1. A state prison rule abridging or impairing a prisoner's right
to apply to the federal courts for a writ of habeas corpus is
invalid. P. 548.
2. A petition for habeas corpus attached as an exhibit to
petitioner's response to a warden's return to an order to show
cause is treated in this case as a motion for leave to file a
petition for the writ. P.
312 U. S.
549.
3. A petition for a writ of habeas corpus to test the validity
of a conviction for a second offense, committed while the
petitioner was under sentence for a first offense but on parole,
and sentence for which has not begun to be served,
held
not premature when revocation of the parole was due to the second
conviction. P.
312 U. S.
549.
4. A motion for leave to file a petition for a writ of habeas
corpus
held not sufficient to require answer. P.
312 U. S.
550.
The petition was based on a variance between pleading and proof
with respect to the date of the offense. The petitioner was
represented by counsel throughout the trial, yet his petition did
not say that any objection to evidence, claim of surprise, or
motion for continuance was made because of such variance, or that
he had an alibi for any other date. The petition did not make clear
the extent of any variance, and no transcript of the trial was
furnished.
Motion for leave to file a petition for writ of habeas corpus
denied.
Page 312 U. S. 547
MR. JUSTICE MURPHY delivered the opinion of the Court.
In January, 1936, petitioner was convicted of a statutory sex
offense and was sentenced to the Michigan state prison at Jackson,
Michigan, for an indeterminate term of six months to ten years.
About ten months later, he was paroled. In October, 1937, he was
convicted of another sex offense, and was returned to the same
prison to serve a sentence of two and one-half to five years from
entry of the second judgment. Apparently for the sole reason that
the second conviction was regarded as a violation of his parole,
petitioner was given a hearing before the state parole board and
was passed indefinitely toward the maximum sentence for the first
offense.
See Michigan Statutes Annotated, 1940 supplement,
ยง 28.2108.
In November, 1940, petitioner prepared a petition for writ of
habeas corpus and exhibits to file in this Court. He took the
papers to a prison official and requested him to notarize them. The
official refused, and informed petitioner that the papers and a
registered letter to the clerk of this Court concerning them would
not be accepted for mailing. Although the papers were not
notarized, petitioner then delivered them to his father for mailing
outside the prison, but guards confiscated them. Several days
later, petitioner again attempted to mail a letter concerning his
case to the clerk of this Court. It was intercepted and sent to the
legal investigator for the state parole board. [
Footnote 1] Apparently neither of the letters
Page 312 U. S. 548
was returned to the petitioner, [
Footnote 2] and the papers taken from his father were not
returned until late in December.
Petitioner then prepared another document which he somehow
managed to have his father, as "agent," file with the clerk of this
Court on December 26, 1940. In this document, petitioner detailed
his efforts to file the papers confiscated by prison officials,
contended that he was therefore unlawfully restrained, and prayed
that he be released.
On January 6, 1941, we issued a rule to show cause why leave to
file a petition for writ of habeas corpus should not be granted.
The warden filed a return to the rule setting forth the
circumstances of the two convictions, the proceedings of the parole
board, and numerous exhibits. In justification of the action
preventing petitioner from filing his papers or communicating with
this Court, the warden alleged that, in November, 1940, he had
published a regulation providing that:
"All legal documents, briefs, petitions, motions, habeas corpus
proceedings, and appeals will first have to be submitted to the
institutional welfare office, and, if favorably acted upon, be then
referred to Perry A. Maynard, legal investigator to the Parole
Board, Lansing, Michigan.
Page 312 U. S. 549
Documents submitted to Perry A Maynard, if in his opinion are
properly drawn, will be directed to the court designated or will be
referred back to the inmate."
In answer, petitioner filed a "Response to the Return" which
again challenged the validity of this regulation and which
contained numerous exhibits. One of the exhibits was the petition
for writ of habeas corpus taken from petitioner's father. In brief,
this petition assailed the legality of petitioner's imprisonment
under the second conviction on the ground that he had been denied
procedural due process.
The first question concerns the effect of the regulation quoted
in the warden's return.
The regulation is invalid. The considerations that prompted its
formulation are not without merit, but the state and its officers
may not abridge or impair petitioner's right to apply to a federal
court for a writ of habeas corpus. Whether a petition for writ of
habeas corpus addressed to a federal court is properly drawn and
what allegations it must contain are questions for that court alone
to determine.
Compare First National Bank v. Anderson,
269 U. S. 341,
269 U. S. 346;
Erie Railroad v. Purdy, 185 U. S. 148,
185 U. S. 152;
Carter v. Texas, 177 U. S. 442,
177 U. S. 447;
see Ex parte Sharp, 33 F. Supp. 464.
However, the invalidity of the prison regulation does not compel
petitioner's release. For that reason it is necessary to examine
the petition annexed to the response. Although it is here as an
exhibit to the response, it may be considered as a motion for leave
to file a petition for writ of habeas corpus inasmuch as the warden
has not had an opportunity to answer it. The next question,
therefore, is whether this petition is premature.
The petition is not premature.
Compare McNally v. Hill,
293 U. S. 131;
In Re Bonner, 151 U. S. 242.
Despite
Page 312 U. S. 550
the fact that petitioner is now in prison under the sentence for
the first offense, he was at liberty on parole at the time he was
arrested and charged with the second offense. True, parole
regulations obligated him to stay within Jackson County, but that
is not the imprisonment present in the
McNally case.
Moreover, petitioner's parole was revoked, and he was ordered to
serve out his first sentence only because of the second conviction.
See Michigan Statutes Annotated,
supra. There is
no reason to suppose that he can compel the parole board to review
the record of the second conviction, or to make a declaratory
ruling that, if that conviction is void, his parole will be
reinstated. Thus, the last question is whether the petition,
treated as a motion for leave to file a petition for writ of habeas
corpus, is sufficient to necessitate an order requiring the warden
to answer.
At bottom, petitioner's case is this: that, in the second trial,
there was a variance between pleading and proof with respect to the
date when the offense was committed, and that petitioner thus was
denied the fair notice of the charge guaranteed by the due process
clause. From exhibits and rather vague statements in the petition,
the following appears: that, in his opening statement and
throughout the trial, the prosecutor insisted that the offense
occurred on the date charged in the information; that petitioner's
defense was that he was elsewhere at the time in question; that
some of the testimony tended to fix the date of the offense about a
week earlier than that charged in the indictment; that, at the
close of all the evidence, petitioner's counsel moved for a
directed verdict on the ground that there was no evidence to prove
that the offense was committed on the date charged in the
information; that the trial judge denied this motion and charged
the jury that the precise date was immaterial, it being sufficient
to show that the offense occurred during the month previous; that
the trial judge
Page 312 U. S. 551
entered judgment on the jury's verdict of guilty and denied
petitioner's motion for a new trial on the same ground urged in the
motion for directed verdict, and that the Michigan Supreme Court
subsequently denied certiorari.
We conclude that the showing made by the petition and exhibits
is insufficient to compel an order requiring the warden to answer.
Petitioner was represented by counsel throughout the second trial.
Yet there is no claim in the petition that he objected to evidence
tending to establish a different date for commission of the
offense, or that he claimed surprise, or that he moved for a
continuance to enable him to secure other witnesses. He does not
allege that, at the time of the trial, he had an alibi for any
other date, nor does he make clear the actual extent of any
variance. Furthermore, ascertainment of these facts is impossible,
since petitioner has not furnished the transcript taken at the
second trial. Accordingly, it would be improper to inquire whether
petitioner was denied procedural due process in the second trial.
Compare Hardy v. United States, 186 U.
S. 224,
186 U. S. 225;
Ledbetter v. United States, 170 U.
S. 606,
170 U. S. 612;
Hodgson v. Vermont, 168 U. S. 262,
168 U. S. 271;
Matthews v. United States, 161 U.
S. 500.
The motion for leave to file a petition for writ of habeas
corpus is therefore denied.
Motion denied.
[
Footnote 1]
About a week later, petitioner received the following reply from
the legal investigator:
"Your letter of November 18, 1940, addressed to the Clerk of the
United States Supreme Court, has been referred to the writer for
reply. In the first place, your application in its present form
would not be acceptable to that court. You must file a petition for
whatever relief you are seeking and state your reasons therefor,
together with a memorandum brief. Your petition must be verified
under oath and supported by proper affidavits, if any you have.
Your letter was, no doubt, intercepted for the reason that it was
deemed to be inadequate, and which undoubtedly accounts for the
fact that it found its way to my desk."
Apparently the legal investigator serves as attorney and advisor
to the state parole board. His functions with respect to legal
documents of prison inmates appear more fully from the prison
regulation quoted hereafter.
[
Footnote 2]
Neither of the letters reached the clerk of this Court. On
December 12, 1940, petitioner requested the prison superintendent
of mail to trace the registered letter, since he had not received
the return receipt which accompanied it. The assistant
superintendent replied: "This was mailed thru Perry Maynard by
orders from Warden." Apparently the legal investigator made no
reply.