspects. of pretrial and trial procedure, of the srt that occupy the ‘ bulk of the: Federal Civil Rules and most modern State procedural codes. These federal statutes, which largely 7 codify nineteenth century practice and the residués of wed 5 See Frank v. Mangum, 237 U.S. 309 (1915), effectively over- ; ° ruled by Moore v. Dempsey, 261 U.S. ” a: ca] ; ( oO K g° teenth century habeas corpus legislation, are obsessed with — pleading—as-was appropriate when trials in habeas corpus — were infrequent. They are skeletal, at best, on matters relat- ing.to the preparation and presentation of- evidentiary matters at a hearing. And 80 they fail,.by a wide margin, to espond to the modern-daymeeds of the federal habeas COFpus, courts. > From these premises emerges the ssseblintn with which the present case is concerned. The lower federal courts, ° confronted with an application for a writ of habeas corpus that cannot be disposed of on its face, must find or devise some form of procedure or practice, not provided for -by statute, that will enable them’ properly and efficiently to handle the case. Federal Civil Rule 81(a)(2) provides, in pertinent part: . “These rules are applicable to proceedings _ eo habeas corpus . .'. to the extent that’ the practice in ‘such proceedings is not set forth in statutes of the | “United States and has heretofore conronmed to the practice ; in. civil actions.” ° | 6 The language quoted in . the text is the produet of: the recent. revision of the Federal Civil Rules, designed to integrate those rules ' with the newly published Federal ’ Appellate Rules. At the time of. 5 _the décision of the present case by the wears " Appeals. for the _--— --—— ‘Ninth Circuit, Rule 81(a)(2) read: . _-_— “In the followin proceedings appeals are governed by these ~ rules, but they are not,applicable otherwise than on appeal. except to the extent that the practice in such’ proceedings is not set forth in statutes of the United States and ‘has hereto- fore. conformed to‘the practice. in netons at law or suits in equity:'. . . habeas corpus... -”- If the revision of the rule worked any sabstantive change ‘ in the result which it required in the decision of this case, we think it clear that the revised Rule 81(a) (2), set’ forth in the text, would - eontrol decision in:this Court, notwithstanding it: first became effec- tive following the Circuit Court’s ruling. For it is settled that rules affecting procedural questions of the sort at issue here are applied te cases pending on appeal on the effective date of the new rule. E.g., Ex — Collett, ‘337 US. 55 (4949) ; ‘Bruner v. United ‘This rather obscure language will Sbviously support any. one of a number of constructions differentially hospitable to the use of the Federal Civil Rules to fill the procedural % vacuum in the habeas corpus statutes, ranging-from the Ninth Circuit’s: reading-—which would generally deny the Rules applicability—to the construction for which we shall © contend, whieh would generally hold the Rules applicable unless there ig a good functional reason, apparent in the traditional practice of the writ, for declining to apply them. We shall develop these alternative possible cor- - structions iurther in Part II infra. For the present, our — purpose is to discuss the practical consequences of the choice between an approach generally favoring, and one _ generally. ‘disfavoring, applicability of the Civil — in habeas proceedings. __. The Ninth Circuit’s ‘siuiile is to hold that, wine. a habeas corpus court is faced with a procedural question that is unresolved by statute, it may utilize the procedures authorized by the Rules “only if it can be shown that, . Btates, 343°.U.S. 112 (1952); Georgia v. Rachel, 384 U.S. 780 (1966), aff’g 342 F.2d 336, 337 (Sth Cir. 1965). It seems to us that the revised language now operative is slightly more favorable for the construction of the rule which we‘urge, in that the new a “These rules are applicable .. . . to the extent . ’ ete., - calls alt positively for the application of the Federal Civil Rules ’ in habeas cases than the more tortuous quadruple negatives of the earlier version: “|The Rules]. are not applicable otherwise than n appeal except to the extent . ’ ete. However, we must can- idly note that the revisers of Rule 81(a) (2): seem to b»ve believed at they were effecting no change in meaning by their verbal _ reformulation, whose purpose was stated to be to “eliminate in- ~_ appropriate references to appellate procedure” in the Civil Rules, - following the effective date of the new Federal. Appellate Rules. See. the Baplangtery Note to the proposed revision. of Rule 81 (a) (2), 43 F.R.D. 164 (1968). In any eyent, our own position in this Court does not turn on exegetic niceties of language under either form of the rule, but rather on broad’considerations of policy leading to a result neither — ips foreclosed sicial by _. old or by new Bale S1(s) @). ? -10— prior, to September 16, -1938, . . . [the procedure] was - actually being used in — proceedings, and that such ~ use conformed to the then . . practice in actions at law © or suits | in equity.” Wilson v.’ Harrisy’378 F.2d 141, 144. The year 1938 was, of course, the date of first promulga- tion of the Federal | Rules of Civil. Procedure, hence the point of reference ‘of the’ “heretofore” in Rule 81(a) (2). .was also the year of. decision of Johnson v. Zerbst, U.S. 458, the landmark opinion in the .evolution of federal habeas corpus from a narrow remedy concerned with “jurisdictional” defects to a broadly available forum ~ for the vindication of. federal constitutional_rights denied in the criminal trial process.7? As we have said, prior to this year, trial practice in habeas corpus-was rudimentary since trials themselves very seldom were had. As a result, ' issues arising in-habeas cases today relating to discovery, request for admissions, pretrial conferences, summary judgment, consolidation and severance, procedures for and — at an evidentiary hearing, findings of fact and conclusions _ of law by the court, etc, must be resolved—under -the Ninth Circuit’s view—without the guidance of the Rules.’ As a further result, we would suppose, the question is posed: to what body of rules does..a habeas corpus court look in ruling on a request for discovery, for a pretrial conference, for summary judgment, etc.? Surely there must be some source of law or practice from which prin- ciples can be drawn to determine these rulings. For a habeas court, like any other, inevitably ‘applies or makes procedural law however it may act—whether it allows or disalldws interrogatories or-a deposition, holds or declines - to hold a pretrial conference, entertains or refuses to - entertain a summary judgment motion. If the statutes of the United States are silent (as they are) and if the 7 See note 3 supra. 11 a Federal Civil Rules do not apply (as the Ninth Circuit says they do not), how is a habeas judge to know what. to do? The available answers to this question seem to ‘be: two: either he must act as a habeas corpus judge would have acted prior to September 16, 1938; or he must draw from and contribute to the development of a contemporary . common law of federal habeas corpus procedure—an evolving canon of regulations and practices governing — . procedure under the Great Writ. The Ninth Circuit neither formulated nor expressly an- swered this latter question, but its holding disallowing < the use of interrogatories approved by Judge Harris- necessarily contains its answer: a federal habeas corpus court in 1968 is to act, as near as may be, like a federal habeas corpus court prior to 1938. As a. consequence, federal habeas corpus practice is to be frozen in its pre-. - - 1938 mold. Today’s practical problems are to be met with the answer @ thirty years ago. ) This result would be intolerable .in' any kind of legal proceeding. It would be aberrant as well as unserviceable, for we know of no sort of proceeding in which there exists a principle, like that embodied in.the Ninth Circuit’s con- ‘struction of Rule 81¢a){2), which forbids courts. to.de- velop and evolve rules of practice, in matters not governed by statute, responsive to contemporary .problems and in- formed by contemporary thinking and experience. But the result would be peculiarly ‘indefensible in habeas cor- pus. It would affront the. most basic tradition of the writ: its flexibility and growth as a form of procedure “to pro- * yide a prompt and efficacious remedy for whatever society deems to be intolerable restraints.” Fay v. Noia, 372 U.S. 391,.401-402 (1963). Habeas corpus “is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its general purpose—the protection ~ ’ . 12 of individuals against erosion 1 of their right to be free “from wrongful restrictions upon their liberty.” Jones v. Cunningham, 371 U.S. 236; 243 (1963), quoted in Peyton -y, Rowe, 391, U.S. 54, 66 (1968). Moreover, it would freeze the procedural evolution of the writ at a uniquely in- opportune date, 1938, just prior to the major develop- ments which have largely defined the modern-day business of the federal habeag corpus courts and confronted them ~ with their contemporary procedural problems.’ The specific issue framed in the present case exemplifies. the difficulties in the Ninth Circuit’s approach to Rule 81(a) (2). Under that approach, there can be no discovery - of any sort in a habeas corpus case. (The opinion below, explicitly disallows depositions on’ oral examination or on written interrogatories, as well as interrogatories to parties “for yee discovery purposes,” 378 F.2d at 144, and its reasoning equally forbids inspection of docu- ments and other tangible objects, requests for admissions, pretrial conferences, etc.) Discovery is forbidden notwith- standing the experience of the past thirty years in ordinary _ civil cases has demonstrated overwhelmingly the extraor- _ dinary. utility of various discovery devices in litigation which will or may go to a factual hearing. As this Court © put it in Hickman v. Taylor, 329 U.S. 495, 500-501 (1947) : “The pre-trial deposition-discovery mechanism és- tablished by Rules 26 to. 37 is one of the most signif- ‘icant innovations of the Federal Rules of Civil Proce- dure. ... The various instruments’ of discovery now serve (1) as a device, along with the pre-trial hearing ‘under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascer- taining the facts, or information as to the existence ‘ 8 See text and notes at notes 1-4 supra. . eee | 13 ‘or whereabouts of facts, relative to those issues. Thus ~*~ ‘civil trials in the federal courts no longer need to be carried on in the dark. The way is now clear, con- sistent with recognized privileges, for. the parties to obtain the fullest possible knowledge. of the issues 7 and facts before trial. ‘* ; In addition to the well-known virtues of discovery found . in conventional civil litigation, pre-trial discovery pro- vides special advantages to the parties and to judicial e administration in habeas cases. The habeas petitioner is enabled to learn the specific facts supporting his claims w _ quickly and inexpensively. This may spell the difference between whether the claims are established or not, for - ‘ habeas petitioners. are usually poor men, represented, if . at all, by appointed counsel who are normally unable to sponsor independent fact-gathering investigations. Given the summary nature of much habeas practice, illegalities _ known only to government officials can be uncovered solely by pretrial inquiry.. Thus,.the availability of adequate. discovery procedures will enable many petitioners who would otherwise be left with, unsubstantiated allegations to demonstrate an unconstitutional detention, _ Discovery ia, .of course, also advantageous to the habeas respondent. It may be used to reveal that a petitioner’s -- @laims are wholly spurious or that no triable issues of | fact exist, thus avoiding a full evidentiary hearing. 'This . Court has held that disputed factual issues may be de- termined by the habeas corpus court only after a hearing, Townsend v. Sain, 372 U.S. 293 (1963), and the question whether there are disputed factual issues often cannot be decided without ‘pretrial investigation. Most habeas | corpus petitions are drafted in the first-instance by pris- oners, not attorneys; prisoners are seldom very precise 4° ; pleaders; even if and after counsel is appointed for a habeas petitioner, the lawyer is ordinarily loth to abandon,, _ + » on his own responsibility, any of the claims of constitu- tional violation which the petitionet suggested in his ini- tial pro se pleading; and these clainis, frequently, consist ° : of little more. than conclusory generalities framed. in the language of a prior judicial opinion that has come to the prisoner’s ‘hand. Such allegations may have no factual _ basis’ whatever, or they may conceal a factual claim of indisputable: merit. That discoyery devices are partic- ularly helpful in determining the existence of triable is- sues of fact has been recognized by Courts of Xppeals, Rodgers v. Bennett, 320 F.2d 83, 86 (8th Cir. 1963) ; Copen- haver v. Bennett, 355 F.2d 417, 421-422 (8th Cir. 1966), _ including the Ninth Circuit itself in federal-prisoner cases under 28 U.S.C. 42255, Dodd v. United States, 321 F.2d 240, 246 (9th Cir. 1963); Russell v. United States, 321 F.2d 533 (9th Cir.-1963). And, even where an evidentiary . hearing is found to be unavoidable, the respondent will .often be able to make profitable tse of discovery to antici-. pate and meet all of the claims which-a petitioner. may assert at the hearing-—sometimes without ‘prior notice’ | —against the validity of his detention. The importance of thése several functions of discovery .to the efficient administration of justice in habeas corpus - matters is underlined by. the circumstance that doctrines such as res judicata and collateral estoppel which are — employed to give finality to even imperfect adjudications in ordinary civil actions are—for good’ reason—inappli- ‘eable or- relaxed in habeas cases. Sanders v. United States, *In accordance with the spirit. of Sanders v. United States, 373 U.S. 1°(1963), many federal district judges quite properly permit —and some compel—a prisoner to raise at a federal habeas corpus hearing any and all claims he may then. have, whether or not previously framed by his Pleadings. — | 7 | Soil é 15. ‘ , 373 ‘a 1 (1963). “In. consequence, a full and fair, ade- quately informed and adequately prepared initial factual hearing i on a.habeas corpus petition raising a legally . | colorable issue is ‘indispensable . to the avoidance of sut- cessive repeater’ petitions, requiring renewed legal and factual consideration by the curt, which are no less a . burden to the judigial system whether they be justified 7 attempts by’a prisoner to remedy the defects in’ prior habeas corpus hearings or mere frivolous obstinacy in - pressing a previously, fully and fairly heard and rejected contention. Effective use of discovery devices would do ‘tauch to eliminate or dt ‘least to expedite the handling of these frequent repeater petitions that cause unneces- sary waste and irritation within’ the federal sygtem. . First, as suggested above, discovery would allow frivolous claims to be detected and dealt with in summary fashion, while, at the same time, helping to assure the fullest possible hearing for ‘any colorably meritorious claim. Second, by making the. court and the parties aware of not only the facts now known to the prisoner bearing: on his specific claims initidlly raised,’ but all other avail- able facts bearing on those claims, and alse factual matters _ supporting other viable related claims which the prisoner may have at his disposal and later raise, discovery would provide a means for considering all such constitutional - claims at- the earliest possible time—for providing “mean- ingful factual hearings on’alleged constitutional depriva- tions . . . before memories and records grow stale,” Peyton _ v. Rowe,*391 U.S. 54,-65 (1968)—and thereby for effec- . . tively limiting the ‘number of successive habeas petitions which need receive plenary hearing. This ‘Court has al-. ready ‘indicated the desirability—of-employing all proce- ‘dures available to a habeas corpus court to expedite the hearing of: every meritorious claim the petitioner may have. a | : . sd “ . 16 “(T]he imaginative handling of a prisoner’s first "motion would in general do much to anticipate and avoid the problem of a hearing on a second ‘or suc- cessive motion. The judge is not required to limit. his decision ' on the first motion to the grounds nar- rowly alleged, or to deny the motion out of hand ~ because the. allegations are vague, ‘conclusional, or inartistically expressed. He is. free to adopt any. ap- propriate means for inquiring into the legality of the - prisoner’s detention in order to ascertain all. possible 7 grounds upon which the prisoner ‘might claim to be entitled to relief. Certainly such an inquiry should - be made if the judge grants a hearing on the first _ motion and allows the prisoner tg bé present. ” Sanders v. United saan 373 US. 1, 22-23 — (Emphasis - added. Z It is no accident, iniadities. ‘that the use of dinoovery in habeas proceedings has been urged by respected author- ities, on the - ground that at would provide “the most promising possibility for saving time ‘and expense and | for avoiding the tension caused by full-dress hearings.” Wright & Sofaer, Federal Habeas Corpus for State Pris- oners: The Allocation of Fact-Finding Responsibility, 75 Yate LJ. 895, 934 (1966). See American Bar Assocta- TION Progect on Minimum Stanparps For CRIMINAL JUs- ‘tick, Stanparps RELATING TO Post-ConvicTioN REMEDIES, Tentative Draft, January 1967, p. 70 (Professor Curtis Reitz, Reporter); Carter, Pre-Trial Suggestions for Sec- tion 2255 Cases Under. Title 28, United States Code, 32 F.R.D. 391 (1963); Breitenstein, Remarks on Recent Post Conviction Decisions, 33 F.R.D. 434,. 444-445 (1963) ; Becker, Collateral Post-Conviction Review of State and Federal Criminal Judgments on Habeas Corpus and on © senna 2255 Motions—View of a District acts 33 F.R.D..- 452, 492 (1963) ; Note, Civil Discovery in Habeas Corpus, to the expeditious, fair and efficient handling of cases ap- . pearing to present litigable factual controversies. _tolerably unresponsive to the needs of thg federalamabeas . applicable in habeas cases.: It necessarily held sud sile®tio . also that the effect of the Rule was to disempower federal habeas judges, in the exercise of theif gfdinary powers _akin to those provided by the Civil Rules—that it st pped | . guidance, where appropriate, “from procedutes used in 17 67.CoLum. L. Rev. 1296 (1967). Not only does the decision | below deny the federal courts every discovery device, - . without exception, which has been thought or proved by experience to have the promise thus described, but also virtually every othet modern procedural device: favorable . We therefore reaped suggest that the Ninth Cir- cuit’s ruling is so impracticable, g0 unworkable, so in- corpus jurisdiction today, that it should ndt- be permitted to stand unless it is compelled by the text of Rule 81(a) (2)_- . —as we shall show in the next section ‘of this brief’ that ‘\—” it is not. There remains to consider here, however, whether the Court of Appeals’ approach to Rule 81(a) (2): is not supportable ; in ame part, if not in whole. _ As we howe pointed out, the decision below involves two distinct holdings, one express and the other tacit, The Ninth Circyit held expressly that Rule 81(q)(2) did: af not make the Federal Civil’ Rules governing discovery to conduét litigation before them, to~adopt procedures: the clock of procedural habeas corpys evolution in 1938 and disallowed subsequent’ common-law evolution taking ~ civil matters under the Rules. _ The first of the Ninth Circuit’s holdings, en course, does not logically: entail the second; for it might be leld at once. that the Federal Civil Rules, by force of Rule 81(a) (2), ae 18 ~~ do not apply in habeas corpus, and yet that habeas corpus ‘gourts have what petitioner Harris called in his petition for certiorari the “inherent powers” to develop and evolve fitting procedural incidents of the. Great Writ.’° As we. have indicated earlier in this section, the issue of. “in- herent powers” seems to us approachable rather as @ question of inherent necessity, since a habeas corpus judge, like any. other, must make rulings on matters before him and thereby must. make law, whatever its content. The question, ‘we think, is what sources and. principles of law he should look to in those rulings. If our view is accepted that the answer _cannot- lie in pre-1938 habeas corpus © ‘practice, two possibilities remain: the Federal Civil Rules, or an evolving, judge-made, common-law body of habeas. ‘ corpus ‘procedures. Although reference to either of these sources would sustain. Chief Judge Harris’ ruling herein and require reversal of the, Ninth Circuit’s judgment, choice befyeen the two sources is vitally important and, in our View, should be made by the — in deciding this case. . ~ We therefore conclude this -of the relative merits.of the two. ection with a consideration Surely, a holding.that the Civil Rules do not generally. apply in habeas corpus (by reason of the construction of Rule 81 (a) (2) given by the Ninth Circuit or one simi- larly restrictive), but that the habeas corpus courts have plenary power to adopt fit forms of proéedure on an ad hoc, common-law basis, presents none of the unbearable inconveniences described above as attending the freezing of habeas corpus procedures in the year 1938. Sucli a __holding, however, seems to us less desirable, for. several. reasons, than .a holding that the Civil Rules generally do apply—or, to restate ouy exact submission, that they ap- ply in the absence of _—— — re and "10 See Petition, p. 8. toy aad : is i ; \ Ee Nt ee ‘ bl ea as re ea hay wi ih aa lal a ic a e . — 19 unless some functional reason manifest in the traditional evolution of habeas .corpus practice requires that they not be applied. These .reasons are entirely practical, and . may ‘be briefly summarized : ' (1) In general, it is preferable that procedural matters ‘be regulated by a specific, published, readily available - code of rules, than>tlat they be governed by ‘unwritten : practice or by a corpus of. common-law precedents scattered | through the Federal Reporters. This is so because codifi- -eation simplifies the work both of judges and of lawyers; written rules aré more quickly and handily available than _the common law (even where the common law does speak . to the specific issue facing the judge or lawyer, as often it does not); and, even where a published rule has been glossed by judicial construction, legal research is facil- itated if the pertinent jurisprudence begins with an. ac- cessible text. It must be remembered that. procedural questions of the sort involved in this ease only infre- quently become the subject of appellate consideration, > al hence of’ published opinions; and; certainly, procedural @ regularity and efficiency alike are served if proceedings ' are governed by written regulations rather than by un- written practice. These considerations are particularly com- pelling in habeas corpus matters, for two additional rea- ‘ sons. First, many habeas cases. are still processed without the appointment of counsel, and a prisoner acting pro se is far more likely to have accessible and comprehensible . to him the text of the Federal Rules than either a knowl- edge of unwritten practice or even the case reports of pertinent common-law judicial decisions. Second, when counsel "is appoirited ‘to represent an indigent. prisoner (and most federal habeas petitioners are indigent), the a lawyer is likely to be a general practitioner ‘not partic- '\ . * ularly experienced in the specialized. practice or case law = ' . ‘ TPIS AT I Ce LO SERCH LOY MM EINE IADR OM LENE OE MOSES LEONG POLL IIE CSR ey 1 PERE MANS LINE EOP DLE LOLI ORLONGG « . . . as + . a 4 3 re , “ . o- = -_—s - fo he ~ — - see - nd x aoe 20 ‘of habeas corpus. Acting generally without compensation, he has limited resources, and is more likely to be effective ' with easy-to-find procedures—particularly the procedures of the Federal Rules, with which he is familiar in ordinary. civil litigation—than with procedures defined by a less visible body of pe and judicial decisions. (2) This: last consideration—the familiarity of the fed- eral rules to dawyers and judges—has broader implica- . > tions as well. The point,. simply, is that it is easier for a system to operate with one body of rules than with two, - - and that this added ease is itself a persuasive reason —— against multiplying differing codes of rules for different | proceedings-unless there is some countervailing good rea- son to de 80. (3) In general, there is no a" reason not to use the Federal Civil Rules in habeas cases. The. Rules are the product of very considerable experience and thought. They — are the subject of continuing study by a concerned Rules Committee, attentive to the common problems of factual litigation and informed respecting alternative procedural devices for coping with those problems. They are periodi- cally revised to reflect the most enlightened, modern and ’ practical procedural thinking of the times. The benefits — of the. experience and thought that attend the formulation of the Rules should not be dénied a habeas corpus forum unless—again—some specific reason appears why habeas corpus is different in its needs and circumstances from other _ proceedings. . (4) ous: forundiation for the’ applicability of the Federal Dalek in habeas. cases would take account of any such specific reasons where, and to the extent that, they exist. We suggest that Rule 81(a)(2), making the Rules apply’ | _ een rerer ny Bie Cae erro N c 21 to habeas corpus “t@ the extent that the practice in - [habeas] . . . has heretofore conformed to the practice in ~ ‘civil actions” be read to mean that the Rules. govern procedure in habeas corpus. unless the traditional prac- tices in writ proceedings manifest a peculier-characteristic * of such proceedings which has caused the developnrent of a distinct body of procedures traditionally variant from the proceedings in civil cases generally. Our own experience —(counsel for amici have maintained a. very considerable ~~’ amount of litigation- both in “habeas corpus: and in civil actions in the federal courts)—is that habéas resembles _ other civil actions, in its needs and circumstances, in more particulars than it differs from them. But where there do exist differenees, they have found expression in the development of identifiable specialized habeas procedures ' —such as the rule to show cause, first devised by judicial practice and later codified in statute—which respord to them. In the absence of a showing that such procedures have developed, which have not “conformed to the practice in civil actions,” and of course in the absence of any specific statutory regulation of a procedural point, we think that there can be no basis for the contention that habeas is a solecism so unlike ordinary civil litigation that application of the Rules governing most civil cases (in€luding such varying cases as diversity actions for. damages growing out of an automobile collision, and in- junctive proceedings to restrain the. enforrerticht of~ an - unconstitutional state. statute) would be dysfunctional in habeas. 4- (5) Finally, the Féderal Civil. Rules, where they apply, do not usually dictate an inflexible, iron-clad, unitary method of proceeding. They ordinarily leave considerable discretion for particularistic administration by the dis- trict judge, ig light of the. over-all nature of the case 22 before him and the general command of the Rules that they be construed “to secure the just, speedy, and inex- ‘pensive determination of every action.” Fezp. Ruiz Crv. Pro. 1. Here again there is ample room for adjustment of particular ‘rules where the individual characteristics - | of a habeas case require. On the other hand, the Rules do contain provisions of sufficient specificity to guide the orderly conduct of: a case routinely and efficiently unless judicial action is requested and taken to make some ad- ~r~-—~ustment of them. If is, for example, impossible to fault the holding of the Court of Appeals for the Fifth Circuit "in Fortner v. Balkcom, 380 F.2d 816 (5th Cir. 1967), that interrogatories in a habeas matter could not properly be propounded without the adequate notice required by Rules -5(b) and 31. This requirement might have been waived, for good cause shown, on application to the court; but ’ in the absence of such an application, there seems no reason why. the notice provisions applicable in a habeas case should differ from those in any other case, and still less reason for a general holding that the Civil Rules are in- applicable, with the result that habeas courts must invent case-by-case the“ap ropriate forms and times of notice. Least of all does it appear to us that it should be said, © as the Ninth Circuit below has said, that interrogatories are entirely unavailable in habeas corpus, when every consideration of experience urges that in habeas identi- cally with other civil actions which may go to evidentiary hearing, the hearing is more fairly and efficiently’ con- ducted withvthe benefit of pretrial discovery proceedings. 23 i. Rule 81 (a) (2) Makes the Federal Rules-of Civil Pro- cedure Applicable in Habeas Corpus Except When a Statute Governs or When a. Distinct, Traditional Prac- tice of Habeas Procedure Variant From the Procedure in Ordinary Civil Actions Manifests Unique Character- istics of the Writ That Make the Rules Unserviceable. In Any Event, Federal Trial Courts Are Empowered to Adopt the Procedures Described in the Rules as a Con- sequence of Their Undeniable Power to Formulate Ade- _ quate Procedures for the Administration of the Habeas _ Corpus Jurisdiction. - > ee f In the preceding section of this brief, we have attempted to identify the considerations which, as a practical and normative matter, affect the question whether the Federal “Civil Rules ought or ought not generally to be applied in habeas corpus cases. We have concluded that the deci- sion of the: Ninth Circuit, denying applicability of the Rules and incidentally freezing habeas corpus procedure as of 1938 ought to be avoided unless no other construction - of Rule 81(a)(2) is supportable. We have considered two . _ alternative positions available if the Ninth Cireuit’s is " . rejected: one which would”hold the Rules inapplicable but leave the federal habeas courts free to develop a common- _ law body of contemporary habeas corpus procedures; ‘and another which would generally apply the Federal Rules in the absence of good reason not to apply them. As be- tween these two positions, we have explained the reasons which we think favor the latter. There remains to be considered whether the text of Rule 81(a)(2) or other non-normative concerns’ require the Ninth Circuit’s inter- pretation or preclude the lawful adoption of the one which we espotse. : The text of the- Rule, set forth at p. 8 supra, calls for _ the application of the Federal Civil Rules “to the extent ‘- . _ that the practice in such proceedings is not set forth in. statutes of the United States and has heretofore conformed to the practice in civil actions.”. We take it that no issue ‘arises in the present case respecting the first of these two conditions.~ Plainly no federal statute describes ha- _beas. corpus practice in the matter of discovery, and the Ninth Circuit does not suggest the existence of any such ‘ statute.’ The case turns upon the meaning of the second requirement: that practice in habeas matters have “here- tofore conformed to the practice in civil actions.” . We submit that this language has no such plain mean- ing as would precipde consideration of the strong reasons ‘set forth in Part I, supra, for rejecting the Ninth Cir- cuit’s Tnterpretatiqn of Rule 81(a)(2).1* The Ninth Cir- cuit’s requirement that the, requisite conformity be affirm- atively shown by one who seeks to invoke one of the Federal Civil Rulds by’ demonstrating that the procedure author- ized under the Rule “was actually being used in habeas proceedings, and that such use conformed to the then . practice in actions at law or suits in equity,” 378 F. od at 144, is a verbally possible construction,. but surely not the only possible construction. Indeed, it has some logi- -eal difficulties as applied to questions like that posed: in the present case, where what is at issue is the availability of a form of procedure, rather than the regulation of - details . involved i in’ administering a procedure: For if the | procedure, cannot be- shown to have been in use prior to. “Ina matter where a direct conflict existed between the Rules and a federal statute, this Court of course did not hesitate to pre- clude utilization of the Rule. In Holiday v. Johnston, 313 U.S. 342 (1941), it was held that since Se¢tion 761, now 28 U.S.C. _ §2243, specifically required that the judge decide the facts of a case, his role could not be auperseded by a master, as authorised in civil proceedings by Rule 53. 12 We have also found nothing compelling, or even instructive, . a in the history of Rule 81(a) (2), its successive Advisory Committee . ~~». Notes, or other interpretive materials. . 25 1938, the Rules do not make tt available; whereas if it can be shown to have been in use prior to 1938, it would continue to be available.on the effective date of the Rules with or without. their sanction. Rule 81(a)(2), then, in this situation, makes the Rules either inapplicable or superfluous. The effect of the Rules in ordinary civil — actions was to be in some instances major innovation (as in the discovery area); in other instances, mere codifica- tion or slight change of existing practice. In habeas cor- pus matters, under the Ninth Circuit’s construction the Rules could be given only the latter, minor effects. And it is not obvious why the latter effects would not have — been given to the Rules in matters wherein habeas prac- tice had “conformed” to practice in law and equity, in this sense of conformity, even if Rule 81(a)(2) had taken the simpler approach of excluding habeas corpus entirely, from the direct application of the’ Rules. See cases cited in note 20 infra. ' - In any event, it does not appear to us that the Ninth Circuit’s reading of the text of Rule 81(a)(2) is compelling as a verbal mattér. Our own suggested construction, mak-. . ing the Rules applicable unless established pre-1938 tra- ditions had developed distinct and established habeas ~ ' corpus procedures different from those in ordinary .civil actions, is surely not foreclosed linguistically. Practice in habeas corpus conformed to practice in civil actions if, in general, a habeas corpus judge would look to the same sources of procedural law as would a judge in a civil action when an -identical issue arose;. and this was the case unless habeas had developed its own specific and distinctive procedures. “Practice” is used here in its nat- ural and general sense as designating the method by which specific procedural questions are decided rather than in the Ninth Circuit’s meaning of the specific and individual procedural rulings themselves, a meaning which’ has the difficulty, at the very least, of oe when _— rul- a 3 - - 26 " ings- wefe not: in fact being made or their purport pre- ; ' served. And, of course, the. Nintk Circuit’s construction _ entails the further difficulty that habeas corpus courts which would have decided a procedural question/ conform-. ably to the practice at law had the occasion oy keel - to September 16, 1938 were precluded-from doing the same when the question first. arose after September 16— — a result‘which the draftsmen of Rule 81 could hardly. have intended even if logic alone, without concern for practicality, governed their thinking.” _ Unsurprisingly, therefore, the lower federal courts have, for the most part, taken our approach rather than that ‘of the Ninth Cireuit,.to construction and application of Rule 81(a) (2). ‘When dealing with procedural questions that had n6t been governed, prior to 1938, by a recognizably distinctive set of practices plainly developed and demarked in the habeas corpus case law; the Courts of Appeals and _ District Courts have relatively routinely applied the Fed- _ eral Civil Rules in habeas proceedings.’ These courts ‘have generally done so without inquiring to discover—as 13°We do not ignore that the interpretation which we place on Rule 81(a) (2) would govern the applicability of the Federal Civil Rules not only to habeas corpus, but also to quo warranto, forfei- ture, ete. We see no difficulties in the application to those proceed- : ings of our principle that the Federal Rules should govern in the absence of an established procedure distinctive in the practices of each proceeding, that differs from the usages of ordinary civil ‘actions. , - 54 Bee, for example, United States ex rel. Tillery v. Cavell, 294 F.2d 12 (3d.Cir. 1961) (Rule 60(a)); MeGarrah v. Dutton, 381 F.2d 161 (5th Cir. 1967) (Rule 26(d) (3), (4)); Bowdidge v. Leh- man, 252° F.2d 366 (6th Cir. 1958) (Rule 56); Abel v. Tinsley, 338 F.2d 514 (10th Cir. 1964). (Rule 60(b)) ; United States ez rel. Bruno v. Herold, 39 F.R.D. 570 (N.D.N.Y. 1966), aff'd on rehear- ing, 271 F. Supp. 491 (N.D.N.Y. 1967) (Rule 60(b)}); Bowen v. Boles, 258 F. Supp. 111 (N.D.W. Va. 1966) (Rule 6(b)(2)); In ' re McShane’s Petition, 235 F. Supp. 262 (N.D. Miss. 1964) (Rule 56); Lyles v. Beto, 32 F.R.D. 248 (S.D. Tex. 1963), subsequent history in $29 F.2d 332 (5th Cir. 1964) (Rule 45(e)(1)); Hamil- . ton v. Hunter, 65 F. Supp. 319. (D.:. Kan. ni (Rule 15(b)): But see note 20 infra. - 27° - ‘s the Secision /below would require—whether: the particular - yer Federal Rules procedure’which they held applicable had been established in the pre-1938 habeas corpus practice by ‘specific and affirmative usage conforming to the usage in law or equity. Rather, in the absence of a distinct, estab- lished habeas corpus usage controlling the point oe dif- fering from. its resolution ‘in legal and equitable the courts simply conclude that “Habeas corpiis ‘is oes proceeding governed by the Federal Rules of Civil cedure, Rule 1, Rule 81(a)(2),” ** and they apply the propriate Federal Rule. Thus, there has been widespread use of the pe deposition procedures authorized by Federal’ Civil Riles 26 through 33 in habeas corpus matters. ‘See United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th Cir. 1962) (Byle 36, requests for admissions) ; Molignaro v. Dutton, "2d 729 (5th Cir. 1967) (Rule 31, depositions on written ‘interroga- tories); Fortner v. Balkcom, 380 F.2d 816° (5th Cir. 1967) © _ (same); Rodgers v. Bennett, 320 F.2d 83, 86 (8th Cir. 1963) (Federal Civil Rules governing discovery gener- ally); Knowles v. Gladden, 254 F. Supp. 643 (D. Ore. 1965), subsequent history im 378 F.2d 761, (9th Cir. 1967) , - (Bules 26 and 30, depositions). These reported decisions are merely the top of the iceberg. Counsel for amici have had an extended practice in federal habeas corpus matters | in dozens of federal districts, and know from experience that many district courts routinely employ the Federal Civil discovery rules in such matters.’ That practice is” 16 Bowdidge v. Lehman, 252 F.2d 366, 368 (6th Cir. 1958) (Rule ' 56). See, eg., United States ex rel. Seals v. Wiman, 304 F.2d 58, 64 (5th Cir. e962) (Rule 36). 16 “Tt has been reported that, in Texas, the full panoply of dis- covery techniques of the Federal Rules of Civil Procedure is _ available in federal habeas corpus proceedings brought by state prisoners.” AmERICAN Bark AssociaTION Prosect on Minimum STANDARDS FOR CRIMINAL JusTICE, STANDARDS RELATING to Post- Conviction Remepies; Teritative Draft, a 1967, p.-70 (Pro- fessor Carts Reitz, meperter). tions, y. ee 28 clini wells the expressly announced expectation of . this Court in Brown y. Allen, 344 U.S. 443, si n..19 «.. (1953) (emphasis added) : “Other sections dimen the. ability of the owart hearing the application fully to advise itself concern- ing prior hearjngs of the same issues for the appli- eant. 28 U.S.C. §2245 allows a certificate as to cer- tain facts; § @46 provides for depositions and affida- vits. Section 2247 makes liberal provision for the use of records of former proceedings in evidence. See also §§ 2248-2254, inclusive. Of course, the other usual methods of- completing the record in civil cases, such as subpoena duces tecum and discovery, are generally available .to the applicant.and respondent.” j The significance of the experience of these lower federal courts, whose practice we urge this Court to. approve, is two-fold. First, we believe that it supports our contention that the Ninth Circuit reading of Rule -81(a) (2) is not compelled by the plain meaning of the Rule. We would hardly suppose that so. many federal judges had over--..-. looked a plain meaning that the court below somehow perceived. Second, the pervasive use of discovery prac- tice under the. Federal Crfil Rules in habéas matters in ‘many districts demonsttates the validity of our. conten-_ tion that these rules are fully compatible with the nature and functions of habeas corpus. Not only ‘have the rules — been freely and widely used without observed dislocation ; they have proved.to be valuable and. serviceable tools for - _. the administration of the habeas corpus jurisdiction. ~ Ac- " \. cordingly, we submit it is apparent that nothing in the “\. character of habeas corpus 1s so alien to ordinary civil ‘litigation: as ‘to make use of the civil discovery rules in-_ appropriate. This conclusion both supports our construc- - ; i | ee 29 - tion of Rule 81(a)(2) and establishes that under it Chief Judge Harris’ employment of Rule 33 herein to authorize ‘discovery interrogatories in a habeas corpus proceeding is altogether lawful and proper.. If we are wrong in this ‘submission, however, and Rule 81(a)(2) is not to be read as making the Federal Civil Rules governing discovery directly applicable. in habeas eases, we think it nevertheless quite clear that J udge Harris: was lawfully empowered to adopt and employ the proceduré described by Civil Rule 33, in thé exercise of his necessary and inherent power to regulate proceedings _ before him’ and to devise appropriate and praticable proce- dures in habeas corpus matters. In the closing pages of Part I, supra, we have stated why we believe it would be preferable for this Court to hold the civil discovery rules directly ‘applicable to habeas proceedings, rather than to hold that—while the rules do not apply of their’ own force—a. district judge has discretion’ to .adopt appro- priate progedures described by them, in his administration . of the habeas corpus jurisdiction. If, however, Rule 81(a)(2) is construed inhospitably to the application of the Civil Sules, with the result that a choice ‘must be made between allowing discretion to the district .courts to devise a fluent and evolving common law. of habeas corpus procedure that refers to the Rules for guidance in appropriate cases, or, on the other hand, ossifying habeas corpts procedure in the forms prevailing before ~1938 as did the Ninth Circuit.,below,. the stunting and . destructive consequences of the Ninth Circuit’s approach make the recognition of district court discretion plainly _ the only tolerable, course. As for the question whether there exists a legal source cof such discretion, the answer is incontrovertible. 3 : This Court has time and again. entery the flexibility \ ‘of the Great Writ, e.g., Jones v. Cunningham, 371 U.S. a , , — 30 236, 243 { 11963) ; : TBwnsend v. Sain, 372 U.S. 293, 311- al (1963); Peyton v. Rowe, 391 U.S. 54, 65-67 (1968), it A eapacity for growth to respond to the developing eis upon its function “to provide a prompt and efficacious ~ remedy for whatever society deems to be intolerable re- straints,” Fay v. Nota, 372 U.S. 391, 401-402 (1963). That capacity for growth has.been,-amply demonstrated. in — wat Jey English and the ‘American experience of cen- t 17 and again, with striking recency, in the history of dbeas corpus in this Court during the past,.few de- cades.* The Court has also recognized -that the tradi- .. tions of the writ call for broad discretion of trial judges . in its administration, to the end that the writ “not lose its effectiveness in a procedural morass,” Price v. John- ‘ston, 334 U.S. 266, 269 (1948). See Darr v. Burford, 339 U.S. 200, 210 (1950); Frisbie v. Collins, 342 U.S. 519, 520-522 (1952) ; Fay v. Nota, 372 US. 391, 438-439 (1963); Townsend v, Sain, 372 U.S: 298, 313, 318 (1963) ; Sanders a - Conctrning the earliest emergence of the writ from a mere form of body process into a guarantor of individual liberty, see Jenks, The Story of the Habeas Corpus, 18 L. Q- Rev. 64, 67-68 (1902) ; Fox, Process of Imprisonment at Common Law, 39 L. Q: Rev. 46 (1923). The later English history of the development of. habeas corpus ad subjiciendum as the cardinal safeguard of free- ’ dom is in large measure the history of the writ’s disentanglement * from fettering procedures which impeded its effectiveness. See- - BLACKSTONE, COMMENTARIES 134-138 (6th ed., Dublin 1775) ; HotpswortH, A History or ENG.IsH Law 111-119 ( 1828), : CHAFFEE, How Humay Ricnts Gor Into THE ConstITUTION 51- 64 (1952), The Amerftan experience is exhaustively described in the opinions in Fay:v. Nowa, 372 U.S. 391 (1963), and: Townsend v. Sain, 372 US. 293, (1963), and in, e.g., Brennan, Federal Habeas Corpus and State Prisoners? An Exercise in Federalism, 7 UTAH L. Rev. 423 (1961) ; Reitz, Federal Habeas Corpus: Past-conviction - Remedy for State Prisoners, 108 U. Pa. L. Rev. 461 (1960) ; Reitz, Federal' Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv. L. Rev. 1315 (1961); Note, The Freedom Writ—The > rey os aed Use of Federal Habeas Corpus, 61 Harv. L. Rev. 657° 1948) > '8 See notes 2, 3, 4 supra. © . ‘ ict a 5 ee a » 31 - U nited States, 373 US. 1, 18- 19 (1963). Plainly, the teaching of the traditions velioeted in these opinions is ‘that theZéderal courts, in the exercise of the ‘jurisdiction conferred by 28 U.S.C. §§2241 et seqg., have exceedingly broad and motile powers to fashion procedural devices needful and fitting for administration of proceedings in habeas corpus, in the service of its historic office as “the great and efficacious writ, in all manners of illegal con- _ finement.”** Explicit statutory recognition of the prin- ciple, indeed, is found in 28 U.S.C: §2243 (1964), which empowers habeas corpus judges to “summarily hear and _ determine the facts, and dispose of the matter as law and ’. - justice require.” Both this Court and the lower courts have made frequent, free and liberal use of the power. E.g., Ex parte Clark, 100 U.S. 399 (1879) (issuance by a ‘single Justice of the writ returnable before the Court; admission of the petitioner to bail by the single Justice) ; : EB parte Mitsuye Ende, 323 U.S. 285 (1944) (retention ‘of jurisdiction notwithstanding transfer of custody of the » petitioner out’ of the jurisdiction); In re Burwell, 350. ' U.S. 521 (1956) (issuance of certificateyof probable cause by a Court of Appeals without statutory authority) ; John- ston v. Marsh, 227 F.2d 528 (3d Cir. 1955) (admission of habeas petitioner to bail); Stsquoc Ranch Co. v. Roth, 153 F.2d 437 (9th Cir. 1946) (extension of “next friend” - practice); Thomas v. Duffy, 191 F.2d 360 (Denman, C.J., 1951), approved in Thomas v. Teets, 205 F.2d 236 (9th Cir. 1953) (stay of execution pending exhaustion of -state remedies); Adderly v. Wainwright, 272 F. Supp. 530 (M.D. Fla. 1967) (recognition of power to entertain class action challenging constitutionality of death penalty on behalf ‘of all condemned men in State; order allowing counsel to interview all’ condemned men to determine 19 3 BLACKSTONE, CoMMENTARIES 131 (6th ed., Dublin 1775). > ce. 32 - _ ,if class action is practicably appropriate) ; Hill v. Nelson, - 272 F. Supp. 790 (N.D. Cal. 1967) (order prescribing de- tailed procedures for the protection of condemned men in similar case begun as class. action but found not prac- ticably to be entertained as such); Hill v. Nelson, N.D.. Cal., Nd. 47318, unreported order of Chief Judge Harris, © February 5, 1968 (consolidating cases challenging consti- - tutionality of death penalty and providing for centralized and continuing administration by a single district judge, - for protection of the condemned men). - a A particularly significant instance, for ‘present purposes; of the traditional flexibility and procedural adaptability of habeas corpus process is one that has become a classic: the Nineteenth Century judicial creation of the rule to. show cause. This procedure, originally devised and long practiced by ‘the federal habeas corpus courts without Congressional authority,” was found commonly service- ed Significantly, those courts which have thought that various sections of the Federal Civil Rules were not directly applicable in habeas corpus proceedings have nevertheless remarked that their inhérent power would allow them to apply such rules by analogy. United States ex rel. Goldsby v. Harpole, 249 F.2d 417, 420 n. 3 (5th Cir. 1957); United States ex rel. Jelic v. District Director, 106 F.2d 14, 20 (1939). While in Sullivan v. United States; 198 F. Supp. 624 (S.D.N.Y. 1961) (a federal prisoner case under §2255, which also discusses habeas corpus as though the remedies were convertible for this purpose), the district court refused to - - allow direct application of the interrogatory provisions of the Federal Rules, it specified that it had previously allowed ‘the dis- covery of documents under Rule 34 in the exercise of its inherent _ power. The district court in Hardison v. Dunbar, 256 F. Supp. 412 © (N.D. Cal. 1966), -followed an especially flexible approach to the use of the Federal Rules} discussing not only the applicability of Rules 15 and 59 (b) by analogy, but also modification of these rules in view of the unique neéds of habeas cases. 21 See Ex parte Watkins, 3 Pet. 193, 196 (1830). The procedure is described in Ex parte Collins, 154 Fed. 980, 982-983 (C.C.N.D. Cal. 1907), aff’d 214 U.S.-113° (1909) ; ; Dorsey v. Gill, 148 F.2d 857, 865-872 (D.C. Cir. 1945) ; Longsdorf, Habeas Corpus—A Protean Writ and. eeu 8 F.R.D. 179, 187- 188, (1949). SS ——aaEeEeEeEeEeEeEe—ee—eEEEeeeereeeeeee en 33 able, and was finally: approved by statute in 1948.27 Func- tionally viewed, it was the last Century’s counterpart of modern discovery devices, performing for a habeas corpus jurisdiction concerned principally with legal issues what. such procedures as depositions and interrogatories per- form for a jurisdiction concerned principally’ with factual . ones. ; So it is consistent, we submit, with the oldest and most firmly established traditions of the Great Writ, to recog-" nize in the federal district courts ample ‘originative and - administrative power to order discovery on an ad hoc basis in an appropriate habeas corpus case, modeling their procedures on the familiar patterns of the Federal Civil Rules, as did Judge Harris here. Whether the present case was:indeed an appropriate one—as we think but need - not argue it was—is a question for Judge Harris’ dis- cretion. The Ninth Circuit did not purport to review . the- exercise of that discretion, as indeed it could not properly do on this record, within the fitting scope of a mandamus. Rather, it held that Judge Harris lacked power to order compliance with discovery interrogatories. In this it erred, and its judgment should bé reversed. oO ; CONCLUSION The unique importance of habeas corpus in our con- stitutional scheme is emphasized by the command of Art. ‘1, §9, c. 2, that “The: Privilege of the ‘Writ of Habeas Corpus shall not be suspended. .. .” The relationship i betwqgn procedural restrictiong which hamper the effec- tive enforcement of the writ and its suspension was first noted by-Chief Justice Marshall in Ex parte Bollman, ~ 4 Cranch 75, 95 (1807): “for if the means be not in exist- ~ 22.98 U.S.C. §2243 (1964). 5 34 | ence, the privilege itself would be lost, although no law for its suspension should be enacted.” The ‘relationship has been noted again as recently as Sanders v. United States, 373 U.S. 1 (1963). And this Court has repeatedly expressed the concept that “‘“there is no higher duty ' than to maintain .. . [the writ of habeas corpus] unim- paired,” Bowen v. Jiindias, 306 U.S. 19,26 (1939), and | ‘unsuspended.. .’ Smith v. Bennett, 365 U.S. 708, 713 _ (1961),” Fay v. is, 37Z U.S. 391, 400 (1963). To effectuate the purpose of the writ of habeas corpus - —the vindication of the right to freedom from restraints ‘ in violation of fundamental law—the federal habeas courts must have the use of those procedural tools that are nec-_ essary and proper to maintain effective inquiry into the - legality of a petitioner’s detention. Because both the sub- _ stantive constitutional guaranteesgthat may make a deten- tion unlawful and the corresponding scope of the writ of ‘habeas corpus have expanded greatly beyond their origins —and most particularly within the past thirty years— evidentiary hearings are today essential to the perform- ance of the constitutional office of the writ. In turn, an adequate battery of pretrial devices for the effective dis- covery, preparation and presentation of factual matters at the evidentiary hearing is the indispensable precondition | of its effectiveness. Deprivation of effective hearing on a claim works the substantial denial of the claim and affronts the constitutional guarantee that is its basis. E.g., Com- monwealth ex rel. Herman v. Claudy, 350 U.S. 116, 123 (1956); Coleman v. Alabama, 377 U.S. 129, 133 (1964). These considerations add a grave concern of constitutional dimension to the interests of practicality and efficient judi- _cial administration (Part I of this Brief) that the decision of the Ninth Circuit threatens to impair. ; . ae . sh a aetna a 35 As shown in Part II of the Brief, a practical reading of Federal Civil Rule 81(a)(2) is available which avoids the twin dangers of leaving federal habeas corpus courts un- - provided with the essential resources for their vital task, and of leaving federal habeas corpus petitioners ‘an intol- erably restricted form of procedure for the vindication of their right to liberty guaranteed by the Suspension Clause. Such a reading should be given the Rule by this Court. ' Rule 81(a)(2) should be interpreted as making the mod- ern procedures of the Federal Civil Rules fully and directly applicable in habeas corpus proceedings except where an aspect of habeas practice is regulated by statute or where distinctive traditional procedures unique to proceédings under the writ and differing from those in ordinary civil actions have emerged with demonstrable clarity. For these reasons, the judgment below should be reversed. - Respectfully submitted, : Jack GREENBERG “ James M. Nasazit, II - . MicHarL MELtTsnNEeR . Jack HIMMELSTEIN 10 Columbus Circle. New York, New York 10019 ATHony G. AMSTERDAM ‘ 3400 Chestnut Street Philadelphia, Pa. 19104 Attorneys for the N.A.A CP. Legal Defense and Educational - Fund, Inc., and the National Office for the _— of the Indigent --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0067%3A02. Public record. Not legal advice.