# Carafas v. LaVallee

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## Concurring Opinion

    Harlan
United States Supreme Court
391 U.S. 234
Carafas v. LaVallee, Warden
Certiorari to the United States Court of Appeals for the Second Circuit
No. 71. Argued: March 27, 1968 --- Decided: May 20, 1968
In 1960 petitioner is convicted in New York state criminal proceedings and his sentence was affirmed on appeal without opinion over his contention that illegally obtained evidence had been introduced against him at his trial. Renewing that claim, petitioner thereafter sought relief in the federal and state courts by writ of habeas corpus. The petition in the present case was filed in June 1963, while petitioner was in custody. On November 5, 1965, the District Court, after a hearing on the merits ordered by the Court of Appeals, dismissed the petition. The District Court issued a certificate of probable cause. A notice of appeal was filed, and the petitioner made application in the Court of Appeals for an order allowing him to appeal in forma pauperis. The State opposed the application and moved to dismiss the appeal as without merit. Petitioner, replying, opposed the motion to dismiss and renewed his application for leave to appeal in forma pauperis. The Court of Appeals entered the following order with respect thereto: "Application for Leave to Proceed in Forma Pauperis. Application denied. Motion to dismiss appeal granted." On March 6, 1967, about two weeks after the Court of Appeals denied a rehearing, petitioner's sentence expired and he was released from custody. On March 20, 1967, petitioner filed a motion for a writ of certiorari in this Court, which was granted October 16, 1967. Respondent contends that expiration of petitioner's sentence has mooted the case and that in any event petitioner was not wrongfully denied a full appeal by the Court of Appeals after the District Court had granted a certificate of probable cause.
Held:
    1. The case is not moot. Pp. 237-240.
       (a) Because of the "disabilities or burdens [which] may flow from" petitioner's conviction, he has "a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him." Fiswick v. United States, 329 U.S. 211, 222 (1946). Pp. 237-238.
       (b) Under the federal habeas corpus statutory scheme, once federal jurisdiction has attached in the District Court, it is not defeated by petitioner's release before completion of the proceedings on the application. Though the federal habeas corpus statute requires that the applicant be "in custody" when the habeas corpus application is filed, the relief that may be granted is not limited to discharging the applicant from physical custody, the statute providing that "the court shall... dispose of the matter as law and justice require." 28 U.S.C. § 2243. Parker v. Ellis, 362 U.S. 574 (1960), overruled. Pp. 238-240.
    2. Where a certificate of probable cause has been granted, the court of appeals must allow an appeal in forma pauperis (assuming a requisite showing of poverty), must consider the appeal on its merits, and must include in its order enough to demonstrate the basis for its action, as this Court held in Nowakowski v. Maroney, 386 U.S. 542. That case, though decided after the Court of Appeals' summary dismissal of petitioner's appeal, governs this case which had not been concluded at the time of that decision. Pp. 240-242.
Vacated and remanded.
James J. Catly argued the cause and filed briefs for petitioner.
Brenda Soloff, Assistant Attorney General of New York, argued the cause for respondent. With her on the brief were Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Michael H. Rauch, Assistant Attorney General.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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