Page 423 U. S. 22
to commutation by the Governor, and the extent of his authority
under the circumstances of this case, are questions of Tennessee
law which were resolved in favor of sustaining the action of the
Governor by the Tennessee Court of Criminal Appeals in
Hodges
v. State, supra. It was not the province of a federal habeas
court to reexamine these questions.
Respondents urge, in support of the result reached by the Court
of Appeals for the Sixth Circuit, that their Fourteenth and Sixth
Amendment rights to jury trial have been infringed by the Tennessee
proceedings. We reject these contentions. A jury had already
determined their guilt and sentenced them to death. The Governor
commuted these sentences to a term of 99 years after this Court's
decision in
Furman v. Georgia, 408 U.
S. 238 (1972). Neither
Furman nor any other
holding of this Court requires that, following such a commutation,
the defendant shall be entitled to have his sentence determined
anew by a jury. If Tennessee chooses to allow the Governor to
reduce a death penalty to a term of years without resort to further
judicial proceedings, the United States Constitution affords no
impediment to that choice.
Dreyer v. Illinois,
187 U. S. 71
(1902).
Cf. Schick v. Reed, 419 U.
S. 256 (1974).
The motion of the respondents for leave to proceed
in forma
pauperis and the petition for certiorari are granted, and the
judgment of the Court of Appeals is
Reversed.
MR. JUSTICE DOUGLAS would deny certiorari.
[
Footnote 1]
This order would have returned respondents to the trial court
for resentencing to between 20 years and life, as a jury might
determine. Tenn.Code Ann. § 39-2405 (1956).
[
Footnote 2]
The dissent would have us probe beneath the surface of the
opinions below in search of a logical foundation. In cases where
the holding of the court below is unclear, such a technique may be
required. Here, however, that court clearly "hold[s] the purported
commutation . . . invalid." In its second opinion, it reversed the
District Court on the exhaustion question and otherwise
specifically reaffirmed the earlier order. We are forced to take
the Court of Appeals at its word.
[
Footnote 3]
Two other panels of the same court have correctly recognized, in
cases virtually identical to this one, that no federal
constitutional question was presented by such a commutation.
Smith v. Rose, No. 74-1753 (Nov. 15, 1974);
Bowen v.
Rose, No. 74-1087 (Mar.19, 1974).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
dissenting.
I dissent on two grounds: first, because the Court errs in
reading the record to include a final holding of the Court of
Appeals declaring the commutations to be invalid,
Page 423 U. S. 23
and, second, because, if there were such a final holding,
summary disposition of the question of the validity of the
commutations -- certainly one of first impression in this Court --
is particularly inappropriate. [
Footnote 2/1]
That the "commutations" have not been finally declared invalid
clearly emerges from the record of the proceedings in the District
Court and in the Court of Appeals. The petition for habeas corpus
alleged five errors by the state courts. Three (coerced
confessions, prejudicial comments during
voir dire,
Hodge's claim under
Bruton v. United States, 391 U.
S. 123 (1968)), attacked respondents' convictions, the
other two the sentences (invalid jury sentence and unconstitutional
commutations). The District Court held that respondents had failed
to exhaust state remedies on all of these issues except the alleged
invalidity of the jury sentence; accordingly, the District Court
issued a show cause order "solely on the issue that the jury
allegedly failed to specify the degree of murder in the verdicts."
Hodges v. Rose, No. C-73442 (WD Tenn. Nov. 15, 1973). The
State accordingly filed an answer dealing only with this issue, and
the District Court decided only that issue, rejecting respondents'
claim on the merits. This question was therefore the only claim
that was ripe for appeal; specifically, there was no decision of
the District Court on the constitutionality of the commutations
that was or could have, been the subject of respondents' appeal to
the Court of Appeals. [
Footnote
2/2]
Page 423 U. S. 24
Nevertheless, it is of course true that the initial opinion of
the Sixth Circuit contains the following language:
"[The] commutation followed by some eight days an order of the
Tennessee Court of Criminal Appeals vacating the order imposing the
death penalty and remanding the case to the trial court for
punishment determination in the light of
Furman v.
Georgia, 408 U. S. 238 [(1972)],
and
for the reason that there were therefore no viable death sentences
to commute, we hold the purported commutation and the concomitant
imposition of committed [sic
] sentences for terms of 99
years invalid."
Hodges v. Rose, No. 71461 (CA6, Feb. 25, 1975).
(Emphasis added.) The same opinion goes on to affirm the decision
on the merits of the only question decided by the District Court,
namely, the jury sentence issue, and then observes that the State
had confessed error on the exhaustion point. Accordingly, the
judgment was "for further proceedings consistent herewith." This
necessarily must have meant that the three constitutional attacks
on the convictions
Page 423 U. S. 25
should be addressed on the merits by the District Court. The
sua sponte comments on the commutations thus made no
sense, since that issue would never arise if the convictions were
set aside on any of the three grounds.
Not surprisingly, therefore, the State sought rehearing. The
State dispositively argued,
first, that the Sixth Circuit
was precluded from addressing the commutation issue, since the
District Court had carefully confined its decision on the merits to
the validity of the jury sentence. The State argued,
second, that there had been no opportunity to argue the
commutation question in the District Court, and that no record had
been made on the issue, and,
third, the commutation issue
had not been briefed in the Sixth Circuit.
Fourth, and
finally, the State argued -- what surely must have been crystal
clear -- that the commutation question would never be reached if
respondents prevailed on their challenge to the validity of their
convictions. True, as a good lawyer's would, the State's petition
for rehearing challenged in any event the soundness of the
statement that the commutations were invalid. But the relief sought
on rehearing was excision of the language quoted above and remand
"to the District Court for consideration of all issues."
The Court of Appeals obviously recognized its error. The opinion
on rehearing, while not deleting the whole statement, did delete
the language emphasized above, and left only the factual statement
of what had occurred:
"[The] commutation followed by some eight days an order by the
Tennessee Court of Criminal Appeals vacating the [order imposing
the] death penalty and remanding the case [to the trial court] for
punishment determination in the light of
Furman v.
Georgia, 408 U. S. 238 [(1972)]."
Hodges v. Rose, No. 74-1461 (CA6, June 10, 1975).
Significantly, the opinion on rehearing also squarely held
Page 423 U. S. 26
that the District Court had erred in finding a failure to
exhaust as to the commutation issue.
On this record, therefore, the only proper disposition is denial
of the petition for certiorari. At the least, we should vacate and
remand to the Sixth Circuit for clarification of whether the
validity of the commutations was addressed and decided.
In any event, summary disposition of the issue of the validity
of the commutations is strikingly inappropriate. There is no record
in the lower courts on the commutation issue, because the District
Court limited the habeas proceeding to the validity of the jury
sentence. More importantly, the issue is one of first impression in
this Court, and it surely merits briefing and oral argument. For
example, I find troublesome the question whether (since there
existed no viable death sentences to commute) the Governor's action
should be treated as imposing the 99-year sentences without
affording respondents constitutionally secured safeguards required
when sentences are imposed. If the Governor had not acted,
resentencing would have been by a jury at a proceeding highlighted
by the usual safeguards, none of which applied to the Governor's
action. The question is plainly not insubstantial; in
Mempa v.
Rhay, 389 U. S. 128
(1967), we held that constitutional safeguards (there the right to
counsel) applied to the sentencing stage. Was the commutation in
this case actually the sentencing stage, since no death sentence
existed to commute when the Governor acted? Also, the due process
dimensions of the right to present evidence relevant to sentencing
was left open in
McGautha v. California, 402 U.
S. 183,
402 U. S.
218-220 (1971). If respondents were "sentenced" by the
Governor, were they denied due process when not afforded that
opportunity, even assuming that the Federal Constitution permits
States to adopt executive in preference to
Page 423 U. S. 27
judicial sentencing? I agree that the Constitution allows
Tennessee to empower the Governor to reduce a death penalty to a
term of years without resort to judicial proceedings. But the
Court's disposition assumes, without any in-depth analysis, that
the instant case involves such "commutations" despite the fact that
respondents' death sentences were voided, and were therefore
nonexistent when the Governor acted.
I would deny the petition for certiorari on my view that there
is no holding of the Court of Appeals regarding the commutations to
be reviewed. In any event, rather than disposing of the case
summarily, the Court should grant the petition and set the case for
oral argument.
[
Footnote 2/1]
Neither of the decisions cited by the Court is apposite.
Dreyer v. Illinois, 187 U. S. 71
(1902), held merely that the Due Process Clause of the Fourteenth
Amendment does not bar executive exercise of sentencing powers.
Id. at
187 U. S. 84.
Schick v. Reed, 419 U. S. 256
(1974), where the President reduced petitioner's death penalty to
life imprisonment, was not a case where the death sentence had been
judicially voided when the President acted.
[
Footnote 2/2]
The cases cited by the Court in which panels in the Sixth
Circuit have upheld similar commutations in other cases,
ante at
423 U. S. 21 n.
3, serve to substantiate my reading of the record. Judge Miller was
a member of the panel in
Smith v. Rose, No. 74-1753 (CA6,
Nov. 15, 1974), and Judge Peck participated in
Bowen v.
Roe, No. 74-1087 (CA6, Mar.19, 1974). Both judges were also on
the panel in the instant case, and the alleged inconsistency among
the panel decisions was noted in the State's petition for
rehearing. The Court's implicit suggestion that these federal
judges issued conflicting decisions, without explanation, indicates
the inaccuracy of the Court's view of the record.
Moreover, neither of the cited unpublished panel opinions
explicitly states that the commutation being upheld was issued
after a death sentence had been judicially voided. Parenthetically,
the Sixth Circuit's Rule 11 prohibits citation of unpublished
opinions. Am I to understand that this Court is not called upon to
respect that prohibition?