Earl Warren: Number 802 C.C.Peyton, Superintendent of the Virginia State Penitentiary, Petitioner versus Robert Elmer Rowe et al. Mr. Harp you may proceed.
Reno S. Harp, III: Mr. Chief Justice may it please the Court. The facts in these two cases are relatively simple and are identical. In both cases, the prisoners are State prisoners. In both cases they are not attacking the sentences which they are now serving. In both cases they are attacking sentences to be served in the future. In both cases the petitions presented prima facie cases upon which they would be entitled to a hearing if they we're serving the sentence of which they complain. We contend however, that the decision of the United States Court of Appeals of the Fourth Circuit, in these cases is incorrect and wrong. Because the Fourth Circuit held “That a prisoner -- a state prisoner in a federal court is entitled to attack a sentence to be served in the future” Now less there be no confusion about our position in this matter. We agree wholeheartedly with the tenure and spirit of the decision but we object to it on a legal -- purely legal basis. For a little history of the matter, I would call the Court's attention to the fact, as stated in our briefing that two years ago, Governor Godwin asked the Virginia Advisor for Legislative Counsel, which is composed of members of our general assembly. To study the problems that tenant to the ever increasing number of Habeas corpus cases being filed and to try come up with some suggested statutory amendments to help us -- help the courts in handling this increase load. I served as a member of the subcommittee and of acting committee of the VALC and connect with the study. And prior to the argument in Rowe and Thacker in the Fourth Circuit, the VALC had already decided to recommend a legislation which was subsequently passed by this session of the general assembly. And although it has not yet been signed into law, I have every reason to believe that it will in due course in a manner prescribed by law. And in the appendix to our reply brief, you will find at the provisions of 8-596 of the Code of Virginia, is now amended which will go into effect on the first moment of June 28 of this year. Now provide specifically “That a prisoner may attack a sentence in the câmara of the Virginia. A State prisoner may attack a sentence to be served in the future even though he is not attacking the validity of present detention.” So the Virginia General Assembly has seen to—had has felt that the Rowe and Thacker rule is appropriate. The Fourth Circuit's decision in Rowe and Thacker --
Earl Warren: Both Houses passed the Bill?
Reno S. Harp, III: Sir?
Earl Warren: Did both Houses passed the Bill?
Reno S. Harp, III: Yes sir, the General Assembly of Virginia has adjourned sir. Both houses have adjourned the constructive session will be. I believe on the 29th at which time the speaker of the house and the President of the Senate will sign all the Bills that were passed there at the end, and then they will all go to Governor Godwin for his signature, so all the enrolled Bills have been prepared. Appendix is taking from the enrolled Bill so that it as it was passed Mr. Chief Justice.
William J. Brennan, Jr.: May I ask which one of the provisions that is --
Reno S. Harp, III: Yes sir. You will find that in paragraph three B-3. It starts at the bottom of the page and goes over sir.
William J. Brennan, Jr.: Yes thank you.
Reno S. Harp, III: Now we agree with the spirit of it because we think quite candidly, that it protects the rights of the general public as well as that of the prisoners. For as time passes, minds grow dim. And it becomes increasingly difficult for an attorney to explain ten years after he tried a case how he tried it. We hope to alleviate this situation by some other legislation which provides that after 28 June, in all criminal cases wherein the accused is sentenced to serve a period of five years or more in the penitentiary. Original two copies of the transcript will be forthwith prepared and filed. I think the court has made a little crowd of that after while but we will have available records. Our disagreement with the Fourth Circuit's decision therefore is not with the spirit of it. Our disagreement with it is that the applicable provisions of the Federal Code particularly 28 USC, 22-54 and 22-41 repeatedly used the words “in custody”, and as Ms.Sollof just remarked a moment ago in the previous case, Congress has recently amended one of those sections and repeated those words. This Court in McNally and in subsequent cases as late as Fay against Noia has upheld the doctrine that a prisoner must be in custody to attack the sentence of which he complains. Now I'm familiar with the case of Jones against Cunningham where this Court decided that a prisoner could attack a sentence even though he was parole, I'm very familiar with—I lost it in this Court. But I don't think that the reasoning there is incorrect nor would have be applicable here; where the prisoner is not being detained pursuant to these convictions. Now there mentioned made in the brief file on behalf of the prisoners by our learned counsel that the classification system puts him in custody because all these matters are considered; all these sentences are considered, whether that it goes on an honor in Virginia. Well as a matter of fact there aren't any honor farms in Virginia. There is no evidence in the record to support the suppositions, and it supposed any conclusions set forth in the brief filed herein with reference to that angle of the case and we submit that there without any merit. Now, one other matter is raised --
Potter Stewart: I suppose the Virginia Penal System does have different types of institutions, doesn't it?
Reno S. Harp, III: Yes sir, we maintain several different types. We maintain a maximum security in a unit in Richmond. We have Women's farm; we have three other State farms, a State farm for misdemeanors and 31 road camps sir.
Potter Stewart: And that where a person is incarcerated will depend at least partly upon how many offenses he has been convicted of.
Reno S. Harp, III: It would -- this would definitely, I would have state quite candidly have a very important effect. For instance we have a man who is convicted in a tight water area who has four life sentences for rape and 361 years for 40 some odd burglary charges. In fact I think it's the heaviest sentence in set of sentences I've ever seen handed out anywhere.
Abe Fortas: Don't think he'll never make it.
Reno S. Harp, III: Well, he's got some severe problems.
William J. Brennan, Jr.: Other than that does he might yet get this break? The first sentence is 30 years?
Reno S. Harp, III: Yes sir.
William J. Brennan, Jr.: So we can't attack you now he wants to attack that's a 30-year sentence. So 1993 about it --
Reno S. Harp, III: That is correct sir, in the Federal Court sir. And that's terrible, I agree with you. I can not disagree with that it's bad.
William J. Brennan, Jr.: Example this, do you suppose he'll be in a position when the governor signs your new law to go into your state court to attack that second --
Reno S. Harp, III: Yes sir. That's the exact purpose of it sir.
William J. Brennan, Jr.: And maybe this one. He will be able to.
Reno S. Harp, III: Yes sir. No question about that. That is the whole purpose of it to eliminate the inequity and our position is however that the inequity must be -- if there be well then I think there is, and principally for the public. But I think if there is an inequity the place for it to be changed is by Congress, not by this Court. Because this Court would have to hold that all the words—those two other words “in custody” throughout the habeas corpus statutes don't mean what they say.
William J. Brennan, Jr.: Well I -- what's the year if the governor signs this, the next couple of weeks, this could be the question over the years automatic state remedy --
Reno S. Harp, III: No sir. It can't get out if another case against Nebraska sir, unless you sit passed the 28th of June because the statute will not go in effect until that day. It will not go in effect into that day.
Earl Warren: What if we don't sit back in the 28th?
Reno S. Harp, III: Well, I don't go on vacation until the 27th of July so -- but be that as it may. The problem however is --
Earl Warren: But if you agree with the principle of it and you believe that that's based upon your sense of justice. Would it be possible to vacate this decision and this opinion below and remand it to the State of Virginia and light of your representations here that it will be remedied by them and that there will be an adequate State remedy on this Bill assigned?
Reno S. Harp, III: Yes sir. But this presents a problem which I think it still doesn't the question Mr. Chief Justice in all candor and that is this. Let's assume that this Court sends a case back, vacates the opinion in Rowe and Thacker and the Fourth Circuit says it has an available state remedy in Virginia and both of these prisoners along with many others, go into the state courts on the 1st of July and we give hearings, they appeal to Supreme Court of Appeals of Virginia, they relief in that court. They will say is denied either with or without a written opinion. Then it come over to Federal District Court. And where are we? We're right back where we were.
William J. Brennan, Jr.: Well Mr. Harp, didn't we do exactly this in case of Nebraska? You recall the case came here and the statute was enacted just three or four days before our argument.
Reno S. Harp, III: Yes sir thats correct.
William J. Brennan, Jr.: And report that circumstance since the state now provided a remedy and the Attorney General of the State, your opposite number, came here and told us that that state procedure is now available. We simply vacated it and sent it back for the state -- prisoner to proceed under the new State.
Reno S. Harp, III: Well this would be fine for about two years. But eventually, you see, the state prisoners are going to get over in the federal court with cases attacking sentences which it would be served in the future. Where they've exhausted their available state court remedies, it's complete state court record. But we would be in a position then, I think quite candidly, they have to say “This is really fine.” And we've given you all the relief in the state courts but under federal statute you have no relief, because of those two little words “in custody”.
Byron R. White: So you said in that situation on the end of the line that you think is and should be, is a chance to petition for cert here from the state collateral relief.
Reno S. Harp, III: You could do that.
Byron R. White: From denial of state collateral relief?
Reno S. Harp, III: That's correct sir.
Byron R. White: But if we denied certiorari here there would be no resort to federal habeas after that.
Reno S. Harp, III: That is correct sir. You would have no avenue to -- in the federal lower courts to approach and raise his claim.
Byron R. White: And in terms of questions of law, you might say that's nothing wrong with that, but that's some defect in hearing then there's a problem.
Reno S. Harp, III: That is correct. When I view will notice Mr. Justice White, the statute which is found in the appendix to our brief puts right heavy burden on the trial court judge in Virginia, he must now make bindings of fact. He must in effect write an opinion; he can dispose of it on the original criminal court record if he wants to. We're having a lot of these cases quite frankly in the federal courts now, where the prisoners working under Martin doctrine of the Fourth Circuit; which holds if a man is denied his eligibility to parole by a future sentence he can now attack it. We've had lot of direct criminal appeals for instance now. They appeal, they get a lawyer at the expense of the Commonwealth and last June it could cost the state $875,000.00 for just court-appointed counsel, and they get a lawyer, they're appointed by of State, they get a free transcript, they get all the records, they either -- they may get writ of errands Supreme Court of Appeals and the matters argued, opinion written, and then they go -- as soon as they get through there and go right to the federal court. And the federal and as I'm supposing of them, on the record, and we feel that a lot of the cases we will be able to dispose off on the record, present search and seizure and course confession or insanity, many of these other matters. Now in a brief -- able brief filed on the other side in this case; they suggest declaratory judgment as a relief in this particular situation. This was suggested in the Martin case and discarded by the Fourth Circuit. The purpose of declaratory judgment act is we understand, is to permit the adjudication of something whether it's a controversy, where something has not been adjudicated before. It's different from habeas corpus; here there has been an adjudication. The prisoner has been found guilty and sentenced to serve time in a penal institution. So we feel that that act would not apply. For the reasons we have stated, we would most respectfully suggest and we hope we've been candid about our feeling in this case. We would most respectfully suggest that the judgments of the Fourth Circuit should be reversed. With the Court's permission I would like to reserve a few remaining minutes for rebuttal sir.
Earl Warren: But that would leave the man on the penitentiary until 1999 before he could get any relief.
Reno S. Harp, III: No sir. He can get a relief in the state court as of the 28th day of June sir. He can get the relief, that's why enacted the statute Mr. Chief Justice.
Byron R. White: Do you mean is there will be a procedure to a relief?
Reno S. Harp, III: Yes, there'd be a procedure. That is probably a tad of a better approach to it Mr. Justice White.
Earl Warren: Was there to be a motion in this matter?
Thomas S. Currier: Mr. Chief Justice Warren may it please the Court. I would like to move for the leave for Mr. John J.Kirby of the Virginia Bar to present oral argument on behalf of respondents.
Earl Warren: The motion is granted. Mr. Kirby?
John J. Kirby, Jr.: Mr. Chief Justice may it please the Court. I think the Assistant Attorney General of Virginia has indeed presented his argument with great candor today. The fact remains that Robert Rowe and Clyde Thacker are in the custody of the Superintendent of the Virginia State Penitentiary for 50 and 64 years respectively. They assert that substantial portions of this term are unconstitutional and they ask a federal hearing and adjudication on their claims. They don't ask they'd be released totally from custody. They ask only that the illegal portions of the custody be stricken from their term.
William J. Brennan, Jr.: And may I Mr. Kirby, as suppose we allege the illegality in a double jeopardy argument here?
John J. Kirby, Jr.: The essential illegality I think Mr. Justice Brennan alleged in both cases is ineffective as representation of counsel. I think that is the essential allegation and that is conceded by the state and found by the Fourth Circuit prima facie on their allegations to entitle them to a hearing if a hearing is available. I think it's some important to point out the substantial areas of agreement between the respondent, petitioners and the state and to reemphasize what is the Assistant Attorney General has stated today. That is we all agree that they are entitled to a hearing if the hearing is available; that they've alleged serious defects in the process by which they were tried and convicted. We also agree that the claims can be heard and adjudicated most effectively now, today. Not in 1993 or 1994. Its -- I think that both cases would require a substantial testimony by witnesses. In Mr. Rowe's case, he alleges in that case that his lawyer told him that he should plead guilty to a charge of abduction of a female with intend to defile in neighboring city of Stanton because even though it already been convicted in the city of Waynesboro for rape in the same incident and sentenced to 30 years, than any sentence imposed upon him in the neighboring city would have to run concurrent with that sentence. So I think that in order to prove—this was just a clear mistake when the Virginia law and judge made quite clear by imposing the 20-year sentence and ordering that they run consecutively. I think that this clearly involved a necessity of calling witnesses. I think in the case of Clyde Thacker, the evidentiary problems are even greater, Your Honor. Because their this man was tried for house breaking that were allegedly committed 1951, ‘52 and '53. He was already in custody at the time of his trial on other convictions and he alleges that when he was removed from his present place of incarceration and brought to this county, that the lawyer there who was appointed for when the day of his trial said “Don't worry, I can get the sentences suspended.” Which in fact the lawyer did and let's not put to state to a trouble and of a great expense of trial because you're going to be in jail for a long time anyway, and this sentences will just run or be suspended. And the judge in fact did impose three to five year sentences to run consecutively and suspended them on the condition of good behavior for 50 years. The sentences were revoked in 1956 upon his reconviction for another crime. And they're now scheduled for service.
William J. Brennan, Jr.: The suspension?
John J. Kirby, Jr.: The suspension was revoked and so he is now scheduled for --
William J. Brennan, Jr.: -- now on the timetable, what would he be able to attack if under the state provision?
John J. Kirby, Jr.: Under the state provision?
William J. Brennan, Jr.: The state's submission, when does this -- his present term when --
John J. Kirby, Jr.: His present term that's un-attacked here would run out in 1994 I think, Your Honor. Both there one is 1993 and the other is 1994. That is assuming that he gets full credit for good behavior for the rest of his term, otherwise it won't commence until the year 2009. So I think that we do agree substantially on this that they're entitled to a hearing and that the hearing is necessary. I think that --
Potter Stewart: By entitled to a hearing you he maybe stated a prima facie constitutional claim.
John J. Kirby, Jr.: They've started a prim--
Potter Stewart: That's what you mean, isn't it?
John J. Kirby, Jr.: Yes Your Honor; that if absent timeliness problems, that if this allegations were made in District Court. The District Court would have to grant some hearing under rules of this Court. The third --
Earl Warren: We'll recess now Mr. Kirby. You may continue your argument.
John J. Kirby, Jr.: Thank you Your Honor. I'd reach the point in the argument where I wish to describe what responds conceive to be the area of disagreement between the prisoner respondents in the State of Virginia. That area of disagreement apparently is this and this only, and that is the state takes a position that McNally versus Hill is a correct statement of the availability of the writ of habeas corpus, historically and is extended to prisoners by Act of Congress. The respondents, the prisoners take the position the McNally versus Hill was an incorrect statement and of the meaning of the writ. That the writ was broader in this historically and that Congress did not limit the writ in any of its enactment, and that includes the Habeas Corpus Act of 1966 which I will avert in a few moments. I also would like to address myself in a few moments to the proposition that there is no reason why this case should be vacated and remanded simply because the State of Virginia has agreed to provide a state remedy after June that is presuming that the governor signs the Bill into law. I think that there are at least three substantial reasons why the habeas corpus statutes should be interpreted in this context more broadly that they we're interpreted in McNally versus Hill. Again, the state agrees with the prisoners as to one these reasons at least; and that is that if they're going to have to the full unfair fact hearing, granted them in a federal court, granted them by Townsend versus Sane if they have not had a full unfair fact hearing in the state court. It must be now, not a quarter of a century from now. Secondly, and I think this point is clear, that these men will be in custody will be in iron custody in the Virginia State Penitentiary for the quarter of a century between now and the time under McNally they're eligible to attack this allegedly unconstitutional convictions. If in 1994 they can still prove their claim, which I think is highly doubtful, but if they can still prove their claim, our experience tells that's it goig to take quite a bit of time to get through the state courts and if necessary through the federal court. So because of a rule of timing, these men who perhaps are incarcerated constitutionally until 1994 will have to remain in the penitentiary, pending their application for writ of habeas corpus, pending a decision on whether or not to grant them that writ; so unnecessary time will be spent in prison. I think we always regret time that has to be spent in prison under an invalid sentence. Most often we can not correct, that's just unnecessary part of our judicial system is it operates now in granting post-conviction relief. But in this case, it can be corrected if the rule of timing in McNally is not followed. I think --
Thurgood Marshall: This is also being handled in the Virginia courts after June 28.
John J. Kirby, Jr.: Well Your Honor I think that raise the point raised by the Virginia legislation is its effect on this proceeding here. I think it's quite clear that under the broad terms of the Virginia statute, if it is signed by the Governor, they will be eligible to apply for a state remedy. I'd like to make several points about that, Your Honor. First of all, the Bill is not long now. Secondly, it was conceitedly not law at the time these prisoners entered the federal court. And under Section 22-54 as interpreted in Fay versus Noia, as as interpreted by I think all of District and Circuit courts since the exhaustion requirement means you must exhaust the remedies available to you at the time you enter the federal court. These remedies were not available to them.
Thurgood Marshall: The point is, suppose just by shear chance. This case is not decided by us. Until after the governor signs the Bill, that's this month isn't it?
John J. Kirby, Jr.: Yes Your Honor.
Thurgood Marshall: Just assume by chance. It's not decided before that. What about the Virginia remedy?
John J. Kirby, Jr.: Well I am working on that assumption Mr. Justice Marshall that it would not be—that it will be signed before this Court hands a down a decision. But the point still remains that the question is exhaustion, and that these prisoners exhausted prior to entering the federal court.
Thurgood Marshall: As of April 28, these prisoners would have under Virginia's argument, a post conviction proceeding in the Virginia courts and under your argument after April 28 there would have a post conviction proceeding in the federal court. So as of April 28, realistically is merely which court this hearing is going to be held.And finally, that does not completely knockout the 1994 argument?
John J. Kirby, Jr.: You honor I think the no -- answer is no to both questions. In the first place, the Virginia remedy would not become available until June 28 no matter when it is signed by the governor. In the second place, even assuming that this Court's decision came at precisely the same time, the question presented here is the existence of a federal remedy. Now as to at least one of these prisoners, Clyde Thacker, it was highly questionable that even if the Virginia statute is inactive and does go into effect prior to this Court's decision whether he will have an adequate remedy in the state court. For this reason Your Honors, Virginia has refused to follow the rule in the Fourth Circuit that when a man alleges and his counsel was appointed on or before—shortly before the day of his trial, that he has the burden—the Fourth Circuit has held the state when he proves that has burden approving that he wasn't prejudiced by this manifest defect in the state process. Where the State of Virginia says and consistently maintained despite reason Fourth Circuit decisions dealing with Virginia prisoners that the burden of proof is upon the prisoner so that Thacker could make a good case and even if you were just entering the federal courts for the first time in June, that he shouldn't have to exhaust the state remedy because there isn't any available remedy even under the new timing. So Your Honor, I think the question is exhaustion.
Thurgood Marshall: And how about Rowe?
John J. Kirby, Jr.: Rowe Your Honor does make the base of the allegation that his counsel was ineffective also. He does not allege he was appointed on the same day. Under the Fourth Circuit decision in Coles versus Peyton which was decided in January of this year. The state arguably would have the burden of proof as to his allegations of ineffective representation of counsel. Arguably he would, so arguably at least Rowe wouldn't have an adequate state remedy even after the Virginia statute goes into effect. And Your Honor, as counsel for State of Virginia, candidly conceded, it will not answer the question to vacate and remand these cases because in the Fourth Circuit at least, the court has unanimously en banc taken had decided that there is a federal remedy available and has made that federal available at least in the states in the Fourth circuit. Other states and other circuit are not making such remedy available and the federal court do not make a federal remedy available either. So I think even this case is of great importance for the whole administration of justice in this area.
Thurgood Marshall: Your position is in regardless of this particular case and these particular men what we should do is look pass at everything, and overrule McNally on general principle?
John J. Kirby, Jr.: Well Your Honor I think there is substantial reason for ruling McNally in this case and in any case. But as to these men, they have done what the Act of Congress required them to do. They've exhausted their state remedies, all the remedies that were available to them; to remand them, to the state process now when its arguable that there isn't even an effect of remedy now for them, even after the statute and the state. I do not think answers the question presented by this case and that is, is there a federal remedy for these men or if the State of Virginia decides that these men were not unconstitutionally convicted. Do they then have to wait another 25 years before they can get there Townsend versus Sane hearing in the federal court? If Virginia decides for any reason whatsoever, that these men should be remanded to total custody extending pass 1994 under the rule on McNally, they will not be able to get their Townsend versus Sane hearing here. And I think Your Honor I would just like briefly to speak to the effect of Case versus Nebraska on this case. Case arose on certiorari to the Supreme Court of the State of Nebraska. In that case, the remedy asked for was and adjudications of the failure to afford state habeas corpus, what required to granting some kind of federal relief was a violation of the Fourteenth Amendment. Nebraska granted the remedy the case, I think clearly became moot. That's obviously not true here even if Virginia grants a state of remedy, it doesn't answer question of the availability of the federal remedy. I think there is a third reason, a third substantial reason why we should and why this Court should reconsider McNally and hold that these men are in custody in the meaning of the statute. These men are both in the Virginia State Penitentiary. They are in the Maximum Security Institution. Penologists generally talk about grades of custody within penal institutions. These men are in the maximum security prison. They may be there because of the sentences which they alleged are unconstitutional. I agree, there is no evidence in the record in this case but then there really is no record. There is never any hearing on this issue. So that becomes determinative as to whether or not these men are actually suffering now because of the impact to these sentences and that is the only way this case can be determined at the very least. The men are entitled to have a hearing on the present impact of these sentences.
Hugo L. Black: Are you asking if we overrule McNally?
John J. Kirby, Jr.: Yes Your Honor. I'm asking that this Court overrule McNally because it was not a correct or a necessary interpretation of the scope of the great writ historically or as Congress made it available to prisoners in the United States.
Hugo L. Black: Do you understand McNally to be a constitutional rule?
John J. Kirby, Jr.: Your Honor I'm not sure whether McNally purported to base itself on the constitution. I think McNally was based on two premises, and that is we look the common law to see what the scope of the writ is, but then we must look to the act of Congress; we must look to the statute to see to what extent Congress extended the historical great writ to prisoners. So I'd say it was matter of statutory interpretation you honor.
Hugo L. Black: Well this that the bottom of your contention that McNally should be overruled; the constitutional provision with reference to the right to a speedy, public trial?
John J. Kirby, Jr.: No Your Honor I don't think that that is behind this. I'm not sure that in the --
Hugo L. Black: Otherwise, what is the constitutional provision for me to rely?
John J. Kirby, Jr.: Your Honor we don't rely on a constitutional provision here. We could rely I think --
Hugo L. Black: But I understood you've said that McNally -- you didn't know whether it might be a constitutional --
John J. Kirby, Jr.: You honor I think I've corrected my --
Hugo L. Black: And you're asking if we overrule McNally if on the basis, I suppose on constitution --
John J. Kirby, Jr.: Your Honor I -- the constitutional --
Hugo L. Black: -- that we could find something in the constitution which makes it what's been done illegal.And what would make that illegal other than provision to a speedy public trial?
John J. Kirby, Jr.: Your Honor I think that we might look to the suspension clause and the interaction into the suspension clause and the Fifth Amendment in the Fourteenth Amendment.
Hugo L. Black: Suspension what?
John J. Kirby, Jr.: The suspension that the writ of habeas corpus shall not be suspended. I think Your Honor it's --
Hugo L. Black: Well I think that's proper to argue.
John J. Kirby, Jr.: Yes, I think it's not necessary though to reach any constitutional question here because I think the statute can be interpreted another way which obviates the necessity for reaching any constitutional issue. And the way the statute can be interpreted is this I think Your Honors. McNally was based on three premises which I think we can briefly describe as this that only iron bar custody was attackable by habeas corpus, no other restraints on liberty. Secondly, that the applicant must assert the right to a total release from this iron bar custody. And thirdly that he must assert the right to immediate release, immediate total discharge from iron bar custody. McNally purported to find the necessity for such an interpretation in the history of the writ at common law and in the congressional statute itself, and I think that it's correct in either case. Even at that time and certainly not now when the parole, the probation systems are so much more developed than they were before. In the first place --
Hugo L. Black: I understand that what your basic argument now is that is. If you reach the constitutional effect that this is a judicial suspension of the writ to habeas corpus.
John J. Kirby, Jr.: Your Honor I think that McNally -- that upholding the McNally interpretation and that is that saying the congress said that the writ of habeas corpus is only available on these circumstances, raises to serious constitutional problems to which you have averted. But I don't think Your Honor again that it's necessary to reach that point. Because I think it's quite --
Hugo L. Black: What we're talking only is statutory construction why, since the court decided that McNally and Congress has invested itself to the same sections of through this statute here, why not leave it to the Congress? We don't often do -- overrule of statutory constructions case.
John J. Kirby, Jr.: Well Your Honor I think that there are several things that could be said to that. In the first place I don't think that Congress has addressed itself to this point. I think if Congress has addressed itself to this point, it's at least partially come down against McNally. I refer to the habeas corpus Act of 1966, Section 22-44. And in that section to 22-44 B, the habeas corpus Act of 1966, the statute now refers to the fact that the courts might be able to grant release from custody or other remedy on an application for writ of habeas corpus. And I assume that that was to conform what supervisions in the preceding habeas corpus sections that all federal court, once the writ is supplied for, can grant that relief which law and justice requires. So Your Honor I think it's important for this Court to avoid the necessity of reaching the prime issues of what the constitution requires of the great writ. What the circumstances and the scope which the constitution requires at the great writ; I think however this Court would be based with that issue squarely unless McNally's interpretation of the statute is reevaluated. And I think this Court has already reevaluated since McNally, the interpretation given. For example in Jones versus Cunningham, Your Honor, I think it's quite clear that in Jones, this Court was saying that habeas corpus can be used for other things then to attack iron bar custody; that there are other restraints on liberty which the writ of habeas corpus can be used to attack.
Byron R. White: Now that's a little different point as to whether or not you could do something in habeas corpus besides discharge. At least that point's a little different saying whether you have to be in custody in the first place in connection with the sentence which you are attacking.
John J. Kirby, Jr.: I'm sorry Your Honor, I don't understand the question. I think if the question is are Rowe and Thacker in custody, I think the answer is “Yes”
Byron R. White: Under the sentence that they are facing?
John J. Kirby, Jr.: Your Honor I think that under at least one interpretation, they are in custody under the sentence which they're attacking.
Byron R. White: Hold on, but McNally said they weren't, didn't it?
John J. Kirby, Jr.: Yes. McNally held that --
Byron R. White: They were in custody.
John J. Kirby, Jr.: -- that they were not in custody unless they we're actually serving and it identified service is the only restraint or liberty.
Byron R. White: That's a little different question whether or not when you grant the writ of habeas corpus you have to order a discharge.
Byron R. White: I agree. I think there are at least three questions raised by McNally, and that is what restraints can be reached, number one. Number two, what relief can be granted from those restraints? And number three, at what time can it be granted to take its full effect?
Byron R. White: And the second one isn't here is it?
John J. Kirby, Jr.: The relief, the scope of the relief.
Byron R. White: Remedy question isn't here isn't it?
John J. Kirby, Jr.: Yes Your Honor I think that the remedy question is here. I think the remedy --
Byron R. White: It's here if you get by the first point, it's here then?
John J. Kirby, Jr.: Yes Your Honor
Byron R. White: Not unless?
John J. Kirby, Jr.: Not unless, I agree. That the statute says “in custody in violation of the laws or treaties of the United States” Rowe and Thacker are asserting that they are in custody in violation of the laws or treaties of the United States. That what they are really is not a series of sentences, some one year or some two years, some four yours, some ten years, some 15 years, but what they are serving is a total term that the warden of the Virginia State Penitentiary now has them in his custody and that he asserts the duty and the right to continue to keep them in custody as they've served that total term.
William J. Brennan, Jr.: Tell me Mr. Kirby, when the judge imposes these sentences in this instance, was he already serving the first?
John J. Kirby, Jr.: In the case of, Your Honor I think it's accurately stated that in both cases they were already serving. Rowe's --
William J. Brennan, Jr.: Yes, in the second conviction following the imposition of the sentence that is against the first conviction.
John J. Kirby, Jr.: Yes Your Honor but not in that order, not in that order Your Honor. Rowe --Thacker, to take Thacker first; Thacker is now serving at the present time, the sentence imposed in 1964. In 1993 he will begin serving three sentences imposed in 1953 and the suspension of which was revoked in 1956.
William J. Brennan, Jr.: So would it be possible to change the order of the sequence?
John J. Kirby, Jr.: No Your Honor its --
William J. Brennan, Jr.: At the time of the --
John J. Kirby, Jr.: No Your Honor, the Virginia Supreme Court of Appeals has seen two cases one cited in my brief, Peyton versus Williams, 206 Virginia and the subsequent case in either, I think late 206 or early 207 Peyton versus Grace says that Mr. Milton, the Superintendent of Records at Virginia State Penitentiary can schedule sentences practically anyway he wants.
William J. Brennan, Jr.: So he may? So he could get it.
Byron R. White: These sentences took the guys in the --
John J. Kirby, Jr.: He could've scheduled them differently Your Honor. Yes, I think --
Byron R. White: And on the happenstance of how he schedules them depends whether or not he has the right to attack it?
John J. Kirby, Jr.: Depends through his -- the access to the federal court.
William J. Brennan, Jr.: -- so when you have, well I gather the more usual situation that is the prosecution under the fact of several counts, and there are convictions when the -- and that the second sentence is imposed, who picks out what sentence shall be served first and what count, how effect otherwise?
John J. Kirby, Jr.: Your Honor I think that unless the court and Mr. Harp may be able to correct me on this. But I think that unless the court specifies some order in its original commitment that
William J. Brennan, Jr.: Or the judge says --
John J. Kirby, Jr.: Yes.
William J. Brennan, Jr.: -- “Guilty on all counts.”
John J. Kirby, Jr.: To run consecutively.
William J. Brennan, Jr.: The year on each count to run consecutively. That's all he says and the warden may say “Well you're serving your sentence under the third count, I want you to follow that with the one with the fourth and then go back to the first” etcetera?
John J. Kirby, Jr.: Yes Your Honor. I would not like to leave this Court with the impression that I think the Superintendent of Records does just arbitrarily decided; he could under the Virginia decisions. I think that might again raise a substantial --
William J. Brennan, Jr.: What's the difference if the court says “We sentence you to all counts that under the first to be followed by that under the second and then the third, the fourth” that binds them to --
John J. Kirby, Jr.: Your Honor I think it does. I think that even in that very simple case, some strange things have happened in Virginia. The Fourth Circuit last year decided the case of Peyton versus Perkins, where the judge had said stated the order in which the where to be served. But then nobody could ever agree on exactly what his statement had meant and there was great difficulties arose there. But Your Honor I think I'd like to just, in the remaining minutes to take two more things about the McNally Rule. I think it's clear that can reach other restraints than the totally of iron bar custody. I think this is made clear by Jones. I think that it was always been clear that the federal courts have the right to grant relief in accord with law and justice and not just total discharge. This Court is not faced with a black or white situation where they used to remand these people to custody for the totally of their sentence or discharges in custody even from constitutional custody. It can grant that relief to which they are entitled and even as put it out in one case sited in our brief cited in McNally itself; this Court did suggest that kind of relief could be granted. That is the case of United States versus Pridgeon where it was suggested that the man could be remanded to serve his five years but not five years at hard labor because --
William J. Brennan, Jr.: Tell me, are you making any argument at all Mr. Kirby that whatever may have been the proper deposition of the custody in which you cite, in which you cite application on the facts of McNally, in any event on the facts of this case, custody can be possible to appraise this Section? Are you making an argument of it?
John J. Kirby, Jr.: No Your Honor I'm not making that argument.
William J. Brennan, Jr.: You don't give these cases accountable to be suspicious?
John J. Kirby, Jr.: No Your Honor I did not. Thank You.
William J. Brennan, Jr.: Thank you Mr. Kirby. Mr. Harp?
Reno S. Harp, III: Mr. Chief Justice may it please the Court. Just a few comments, I think first, able counsel's first argument was that the petitioner would be denied, these petitioners would be denied federal habeas corpus hearings. Unless the words “in custody” are interpreted to mean “not in custody” and that basically is his position. I would most respectfully point out to this honorable Court, and I see nothing different between a hearing held in habeas corpus proceeding by a state judge and that one held by a federal judge. I see no difference and in the system as we operated in Virginia and half for a number of years and there are many cases in the Fourth Circuit, most of them now per curiams where the state court has held a complete hearing and findings of fact made and the case comes over and the district judge dismisses on a state court record. Every effort in Virginia has been made since I have been responsible to the handling of these cases for about nine years now to see to it that plenary hearings are granted. And we make them necessary motion every time we get a case where one is required in our opinion, which is almost all of them except when they're paying frivolous or stating no facts. We see no difference between the state and federal habeas hearing. And moreover, he has a clear right of appeal and to the Supreme Court of Appeals Virginia and in by way of certiorari to this Court in an exercise of his federal rights.
Potter Stewart: The problem is there is a clear conflict now in the Federal Circuits as to the availability of federal habeas corpus to somebody situated as these petitioners, as these respondents are.
Reno S. Harp, III: That is correct sir.
Potter Stewart: And well, Virginia as of what you've told us about Virginia is very interesting in facts there 49 other states and there is a clear certain conflict.
Reno S. Harp, III: That is correct sir.
Potter Stewart: And would indicate that perhaps we better decide this case on the merits wouldn't it?
Reno S. Harp, III: That is correct sir, Mr. Kirby and I have full agreement that the case should be decided on the merits. If the court should vacate the opinion and sort of quite candidly dodge the issue, the issue's going to be right back, there's no way to get around it. Now --
William J. Brennan, Jr.: May I ask, in light of this warden if he made a booking entry which had a different order of service would be --
Reno S. Harp, III: No sir I'll jump to that right now. The method of computing sentences in Virginia is done in the following manner. One, by Virginia, sentences are served in the order in which they are received. There are several little exceptions to this. One, in Thacker's for instance he was paroled. And while he was on parole he committed some other crimes of which he was convicted and brought back to the penitentiary and he came into the penitentiary now with a new number on these new convictions. His parole was then revoked. On the Supreme Court of Appeals on Peyton against Williams cited by counsel for the respondents held that it was appropriate that since the revocation occurred after the imposition of the new sentences, the new sentences would be served first and then the old sentences. If the revocation had occurred prior to the imposition of sentencing on the new sentences then that would've come first. Moreover also, escape does not change the sequence of sentences. The superintendent of Virginia State Penitentiary is not authorized by statute to play tic-tac-toe with a man's record. It presents quite candidly many problems, particularly in the situation you outlined where he may get eight sentences in one court on one day all to run consecutively. If the court order not a Virginia law, the clerk of the court of record must certify to the superintendent of the penitentiary a copy of the judgment order of conviction not just abbreviated transcript, but a copy of it. If the order shows specifically, the other in which the sentences were imposed, which it must show that he was convicted A, B, C and D. It may be that there would be eight orders in this situation, if there were eight orders in that situation and there was no way to tell specifically the -- the superintendent and then compute them on the basis of the indictment numbers, 1, 2, 3, 4, 5, 6, 7, 8 you see.
Thurgood Marshall: Mr. Harp.
Reno S. Harp, III: Yes sir?
Thurgood Marshall: With Thacker, suppose he had committed a violation of his parole other than to have been convicted of a crime?
Reno S. Harp, III: Then he would come back into the penal system under his old number sir.
Thurgood Marshall: And he could raise this point?
Reno S. Harp, III: He would then be serving the sentence of which he complained as I see it, yes sir.
Thurgood Marshall: He would be our from under it for now?
Reno S. Harp, III: Yes sir.
Thurgood Marshall: But since he violated the wrong provision of his parole agreement McNally applied it.
Reno S. Harp, III: No sir. That's not the test, no sir. The test is, so far as computation of time is concerned Mr. Justice Marshall, is when the parole revocation occurs. Quite often for instance a man may be picked up on a parole violation warrant and take it into custody and then they find out after the getting that somebody else has been looking for him. And they may revoke his parole, he may get to the penitentiary first or he may not get there until after he is been tried on his new charges. Now --
William J. Brennan, Jr.: Excuse Mr. Harp, you did say Virginia had this statutory provision of that shall serve in the order of which after the first? You said “I think the conviction throws in the record.”
Reno S. Harp, III: No sir. The order in which the sentences are imposed time wise, otherwise if he's convicted on June the 1st the circuit court of Algoma County in June the 3rd and the corporation court in the city of Charlottesville, which is right across the street. He serves, I mean the order in which they are imposed, June the 1st and then June 3rd.
William J. Brennan, Jr.: Imposed by the trial judge?
Reno S. Harp, III: Yes sir. That is correct. And you have certain situations where a man may have -- may be tried on six charges together and the court may impose three sentences one day and three sentences another day. Well then it would go in that order. There's no more juggling going on. The superintendent does not have if -- yeah.
William J. Brennan, Jr.: It's just a follow up.
Reno S. Harp, III: Yes sir.
William J. Brennan, Jr.: -- if the federal court if an officer gives the sentence -- gives the prisoner sentence.
Reno S. Harp, III: That is correct sir. Now --
Byron R. White: Whenever they're appointed?
Reno S. Harp, III: Yes sir. That is correct. That become -- it depends whether or not they get stay.
Byron R. White: Or defeating a little --
Reno S. Harp, III: Yes sir, yes sir. That can complicate it but that doesn't have to usually enter into the question at all Mr. Justice White. Now it was alluded also to the fact that in the Commonwealth of Virginia takes a long time to get a habeas corpus and get the case decided. I feel that I can speak with a small amount of authority on this subject. Since I have been responsible for handling these cases and operating this division of our office for about eight or nine years I think now. I have tried an average I guess of 100 to 150 cases some years, at both state and federal courts, and you've get a hearing a great deal faster in the court in the Commonwealth of Virginia than in a Federal District Court just that simple. So I don't see any merit to this argument. Now, with regard to factors relief on counsel appointed the same day, you will find cited in our brief the case of Burley against Peyton which we'd lost in our Supreme Court of Appeals in Virginia and I think quite rightly sell we suggest that quite candidly, the court that we should lose it because counsel was appointed at the same day. Coles against Peyton which was referred to by of counsel for petitioner is one not a counsel appointed at the same day case in too as court will receive a petition for writ of certiorari in that case next week. But I don't think on a factual basis that it is applicable to argument here in today. With regard to McNally I would call to the Court's attention that we do not hold in the Virginia all there is language in one case, although we've never employed it. That just because a prisoner is serving will say sentence A and he's got 15 other sentences after it that he can not attack sentence A. That writ does not mean immediate to discharge a custody but release from that particular sentence. And this Court last week or the week before, I believe decided a case exactly on that very, very point. So there's no problem about that in the Commonwealth of Virginia. In conclusion, I would most respectfully suggest that my learned friend at bar here,who has worked very hard on this case in the Fourth Circuit in here has yet been unable to take the words “in custody” and change them to mean anything other than “in custody”.
Potter Stewart: Well it's not those, these people are in custody.
Reno S. Harp, III: But the question is and the statute says if Your Honor please repeatedly “in custody under a judgment” and they are not in custody under the judgment. We would most respectfully suggest that the appropriate way for the statute to be amended is for Congress to do it. Thank you sir.
Earl Warren: Mr. Kirby before we conclude this case in behalf of the Court I would like to thank you and your associate Mr. Currier for your representation of this indigent dependent. We understand that the Court of Appeals of the Fourth Circuit pointed both of you to represent this man and that you have carried it onto this Court. That's a real public service in our opinion and we're very grateful to for it. And we're also are grateful to the law school which you -- where you are both teaching and our thanks go to the law school as well. And Mr. Harp, of course we appreciate in the same degree you're representation of the State of Virginia, and we appreciate also the enlightened approach which the State of Virginia is taking to this particular matter. And we think that too will have real influence upon the jurisprudence of our Court as is effect to all the 50 states of the union. So we thank you and your state also.
Reno S. Harp, III: Thank you Mr. Chief Justice.