Petition for Rehearing — Rea v. McDonald

SUPREME COURT OF THE UNITED STATES

OcroBer Term 1945

No. 830

ROYAL WAYNE RBA, Petitioner

Vv.

A. McDONALD, Warden

of the Federal Correctional Institution

at Texarkana, Texas

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner’s

PETITION FOR REHEARING

May IT PLEASE THE CouRT:

To persuade one justice who concurred in the order

denying certiorari to desire reconsideration and to aid

four members of the Court to determine that the petition

for writ of certiorari be granted, this petition for rehear-

ing is filed and presented.

Grounds

1. The Court should have exercised its discretionary

jurisdiction because the holding of the court below conflicts

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with the former holdings of this Court in habeas corpus

cases.

9. The Court should have exercised its discretionary

jurisdiction because the court below departed so drastically

from the usual and accepted procedure in habeas corpus

cases as to call for the exercise by this Court of the power

of supervision to halt the same and correct the injustice

committed against petitioner.

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Discussion

If the time has now been reached for this Court to hold

that the petition for writ of habeas corpus is confined only

to instances where the denial of the constitutional right

can be established dehors the record and that it is not

available to review the denial of constitutional rights

established upon the face of the record and which can be

urged upon appeal from a conviction, then such a holding

so far departs from the accepted and usual course of

judicial proceedings in habeas corpus cases as to justify

the granting of the writ of certiorari so as to clarify the law.

If this contention of the Government is applicable and

is correct then this Court should explicitly so declare.

If it is not correct then it is unjust to let the decision

below stand. Granting certiorari here is necessary to pre-

serve justice and a uniformity in the decisions. It will

avoid a multiplicity of actions and appeals to settle the

matter now rather than to let it rest obscured in the

confusion that results through denial of the petition for

writ of certiorari in this case.

It has been uniformly held that failure to take an appeal

is not a waiver of the denial of constitutional rights where

the deprivation of the rights is sufficient to violate the

due process clause. Such denials oust the court of juris-

diction to impose sentence. Bowen v. Johnston, 306 U.S.

19, 23-25, 26, 27; Johnson v. Zerbst, 304 U.S. 458, 468.

Whether there has been a denial of due process by the

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convicting court in refusing Rea the right to challenge the

legality of the administrative order supporting the indict-

ment is a sufficiently substantial question to require the

granting of the writ of certiorari. (Estep v. United States,

66 S.Ct. 423, concurring opinions of Murpny, J. and

Ruteper, J.) The petitioner urges that he has been denied

due process of law upon the trial so as to oust the con-

victing court of jurisdiction to impose sentence. The deci-

sion of the courts below that there was no denial of due

process is in direct conflict with the decisions of this Court.

McVeigh v. United States, 11 Wall. 259, 261, 267-268;

Windsor v. McVeigh, 93 U.S. 274, 277, 278-279; Hovey

v. Elliott, 167 U.S. 409, 413-415, 417-418; Bradstreet v.

Neptune, 3 Sumn. (U.S.) 600; Ong Chang Wing v. United

States, 218 U.S. 272, 279; Chicago M. & 8. P.R. v. Min-

nesota, 134 U.S. 418, 456-457. Cf. United States ex rel.

Trainin v. Cain (CCA-2) 144 F. 2d 944.

The judgment of conviction imposed against petitioner

upon his trial, where there has been a denial of a funda-

mental constitutional right to due process of procedural

law, is a nullity and subject to collateral assault, including

attack by habeas corpus. The decisions of the courts below

that the judgment of conviction is not subject to collateral

attack are directly in conflict with National Exchange Bank

v. Wiley, 195 U.S. 257; Old Wayne Life Ass’n v. McDon-

ough, 204 U.S. 8, 23; Baker v. Baker Eccles & Co., 242 U.S.

394, 401; Griffin v. Griffin, 66 S. Ct. 556, 560.

It is respectfully submitted that the decision of the

court below is in direct conflict with Johnson v. Zerbst,

304 U.S. 458, 468; Ex parte Hans Nielsen, 131 U.S. 176,

184-185; Waley v. J ohnston, 316 U. 8.101; Smith v. O'Grady,

312 U.S. 329; Frank v. Mangum, 237 U.S. 309, 330-331,

335; Moore v. Dempsey, 261 U.S. 86, 91; Ex parte Wilson,

114 U.S. 417; Ex parte Bain, 121 U.S. 1; Callan v. Wilson,

127 U.S. 540; Walker v. Johnston, 312 U. S. 275; United

States ex rel. McCann v. Adams, 320 U.S. 220, 221; Adams

ze

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v. United States ex rel. McCann, 317 U.S. 269; In re

Rosier, 76 U.S. App. 214, 133 F. 2d 316, 322-324; Jones v.

Huff, decided by the United States Court of Appeals for

the District of Columbia, Nov. 25, 1945, 14 L. W. 2335-2336 ;

Clowans v. Rives, 104 F. 2d 240; Jones v. Kentucky (CCA-6)

97 F. 2d 335; Manning v. Biddle, 14 F. 2d 518; Potter v.

Dowd (CCA-7) 146 F. 2d 244.

In Ex parte Hans Nielsen (1889) 131 U.S. 176, 184-185,

the error of the court in permitting a trial by information

rather than by indictment was apparent of record and

could have been raised upon appeal. This was also true

in Ex parte Bain (1887) 121 U.S. 1, where the defendant

was convicted under an indictment amended without return

to the grand jury. In each decision the writ of habeas corpus

was held to be available despite the right to raise these

questions upon appeal, which was not resorted to.

The denial of trial by jury in Callan v. Wilson, 127 U.S.

540, could have been presented upon appeal. Also the error

of the court in denying trial by jury was apparent of

record. Nevertheless the writ of habeas corpus was granted.

The illegal denial of counsel is apparent of record:

Moreover the denial of counsel can be raised upon appeal.

Nevertheless the courts have uniformly held that the writ

of habeas corpus is available to discharge a prisoner who

has been convicted without counsel contrary to the due

process clause. Johnson v. Zerbst, 304 U.S. 458, 468.

In every one of the above cases the error of the court

was considered to be grave and serious. The errors were

not mere procedural errors. They violated the fundamental

law of the land. The judgment in each case had been

obtained contrary to the Constitution so as to make the

conviction subject to collateral attack.

If there has been a denial of due process in the manner

claimed by petitioner, such can be considered at any time

in collateral habeas corpus proceedings. The denial of a

hearing contrary to the due process clause vitiates the

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entire proceedings: and ousts the convicting court of juris-

diction, making thie sentence void and subject to collateral

attack. These are substantial questions.

It is highly wnjust to let the issues stand without

determination.

Although there are several thousand of Jehovah's wit-

nesses in prison, only a very few, probably not more than

twenty, are in a position like Smith and Estep which should

enable them to assert the denial of due process. Most of

Jehovah’s witnessies now incarcerated are there because of

their failure to report for induction into the armed forces.

In almost every case there has not been a completion of

the selective process. Under the circumstances the granting

of certiorari in ‘this case would not unduly burden the

courts. Furthermore, the mere inconvenience of the courts

in hearing petitioms for writs of habeas corpus is not suffi-

cient ground for approval of the illegal restraint of citizens

convicted in violation of the due process clause. Only those

men who stand in the position of Smith and Estep and

who have exhausted their administrative remedies are in

a position to contend that they are being held in violation

of the due process clause. Men who have been convicted

for failure to complete the selective process are not in a

position to assert a violation of the due process clause.

This petition for writ of certiorari presents grave

questions. Grounds for the granting of the petition are to

be found in the language of the Estep opinion itself:

“But if we now hold that a registrant could not defend at

his trial on the ground that the local board had no juris-

diction in the premises, it would seem that the way would

then be open to him to challenge the jurisdiction of the

local board after conviction by habeas corpus. The court

would then be sending men to jail today when it was appar-

ent that they would have to be released tomorrow. .. .

But the fact that habeas corpus after conviction is avail-

able in these cases gives added support to our reading

me

of §11. It supports a rejection of a construction of the

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Act that requires the courts to march up the hill when it

is apparent from the beginning that they will have to

march down again.” (66 S. Ct. 423, 428-429)

It should be remembered that the court below held

that petitioner “could not defend at his trial on the ground

that the local board had no jurisdiction”. Therefore peti-

tioner asserts that “the way would then be open to him

to challenge the jurisdiction of the local board after con-

viction by habeas corpus.”

“Tt is true that after conviction of the defendant in the

Falbo case, his petition for a writ of habeas corpus was

denied. 141 F. 2d 689. And in a like situation habeas corpus

was denied in advance of the trial. Albert v. Goguen, 141

F. 2d 302. But in those cases additional steps in the selec-

tive service procedure remained to be taken. Denial of

habeas corpus followed by analogy to the familiar situa-

tions where other corrective procedures had been available

which might have afforded relief from the orders com-

plained of. See Bowen v. Johnston, 304 U.S. 19; Ex parte

Williams, 317 U.S. 604; Ex parte Hawk, 321 U.S. 114.

But in the present cases the registrants, as we have said,

had pursued their administrative remedies to the end.”

(See Note 17, page 8, slip opinion, Estep v. United States,

66 S. Ct. 423, 428-429)

Conclusion

Wuenrerore, petitioner prays that, upon consideration

hereof, the order heretofore denying certiorari be vacated

and set aside and an order be entered granting certiorari

as prayed for in the petition for writ of certiorari.

ROYAL WAYNE REA, Petitioner

By HAYDEN C. COVINGTON, His Counsel

Certificate

I, the undersigned counsel for petitioner, do hereby

certify that the foregoing petition for rehearing is pre-

pared and filed in good faith so that justice may be done,

and not for the purpose of delay.

HAYDEN C. COVINGTON

Counsel for Petitioner