This Court granted certiorari to review dismissal of
petitioner's application for habeas corpus, in which he claimed
that his conviction in a state court violated the Due Process
Clause of the Fourteenth Amendment. Before the case could be heard
here, petitioner was released from imprisonment after having served
his sentence less time off for good behavior.
Held: the case has become moot, this Court is without
jurisdiction to deal with the merits of petitioner's claim, and the
writ of certiorari is dismissed for want of jurisdiction. Pp.
362 U. S.
574-576.
Reported below: 258 F.2d 937.
PER CURIAM.
This is an application for a writ of habeas corpus brought in
the United States District Court for the Southern District of Texas
alleging unlawful detention under a sentence of imprisonment
following a trial in the state court in which petitioner was,
according to his claim, denied due process of law as guaranteed by
the Due Process Clause of the Fourteenth Amendment of the United
States Constitution. After hearing, the District Court dismissed
the petition. The Court of Appeals for the Fifth Circuit, with one
judge dissenting, affirmed the order of dismissal, 258 F.2d 937, to
which opinion reference is made for the facts. A petition for
certiorari to
Page 362 U. S. 575
review this judgment presented so impressive a showing for the
exercise of this Court's discretionary jurisdiction that the case
was brought here with leave to the petitioner to proceed
in
forma pauperis, 359 U.S. 924, and his motion for the
assignment of counsel was duly granted. 359 U.S. 951.
Before the case could come to he heard here, the petitioner was
released from the state prison after having served his sentence
with time off for good behavior. The case has thus become moot, and
the Court is without jurisdiction to deal with the merits of
petitioner's claim.
"The purpose of the proceeding defined by the statute
[authorizing the writ of habeas corpus to be issued] 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."
McNally v. Hill, 293 U. S. 131,
293 U. S. 136.
"Without restraint of liberty, the writ will not issue."
Id., 293 U. S. 138.
See also Johnson v. Hoy, 227 U. S. 245.
*
"It is well settled that this court will not proceed to
adjudication where there is no subject matter on which the judgment
of the court can operate."
Ex parte Baez, 177 U. S. 378,
177 U. S. 390. We
have applied these principles to deny the writ of certiorari for
mootness on the express ground that petitioner was no longer in
respondent's custody in at least three cases not relevantly
different from the present one.
Weber v. Squier, 315 U.S.
810;
Tornello v. Hudspeth, 318 U.S. 792;
Zimmerman v.
Walker,
Page 362 U. S. 576
319 U.S. 744. In all these cases, there was custody as the basis
for habeas corpus jurisdiction until the cases reached here. In
Weber, the respondent's custody ceased because the
petitioner had received the benefits of the United States Parole
Act. In
Tornello, the petitioner had been pardoned, and
was no longer in the custody of anyone. In
Zimmerman,
petitioner had been unconditionally released, and was also no
longer in the custody of anyone. These cases demonstrate that it is
a condition upon this Court's jurisdiction to adjudicate an
application for habeas corpus that the petitioner be in custody
when that jurisdiction can become effective. It is precisely
because a denial of a petition for certiorari, without more, has no
significance as a ruling that an explicit statement of the reason
for a denial means what it says. Accordingly, the writ of
certiorari is dismissed for want of jurisdiction.
Since the case has become moot before the error complained of in
the judgment below could be adjudicated, the case is remanded to
the Court of Appeals to vacate its judgment and to direct the
District Court to vacate its order and dismiss the application.
MR. JUSTICE HARLAN, joined by MR. JUSTICE CLARK, also considers
this case moot on a further ground. It appears that petitioner has
outstanding against him felony convictions in a number of other
States. Under Texas law, any one of those convictions would carry
the same consequences with respect to petitioner's exercise of
civil rights in Texas (Election Code Art. 5.01) as his conviction
in this case.
See Harwell v. Morris, 143 S.W.2d 809,
812-813. This Court is as much bound by constitutional restrictions
on its jurisdiction as it is by other constitutional requirements.
The "moral stigma of a judgment which no longer affects legal
rights does not present a case or controversy for appellate
review."
St. Pierre v. United States, 319 U. S.
41,
319 U. S.
43.
Page 362 U. S. 577
* It is likewise true that
"a motion for relief under 28 U.S.C. § 2255 [relevant only to
federal sentences] is available only to attack a sentence under
which a prisoner is in custody."
358 U.S. at
358 U. S. 420.
Contrary to the unconsidered assumption in
Pollard v. United
States, 352 U. S. 354,
this was decided after full deliberation only a year ago.
See the opinion of MR. JUSTICE DOUGLAS, 358 U.S. at
358 U. S. 418,
and the opinion of MR. JUSTICE STEWART for the Court on this point,
358 U.S. at
358 U. S. 420,
in
Heflin v. United States, 358 U.
S. 415. Of course Rule 35 of the Federal Rules of
Criminal Procedure is not available for state sentences.
MR. CHIEF JUSTICE WARREN, with whom MR. JUSTICE BLACK, MR.
JUSTICE DOUGLAS, and MR. JUSTICE BRENNAN join, dissenting.
If the Court is right in holding that George Parker's five-year
quest for justice must end ignominiously in the limbo of mootness,
surely something is badly askew in our system of criminal justice.
I am convinced the Court is wrong. Even assuming
arguendo
that we could not enter a
nunc pro tunc order, I believe
that we still would be able to grant relief.
We have here the case of a man who was convicted of a felony in
flagrant disregard of his constitutional right to assistance of
counsel. Since the Court terms his claim an "impressive" one,
lengthy discussion of its merits is unnecessary. Still, it is not
amiss briefly to describe what it is the Court here declines to
decide.
In 1954, petitioner was tried in the District Court of Moore
County, Texas, on a charge of forging a check. He was then 67 years
of age, and, respondent concedes, in "failing health." The judge
refused to appoint counsel to represent him. [
Footnote 1] He was convicted, and received a
sentence
Page 362 U. S. 578
of seven years. To any lawyer's eye -- and it is not at all
clear that the restriction to lawyers is warranted -- his trial was
a sham. Although the testimony directly bearing on the issue of
forgery was not strong, [
Footnote
2] petitioner's conviction is hardly surprising, for the
prosecution's case consisted in large part of a potent
melange of assorted types of inadmissible evidence --
introduced without objection by petitioner. [
Footnote 3] But petitioner suffered as much from
errors of omission as he did from errors of commission. Petitioner
now alleges -- and respondent does not deny -- that the victim of
the alleged forgery was
Page 362 U. S. 579
petitioner's mother-in-law, and that the principal prosecution
witness was his brother-in-law, a "bitter enemy"; [
Footnote 4] but petitioner introduced no
evidence to this effect at the trial. [
Footnote 5] Nor is this strange, for petitioner's halting
attempts to defend himself disclose his utter ineptness in the
courtroom. After the prosecution had examined its witnesses --
unhampered by searching cross-examination -- petitioner conducted
what respondent terms "a premeditated type of defense which might
have been successful on another jury."
Item:
"Direct examination by Mr. Parker:"
"Q. Ted, you go ahead and tell the court about my condition and
how you have known me -- tell the jury?"
"A. Well, do I understand it right?"
"Q. Huh?"
"A. You mean your physical condition, so forth and so on?"
"Q. Yes. Just go ahead and tell the jury about what you
know."
"A. Well, his physical condition, according to everything, is
bad or at least, the doctors say so, you know. I couldn't -- as far
as the checks, I don't
Page 362 U. S. 580
know, but I do know that he needs medical care. Is that what you
meant, George?"
"Q. Yes, I guess so; just go ahead and tell them what you know
about me. That is all -- only -- that is all I want to ask -- I am
just leaving mine up to them, you know?"
"THE COURT. Do you know what he is driving at -- what he
wants?"
"A. Well, if I understood it, the condition, you know --"
"THE COURT. That is up to you, too."
"[THE PROSECUTOR]. You got anything else?"
"MR. PARKER. No. Go ahead and ask him."
Item:
"THE COURT. Are you through?"
"MR. PARKER. Judge, here are some letters I would like for the
jury to see."
"THE COURT. We can't give the letters to the jury."
"MR. PARKER. For -- from the doctors?"
"THE COURT. No, sir."
"MR. PARKER. That is all."
This is enough to give the flavor of the "trial." It is
difficult to recall a case which more clearly illustrates the
helplessness of the layman when called upon to defend himself
against a criminal charge. Judge, now Chief Judge, Rives, who
dissented from the judgment of the Court of Appeals, was clearly
correct in stating:
"Upon such a record, it would appear that Parker's efforts to
defend himself were little short of farcical. In view of the small
amounts of the checks, his family connection with the Quattlebaums,
and the open way in which the checks were payable to and endorsed
by Parker, it is quite possible that he may have had a defense to
the charge of forgery, or at least that mitigating
Page 362 U. S. 581
circumstances might have been shown. The record . . . shows that
he suffered badly from the lack of assistance of counsel, and tends
to corroborate his claim of extreme illness."
258 F.2d 937, 944.
But George Parker's unhappy experience with the law was not
destined to end with the trial. Instead, time after time, the
courts have turned aside his applications for redress. There has
hardly been a minute in the past five years that Parker's case has
not been before a court. He was convicted in November, 1954, and on
March 23, 1955, the Court of Criminal Appeals of Texas affirmed his
conviction in a brief opinion.
Parker v.
State, 276
S.W.2d 533. Parker then applied to the Court of Criminal
Appeals for habeas corpus, but his petition was denied on September
21, 1955, without a hearing. On February 27, 1956, this Court
denied certiorari. [
Footnote 6]
350 U.S. 971. Next, on May 31, 1956, Parker turned to the Federal
District Court, and sought relief by way of habeas corpus. T he
district judge denied his petition on June 24, 1957, after his
thrice repeated request for a lawyer had been thrice ignored. The
Court of Appeals affirmed on August 29, 1958. 258 F.2d 937. Parker
petitioned for certiorari on October 24, 1958, and this Court
granted the petition on March 2, 1959. 359 U.S. 924. At last an
attorney was appointed to represent Parker's interests. 359 U.S.
951. Then, on June 6, 1959, Parker was released from the
penitentiary -- almost five years after his conviction, three years
after he had applied to the Federal District Court for relief,
more
Page 362 U. S. 582
than seven months after he had petitioned this Court for
certiorari, and more than three months after certiorari had been
granted. Now that petitioner has dutifully fulfilled the
requirement that he exhaust -- an apt word -- all other remedies,
[
Footnote 7] he is told that it
is too late for the Court to act.
I
The Court does not suggest that this strange result is a happy
one. But it appears to believe it is bound by precedent to the view
that, because of the nature of the habeas corpus remedy, "it is a
condition upon this Court's jurisdiction . . . that the petitioner
be in custody when that jurisdiction can become effective."
Consequently, the Court does not express any view on the mootness
question considered
de novo. Since, as will appear, I do
not regard the decisions upon which the Court relies as at all
decisive, I am obliged to consider whether the habeas corpus
statute, 28 U.S.C. §§ 2241-2254, entitles us to pass upon the
merits of this controversy. I conclude that it does.
It is quite true that the statute provides that the writ of
habeas corpus will not issue unless the applicant is "in custody."
28 U.S.C. § 2241(c). But the statute does not impose this same
restriction upon the grant of relief. Rather, the federal courts
are given a broad grant of authority to "dispose of the matter as
law and justice require." 28 U.S.C. § 2243. In the case at bar, the
"in custody" prerequisite to issuance of the writ is no longer
relevant, because the function of the writ -- to provide and to
facilitate inquiry into the validity of the applicant's claim --
has already been fully served. [
Footnote 8] The district judge
Page 362 U. S. 583
ordered that petitioner's application be heard upon affidavits,
depositions, and the record of the trial, [
Footnote 9] and the latter alone conclusively
substantiates petitioner's allegations. Thus, all that remains is
to determine what form of relief should be given. Under the
circumstances of this case, "law and justice require" that the
patent invalidity of Parker's conviction be proclaimed.
Granting Parker relief would not only comport with the statutory
mandate, but would also be in keeping with the spirit of the writ.
Habeas corpus, with an ancestry reaching back to Roman Law,
[
Footnote 10] has been over
the centuries a means of obtaining justice and maintaining the rule
of law when other procedures have been unavailable or ineffective.
The early years of its development in England were distinguished by
the role it played in securing enforcement of the guarantees of
Magna Charta. [
Footnote 11]
But even the Great Writ was not secure from the pressures of the
English Crown, and perhaps the most effective method
Page 362 U. S. 584
of eviscerating the remedy proved to be procrastination.
[
Footnote 12] Abuses such as
the delay of over four months in the famous
Jenkes case
finally caused Parliament to enact the Habeas Corpus Act of 1679,
31 Car. II, c. 2, which required returns on the writ to be made
within specified periods of time and which proscribed the
judiciary's tactic of refusing to issue the writ during "Vacation
Time." [
Footnote 13] The
summary nature of the remedy thus became established,
Page 362 U. S. 585
and our own statutory writ has this same stamp. [
Footnote 14]
The general problem we confront in the case at bar, then, is
hardly novel in the history of the writ -- an intolerable delay in
affording justice and the absence of any other remedy. [
Footnote 15] The causes, to be sure,
have changed with the times. Instead of the arbitrariness of
judges, Parker has had to contend with the time-consuming nature of
our system of appellate review and collateral attack. We cannot
expect history to tell us exactly how to cope with this problem,
because it simply did not exist in the early days of the common law
writ, when there was little if any appellate review of the then
relatively simple habeas corpus proceedings. [
Footnote 16] But history does provide general
guidance. This guidance is incompatible with the idea that the writ
designed as an effective agent of justice has become fossilized so
that old problems, once thought to have been solved, are now
insurmountable because they have taken slightly new forms. The
Court has not hesitated to expand the scope of habeas corpus far
beyond its traditional inquiry into matters of technical
"jurisdiction." The statute permitted this adaptation in the
interests of "law and justice," and the Court has responded to the
demands of that compelling standard. We have the same
Page 362 U. S. 586
latitude in this case, and the character of the writ does not
require us to impose upon applicants what will amount to a "time is
of the essence" strait jacket.
II
The Court apparently believes that these considerations are
foreclosed by prior decisions. The fact is, however, that, while
the writ-remedy argument seems never to have been squarely
presented to this Court, the weight of authority favors
petitioner.
In
Pollard v. United States, 352 U.
S. 354, the Court was confronted with a mootness
question identical to that presented here.
Pollard
involved a collateral attack upon a conviction by way of motion
under 28 U.S.C. § 2255. After certiorari had been granted, the
petitioner was released from prison. Nevertheless, this Court held
that the case was not moot. But, just as the habeas corpus statute
provides that the writ "shall not extend to a prisoner unless . . .
[h]e is in custody," [
Footnote
17] so too is § 2255 available only to a "prisoner in custody
under sentence of a court." Moreover, as this Court has noted, §
2255 affords the same relief as habeas corpus, with the difference,
which is not material here, that a § 2255 motion is filed in the
sentencing court instead of in the court of the district of
incarceration. [
Footnote 18]
Consequently, if Pollard's
Page 362 U. S. 587
claim was not moot, it is difficult to perceive why Parker's
claim is.
The Court recognizes the difficulty posed by
Pollard,
and solves it by stating that this aspect of
Pollard was
predicated upon an "unconsidered assumption" which was overruled by
Heflin v. United States, 358 U. S. 415,
"after full deliberation." But
Heflin did the purport to
discard
Pollard, and there is no inherent inconsistency
between these two decisions. In
Heflin, the Court decided
that a prisoner could not secure § 2255 relief from a sentence
which he had not yet begun to serve because he was not yet "in
custody" pursuant to that sentence. But the mootness problem dealt
with in
Pollard was not involved in
Heflin. A
construction of § 2255 similar to the construction of the habeas
corpus statute proposed above would harmonize
Heflin and
Pollard; it is only the Court's opinion in this case which
tends to make them irreconcilable. Thus, the Court's argument comes
full circle.
Moreover, it is curious that the Court, in dealing with the
cases upon which it relies, does not exhibit the same attitude that
is reflected by its treatment of
Pollard. The three cases
which constitute the principal basis for the Court's judgment are
Weber v. Squier, 315 U.S. 810;
Tornello v.
Hudspeth, 318 U.S. 792; and
Zimmerman v. Walker, 319
U.S. 744. [
Footnote 19]
While, in
Pollard, the Court rendered
Page 362 U. S. 588
judgment after plenary consideration, in these three cases the
Court simply denied certiorari, and it did so in terse orders,
without benefit of briefs or oral arguments. The opinion of the
Court in the case at bar hardly seems consistent with this Court's
oft-repeated warnings concerning the lack of significance of
denials of certiorari. Furthermore, when the records in
Weber,
Tornello, and
Zimmerman are examined, it becomes
unmistakably clear that the orders in those cases were not based
upon the theory now espoused by the Court.
Weber was the first of the trio. There, the petitioner
was paroled while his petition for certiorari was pending, and the
Court thereupon denied the petition on grounds of mootness. Since a
lower court had issued a writ of habeas corpus prior to the parole,
Weber would be directly in point if the Court's order had
rested upon the premise that petitioner, as a parolee, was no
longer in custody within the meaning of the habeas corpus statute.
But the respondent did not suggest that the petition be denied on
this ground. Rather, his sole argument was that the case was moot
because the petitioner was no longer in his custody. The only case
respondent cited,
Van Meter v. Sanford, 99 F.2d 511, held
that a habeas corpus action becomes moot when the respondent loses
custody and is thereby disabled from complying with the order which
might be necessary upon remand -- in Weber's case, an order of
discharge. It was this theory the Court adopted in denying
certiorari because petitioner was "no longer in the respondent's
custody." [
Footnote 20] It
is instructive to note
Page 362 U. S. 589
that the language of the
Weber order [
Footnote 21] is identical to the language
the Court used shortly thereafter to dispose of a case on grounds
of mootness where the petitioner had been transferred from one
custodian to another, but where he was still in the penitentiary.
See United States ex rel. Innes v. Crystal, 319 U.S. 755.
Whatever may be said of the
Weber theory of mootness,
[
Footnote 22] it is
irrelevant to the instant case, where it would be unnecessary to
issue an order of discharge.
The second case discussed by the Court is
Tornello v.
Hudspeth, supra, where a petition for certiorari was
Page 362 U. S. 590
denied because "petitioner has been pardoned by the President
and . . . is no longer in respondent's custody." Since the Court
used the verbal formula of
Weber and
Innes, and
since the only case cited was
Weber, it is evident that
the Court relied entirely upon the
Weber theory so far as
the custody question was concerned. It is unfortunate that the
Court did not consider the significance of the fact that there was
no custody at all in
Tornello, and that, hence, no order
of discharge would have been necessary. But the Court's failure to
examine this aspect of the mootness problem robs the case of
controlling authority. No doubt the Court's uncritical application
of the
Weber rule is attributable not only to the fact
that the parties did not discuss the mootness issue at all, but
also to the Court's reliance upon the full and unconditional pardon
as an alternative ground of mootness. [
Footnote 23]
Not surprisingly, perhaps, the order in the third case,
Zimmerman v. Walker, supra, relied solely upon
Weber and
Tornello, and repeated the "released
from the respondent's custody" phrase. In that case, respondent
filed a suggestion of mootness in which he mentioned the total lack
of custody, but in which he relied primarily upon the ground which
had proved successful in the past -- the absence of custody by him.
But it is unnecessary to explore this case further, inasmuch as no
writ or rule to show cause had ever issued. Since custody is a
prerequisite for issuance of the writ, the case was clearly moot;
but it is just as clearly irrelevant.
Orders of this character do not provide a solid basis for
disposition of Parker's case. The "law and justice" standard of the
statute does.
Page 362 U. S. 591
III
The concurring opinion raises another objection to granting
Parker relief. While the Court's opinion simply construes the
statute, the concurring opinion construes the Constitution. The
Court's opinion would not foreclose Congress from authorizing
relief in a case like Parker's; the concurring opinion would. While
the Court's decision is based on the theory that nothing can be
done for Parker because of the nature of the relief authorized by
the habeas corpus statute, the concurrence is grounded upon the
view that Parker has such an insubstantial interest in securing an
adjudication that his claim could not present a "case or
controversy" under Art. III, § 2 of the Constitution, regardless of
what relief a statute were to authorize. [
Footnote 24]
One could take exception to the factual premise of this
conclusion. The evidence of record which is relied upon to
establish the existence and number of Parker's convictions leaves
much to be desired, [
Footnote
25] and there is nothing to
Page 362 U. S. 592
indicate whether Parker has been relieved of the civil
consequences of any of these convictions under statutes designed to
mitigate the effect of civil disability laws. [
Footnote 26] Moreover,
Harwell v.
Morris, 143 S.W.2d 809 (Tex.Civ.App.), the decision which the
concurring opinion cites as establishing that Parker's convictions
outside of Texas -- if still effective -- would deprive him of his
voting rights in Texas, is not persuasive authority. Not only was
the decision not reviewed by the Texas Supreme Court, but it was
rendered in the context of an election dispute, where the real
issue was not the impact upon the voter, but the impact upon the
candidates.
Cf. Logan v. United States, 144 U.
S. 263,
144 U. S. 303.
In any event, even conceding the accuracy of the assumption with
respect to Parker's prior convictions and the
Harwell
issue, it is entirely possible that the conviction in this case
would operate to augment the punishment should Parker ever again be
adjudged guilty of a crime in Texas or in any other State.
Aside from these considerations, however, there is something
fundamentally wrong with the theory that mootness should turn upon
whether or not a convicted person can run for office or cast a
ballot. The principal policy basis for the doctrine of mootness,
when that term is employed in the "case or controversy" context, is
to insure that the judiciary will have the benefit of deciding
legal questions in a truly adversary proceeding in which there is
the "impact of actuality," [
Footnote 27] and in which the contentiousness of the
parties may be relied upon to bring to light all relevant
considerations. [
Footnote
28] Here, the
Page 362 U. S. 593
issue is surely not abstract. The case comes to us after the
actions complained of have occurred, and we have the entire trial
record before us. Moreover, George Parker's interest in this
litigation is quite substantial enough to insure that his case has
been fully presented. [
Footnote
29] Conviction of a felony imposes a status upon a person which
not only makes him vulnerable to future sanctions through new civil
disability statutes, but which also seriously
Page 362 U. S. 594
affects his reputation and economic opportunities. [
Footnote 30] And the fact that a man
has been convicted before does not make the new conviction
inconsequential. There is, after all, such a thing as
rehabilitation and reintegration into the life of a community. In
this case, for example, none of Parker's previous convictions were
in Texas, and he had been out of jail for over five years at the
time of the 1954 forgery trial. Five years of law-abiding life in a
new community give Parker a significant enough stake in the outcome
of this adjudication to preclude a finding of mootness.
Furthermore, there is an important public interest involved in
declaring the invalidity of a conviction obtained in violation of
the Constitution, and, under the Court's decisions, this is a
consideration relevant to the mootness question. [
Footnote 31]
In sum, I cannot agree with the Court that George Parker's case
comes to us too late. It is too late, much too late, to undo
entirely the wrong that has been inflicted upon him, but it is not
too late to keep the constitutional balance true. I dissent from
the notion that, because we cannot do more, we should do nothing at
all.
Page 362 U. S. 595
[
Footnote 1]
"THE COURT. Do you want a trial by jury or without a jury?"
"Mr. PARKER. Well, it is immaterial to me, Judge. I don't have
any attorney."
"THE COURT. Well, you are going to have to make up your mind. It
is certainly immaterial to the court."
"Mr. PARKER. I guess a jury then."
"THE COURT. Do you have a lawyer hired?"
"Mr. PARKER. No, sir, I don't."
"THE COURT. The law does not require the court to appoint an
attorney to represent a defendant where he has a trial by jury, and
it is not the practice of this court to appoint any attorney to
represent to defendant. It is up to him to arrange for his own
counsel. Now, if you are eligible for a suspended sentence, why,
then, the court would get some lawyer to advise you about the
procedure in filing your application for a suspended sentence, but
only for that part and only if you are eligible for a suspended
sentence."
"Mr. PARKER. I will not apply for any suspended sentence."
"
* * * *"
[
Footnote 2]
For example, the woman on whose account the check was drawn was
never called as a witness. The only evidence regarding petitioner's
lack of authority from her to sign the check is contained in this
bit of testimony -- of highly questionable admissibility -- by the
woman's son:
"Q. Did your mother tell you that she authorized him to write
checks on her?"
"A. No, sir."
"
* * * *"
"Q. And, your mother didn't authorize anyone to use that
signature?"
"A. No, sir."
[
Footnote 3]
In his brief, respondent stated that it was "not necessary to
discuss" petitioner's argument that his trial was gravely infected
by error, because these matters of state law "are not properly
before this Court." Obviously they are very much much before the
Court in a deprivation of counsel case, for they are among the
factors which indicate to what degree the defendant has been
prejudiced. On oral argument, respondent's counsel, the Assistant
Attorney General of Texas, freely answered the Court's questions
regarding these issues, and, with admirable candor, expressed his
view that, as a matter of fact -- though not as a matter of law --
no layman could competently defend himself against a criminal
charge.
[
Footnote 4]
The allegation is supported by an affidavit of petitioner's
wife.
[
Footnote 5]
In fact, the testimony of the brother-in-law conveyed the
opposite impression:
"Q. You know G. L. Parker, don't you?"
"A. I know of him."
"Q. Well, he is the defendant sitting here, isn't he?"
"A. I think so."
"Q. Well, as a matter of fact, you know he is, don't you, Mr.
Quattlebaum?"
"A. Yes."
"Q. How long have you known him?"
"A. Well, a long time."
[
Footnote 6]
Petitioner suffered throughout from the poverty which prevented
him from hiring an attorney and from obtaining a transcript of the
record of his trial. Left to his own devices, his petitions -- at
least his first petition to this Court -- did not sufficiently
reveal the prejudice which he suffered at the trial because of the
failure of the trial court to appoint an attorney.
[
Footnote 7]
See 28 U.S.C. §§ 2242, 2254;
Darr v. Burford,
339 U. S. 200.
[
Footnote 8]
See Ex parte Baez, 177 U. S. 378,
177 U. S. 389;
Ingersoll, History And Law of Habeas Corpus 2. In
Baez,
the Court pointed out that, as a practical matter, the writ could
not be issued and the applicant produced for a hearing before the
date scheduled for his release, so that mootness could be
anticipated. 177 U.S. at
177 U. S.
389-390. This was a proper application of the "in
custody" requirement.
[
Footnote 9]
28 U.S.C. §§ 2246, 2247. Petitioner secured the transcript
through the financial assistance of a fellow prisoner to the extent
of $25.
[
Footnote 10]
See Church, Habeas Corpus (2d ed. 1893), 2-3.
[
Footnote 11]
See 2 Hallam, Europe During the Middle Ages, 552; 9
Holdsworth's History of English Law 111-125; Hurd, Habeas Corpus
(2d ed. 1876), 66-74.
It is instructive to recall the following passages of the Magna
Charta:
"39. No free-man shall be seized, or imprisoned, or
dispossessed, or outlawed, or in any way destroyed; nor will we
condemn him, nor will we commit him to prison, excepting by the
legal judgment of his peers, or by the laws of the land."
"40. To none will we sell, to none will we deny, to none will we
delay right or justice."
Magna Charta, reprinted in S.Doc. No. 232, 66th Cong., 2d Sess.
17.
[
Footnote 12]
"Prerogative then reigned. The obnoxious members of the late
Parliament were seized and imprisoned for words spoken in debate.
The writ of habeas corpus was rendered powerless even to liberate
them on bail by the servile procrastination of the court who dared
not expressly to deny the right. And finally JOHN ELLIOTT, the most
distinguished leader of the popular party, doomed to imprisonment
and loaded with fines by a court usurping jurisdiction, died in the
Tower -- a martyr to parliamentary freedom of speech."
Hurd, Habeas Corpus (2d ed. 1876), 78.
See also 3
Blackstone Commentaries (15th ed. 1809), 133-135; authorities cited
in
note 13
infra.
[
Footnote 13]
". . . Jenkes, a citizen of London on the popular or factious
side, having been committed by the king in council for a mutinous
speech in Guildhall, the justices at quarter sessions refused to
admit him to bail, on pretence that he had been committed by a
superior court; or to try him, because he was not entered in the
calendar of prisoners. The chancellor, on application for a habeas
corpus, declined to issue it during the vacation; and the
chief-justice of the king's bench, to whom, in the next place, the
friends of Jenkes had recourse, made so many difficulties that he
lay in prison for several weeks."
Hallam. History of England (8th ed. 1855), 10-11.
See
also 3 Blackstone Commentaries (15th ed. 1809), 134-135;
Church, Habeas Corpus (2d ed. 1893), 24-25; 6 Howell's State Trials
1190-1207; Hurd, Habeas Corpus (2d ed. 1876), 82. It is plain from
these other sources that the "several weeks" mentioned in Hallam's
account refers only to one period of Jenkes' incarceration. There
is also some dispute among these authors with respect to the
historical significance of the
Jenkes case. The nature of
the abuses which led to passage of the Act is clear, however, and,
for present purposes, it is immaterial which particular case
aroused the greatest public sentiment.
[
Footnote 14]
Under our habeas corpus statute, the court is required to issue
the writ or a show cause order "forthwith" unless the petition does
not state a cause for relief. The return must normally be made
within three days, and the hearing held within five days
thereafter. 28 U.S.C. § 2243.
[
Footnote 15]
Respondent's attorney, the Assistant Attorney General of Texas,
conceded during oral argument that there is no other judicial
avenue open to petitioner.
[
Footnote 16]
See 2 Spelling, Injunctions (2d ed. 1901), 1159-1165.
Cf. Ingersoll, History And Law of Habeas Corpus, 32-33; 9
Holdworth's History of English Law 123-124.
[
Footnote 17]
28 U.S.C. § 2241(c).
[
Footnote 18]
Section 2255, of course, is available only with respect to
federal judgments, whereas habeas corpus is available to attack
either state or federal judgments.
The legislative history of § 2255 and its relationship to habeas
corpus are exhaustively discussed in
United States v.
Hayman, 342 U. S. 205,
342 U. S.
210-219.
See also Heflin v. United States,
358 U. S. 415,
358 U. S.
420-421 (concurring opinion). While I share the views
expressed by MR. JUSTICE DOUGLAS in
Heflin, supra, at
358 U. S.
417-418, I believe that, if § 2255 and habeas corpus are
to be treated as synonymous when the result is to deny their
availability, they should be treated in the same manner when this
would afford an applicant relief.
[
Footnote 19]
The Court mentions three other decisions, but apparently does
not rest upon them. In
McNally v. Hill, 293 U.
S. 131, the Court held that a person who was serving the
first of two consecutive sentences could not attack the second at
that time. His habeas corpus remedy, held the Court, lay before
him. Petitioner's problem is quite different. His remedy, under the
Court's decision, is gone forever. It is also relevant to note
that, in
McNally, the Court suggested that there was
another type of relief available to the petitioner even before he
commenced serving his second sentence.
Id. at
293 U. S. 140.
Johnson v. Hoy, 227 U. S. 245,
involved a habeas corpus action brought prior to trial, which
obviously presents questions entirely different from those posed by
the case at bar. For a discussion of
Ex parte Baez,
177 U. S. 378,
see note 8
supra.
[
Footnote 20]
Had the case been argued, conceivably the petitioner would have
urged upon the Court the writ-remedy distinction, and contended
that no order of discharge would be necessary in his case because
parole was not custody. It is hardly surprising that the Court did
not explore this intricate problem
sua sponte; nor is it
surprising that the petitioner did not suggest this approach,
inasmuch as the Court's opinion left open the possibility that he
could maintain a habeas corpus action against a new respondent.
It may be noted that the Courts of Appeals, in considering the
difficult question whether parole is sufficient restraint to serve
as a basis for a habeas corpus action, seem to have taken divergent
views of the significance of
Weber. The
Weber
order, unillumined by the record, is hardly a model of clarity, and
it is natural enough that some -- though not all -- courts have
been misled.
Compare Siercovich v. McDonald, 193 F.2d 118,
and Adams v. Hiatt, 173 F.2d 896,
with Factor v.
Fox, 175 F.2d 626, 628-629,
and Shelton v. United
States, 242 F.2d 101, 109-110.
See also Anderson v.
Corall, 263 U. S. 193,
263 U. S. 196.
("While [parole] is an amelioration of punishment, it is, in legal
effect, imprisonment.")
But cf. Wales v. Whitney,
114 U. S. 564.
[
Footnote 21]
The order reads as follows:
"Petition for writ of certiorari to the Circuit Court of Appeals
for the Ninth Circuit denied on the ground that the cause is moot,
it appearing that petitioner has been released upon order of the
United States Board of Parole and that he is no longer in the
respondent's custody. The motion for leave to proceed further
in forma pauperis is therefore also denied."
[
Footnote 22]
The Court finally came to grips with this problem in
Ex
parte Endo, 323 U. S. 283,
323 U. S.
304-307.
[
Footnote 23]
This aspect of the mootness question as it relates to the
instant case is discussed
infra, pp.
362 U. S.
591-594. It may be noted that
Tornello's
conclusion as to the effect of a pardon is not unchallengeable.
See 3 The Attorney General's Survey of Release Procedures
267-294.
[
Footnote 24]
See Muskrat v. United States, 219 U.
S. 346.
[
Footnote 25]
At the trial, the sheriff testified from an FBI record with
respect to Parker's prior convictions. The record was not
introduced into evidence, its nature was not disclosed, and it was
not authenticated in any manner. Moreover, the sheriff's
description of the information in the record was confused, and, in
response to a question by Parker, he conceded that "some" of the
cases were never "disposed of," so far as the record indicated.
During the habeas corpus proceedings, respondent submitted a record
from the Texas Department of Public Safety which purported to
summarize Parker's criminal history. It is, so far as appears,
merely a compilation of information from various sources for
Department use, and it was submitted only as evidence that Parker
was being held pursuant to the judgment in this case. Its
usefulness with regard to the mootness issue is further diminished
by the fact that the Parker, or Parkers, whose convictions appear
on the record are listed under seven different first and middle
names.
[
Footnote 26]
See 19 St. John's L.Rev. 185; 59 Yale L.J. 786, 787, n.
3.
[
Footnote 27]
Frankfurter, A Note on Advisory Opinions, 37 Harv.L.Rev. 1002,
1006.
[
Footnote 28]
See United States v. Johnson, 319 U.
S. 302,
319 U. S.
304-305; Bischoff, Status to Challenge
Constitutionality, in Supreme Court and Supreme Law (Cahn ed.) 26
et seq.; Freund, On Understanding the Supreme Court,
84-86; Note, 103 U. of Pa.L.Rev. 772-773.
[
Footnote 29]
Of opinions expressing a view consistent with the concurring
opinion, the Supreme Court of Washington has said,
"Those decisions, it seems to us, lose sight of . . . that
damaging effect of such a judgment which everybody knows reaches
far beyond its satisfaction by payment of a fine or serving a term
of imprisonment."
State v. Winthrop, 148 Wash. 526, 534, 269 P. 793, 797.
See also In re Byrnes, 26 Cal. 2d
824, 161 P.2d 376;
People v. Marks, 64 Misc. 679, 120
N.Y.S. 1106;
Village of Avon v. Popa, 96 Ohio App. 147,
121 N.E.2d 254;
Roby v. State, 96 Wis. 667, 71 N.W. 1046;
Note, 103 U. of Pa.L.Rev. 772, 779-782, 795.
But cf. St. Pierre
v. United States, 319 U. S. 41, where
the Court held moot on direct appeal the case of a person who had
served his sentence for contempt before certiorari was granted.
That case is readily distinguishable in view of the factors the
Court stressed as relevant. For example, the Court stated that it
did not appear "that petitioner could not have brought his case to
this Court for review before the expiration of his sentence."
Moreover, the Government admitted that petitioner would again be
required to testify before a grand jury, and that his commitment
would again be sought if he refused, so that, as the Court noted,
there might very well be "ample opportunity to review such a
judgment. . . ."
Id. at
319 U. S. 43. It
seems reasonably clear also that the "collateral consequences"
cases have considerably undermined the philosophy of
St.
Pierre. See Pollard v. United States, supra, at
352 U. S. 358;
United States v. Morgan, 346 U. S. 502,
346 U. S.
512-513;
Fiswick v. United States, 329 U.
S. 211,
329 U. S.
220-223.
See also Lafferty v. District of
Columbia, 107 U.S.A.pp.D.C. 318, 277 F.2d 348, where the Court
of Appeals for the District of Columbia Circuit set aside a decree
of unsoundness of mind after the individual concerned was no longer
in a mental institution and was not mentally ill.
Possibly it should be noted, for the sake of completeness, that
no one has suggested that the State's interest in upholding the
validity of this conviction is insubstantial.
[
Footnote 30]
For example, under § 504 of the Labor-Management Reporting and
Disclosure Act of 1959, persons who have been convicted of
specified crimes are ineligible to serve for a five-year period in
various positions for labor unions or employer associations. 73
Stat. 536-537.
For a discussion of the "status degradation ceremony"
represented by criminal conviction,
see Goldstein, Police
Discretion Not to Invoke The Criminal Process: Low-Visibility
Decisions in the Administration of Justice, 69 Yale L.J. 543,
590-592.
See also Waite, The Prevention of Repeated Crime,
30-31; Frym, The Treatment of Recidivists, 47 J.Crim.L.,
Criminology & Police Science 1;
United States v.
Hines, 256 F.2d 561, 563.
[
Footnote 31]
See Walling v. James V. Reuter Co., 321 U.
S. 671,
321 U. S.
674-675;
Southern Pacific Terminal Co. v. Interstate
Commerce Comm'n, 219 U. S. 498,
219 U. S. 516;
United States v. Trans-Missouri Freight Ass'n,
166 U. S. 290,
166 U. S.
309.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE concurs,
dissenting.
I do not take the dim view of fictions that the opinion of the
Court reflects. Fictions are commonplace to lawyers. In Delaware,
prior to its adoption of a modern code of civil procedure, the
action of ejectment was based on a series of fictions. The
declaration averred a lease to a fictitious lessee, the entry by a
fictitious lessee, and the ouster by a fictitious ejector "which,
when proven or admitted by the consent rule," left "the question of
title as the only matter to be determined in the case." 2 Woolley,
Practice in Civil Actions (1906), § 1591.
We know from English history how the King's Bench and Exchequer
contrived to usurp the Court of Common Pleas -- by alleging that
the defendant was in custody of the king's marshal or that the
plaintiff was the king's debtor and could not pay his debt by
reason of the defendant's default.
See 3 Reeves' History
of the English Law (Finlason ed. 1869) 753.
We are told by Maine, Ancient Law (New ed. 1930) 32, that, in
old Roman law, "
fictio" was a term of pleading and
signified a false averment which could not be traversed, "such, for
example, as an averment that the plaintiff was a Roman citizen,
when in truth he was a foreigner."
The list is long, and the case for or against a particular
fiction is often hotly contested.
See Fuller, Legal
Fictions, 25 Ill.L.Rev. 363, 513, 877.
Some fictions worked grievous injustices such as the
presupposition that a defendant, though far away, was within the
jurisdiction and should be proceeded against by outlawry. [
Footnote 2/1] Bentham inveighed against
"the pestilential
Page 362 U. S. 596
breath of Fiction." [
Footnote
2/2] Yet fictions were often expedients to further the end of
justice. [
Footnote 2/3] "[T]he
purpose of any fiction is to reconcile a specific legal result with
some premise." Fuller,
op. cit., supra at 514. As Justice
Holmes once said,
"To say that a ship has committed a tort is merely a shorthand
way of saying that
Page 362 U. S. 597
you have decided to deal with it as if it had committed one,
because some man has committed one in fact."
Tyler v. Judges of Court of Registration, 175 Mass. 71,
77, 55 N.E. 812, 814.
We have here an injustice to undo. Parker was convicted in a
Texas court of a crime without benefit of counsel, and the nature
of the charge, the kind of defense available, and the capabilities
of Parker to defend himself make it plain to all of us, I assume,
that due process of law was denied him under the standards laid
down in our cases, [
Footnote 2/4]
the most recent one being
Cash v. Culver, 358 U.
S. 633. No remedy against this invasion of his
constitutional rights was available to him except by habeas corpus.
While in prison, he followed the federal route. The writ was
applied for, the District Court ordered respondent to answer,
see Walker v. Johnston, 312 U. S. 275,
312 U. S. 284,
and a hearing on affidavits, other documents, and the trial record
was held. The petition was dismissed, and the Court of Appeals
affirmed. 258 F.2d 937. Then a petition for a writ of certiorari
was filed here. More than seven months after his petition for
certiorari was filed with us and over three months after we granted
certiorari, he was released from prison. That was June 6, 1959. So
the Court now rules that he has no relief by way of habeas corpus
because the illegal detention he challenged has been terminated.
And so it has. But his controversy with the State of Texas has not
ended. The unconstitutional judgment rendered against him has a
continuing effect because, under Texas law, "[a]ll persons
convicted of any felony except those restored to full citizenship
and right of suffrage or pardoned" are disqualified from voting.
Texas Election Code, Art. 5.01. The loss of these civil rights
prevents a case from becoming
Page 362 U. S. 598
moot, even though the sentence has been satisfied. [
Footnote 2/5]
Fiswick v. United
States, 329 U. S. 211,
329 U. S. 222;
Pollard v. United States, 352 U.
S. 354,
352 U. S. 358.
The controversy that Parker has with Texas is a continuing one.
If this were a federal conviction, Parker would have a remedy
under 28 U.S.C. § 2255.
See Pollard v. United States,
supra. But we were advised on oral argument that Texas
provides no such remedy, and that Parker has no known method of
removing the civil disabilities that follow from the
unconstitutional judgment of conviction. He may be pardoned. But
pardons are matters of grace. There is no remedy which he can claim
as a matter of right, unless it is this one. I cannot therefore be
party to turning him from this Court empty-handed.
Any judgment
nunc pro tunc indulges in a fiction. But
it is a useful one, advancing the ends of justice. A man who claims
to be unlawfully in the custody of X is not required to start all
over again if X has died and Y has been substituted in X's place.
We treat the habeas corpus petition as the facts were when the
issue was drawn, and enter judgment
nunc pro tunc "as of
that day."
Quon Quon Poy v. Johnson, 273 U.
S. 352,
273 U. S. 359. The
same is done when other parties die before final decision.
See
Mitchell v. Overman, 103 U. S. 62;
Harris v. Commissioner, 340 U. S. 106,
340 U. S.
112-113. These cases can all be distinguished from the
present one. But the principle
Page 362 U. S. 599
is deep in our jurisprudence and was stated long ago in
Mitchell v. Overman, supra, 103 U.S. at pp.
103 U. S. 64-65,
as follows:
"[T]he rule established by the general concurrence of the
American and English courts is that, where the delay in rendering a
judgment or a decree arises from the act of the court, that is,
where the delay has been caused either for its convenience, or by
the multiplicity or press of business, either the intricacy of the
questions involved, or of any other cause not attributable to the
laches of the parties, the judgment or the decree may be entered
retrospectively, as of a time when it should or might have been
entered up. In such cases, upon the maxim
actus curiae neminem
gravabit -- which has been well said to be founded in right
and good sense, and to afford a safe and certain guide for the
administration of justice -- it is the duty of the court to see
that the parties shall not suffer by the delay. A
nunc pro
tunc order should be granted or refused as justice may require
in view of the circumstances of the particular case."
It is the fault of the courts, not Parker's fault, that final
adjudication in this case was delayed until after he had served his
sentence. Justice demands that he be given the relief he deserves.
Since the custody requirement, if any, was satisfied when we took
jurisdiction of the case, I would grant the relief as of that
date.
[
Footnote 2/1]
9 Holdsworth, A History of English Law (3d ed. 1944) 254
et
seq. As to corporations, churches, and boroughs,
see
1 Pollock and Maitland, History of English Law (2d ed. 1899), 486,
669-670.
[
Footnote 2/2]
1 Bentham's Works (Bowring ed. 1843), 235.
[
Footnote 2/3]
9 Holdsworth,
op. cit., supra, 362
U.S. 574fn2/1|>note 1 at 250-251:
"Of all these methods of beginning an action, the most common
was a
capias ad respondendum, i.e., a writ directing the
sheriff to arrest the defendant. This process was possible in all
the most usual personal actions, and, where it was possible, it
became the practice, in the course of the eighteenth century,
to"
"resort to it in the first instance, and to suspend the issuing
of the original writ, or even to neglect it altogether, unless its
omission should afterwards be objected by the defendant. Thus, the
usual practical mode of commencing a personal action by original
writ is to begin by issuing, not an original, but a capias."
As the author of the Pleader's Guide said:-
Still lest the Suit should be delayed,
And Justice at her Fountain stayed,
A
Capias is conceived and born
Ere yet the ORIGINAL is drawn,
To justify the Courts proceedings,
Its Forms, its Processes, and Pleadings,
And thus by ways and means unknown
To all but Heroes of the Gown,
A Victory full oft is won
Ere Battle fairly is begun;
'Tis true, the wisdom of our Laws
Has made Effect precede the Cause,
But let this Solecism pass --
In fictione aequitas.
"But the original was always supposed, and the defendant could
always object to its absence, and compel the plaintiff to procure
it from the office of the cursitor. It should be noted also that,
in the procedure by bill against persons actually privileged, or
supposed to be privileged, there was necessarily no original. The
bill took the place of the original, and also operated as the
plaintiff's declaration."
And see 1 Bouv.Law Dict. (8th ed. 1914), Rawles Third
Revision pp. 1213-1214.
[
Footnote 2/4]
And see the dissenting opinion of Judge Rives below,
258 F.2d 937, 941-944.
[
Footnote 2/5]
The fact that there are other felony convictions which would be
unaffected by our action seems to me to be immaterial. Petitioner
is entitled here and now to start untangling the skein. I f we
grant relief, we will have undone the wrong which our own delay
made possible. We have no way of knowing what other measures may be
available to relieve petitioner of the stigma of the other
felonies. Only if we were certain (as we are not) that there are or
will be none could we fail to give him relief against the wrong
done here by the processes of the law.