Earl Warren: Number 489, Dan Durley, versus Nathan Mayo, Custodian, Florida State Prison. Mr. Rutledge.
Neal P. Rutledge: May it please the Court. This case comes to this Court by way of certiorari to review a final decision of the Supreme Court of Florida denying a petition for a writ of habeas corpus. The petition was filed and denied without a hearing and without requiring any response thereto. The petition claimed a denial of federal rights and it claimed that the petitioner was imprisoned and had been convicted in violation of rights guaranteed by the Due Process Clause of the Fourteenth Amendment. Two basic grounds were asserted in support of that claim. One of those was a claim that petitioner had been punished three times for a single offense. And, moreover, that he'd been twice so punished. In short, that he had been punished six times for two offenses. The other ground, in support of that claim, was a contention that petitioner had been convicted solely and exclusively on the basis of perjured testimony of two codefendants, former employees of his who had been tried together with him. Petitioner did not make any allegation with this use of perjured testimony was known to the State. No such allegation appears in this case. His contention was simply that where he could make a showing such as he did in this case, a prima facie showing as strong as he could in this case, that the obligation was imposed upon the State under the Due Process Clause to afford him some remedy to rectify such a grievous wrong.
Earl Warren: Now, absent -- absent a allegation that the State knew that he was using perjured testimony what federal question do you ask?
Neal P. Rutledge: Your Honor, the -- the petitioner, of course, realizes that the Due Process Clause applies only to state action. But it's petitioner's contention that the continued imprisonment of petitioner after such a strong prima facie showing as was made in this case constitutes state action. The State is keeping this man in prison, is depriving him of his liberty. And it continues to do so after he has shown that two -- the two witnesses who supplied the only, the exclusive evidence in support of his conviction within six months after the trial admitted. One under oath and the other one admitted it to a fellow prisoner that they had framed him. That they had deliberately decided before they went into their illegal enterprise that if they were caught, that they would implicate falsely their employer because he had a good reputation in the community, he'd never been in trouble before and they thought that so doing, they would take the owners of themselves. As it so happens, both of them did receive lighter sentences than the petitioner. And it is our contention that due process requires that a State afford some remedy in that situation where a man who makes as strong a prima facie showing as this man did where he shows that the exclusive, the only evidence used to convict him was perjured testimony. There was no other evidence according to the allegations in the petition for writ of habeas corpus in this case.
Harold Burton: Well, that -- that means without the saying that the State can use in that (Inaudible)
Neal P. Rutledge: That's right, Your Honor.
Harold Burton: It was a mere fact that it later is, it turns out to be false is sufficient to justify a new trial I suppose?
Neal P. Rutledge: Your Honor, we don't necessarily contend that a new trial would have to be gone in two weeks. We -- we submit that the State should afford some remedy, some -- even if that the -- the State required him to show beyond a reasonable doubt the same burden that was imposed on the State to convict him in the first place. That his conviction was based solely and exclusively on perjured testimony. Then we submit that if -- if he could make such a showing beyond unreasonable doubt, well then the State should -- should grant a new trial or should discharge him.
Harold Burton: Well -- well, of course, at the trial, he had the same opportunity to show that he's perjured than he would now.
Neal P. Rutledge: That's right, Your Honor. Except this fact, and that is that within six months after the conviction, these two codefendants came in and admitted that they had framed him. One of them said, “May I stand before my God and say that Dan Durley is innocent of the charges that I --that I made with against him.” And the -- the man, as according to the allegations of the petition here, the crime charge was stealing cattle. And his two codefendants took the stand and admitted according to the allegations of the petition that they were guilty of that offense. The petitioner in this case denied his guilt. And the only evidence against him was the testimony of these two defendants that he was there and that he was a party to the crime or that he -- that he was a -- a member of the group. That he had conspired in any -- any event to -- with them to perform this offense.
Earl Warren: It seems to me what you're really arguing is that if you have a little perjured testimony in the state prosecution then you can't that you don't raise a federal question as the State knew about but if you have a lot of it and you do raise a federal question even though the State didn't know about it.
Neal P. Rutledge: Your Honor, I would certainly concede that if these were a case where there was other evidence, where say, he was captured at -- at the scene, at the (Inaudible) precisely that then perhaps the mere recantation of testimony by one of the witnesses would not be -- would not raise a federal question. But where, as the allegation is here, the sole and exclusive testimony that is used to convict is perjured testimony and his admitted perjured testimony where the perjurers come in and can -- and confess their perjury that there should be, under due process of law, some remedy for a man in that situation.
Earl Warren: (Inaudible)
Neal P. Rutledge: Sir?
Earl Warren: Comes out in a case that goes that far.
Neal P. Rutledge: Don't have any case that goes that far, Your Honor. No case, whatsoever.
Harold Burton: Do you have the writ of error coram nobis in Florida?
Neal P. Rutledge: Yes, Your Honor, we do.
Harold Burton: Does it have to be brought within a certain time, is there a time limitation on this?
Neal P. Rutledge: My counsel on the other side would correct me if I'm wrong, I'm sure, but it's my understanding there is no definite set time upon it. I might say that according to the allegations in the petition or in one of the supporting affidavits to this petition in this case, shows that petitioner had applied for writ of error coram nobis previously. As a matter of fact, it's in exhibit -- he so states in the petition --
Harold Burton: Did he appeal from that?
Neal P. Rutledge: It's not in this record here, Your Honor, but as a matter of fact, I know that he applied to the Supreme Court for writ of error coram nobis and they told him he'd applied to the wrong Court. He then went down to the Circuit Court of record and applied and they denied him relief and he then appealed and his appeal was dismissed. I believe that counsel would correct me if I'm wrong, but I'm -- but I'm -- that is my understanding of this prior writ of error coram nobis proceedings in this case.
Earl Warren: Mr. Rutledge, then does the State of Florida require a corroboration of the (Inaudible) to support a conviction?
Neal P. Rutledge: It's my understanding that they do. And I suppose in this case if there was any corroboration it might have been in the fact, and I can only infer this, from the meager record in this case that there was truck involved in this stealing of cattle. And that truck did belong to the petitioner. If petitioner submits that it is federal law in this Court that where a petition is denied without a hearing that the facts alleged in the petition must be taken as truth. And in support of that, in support of this first ground, the ground concerning double punishment, the facts that he alleges in his petition were as follows. He alleges that he was charged with the crime of stealing a cattle, submitted on July 7, 1945. And he was charged for stealing five cows. Actually, I believe it was two steers, and two cows and one heifer, all belonging to one owner on that day. The charge, however, was contained in one information and it contained three counts. They divided the cows up. They charged him with one offense of stealing two steers and another offense for stealing the two cows and the third offense for stealing the one heifer. Petitioner contends that the evidence of the State, the only evidence of the State show that all five of those cows were taken at the same time, under the same circumstances, with the same intent in all as one transaction. And petitioner has -- has shown and cited in his case, in his brief, a Florida case clearly stating that under such circumstances, there is only one offense committed. The same as whether you steal $10 or $20, whether you steal five cows or one cow, it's just one offense if you do it at one time, at the same place under the same circumstances.
Stanley Reed: So was it just one truckload?
Neal P. Rutledge: Apparently so, Your Honor. I don't know whether there -- whether there were two trips necessary. There's -- there's no showing according to allegations in the -- in the petition. The cattle were -- were shot according to testimony of the State, shot, slaughtered and butchered and put on the truck and take it to market all at one time. That all this one transaction.
Earl Warren: Perhaps I shouldn't ask you this question but I'm just curious. It was such an extraordinary sentence in view that. Was any application made within the State for executive clemency?
Neal P. Rutledge: None that I know of, Your Honor.
Earl Warren: Perhaps I shouldn't have asked the question in this period.
Neal P. Rutledge: None -- none that I know of at all.
Harold Burton: Did the State (Inaudible)
Neal P. Rutledge: As I understand the State's position in this proceeding, I suppose they -- they will deny it. They haven't denied it against because they have filed no response to the petition.
Earl Warren: What does the record show here?
Neal P. Rutledge: There -- Your Honor, there is no record in the case. There's no appeal, was taken from the judgment of conviction and as I understand, it may be possible to obtain a record but I have not seen it. I doubt very much that one would ever print to type it up. But there may be, possible to obtain some typewritten notes, but there is -- there is no record in the Supreme Court or there was no record attached to -- to this petition in anyway. And the State has -- has not shown that there was a record. Now, I don't believe there is one.
Earl Warren: Was he represented by counsel?
Neal P. Rutledge: Your Honor, I understand that he was represented by counsel at the trial of the case. At the outset of this -- this case, we're faced with a -- with the jurisdictional question which the State has raised concerning the jurisdiction of this Court. It is contended by the State that the decision of the Florida Supreme Court could or might have been possibly based upon another adequate state ground. The State does not, as I understand it, does not deny that habeas corpus is the proper remedy in Florida for a man in making such claim as this. They do claim, however, that he had made prior applications for habeas corpus which had been denied and that the denial of those prior applications bars his renewal in this case. They contend, as I understand it, two barrels attached, one, that the prior denials are res judicata of this case and the other one that his failure to raise these questions in his prior applications, petitions for habeas corpus, constitutes some sort of a waiver of his federal constitutional rights. I'd like to address myself to those two beginning. Submitted that just as in a case of statutory interpretation that the -- the first place to go is to the order of the Court itself to decide just what it did do. This Court has held in case of Rice v.Olson. That, if a state court puts his judgements squarely on the lack of merit in the petition, this Court will not speculate about what other grounds the state court might have resorted to, to deny the petition. It submitted that the order in this case shows on its face that the Court considered the merits of this petition and denied rule upon those merits, and denied it. The order states simply it's very brief order that upon consideration of the petition for writ of habeas corpus in the above cause, it appears that the petitioner has failed to show as a condition preceding to the writ of habeas corpus, probable cause to believe that he was detained in custody without lawful authority. It is ordered therefore that said petition be and same is hereby denied. It submitted that the Court there, on its face, clearly was simply saying you failed to state of cause of action in your petition. Even conceding the truth of everything that you say, you haven't shown a violation of federal rights. And that petitioner submits, is a ruling.
Harold Burton: Have these other habeas corpus been in the Supreme Court of Florida?
Neal P. Rutledge: Your Honor, he filed a handwritten, self-drawn petition of -- of habeas corpus in the Supreme Court of Florida in 1948, I believe it was. That petition, petitioner submits was not res judicata of this case for several reasons.
Harold Burton: (Inaudible) I'm thinking it was res judicata but I was thinking whether the Supreme Court of Florida could take judicial notice of the fact that that has been filed.
Neal P. Rutledge: I -- I suppose there's -- there the -- the Court --
Harold Burton: Well, actually, what is before the at the time they entered the order with your signing up, they had a full knowledge of the fact that a previous habeas corpus has been filed.
Neal P. Rutledge: Your Honor, they may have had constructive knowledge but I -- I don't know whether they had actual knowledge of it or not. The petition was filed and no response was required. It was placed on a motion calendar. Petitioner was notified that it would be so placed. He couldn't attend because he was incarcerated and he had no attorney. And then after, as I understand it, I don't know, perhaps, as I understand the State was represented that -- that this calling of the motion calendar and thereafter, the petition was summarily denied.
William J. Brennan, Jr.: Do you question the constitutionality of a -- of a rule of Florida? Would you question the constitutionality of the Florida rule? That said that you had to put all the ground for which you had knowledge in your first petition on habeas corpus?
Neal P. Rutledge: No, Your Honor I -- I --
William J. Brennan, Jr.: Do you discuss that in your brief?
Neal P. Rutledge: No, I don't -- I don't address myself to that point because except in this way. Florida is a common law and Florida is a common law state. It has adopted the common law of England. Res judicata did not apply to habeas corpus. There is, as I understand it, there were two actions, habeas corpus and ejectment, the right of property and liberty that were considered so important in common law that res judicata was the doctrine that was barring you did not apply. And -- but by statute, Florida came along and -- and applied what we submit is a modified form of res judicata not with the full force and vigor of the -- of the law of judgment but merely parallel to what the Federal Government has done only recently. And that is the statute which is cited in the appendix to petitioner's brief, states that after a petitioner has applied for writ of habeas corpus and had been remanded to custody that he shall not be at liberty to obtain another habeas corpus for the same cause or by any other proceeding to bring the same matter again in question, the same matter. And we submit that that statute being in derogation of the common law, simply applies a restricted, a -- a truncated version of res judicata. It simply says that you can't raise the same -- if you raise the question once and it's gone into, evidence is taken and it's decided against you, well, then you can't come in with another petition for habeas corpus and raise the same factual question all over again. But that --
Felix Frankfurter: Can they say, your suggestion is that you can petition that for habeas corpus on ground A and if you're sold out on that the next day you begin another habeas corpus on ground B and so on.
Neal P. Rutledge: Precisely, Your Honor. I believe you could do that at common law even on -- even as to ground A again and again. And in Florida, I think that rule still applies insofar as there are different grounds.
Felix Frankfurter: You can do it in England today and add in tonight.
Stanley Reed: You can do it in -- this Court has held that in Risk versus Johnson --
Neal P. Rutledge: Your Honor that case.
Stanley Reed: -- whether it's a constitutional problem or not.
Neal P. Rutledge: Well, Your Honor, we -- we contend -- and I mean, of course, if Florida had done that, that would be another question. But we don't submit that Florida has, in this case. And for our first evidence to that is the order in this case itself. Respondent decided a number of cases where the Florida Supreme Court has said has denied a petition saying that you are barred because you raised this point in the prior case. Everytime it's done that, it's done on it the express ground. It's -- it's told the petitioner, “Here you raised it in this former case. Now you can't raise it again.” And indeed in one case, its case which is not cited in -- in either brief but is in rebuttal to the claim of the respondent. It's Pope v.Mayo, 39 So.2d 287. The Court took pains to point out that the prior case, the writ was issued, a response was made to the writ. A hearing was held, evidence was taken and that a complete hearing was -- was given to petitioner on this matter and that, therefore, he could not raise it again in this case.
Felix Frankfurter: Have we in this record the pleading, the proceedings of the very prior habeas corpus.
Neal P. Rutledge: We do, Your Honor.
Felix Frankfurter: They're in the record.
Neal P. Rutledge: They're in the record. Yes, Your Honor. And in -- in --
Felix Frankfurter: So that -- so that by just examining a careful reading of it -- of the petition and the trial as far as we can tell whether the ground now urged had been previously urged.
Neal P. Rutledge: That -- that's right, Your Honor. I believe that's so. Except with -- well -- well with this -- this further statement that no hearing on the merits according to petitioner's contention was ever held on either one of these prior petitions.
Felix Frankfurter: I don't think that's very material to this point is it?
Neal P. Rutledge: Well, we submit that under Florida law, this doctrine of res judicata applies only after there's been a full hearing and evidence taken on the point.
Felix Frankfurter: Is that by statute or by local practice?
Neal P. Rutledge: By -- by the decision that I just cited, Your Honor, Pope v.-- Pope v.Mayo and construing the statute, construing the statute.
Felix Frankfurter: Would you say impliedly and, of course, can't stay on the basis, that there's nothing to it. We must see (Inaudible)
Neal P. Rutledge: No, no. Certainly, a Court can say -- a court can say that -- that you failed to state of cause of action, --
Felix Frankfurter: Yes.
Neal P. Rutledge: -- certainly. Certainly.
Felix Frankfurter: Without a hearing (Voice Overlap)
Neal P. Rutledge: Without -- without hearing it. And apparently, that was supposed to done at this first petition. The petition, as I understand, was filed in 1948. And it was denied the very same day it was filed. And that first petition for habeas corpus didn't claim, didn't make a single claim about double punishment. Indeed, it would have been premature to have done so. Because even -- even if the petitioner's contention is about double punishment or triple punishment are accepted, he still was at that time, serving a valid sentence in jail and could not challenge by habeas corpus his detention.
Felix Frankfurter: That your ultimate position in this case that the State of Florida, in a particular incident is barred by the Fourteenth Amendment from discouraging or is barred from having a policy whereby taking three animals by one (Inaudible) act must be dealt with as though it were a single offense and not involve punishment for each animal separately. Is that your ultimate position?
Neal P. Rutledge: No Your Honor, it is not.
Felix Frankfurter: What is your ultimate position?
Neal P. Rutledge: Our ultimate position is that Florida having ruled that where you take three animals it's one offense, cannot take this man out and single him out and punish him three times.
Felix Frankfurter: You mean there are prior to decisions which have held that if you take a -- a cow, a bull and a heifer all at once, like two people together, that is just one offense?
Neal P. Rutledge: Precisely, Your Honor. The case is Hearn versus State, was cited in the brief where --where Florida has squarely held that if you take these cattle, in that case, the cattle were all what they call on the same range. The accused in that case was charged with having gone out and rounded them up in one transaction, put them in the same loading pan, put them on a truck and had taken them away. And it was -- it is as charged -- in that case he was charged -- he was tried first for stealing one out of that group of cattle and convicted. And the State then came back and charged him and tried to try him again on charging several other -- on stealing proceedings of other of the cattle in that group. And it was held ultimately by the Florida Supreme Court that they couldn't do it because --
Felix Frankfurter: I'll put to you, that's a different case in the brief before us. I'll put it to you. There's one thing to say whether at once grabbing of three animals in the State be fit to prosecute only for one that that would have chosen that mode to prosecute that transaction, but that I do not necessarily draw from that conclusion, the State can say it may have contemporaneously and that they're all (Inaudible) on all of them.
Neal P. Rutledge: But Your Honor --
Felix Frankfurter: You've got to say that's a cruel, unusual punishment incorporated in the Fourteenth Amendment and through the District Court.
Neal P. Rutledge: We make that point too, Your Honor. But --
Felix Frankfurter: And -- and that's one thing.
Neal P. Rutledge: But, Your Honors, the -- the expressed ground of the Hearn decision was the -- the taking of cattle. As a matter of fact, the Court stated that it's flatly, that can be stated, that the taking of a number of cattle under these circumstances regardless of whether they belong to the same owner or not where they're all taken under the same circumstances is one offense. And having been prosecuted and conviction on that having obtained double jeopardy barred, prosecuting them for another or separate. As there -- on summary --
Felix Frankfurter: It is the only -- must be --
Neal P. Rutledge: The difficulty --
Felix Frankfurter: What you're -- what you're arguing then is that here is the general rule, uncontested, for the reason of the uncontested doctrine of criminal law in Florida, and in the case of this person, they made an exception.
Neal P. Rutledge: That's right, Your Honor.
Felix Frankfurter: And -- and that was a denial of equal protection of the law.
Neal P. Rutledge: That -- that's right Your --
Felix Frankfurter: I suggest to give you another distinction. This is a decision of 1951 the apparent year was in 1949, as I understand it. Florida may change its mind. That should be 1949 and 1951.
Neal P. Rutledge: Your Honor, the -- the state of -- of the law in Florida prior to the Hearn case was, there's been no decisions on the precise point. It is true, I think, that's the reason that this -- that this is happening. That the State did in this case, punish this man three times from one offense. I don't think this is from any malicious purpose except for the severity. It was certainly a very superior sentence. But what happened was at the Hearn state -- the -- the Hearn B State case came down, I believe, is in 1951, after the conviction of this person. But was a clean decision, so to speak. It didn't overrule a prior decision. It denounced the law as it was then and presumably, as it had always been.
Felix Frankfurter: Well that's -- that's was fiction that they usually discuss.
Neal P. Rutledge: I think it's very important to say fiction, Your Honor. I think it's a very important fiction.
Felix Frankfurter: They've wanted a fiction that whether it was decided in 1951 or whether it was decided in 1930 or 1940 or 1949.
Neal P. Rutledge: Otherwise, you'd -- you -- you convert what was one crime into the three crimes or vice-versa, three crimes under into one crime at the will of the Court. I don't believe that, that --
Felix Frankfurter: Well, It will imply irrational arbitrarily the rest it will. It will happen later with you. You must allow the Court also (Inaudible)
Neal P. Rutledge: Well, if the Court had overruled a prior decision, petitioner would -- would accept.
Felix Frankfurter: It wouldn't be getting better that offended any provision of the Federal Constitution, would you?
Neal P. Rutledge: No. No, that would be -- that would be a different question. That would be a certainly, a -- a far different question from this case. Where the law as it is pronounced by the Supreme Court of the State of Florida, has been, is and presumably will be unless this case is overruled where a man takes any number of cattle at one time, but that's one offense, not two.
Felix Frankfurter: You know there are decisions in this Court that one cannot be too excited about which allows separate punishment for ingredients of what might deemed a single transaction.
Neal P. Rutledge: I --I realize that, Your Honor. And that's why we do not address ourselves to the question of whether the State of Florida had to reach this -- this opinion. We -- we accept that it had reached it and we're thankful for it. The -- this -- this claim of double punishment --
Harold Burton: Is there anything -- is there anything in this case to show that these cattle were all taken at the identical time and place?
Neal P. Rutledge: Your Honor, the -- the petition many times makes that allegation.
Harold Burton: It says they were taken on the 29th of July or the 7th of July or whatever it is but further than that it doesn't go, does it?
Neal P. Rutledge: The -- the petition does Your Honor. Repeatedly the petition states that the record shows, that the evidence shows that the cattle taken on July 7 were all taken at the same time. And that the cattle taken on July 29th were all taken at the same time on the same circumstances. In addition, the petitioner filed an affidavit in support of the petition by two witnesses at the trial, not -- not witnesses in the trial, two spectators who viewed the trial. Mr. Ralse and his wife. And that affidavit states that the testimony, which were used to convict petitioner, showed that the cattle were -- were all taken at the same time, under the same circumstances as one transaction both on July 7 and on July 29th.
Harold Burton: The record of his conviction isn't here that --
Neal P. Rutledge: No it is not, and -- and the petitioner doesn't even know whether -- whether one exists in the --
Earl Warren: Those allegations were not denied by the Stat, too?
Neal P. Rutledge: They were not denied, Your Honor. And we submit that under the decisions of this Court, having not been denied, and no hearing having been held, they must be accepted as true for purposes of review by this Court.
Felix Frankfurter: They're not conclusions of law, now it is.
Neal P. Rutledge: Those, Your Honor, we -- we submit that the -- that they are not conclusions of law. Now -- now, this petition was drawn by the petitioner himself while he was incarcerated, in prison.
Felix Frankfurter: That's what should be more brilliantly considered.
Neal P. Rutledge: We submit it here.
Felix Frankfurter: But -- but a statement that it was just one transaction is hardly an allegation of fact.
Neal P. Rutledge: Well, that is not. That was my shorthand way of -- of phrasing it to Your Honor, but the petition, we submit, goes beyond that, considerably beyond that and states numerous times the -- here -- here, for example, is just --
William O. Douglas: Maybe at the top of page 3, isn't it (Inaudible)
Neal P. Rutledge: That's right, Your Honor. This -- that's --
William O. Douglas: Is that for all the on the same range rather than was killed and butchered at the same time, was hauled on the same truck and the same time, sold at the same time?
Neal P. Rutledge: That -- that's right, Your Honor.
Felix Frankfurter: Those are allegations of fact.
Neal P. Rutledge: Those are allegations of fact.
Harold Burton: Where is that?
Neal P. Rutledge: That's on -- on page 3 in the second and the third paragraph there's a second complete paragraph. They're also -- that's repeated on -- over on page 4. There's another paragraph down near the bottom of the page. The record revealed by the two codefendant's testimony. That the three cattle were all on the same range, rounded up and killed at the same time and place, butchered and carried to the same market on the same truck. In short, it was one continuous act. And again, the -- the various places in the petition where that allegation is made, both in regard to the July 7th charge and the July 29th charge are -- are stated in the brief. And he makes the allegation of fact in regard to both, both five cattle that were alleged to have been stolen on July 7th and the three cattle that were alleged to have been stolen on July 29th.
Stanley Reed: As I understand it five years limit on each crime?
Neal P. Rutledge: Your Honor, the -- the maximum penalty for the offense of cattle stealing is five years.
Stanley Reed: So you have two-five years which is ten and he's served his 10 years?
Neal P. Rutledge: That -- that's, right, Your Honor. We have a gain-time statute in Florida which --
Earl Warren: He served his time.
Neal P. Rutledge: -- he served his ten years.
Stanley Reed: That's the time for two offenses.
Neal P. Rutledge: For two offenses, yes, Your Honor, more than served it. In regard to the -- to the first petition, it submitted that that petition certainly didn't raise the question of double punishment because at that time, he had not served ten-year sentence. It did contain within it a brief statement that petitioner contends he was convicted on prejudged and perjured testimony. No claim of denial of federal right was made in connection with that. In any event, and it's submitted that -- that this question was not presented and that that petition could properly have been denied out of space by the Florida Supreme Court because there was no claim made in that first petition that the sole and exclusive evidence used to convict him was the perjured testimony. In other words, there might have been corroboration in other -- and have other circumstances.
Earl Warren: Could I ask you a question going back to the page 4? As I read this, this is -- is all consistent with this having gone back a couple of times on the same day. I understand the State denied the allegation.
Neal P. Rutledge: Your -- Your Honor, the -- the State has -- has not filed any response to the petition. It hasn't denied, to my knowledge, anything in the petition.
Earl Warren: Is this the present petition that we're looking at?
Neal P. Rutledge: This -- this is the present petition --
Earl Warren: Oh, I see.
Neal P. Rutledge: -- on page -- on page 4. Present petition runs through the page -- page 8 and then it has a number of exhibits attached to it.
Earl Warren: Still it falls short on that allegation, doesn't it, the same what I've suggested. I'm saying that it was and simply a single taking?
Neal P. Rutledge: But Your Honor it -- I don't know how it could be stated by -- certainly by a layman with any more clarity than -- than it was there that the record revealed by the -- by the two codefendants' testimony that the three cattle were all on the same range, rounded up and killed at the same time and place, butchered, and carried to the same market on the same truck and sure it was one continuous act. And that is the precise situation in which was involved in the Hearn case where the Florida Supreme Court ruled that where that takes place, where the -- where the stealing of cattle is one act, that that's one offense and that you can't divide it up into the number of cattle that were stolen and charge, and convict and punished the man according to the number taken. Just the same that you can't punish a man for -- for larceny anymore if he takes $10 and if he takes $11.
Felix Frankfurter: But it might have to be -- it takes ten $1 bills constitutionally?
Neal P. Rutledge: Constitutionally --
Felix Frankfurter: Constitutionally, he has to pay. He may make a separate offense taking 10 separate dollars --
Neal P. Rutledge: Your Honor I think --
Felix Frankfurter: Or it may make -- punishable more severely taking $10 than $1?
Neal P. Rutledge: Certainly, it may do the latter if he -- if he chooses to do so. If it -- if it provides by --
Felix Frankfurter: You may take your point. You say it hasn't done so, they've done the opposite you've discriminated in punishment against this (Inaudible)
Neal P. Rutledge: Precisely, Your Honor.
Felix Frankfurter: That's okay.
Neal P. Rutledge: Precisely.
Stanley Reed: Well, I -- I have difficulty in the discrimination and punishment because heretofore they have construed the Act in one way. Now, they can't change and construe it in another?
Neal P. Rutledge: Your Honor, that's not this case, we submit.
Stanley Reed: I've misunderstood what you're saying.
Neal P. Rutledge: They did not - they -- they had not construed the Act as the Florida Supreme Court had not construed the Act differently before.
Stanley Reed: If I understood the Hearn case there.
Neal P. Rutledge: The -- the Hearn case was a -- was a case of first impression on this matter. My understanding of it, is that -- that it decided that the Hearn case for the first time decided in the State of Florida has been raised in Montana and Texas and some of the western States before. But it -- it was decided in the Hearn case that where a man takes a number of cattle, all at one time, it's one offense. And that was a case of first impression in Florida. Florida has only become a cattle state in relative recent years, and probably and apparently had not reached the highest court before that time.
Earl Warren: And the Hearn decision was after the offense committed in this case?
Neal P. Rutledge: It was, Your Honor.
Earl Warren: Yes.
Neal P. Rutledge: It was. Concerning the second petition, which was filed by a lawyer, drawn up by a lawyer, the second petition did not raise any question concerning perjured testimony and neither, we submit, that it raised the precise question involved in this case. The second petition was filed in a lower baseline trial court for habeas corpus. And in that petition, the sole ground, the petitioner submits as will be shown by a reading of the petition was that the informations in this case on their face were improper and showed on their face that they charged twice for the same crime. Indeed, counsel in that case pointed out that the -- that the third count and the second information was identical word for word except for one slight change in grammar, I believe, with the second account in the -- in the second information. In other words, you had two counts in the same information that were word for word, identical. And the -- the whole thrust of the attack in that second petition for habeas corpus was on the face of the record. There was no allegation. Petitioner thinks this is most important. There was no allegation in that second petition that the evidence produced by the State showed that the cattle were all taken at the same time, same place, one circumstances. The -- the case -- this case of surprising similarity had previously come before the Florida Supreme Court, involved in a man that is -- that was charged with stealing an automobile. And then he was, also in the same information, charged with the crime of receiving an automobile knowing it was stolen. He was tried and convicted on both counts of that information and he appealed. And the Florida Supreme Court ruled that the -- the problem was not in the charging. That the charge was perfectly all right. That it would certainly be possible for a man to steal an automobile and also receive an auto -- an -- another automobile stolen. But the -- the problem in the case arose from the evidence that was produced. And that evidence showed that the same car that the man had stolen was also the car that he was charged with having received then. And he couldn't steal it without taking it away, so that the Florida Supreme Court held that in that case, the man could not be convicted on both those charges and reversed the case and remanded it. And it submitted that that's the same problem in this case, with that second petition for habeas corpus, raised only the question of the validity of the information and the judgments on their face. And that it did not make the contention which was made, in this case, which is that the evidence, the difficulty was with the evidence in this case. That in this case, the State used same evidence to prove three separate different crimes exactly. In short, that the State in this case proved the same crime three times and convicted and sentenced and punished this man three times. The man, 53 years old at the time with no previous criminal record, giving him each time the maximum sentence to be served consecutively, and then on the same day, likewise, convicted him three times for a single offense committed on July 29th, sentenced him to consecutive maximum sentences of five years each to be served consecutively with those sentences imposed on the first case.
Felix Frankfurter: Mr. Rutledge, may I ask you this? I noticed that the Hearn case was decided by a divided court. What I would like to know just about three years -- a little over three years, three years, two months - after they denied the petition for habeas corpus in the district. I wonder if you could tell me whether the make-up of that value of Hearn had changed from the Court or membership of the Court which denied the petition for habeas corpus in this case (Inaudible) the name. You probably have that in mind. That isn't even decided to turn the way you indicated, you stated correctly. But I didn't think (Inaudible)
Neal P. Rutledge: Now, this -- it -- in -- in this case you mean?
Felix Frankfurter: Yes.
Neal P. Rutledge: Justice Dickinson is not on the Court. Let's see, Justice Roberts and Justice Terrell, who is -- and Justice --
Felix Frankfurter: Hudson.
Neal P. Rutledge: -- Hudson. They're all on the Court today.
Felix Frankfurter: (Inaudible) Chapman and Mathews, as I remember (Inaudible)
Neal P. Rutledge: Oh, Sebring, Justice Sebring.
Felix Frankfurter: I beg your pardon?
Neal P. Rutledge: Those judges are no longer on the Court.
Felix Frankfurter: No, not the three -- the three are all gone.
Neal P. Rutledge: Justice Sebring and Justice Mathews and --
Felix Frankfurter: Chapman.
Neal P. Rutledge: -- Chapman, isn't it? Now --
Felix Frankfurter: Now, that -- now, that this (Inaudible) as well as it were, here unanimously prove it the decision now (Inaudible) in that case, I think it was not an unknown decision for the Florida court.
Neal P. Rutledge: I -- I --
Felix Frankfurter: That'd be a fair assumption.
Neal P. Rutledge: It would be a fair assumption, Your Honor.
Stanley Reed: Well, the statement -- the statement of the question presented which you made, are -- are they taken from the petition for certiorari here?
Neal P. Rutledge: No, Your Honor, they're not.
Stanley Reed: There are -- there's no reason why they should be because the petition for certiorari was, as I understand it, drawn by someone else's view.
Neal P. Rutledge: That -- that's right, Your Honor.
Stanley Reed: And you tried to restate it.
Neal P. Rutledge: I did and I --
Stanley Reed: Well now, the State also had take the stated questions and the State is somewhat different than what -- what you do. The State gives this one this question one, which is the -- for a lack of a better word I'll call it res judicata. At any rate, that you can't have but one habeas corpus. Have -- have you treated that in your brief?
Neal P. Rutledge: Yes I have Your Honor. I've treated it at -- at some length. I anticipated that argument being made because it was made in the brief and opposition for certiorari.
Stanley Reed: Right.
Neal P. Rutledge: And have gone in first -- the first answer is that the --
Stanley Reed: And yet you say that -- that Florida can't have under the -- under our Constitution, can't have as a rule that the (Inaudible) to reexamine problems that have been raised or could be raised?
Neal P. Rutledge: No -- no, Your Honor. I don't say the Florida can't. I say that Florida didn't in this case, as -- as I point -- point out the -- the -- first of all, the Florida Supreme Court in this case did not deny this petition on the ground of res judicata.
Stanley Reed: But just denied it.
Neal P. Rutledge: It -- no. It didn't just deny it either. It denied it on the grounds that petitioner failed to show probable cause that he was unlawfully in prison.
Stanley Reed: (Inaudible)
Neal P. Rutledge: And we submit that that's a ruling on the merits. That that's -- that's a ruling saying, you failed to state of cause of action. And furthermore, we -- we submit, that this defense of res judicata is one that has to be -- that -- that should be pleaded. In other words, a very technical defense.
Hugo L. Black: Well --
Neal P. Rutledge: --It's -- it's a --
Hugo L. Black: -- perhaps you can't have a second habeas corpus in Florida unless you have explained why on your -- you didn't raise the question in the first.
Neal P. Rutledge: Your Honor, the -- those cases where the Florida Supreme Court has barred a man from coming back into Court with a second petition for habeas corpus, the Court has expressly stated that and examined into it to see whether or not the matter raised in the second petition was some -- was a matter adjudicated in the prior decision.
Hugo L. Black: Or could have been adjudicated.
Neal P. Rutledge: No, not or could've been, not or could've been. That's the doctrine of res judicata and we submit that under Florida -- Florida law that full force of res judicata is not applied. That -- that the Florida statute bars only matters actually litigated and determined, not matters that could have been. Now the State makes a --
Stanley Reed: Where -- where's that Florida statute?
Neal P. Rutledge: The Florida statute's in the -- in the last page, I believe, Your Honor of petitioner's brief. Page 38.
Stanley Reed: Thank you.
Neal P. Rutledge: As to the second question, the waiver question, and the petitioner just briefly make -- make the same argument. The Florida court has held, that first of all, this Court has certainly committed the doctrine and so is the Florida Supreme Court that it will not be quick to rule that a man waives his fundamental constitutional rights and that courts will indulge every reasonable presumption against waiver of such fundamental rights. And certainly, that rule is most appropriate to apply in this case, where the man drew up his own petition at one time and in the other case where he -- where he drew -- where his lawyer drew up a one-shot, very technical one, attacking the face of the pleadings. And certainly, the whole that is failure to -- to raise this double punishment point and his perjured testimony being the exclusive evidence against him would be the most -- argue his result to -- to say that by -- by failing to include all of those in one petition, he'd waived, he'd consented to being imprisoned in violation of his constitutional rights. I had submitted that if the Florida Supreme Court had so held that it would have stated so, rather than simply stating that there is no -- that he'd failed to show probable cause that he was imprisoned and that unlawfully. In that connection, I'd like to call attention to one of the cases cited by our respondent Washington v.Mayo where -- where the Court did refer to the fact that petitioner had made a prior petition and had not and it either probably represented this point had it determined or had not chosen to raise it. And the Court, in that case, in Washington v.Mayo, nevertheless, went on and fully considered the merits of -- of petitioner's contentions and ruled against them. In short, in that case, even though there was a pleading made of res judicata and even though the Court discussed the fact that there'd been a prior petition and that the matter might well have been determined in that prior case. Nevertheless, the Court, the Florida Supreme Court went on and considered the merits of petition. And we cite a case, a recent case by the Florida Supreme Court, adopting the very reasonable rule that res judicata is not an absolute doctrine. It's not one which the Court is bound to apply. And that the Court is more interested in reaching a reasonable and a right result than applying a fiction of the law that was -- is designed merely to terminate litigation. So that even if, even conceding, way down the line, that the petitioner was barred by res judicata, the Florida Supreme Court was certainly not bound to -- to deny him on that ground and certainly in this case, we submit, on the face of its order, did not rely on that ground.
Felix Frankfurter: That's important. It isn't a question whether it should bound him, but it's a question whether it may.
Neal P. Rutledge: But it didn't in this case.
Felix Frankfurter: That's (Inaudible)
Neal P. Rutledge: It did not in this case and we submit that in every case where it -- where it does apply such a doctrine of waiver or such a doctrine of res judicata, it has done so expressly. Coming to the -- the question of -- of double punishment, it's a -- petitioner would submit that the question, fortunately, has seldom come before the bar of this Court of a state claiming the right to punish a man twice or three times for a single offense. It's -- it's a power or a right which no State has felt necessary to claim. There's no reason for it to have the power. It's capable of only abuse. It's the sort of power that -- that they're like a sort of shotgun. It can't be used for any legitimate purpose. Certainly, the decisions of this Court, particularly going back to the Ex parte Lange decision, as stated eloquently and simply. That this Court will not permit the same sovereignty to punish a man twice or three times for the same offense. To do so offends all sense of fairness and justice. The State certainly has the right to exact it pound to flesh or to take its tooth for a tooth, or an eye for an eye. But to do it twice and three times out in (Inaudible) is a matter that is so shocking. And it certainly must be held to be in violation of the Due Process Clause of the Fourteenth Amendment. And particularly in this case, where that error is compounded by the fact that the man's conviction was obtained on the admitted facts in this case, solely and exclusively by the perjured testimony of two of his former employees, who'd decided that because of his good reputation, because he was their former employer, that if they put the onus on him, that they would relieve themselves of full blame. Certainly, where you have that combination of circumstances, right and justice cry out that a man not be subjected to more than what the State itself has prescribed to be the maximum penalty for that crime. Thank you.
Earl Warren: Mr. Bowen.
Reeves Bowen: Yes, sir.
Earl Warren: You may proceed.
Reeves Bowen: May it please the Court. I submit that this Court has no jurisdiction to review this case because it is well-settled doctrine that where the State decision might have been based upon non-federal grounds, this Court has no jurisdiction. And I say that in this case there were two probable, not just possible, but probable state grounds in which to sustain the state court decision. Now, one of those grounds is state res judicata. I realized that the federal courts don't have any such rule but that does not say that the State can't have it. No attack is made in the brief of petitioner upon the State's rule of res judicata. It's been the law of Florida for many years in section 79.10 of the Florida statutes. He's got it and it's appended to his brief. And it has been interpreted by our court to mean what it says, without a question. Then, if there were no res judicata involved, we would still have an alternative state ground which is perfectly valid and adequate and that is to say our court has flat-footedly ruled as where a person has had a fair and reasonable opportunity to present the claims which he now makes, and has not done so, he will not be heard to present them at this time. Now, in 1952, Mr. Durley had counsel. He went into the Circuit Court of Union County, Florida, and filed a petition for habeas corpus. As far as we know, after full consultation with Mr. Durley, both of them filed a petition, I assume. It's made -- it's a -- it's a prior assumption that they had gone over his case before that petition was prepared and signed and filed. That petition contrary to Mr. Rutledge's contention, as I construe it, is not bottomed upon the face of the record alone, but as I construe that petition, it says that the first count, there were two separate information, before them had three counts. It says that -- that the -- that the second count of the first information alleged the same crime as was charged in the first count. That the third count alleged the same crime as was charged in the second count and in the first count. Then it took the other information and dealt with it, likewise. And in that petition, it said that he was being -- he had served enough time whether you gain time to make it 10 years, that -- that two separate sentences of five years each with a maximum that it could have lawfully been imposed on it because he said he was -- he had actually committed only one crime in each case. And therefore, 10 years is the maximum. He said, "I have served that, must have been or got better, gained time." He alleged also that his right for his -- he was united -- he was being detained contrary to his United States constitutional rights. He didn't mention the Fourteenth Amendment. He didn't mention due process. He didn't mention equal protection of the law. He didn't mention anything else except contrary to the -- to the provisions of the United States Constitution. A writ was issued upon the basis of that petition. The respondent who had the same response as you see here before this Court filed a -- a return in which he admitted certain things, denied others, and among the things he'd admitted was that he had served enough time to make 10 years. It was a gain in time to do that. So, the question was gradually before the Circuit Court, has he -- is he being held to serve multiple sentences contrary to the United States Constitution or has he not? The Circuit Court, after issuing that writ, heard the argument and quashed the writ and remanded the petitioner to custody, the appeal of the Supreme Court of Florida which dismissed his appeal upon the respondent's motion. Now, I submit that in that case, he raised exactly the same question that he now raises before this Court as to multiple punishment. I realized it is your --
Felix Frankfurter: May I -- may I trouble you?
Reeves Bowen: Yes sir.
Felix Frankfurter: To (Inaudible) where that and particularly would you just summarize where I'd find those in the (inaudible)
Reeves Bowen: Your Honor, I don't have the -- the record here before me. I think it's on --
Felix Frankfurter: (Inaudible)
Reeves Bowen: -- page 34. It's in the record.
Felix Frankfurter: Alright.
Reeves Bowen: I think it's on page 34. (Inaudible)
Felix Frankfurter: That's 1949.
Reeves Bowen: Wait a minute.
Felix Frankfurter: (Voice Overlap) --
Reeves Bowen: I'm not -- I'm not talking about 1949. I'm talking about 1952. The -- the later petition was filed in 1952. I believe that the statement made by (Inaudible) and they're both on jurisdiction of this Court is -- is in line in that -- in that book was co-decided with the approval by this Court in Braniff Airways against Nebraska State Board. I believe that their statement to the effect of the decision of this Court as to what it takes and -- and to respect particularity and definiteness in raising a federal question in a -- in a state court is in a state of confusion. While the reading I've done on the question, conventions mean that they're absolutely correct on that and that this Court has -- has enough separate doctrines and -- and inconsistent and as the law now stands, it is a trifle uncertain as to how you must go about raising up the federal question below. I know that there are some of the old decisions said you had to just put your finger right squarely if you're on this ground with the Due Process Clause in Fourteenth Amendment. You had to say, Due Process Clause, Fourteenth Amendment, United States Constitution. I know, though, that in (Inaudible) it was decided many years ago, this Court, in effect, recognized that in all instances that wasn't the exactly the law and that it could be done without being quite so specific. I know that in the recent decisions of this Court, there are notable examples of where they'd practically raised no federal question at all so far as -- as in -- in compliance with the old (Inaudible) is concerned. You take the Braniff Airways case. They came up here on a -- on a Commerce Clause question. They never thought about Fourteenth Amendment was parallel. They never mentioned Due Process Clause. They relied on the Commerce Clause. But when he got up here, this Court says and that's where it -- and this is where the Court cited in the (Inaudible) and support of this is its holding. This Court says they raised the facts. (Inaudible) says they raised the facts. They set up their facts showing that the tax situs were not in Nebraska. They say -- said it wasn't. That, we are not going to be too tight about whether they said Fourteenth Amendment or a due process, they did. They have substantially raised the due process question and I think this Court proceeded to decide the question on the Due Process Clause. In the Gibbs-Burke case, that is equally far from the -- some of the earlier cases decided by this Court in Gibbs against Burke. He came up here and I haven't read the record but I have only this Court's opinion to go by. And it -- it quotes him as having relied on the original ten amendments from Article 6 of what -- of the pharmaceutical guide of the Constitution of Pennsylvania, of what? Nobody from this Court's opinion. It's just that indefinite. Nevertheless, this Court just cast aside all of its failure to mention the Fourteenth Amendment or due process of the Constitution of the United States and said that meticulous insistence upon regularity in procedural allegations is foreign to the purpose of habeas corpus. And so, the Court took that petition and decided it on the Due -- Due Process Clause. On the Fourteenth Amendment it says, if it's in Court, all in good shape. So, in the light of the Brennan's case and Gibbs against Burke, I say that when he filed this 1952 petition in which he distinctly claimed that he has committed only two crimes, one of each information, that each of the three types is only the information charged the same crime. And that each of them and the other one charged the same crime. And he wound up, he was more particular than some of these other cases have been. He did say that he's been held contrary to the Constitution of the United States. And I see it in the light of the Gibbs case and the Brennan's case, he made a wonderful showing that he -- his federal constitutional due process rights have been violated so far as to put this thing on the United States Constitution is concerned. I recognize that in Gibbs against Burke, he was not represented by counsel and that in -- in Durley, this 1952 petition, he was. But if the Brennan's people were represented by counsel when they were allowed on the Due Process Clause and you -- and --and the Court decided the case on the -- on the -- I mean they relied on the Commerce Clause and this Court decided the case on the Due Process Clause. And I say that in the light of this Court's pronouncing in Gibbs that about the meticulous regularity or procedural allegations thing foreign to habeas corpus in view of that pronouncement, I'd say that in spite the fact that Durley was represented by counsel in 1952, that he said adequately raised the same federal constitutional question which is now before this Court with regard to multiplicity of punishment.
Felix Frankfurter: You're suggesting that New York is not to expect less from a lawyer than from a layman, is that it?
Reeves Bowen: It's certainly certain, Your Honor. Now, it -- it is quite immaterial for the purpose of this case here whether the Supreme Court of Florida based its decision as to multiple punishments upon the res judicata theory. I want to mention that res judicata just a little bit more. Mr. Rutledge doesn't construe the decision of the Supreme Court of Florida just like I do. I got the impression from his argument that he feels that nothing is res judicata in habeas corpus in Florida unless there has been a writ issued and testimony taken and then a decision. That isn't the law of Florida. I know there are some cases where that's occurred. You take State ex rel.Davis against (Inaudible) and the State ex rel.-- somebody -- against Prescott and some other cases. In fact, the argument, I can find you several where that actually occurred. The issue to the writ took testimony and then decided against him and then the -- they -- they tried to forget about that and run up to the Supreme Court. That was in the -- in the Circuit Court and ran up to the Supreme Court and said, "Give me a writ on this -- on the same factual allegations" and the Supreme Court said, "Oh, no." It says, "You -- you have had your day on these facts there down at low end. The Supreme Court did point out the issues of the writ they'd taken in testimony." But that isn't essential. If you read Moat against Mayo, in 82 So.2d, you'll find that the rule goes just this far. That if a former petitioner has raised the same question that is now raised by the current petition and that petition has been denied even without the issuance of a writ, no testimony, no writ, no nothing except denied the petition, that is a bar of res judicata. They cited Section 79.10, if I'm not barely mistaken, in Moat against Mayo. That's the most recent pronouncement of our Court on that particular face of the argument. But it wouldn't make any difference to the decision of this Court whether there was any res judicata in the mind of the Supreme Court of Florida or not because of the corollary rule that if he has had a fair and adequate opportunity to present the matter which he now presents, the issues to the question, he will not be heard now, even if he didn't present before. In State ex rel.Johnson against Mayo, I think it's in 69 So.2d -- it maybe 66-- the Supreme Court of Florida later said this. He said that the petitioner, it recounted the various proceedings the way it had been in Court before and then said that petitioner makes no attempt to give any reason why he did not raise in the trial proceeding the question which he raises here or the question which he raises here. Under the decisions, therefore, he has waived the questions that he now seeks to present.
William J. Brennan, Jr.: Which -- which case was that?
Reeves Bowen: That State ex rel.Johnson against Mayo, either 66 or 69, So.2d, I think Your Honor -- or --
William J. Brennan, Jr.: 69.
Reeves Bowen: A little bit further on in Washington against Mayo, I believe it's in 75 or 76 So.2d, our Court tightened the rope a little bit further, it seems to me, because in that case, they didn't say anything about whether he gave an excuse or a reason or not. I think they must have had in Court, in mind, perhaps, this Court's pronouncements along the way somewhere when they wrote State ex rel.Johnson against Mayo. Then when -- when they get on to Washington against Mayo, they went still further and said that if he had had a fair and adequate opportunity in former proceedings to present the questions now presented, he will not be heard now. He's -- he's had his day in Court. He's had the foreign affair up until then. I say that Mr. Durley had a fair and adequate opportunity in 1952, when with the assist of counsel who represented him in every step of the way, where including the preparation and filing of petition that herein imposed by Circuit Court and the appeal when he had -- when he had that assistance and preserving and knew every fact now then that he knows now, his 1949 petition that I discussed directly and the 1952 petition showed that he knew every fact in the world that he knows now, that he knew in 1955 when this petition was denied. He even attached the same affidavits back as far as 1949 that he attaches to his petition that is now before this Court. So, he did have a fair --
Hugo L. Black: Can I -- can I ask you about the Washington v.which I'm reading, (Inaudible) for us because of what has the record said. That it seems to bear out what he said that they first declared this rule. And then said that he wasn't trying to affect the petition through the first count on the ground that he failed to state the date on which the various defenses were committed.
Reeves Bowen: That's how advanced your criminal law has made.
Hugo L. Black: And that's -- that's what precisely what he had tried to do in the first day in this Court.
Reeves Bowen: Yes, Your Honor.
Hugo L. Black: And then they stated the rule that they wouldn't let him know. And then they went ahead and analyzed the indictment in the former cases. He said that the indictment was good.
Reeves Bowen: I realize that -- that they did both things, Your Honor. But one does not detract from the other in the least. Now, they very violated their own rule when after having said that he'll not be heard, they went ahead and then just to show him, that they give him something to convince him that he was out of Court. Maybe they went far and they did go further and analyzed the whole thing but they didn't take back the rule. They didn't say that they couldn't apply that rule to Durley or to everybody else and that they wouldn't apply it. They set up two reasons in that Washington case why they turned him down. One of them was the -- that he'd had a fair and adequate opportunity before and two, on the merits. And the fact that they went into the merits in no way weakens the rule of law of L.A.down that he's out of Court on the other ground, too.
Hugo L. Black: But he was out of Court and that is the rule which we -- we must assume they have and which we must assume they act on. But how can we do that if -- if they don't act on it? If they haven't acted on it, in the very cases where they declared than if they just did. It sounds more like an admonition, doesn't it?
Reeves Bowen: I don't sure regard this.
Hugo L. Black: Have you any cases where they get the -- the problem or the right to raise their question of that kind, constitutional question?
Reeves Bowen: Your Honor, I do not have a question cited in my brief and I do not have a case in mind. I'll tell you how these things operate in the -- the Supreme Court of Florida is I think the most overworked State of the Highest Appellate Court in the nation. I tried -- it has -- I think it -- it has to handle about 1200 to 1300 cases a year. And every Monday morning, this petition for writ of habeas corpus come up. I think I have handled 95% of all that's been there for a good many years. The first thing when one comes into my hands is to look back and see what is -- if he's got in the form of files that -- whether he's been in the Court before, see what he's claimed then. And if he claims the same things now, or I see it looks like he's had a fair opportunity to -- to claim it before, I call that to the Supreme Court's attention on Monday morning. I -- I tell the Court, if it be true, I said now, he raises the same question in a -- in a petition he filed here last year or from two years ago, whenever it was. And if it be true, I say, he had a fair and adequate opportunity to have raised those questions in the former petition or petitions, sometimes, we have a lot of them to come in through the years from the same man, tell the Court what those -- I point those two things out to them and they enter the -- perhaps for many years entered the same order that they entered in this case here of denial. That is to say the substance of it is that he -- that we've -- that the petitioner has failed to show probable cause to believe that he is being unlawfully detained. Now as --
Earl Warren: We'll recess now -- we'll recess now, Mr. --
Reeves Bowen: Yes, sir.
Earl Warren: -- Bowen.