Earl Warren: Number 222, Edward John Nowakowski, Petitioner, versus James F. Moraney, Superintendent State Correctional Institution. Mr. O'Hern.
Daniel J. O'Hern: Mr. Chief Justice, and may it please the Court, Mr. District Attorney. This case comes before the Court on a writ of certiorari to the Third Circuit, United States Court of Appeals for the Third Circuit. Narrowly stated the question presented in the case as whether the Court of Appeals erred in denying this petitioner leave to appeal in form of paupers from a decision of the United States District Court for the western district of Pennsylvania which had discharged an order in connection with a writ of habeas corpus. I think more broadly stated the question in the case whether this Court and whether in fact the federal system administration and justice, can make a reality of the emblem of the Court which is carved in stone on the front of the Court, equal justice under law. Basically, the question which presents itself to the Court is an interpretation of the statute in my opinion, namely 28 U.S. Code Section 1915, now that Section or that statute provides basically the procedure or the scheme whereby indigent proceedings may be brought in the courts of the United States. It's a very general statute and it applies to any court of the United States. It says that they may -- any court may authorize the commencement and certainly of any suit without prepayment of fees, cause and security etcetera. An appeal may not be taken in form of paupers if the trial court certifies in writing that it is not taken in good faith, so that it applies equally to appeals. Part or subsection (d) of the statute says “The court may request an attorney to represent any such person, and that any such person unable to employ counsel, it may dismiss the case if the allegation of poverty is untrue or it satisfied that the action is frivolous or malicious.” Now I think the question in this case is that what stage in the proceedings may the court, whichever court it may be, use that part of 28 U.S. Code Section 1915. Now since Griffin against Illinois in 1955, I think this Court has made it clear and in a long series of cases dealing with appeal matters that any invidious discrimination against an indigent defendant will not be sustained. Now, the question is how do you decide if the discrimination in any particular case is invidious. In Douglas against California, there was a procedure whereby the Courts of Appeal of a state in that case, would decide if the issues were frivolous or faceless, and then in that event they would decide that counsel need not be required and they would not appoint counsel. And in that case which came on before this Court, this Court held that that was not equal to the type of appeal which is allowed to a man of means and they struck down that part of the California procedures.
William J. Brennan, Jr.: Well Mr. O'Hern this case I gather from the -- after hearing the writ of habeas corpus was denied wasn't it?
Daniel J. O'Hern: Yes --
William J. Brennan, Jr.: -- a probable cause issue? A District Court --
Daniel J. O'Hern: The district judge found that there was probable cause for taking the appeal.
William J. Brennan, Jr.: So he signed a probable cause.
Daniel J. O'Hern: Yes Your Honor.
William J. Brennan, Jr.: And then the indigent here was denied leave to proceed in a form of paupers on an appeal as to which the District Court had certified there was probable cause, is that it?
Daniel J. O'Hern: Already, that's right Your Honor.
William J. Brennan, Jr.: And what was he denied? Leave to proceed in a form of paupers or denied and also an appeal like --
Daniel J. O'Hern: Yes, Mr. Justice, he had three parts. He wanted a transcript of the proceeding in the Federal District Court which apparently was available.
William J. Brennan, Jr.: That is in the habeas corpus?
Daniel J. O'Hern: Yes. He wanted counsel, and of course he wanted the right to appeal. Now, I always thought or at least it seemed to me the most striking difference between the procedures available was the letter which was sent back to him by the clerk of the United States Court of Appeals after that court had denied his right to the relief requested, she wrote back and said “By order of October 4, 1965, the court denied your motion for reconsideration.” He had filed a motion for reconsideration, and said “You may choose either of the following alternatives. One, send this office the clerk's fee of $25 together with four copies of the motion to docket the appeal and file the record out of time, or two, petition” --
William J. Brennan, Jr.: May I ask why in addition to denying leave to appeal in form of paupers, was there a formal order would you think that docket the appeal?
Daniel J. O'Hern: Yes, that's right Mr. Justice.
William J. Brennan, Jr.: Not withstanding the other standards except for the probable cause?
Daniel J. O'Hern: Yes. Or petition the Supreme Court of the United States for a writ of certiorari. Now he chose the second alternative whether because he didn't have the $25 or not we don't know. But the point is that he couldn't get into the Court of Appeals without paying the $25. If he'd had the $25 they would've accepted his motion to docket the appeal out of time, and then of course he would be authorized to proceed himself I take it.
William J. Brennan, Jr.: Well I take it if you're right here, all that required of us is to direct the Court of Appeals to docket his appeal and proceed at it, is that it?
Daniel J. O'Hern: Well that would be one way of doing it Mr. Justice, but I personally feel that the issue here is somewhat broader than that. I think there is an important question here with respect to the procedures to be followed in general by the Courts of Appeal in such cases. I think that this Court has decided in the collateral attack field just recently this term after my brief had been filed in Long against Iowa. That on an appeal in a collateral attack case on state court, the petitioner or the person seeking the relief is entitled to a transcript of the record. And I think implied in that decision is the holding that also counsel would be required in collateral attack cases on appeal. Now, we're over now to the second step that is the federal collateral attack proceeding after a petitioner has exhausted all of his proceedings in the state courts then he's entitled to go into the Federal District Court. And the practice generally appears to be to assign counsel, although the lower court cases say that there is not a right to counsel in habeas corpus cases because they say it is a civil proceeding. But the practice generally is to appoint counsel. So then the case comes on for appeal and the Third Circuit I take it, examine the papers and concluded that there was not a meritorious question. And I think what they did was to shortcut the procedure of the statute. Statute says that if the trial court certifies the appeals taken in good faith then it should be allowed. Now it has been suggested that perhaps if the courts were cynical, they would docket the appeals and then dismiss them, but I think then they would be stuck with their own procedures. The Third Circuit for example, requires that a motion to dismiss an appeal must be served five days than others and the briefs are allowed and usually counsel argue in the Third Circuit on a motion to dismiss an appeal. And I think there's another value to that because once you get to that point in a proceeding, the burden of proof on the party seeking to dismiss the appeal would be of course on the moving part. Now I think that the Court of Appeals for the Third Circuit in this case has almost said that the appellant has the burden of showing that there is some merit to his client.
William J. Brennan, Jr.: Even though he has the certificate of probable cause and the district judge who heard the case denied him relief but said nevertheless he has a non-frivolous claim, is that you --
Daniel J. O'Hern: That is what the District Court found. I think that some of the members of this Court have said in cases where a district judge in direct appeal in a federal criminal case, has issued that certificate of probable cause then that the Court of Appeals automatically to docket the appeal and assign counsel to the appellant. Now, I recognized that we are one step removed, but I suggest to the Court that the procedure followed by the Third Circuit is going to lead to the problems which this Court has seen in the direct appeal cases. I think you're going to eventually have to conclude that where a man contests this certificate of the district judge he should be entitled to counsel to assist him in contesting the certificate. That was decided here in Ellis or Johnson, I'm not sure exactly which one, but either one of those cases this Court decided that the district judge's finding is not conclusive of the issue of probable cause or a good faith.
Potter Stewart: Was one of those cases a habeas corpus case?
Daniel J. O'Hern: No, those were both direct appeals Mr. Justice Stewart.
Potter Stewart: That's what I thought. And you don't need a certificate of probable cause to appeal in a direct appeal do you?
Daniel J. O'Hern: To get an indigent's appeal, you need a certificate of probable cause.
Byron R. White: Under what section?
Potter Stewart: 28 U.S. Code, Section 1915. You see the rules Mr. Justice, require a -- the clerks are very human people and they operate under statutes, so they'd say “You can not docket an appeal unless you have a $25 filing fee, unless the court orders the appeal to be docketed without the prepayment of the $25.”
Byron R. White: You say 1915 provides for certificate of probable cause and --
Potter Stewart: It's not a certificate of probable cause, is it?
Daniel J. O'Hern: No, that's why --
Potter Stewart: It's a --
Daniel J. O'Hern: it's been interpreted that way.
Potter Stewart: But that it's taken in good faith.
Daniel J. O'Hern: Yes.
Potter Stewart: It's different language.
Byron R. White: Well if it's going to say that whatever -- I thought the amicus is certificate of probable cause in this case was because of 2253?
Potter Stewart: That's right.
Daniel J. O'Hern: No, I don't think so.
Byron R. White: 2253 says in circuit cases just like this you can't take an appeal whether informal or not without a certificate of probable cause, because of a state case that -- and it's a state -- this for habeas corpus where it follows in custody by the state. Now let's assume for the moment that this is not been an informal case, there still would've have to find probable cause. Now let's assume that it's been a federal prisoner asking for -- wanting to file a habeas corpus and it was informal would there be -- there wouldn't be any need of certificate of probable cause or a certificate of good faith.
Daniel J. O'Hern: Well I think there is Mr. Justice --
Byron R. White: Well why -- where are the cases to say that?
Daniel J. O'Hern: Well that's the way the statute reads. You see, 20 U.S.--
Byron R. White: Well it said -- 1915 says an appeal may not be taken in form of paupers if the trial court certified in writing and it would not taken him to stay. That's why it's in this Section isn't it?
Daniel J. O'Hern: That's right, but it has --
Byron R. White: Well I know but -- if there's -- he doesn't have to certify that it isn't good faith.
Daniel J. O'Hern: Well in fact the issue what is -- it amounts to the certificate of probable cause and in Ellis --
Byron R. White: I just thought you say that is the practice in federal cases, for a federal prisoner?
Daniel J. O'Hern: I -- that's my understanding, the practice Mr. Justice. I couldn't say that is entirely true, but I understand that is the practice. The reason is I think because of the statutes requiring the payment of fees in docketing of appeals. You simply can not docket an appeal whether or not the appeal may be taken under 2253, I think it's a somewhat different question.
Byron R. White: Well I just -- all I say is I just don't claim any requirement in 1915 where there is a probable cause and that as long as there's a -- as long as you can establish that he's indigent, and the trial judge doesn't say that there's bad faith here, there's no title to an appeal.
Daniel J. O'Hern: Well I think, you know, I'd like to agree with you. I think that's absolutely right, but I don't think that's the way the Courts of Appeal and the clerks of the Courts of Appeal --
Byron R. White: Well this is about the case that tested out because there was a certificate of probable cause --
Daniel J. O'Hern: That's right.
Byron R. White: -- under 2253.
Daniel J. O'Hern: That's right Mr. Justice. I think -- surely I think in this case where the certificate of good faith or probable cause has been issued. Then I think the Courts of Appeal should as a matter of right docket the appeals. I think they should assigned counsel before --
William J. Brennan, Jr.: Or evading, Mr. O'Hern, do you need to go beyond that in this case? You have a certificate of probable cause with the district judge, and looking at the statute, do you need go beyond suggesting that the statute has to be read in this circumstance with a certificate of probable cause. The Court of Appeals has no choice but to hear his appeal. Certainly docket his appeal, come in and proceed in the form of paupers, and you suggest also to assign counsel?
Daniel J. O'Hern: I suggest that. I think Your Honor that -- I think the Court of Appeals should surely do the lesser that is they should permit the man to docket his appeal.
William J. Brennan, Jr.: Actually, isn't your position is that a matter of permitting him --
Daniel J. O'Hern: He --
William J. Brennan, Jr.: -- that that's not --
Daniel J. O'Hern: -- matter of right.
William J. Brennan, Jr.: -- as a -- since he has a certificate of probable cause, the Court of Appeals must allow him of right to docket his appeal.
Daniel J. O'Hern: Of course the only problem is then that with that is subsection (d) which provides that the courts may dismiss the case if satisfied that the action is frivolous or malicious. Now it doesn't say at what stage it may do that, and I take it that the Court of Appeals interprets that as allowing or authorizing it to dismiss the appeal or to deny the application for leave to appeal in the form of paupers.
William J. Brennan, Jr.: But as I understand this record that doesn't appear that the Court of Appeals ever heard of this case, never got beyond the clerk's office.
Daniel J. O'Hern: That's what would appear from the bearer record Mr. Justice.
William J. Brennan, Jr.: Well how do we know that --
Daniel J. O'Hern: We don't know.
William J. Brennan, Jr.: -- that with any determination that it was frivolous in the merit?
Daniel J. O'Hern: We do know that there was certified to this Court a very extensive record. How many of the judges of the Courts of Appeal read it, we don't know. I would like to give the benefit of the doubt to the Court of Appeals and assume that they examined the papers because on the face of the papers, there was raised a constitutional question with respect to the effectiveness of the counsel which have or who had been assigned to the indigent in the state court proceedings. One of the problems I think is that if this Court simply decides that a man is entitled to have the appeal docketed, the appeal will be docketed if that is the decision of this Court. And then the district attorney for Erie County, I would assume, would move to dismiss the appeal and he would file a brief and he would go down perhaps to Philadelphia and argue it, or he might not even have to do that. If the petitioner is without counsel, or without the tools with which to properly meet this argument then I don't think he really has had his day in court. I think the real question in this case is whether the man is going to get one full and fair federal appeal, one full day in court. Now --
Abe Fortas: Mr. O'Hern, do you know whether any representations are made to the court prior to the entry of Judge Biggs, Chief Judge Biggs' order on 835 of the record. What happened here as I understand it is that the petitioner applied for leave to proceed in the form of paupers, and then the Court of Appeals in this order signed by Judge Biggs denied leave to appeal in the form of paupers. And then the clerk's letter to which you refer were as followed as a matter of course after that. That is the clerk had -- there's one thing the clerk could do except to say courts denied to leave file in the form of paupers so if you want to file, you got to pay the usual fee, is that right?
Daniel J. O'Hern: That's right.
Abe Fortas: So was any representations made that Judge Biggs said this fellow is not a pauper or something like that that you know of?
Daniel J. O'Hern: That's my knowledge, I think that's conceded Mr. Justice.
Abe Fortas: That he was a --
Daniel J. O'Hern: Pauper.
Abe Fortas: -- that there's no issue here.This surprise me a bit, the application for leave seems a form of paupers is filed July 16, was it?
Daniel J. O'Hern: Yes sir.
Abe Fortas: And Judge Biggs' order is entered in July 27, and there's no indication of why he entered the order. No indication that any state -- that any thing is filed by the state's attorney in our position or what not, is there?
Daniel J. O'Hern: Apparently not, but while I can't speak for the Court of Appeals, I would be inclined to think that the practice is to have at least one member of the panel examine the papers, the record which as I say was certified to this Court included the opinion of Judge Marsh from the western district and of course included the transcript of the hearing which is illuminating but is not entirely dispositive of the issue.
Abe Fortas: So we must -- I suppose that would be testified here in assuming that the Court of Appeals has disagreed with the District Court with respect to the nature of characters substantiality of the appeal.
Daniel J. O'Hern: That's what I take would be fact.
Abe Fortas: And the facts of the issue before us. Now do you also think that we have before us the question of the counsel?
Daniel J. O'Hern: I do Mr. Justice. I don't think the question is whether the Court of Appeals disagreed with the district judge. I think the question is whether once the district judge has made that certification that as a matter of right, the petitioner's entitled to proceed.
Abe Fortas: Yes.
Potter Stewart: Well that under 2253 that certificate of probable cause to appeal as required quite regardless of the indigency of the petitioner isn't it?
Daniel J. O'Hern: I'll tell you frankly Mr. Justice, I'm not entirely sure if it's no.
Potter Stewart: Well then it says so?
Daniel J. O'Hern: It appears to say --
Potter Stewart: Or my mistake, it has nothing to do -- that provision of the code has nothing to do with form of paupers bail none does it?
Daniel J. O'Hern: Right.
Potter Stewart: Has to do with the merits of the appeal, and it's equally applicable to a millionaire and to a pauper.
Daniel J. O'Hern: Except for one thing.
Potter Stewart: Is that correct?
Daniel J. O'Hern: Yes.
Potter Stewart: I haven't got it before me but that's my recollection.
Daniel J. O'Hern: Yes that's right.
Potter Stewart: Yes.
Daniel J. O'Hern: But if the district judge had for example denied the certificate then the same question is presented as to whether in appealing from the denial of that certificate, counsel should be allowed to the applicant for the writ of habeas corpus.
Potter Stewart: And it was in the denial on the certificate, and you don't have that case.
Daniel J. O'Hern: No, that's -- there was not. This is an easier case.
Byron R. White: Of course he doesn't even need to appeal from it, all it need to do is ask the Court of Appeals for the certificate of probable cause which isn't necessarily on appeal.
Daniel J. O'Hern: That's correct Mr. Justice.
Byron R. White: And he can ask a circuit justice for it, I suppose?
Daniel J. O'Hern: He could.
Earl Warren: We'll recess now. Continue your argument.
Daniel J. O'Hern: Mr. Chief Justice, and may it please the Court. I don't want to belabor this point, but I would like to go back to the question which I think Mr. Justice White put whether it's 2253 of Title 28 that were concerned with or 28 U.S. Code, Section 1915. And perhaps I have confused the Court somewhat by treating this as an appeal as a matter of right, which in my opinion it is. But I think you must consider the what we call the fees and cost section of 28 Section -- beginning at Section 1911, and it says “The fees and cost to be charged and collected in each Court of Appeals shall be proscribed from time to time by the judicial conference.” And then Rule 21 of the Court of Appeals for the Third Circuit rules provides that the appellant or petitioner shall before the docketing of the case pay the docketing fee, but this payment shall not be required by the United States when a party or of the appellant or petitioner in a case authorized to be prosecuted without prepayment of costs. And the only provision for prosecution of the case without prepayment of cost is in 28 U.S. Code, Section 1915. So that although 2253 is an initial step, I think in this case will pass that and although it appears to be an appeal of right, it's not an appeal of right if Nowakowski had had the money he could've had an appeal of right of course.
Byron R. White: Well he can appeal his right if he's a pauper.
Daniel J. O'Hern: Well it depends on how you interpret 28 U.S. Code, Section 1915.
Byron R. White: How would you interpret it?
Daniel J. O'Hern: Well I would like it to be interpreted in this fashion. That where the moving papers themselves present an issue which is not on its face frivolous and it's hard for me to think of papers would present a truly frivolous issue.
Byron R. White: Well you couldn't call it frivolous, could you, if a party who is paying had a particular probable cause, he may have his case docketed.
Daniel J. O'Hern: If he pays the fee, yes Mr. Justice.
Byron R. White: Well why shouldn't he pay --
Daniel J. O'Hern: I suggest that it should. I suggest that it should, but I would also suggest that the Court should take it one step further and the Court should assign counsel to the indigent to prosecute his appeal. I think it's a rather hollow right if we simply say that he has a right to appeal. He takes the case up to the Court of Appeals, but if he does not have a lawyer and if there were not a transcript available from the habeas corpus proceedings then I think it is a rather whole right.
William J. Brennan, Jr.: Mr. O'hern, but if you prevail and the district -- the Court of Appeals has directed to docket the appeal as an informal paupers appeal, don't you suppose the Third Circuit on the prisoner's application would assign counsel without our telling him that --
Daniel J. O'Hern: I would be inclined to think that is the practice in the Third Circuit, I notice --
William J. Brennan, Jr.: Should we reach the question whether constitutionally there's any compulsion on the Third Circuit to assign that if at least until we know that they will not assign it?
Daniel J. O'Hern: Well of course one of the applications in this case Mr. Justice was for the assignment of counsel. That was on the --
William J. Brennan, Jr.: Whether the application was?
Daniel J. O'Hern: Yes, on his second petition for a -- he filed actually two pleadings in the Court of Appeals and one of them was a request for the assignment of counsel. That was also denied together with --
Earl Warren: Didn't' make an affidavit of poverty?
Daniel J. O'Hern: He did file that Mr. Chief Justice.
Earl Warren: He did file such an affidavit.
Daniel J. O'Hern: He did, that's correct. Now I have perhaps with good reason avoided discussion of the merits in this case. It's not a very great case from the viewpoint of the issues involved. The small amount of money was taken from the tavern out in Erie, Pennsylvania. It struck me the facts in this case very much similar to those in Gideon and Wainwright. The contents of a -- I think it was the pool hall there, and here it's a tavern and a couple of machines were broken into. And it doesn't seem like much but if in my opinion, the district or the trial judge had excluded the evidence of the accomplice and excluded the evidence of the offer of a compromise. I really don't think there was any evidence of guilt at all. And then that case I think the petitioner should've been entitled to a directed verdict because there was no positive proof of the commission of the crime. So that I don't think that this is a hallow case in any sense of the word. I think the petitioner does have the meritorious claim even if this Court should decide that the Courts of Appeal have discretion to pass on those issues of frivolity. I think they were not frivolous presented in this case. Mr. Chief Justice, I'd like to reserve a few minutes of my time.
Earl Warren: You may Mr. O'Hern. Mr. Pfadt. At the outset Mr. Pfadt, may I ask you if we may or may not consider this man as an indigent for the purposes of this case?
William E. Pfadt: I think it's conceded Your Honor. For the record, if it please the Court, I would like to clear up certain misconceptions based or caused mainly by inadequate record I believe. The action before the Court of Appeals was instituted by Mr. Nowakowski filing a three-part petition, one in which he asked to proceed in form of paupers. The second in which he asked for the right to be represented by counsel to be court appointed, and the third in which he set out the merits of his appeal. And the question has arisen whether or not this matter was docketed. It was docketed. It did go beyond the courts and the clerk's office and it reached Justice Biggs' hands and he made the decision. Overall on the three parts in which the petition was denied without specifically saying this part one is denied or part two or part three, the entire petition was denied.
William J. Brennan, Jr.: Well where does Judge Biggs gets the power to do that?
William E. Pfadt: Under Section 1915 I --
William J. Brennan, Jr.: Where?
William E. Pfadt: Under Section 28-1915, the Court may dismiss the case --
William J. Brennan, Jr.: Well he isn't.
William E. Pfadt: -- if the allegation of poverty is untrue or have satisfied that the action is frivolous or malicious.
William J. Brennan, Jr.: Well he isn't the Court is he?
William E. Pfadt: Pardon?
William J. Brennan, Jr.: He isn't the Court is he? He's only a member of the Court is he, even though the chief judge. He's only a single member of the Court and nothing in that statute says that single members of Court of Appeals could be --
William E. Pfadt: Well, it was my understanding that he was acting on behalf of the Court.
William J. Brennan, Jr.: How can he?
Abe Fortas: It says in page 135 of the record it says “Present Biggs, Plager and Freidman.
William E. Pfadt: He was on behalf of the Court, I'm sorry.
William J. Brennan, Jr.: But one of the panel of the Court.
William E. Pfadt: Yes I'm sorry.
William J. Brennan, Jr.: Yes that's what I --
William E. Pfadt: I didn't understand what you meant Your Honor.
William J. Brennan, Jr.: Yes.
William E. Pfadt: So that there was this action and it wasn't a bare application which reached the clerk's office and was sent back because the fees, the filing fees were not advanced to the extent that the petition itself set out the petitioner's case in the three regards. It was considered by the Court and the petition was denied. I would like to point out for the Court, and this is apart from argument that this matter involved in this case against Mr. Nowakowski was a matter in which the minimum of three to seven years had expired in 1962. He was paroled on this charge in June of 1964 and began to serve a subsequent sentence which was imposed on a prison breach charge and the maximum sentence on this burglary conviction that is the subject of this appeal expired in December of 1966. Mr. Nowakowski at the present time serving a four to ten year sentence on prison breach which began in 1964 when he was paroled and subsequently he is faced with service of two and half to five years on account of an assault by a prisoner charge, where he assaulted an employee of the Western Penitentiary in Pennsylvania. I point that out to the Court for the reason that the matter involved -- the sentence involved in this particular case in which the trial and counsel at the trial of the burglary conviction is the subject matter of, basically of the petition for writ of habeas corpus. The minimum -- the actual time served has expired and the maximum time has expired. I don't mean that that creates an insuperable problem but it is something I think that the Court would be interested in and should know.
Hugo L. Black: For what reason?
William E. Pfadt: Because the actual sentence in regard to -- if the Court should decide that this man is entitled to a hearing before the Third Circuit and referring it back to the Third Circuit that there's no doubt that the Third Circuit could hear it, but whether or not eventually a new trial would be allowed after service of the complete time or expiration of complete time. I don't know what the consequence or what the workings there may be.
William J. Brennan, Jr.: Well I take it you point is that since federal habeas looks to the least, if he served complete sentence and he's not been released since then, is that it?
William E. Pfadt: There's nothing in this particular charge to release him from, because he's serving on a --
William J. Brennan, Jr.: Well does this -- does the conviction on this charge have any bearing of the recidivism to the like and the punishments he's got in this sentences he's now serving?
William E. Pfadt: None Your Honor.
William J. Brennan, Jr.: None whatever.
Earl Warren: But in another state?
William J. Brennan, Jr.: No, they were committed in Pennsylvania.
Earl Warren: I beg your pardon?
William J. Brennan, Jr.: I didn't understand you question Your Honor.
Earl Warren: Could this be used against him in a recidivous charge in another state?
William J. Brennan, Jr.: Possibly in another state, not in Pennsylvania.
Potter Stewart: All these -- these all goes to the merits of the habeas corpus appeal in the Third Circuit, doesn't it?
William J. Brennan, Jr.: That's correct.
Potter Stewart: Doesn't go to the issues now before us really, doesn't it?
William J. Brennan, Jr.: No, that's correct. I didn't mean them to in this argument either.
Potter Stewart: No I didn't mean to --
William E. Pfadt: I just want to point out that there is that situation existing.
Potter Stewart: Suggesting that he may not have a merit --
William E. Pfadt: That's right. Like Mr. O'Hern, I believe that the issue here is a narrow one. I think that the issue is under 28 Section 1915 where the Circuit Court of Appeals may dismiss an indigent's appeal if they're satisfied if the action is frivolous or malicious.
Hugo L. Black: Was it done on that ground?
William E. Pfadt: Without specifically saying why it was done, we -- there was no reason given Your Honor. We assume that because it was done that it had to be done on one or the other -- from or the other reasons.
Hugo L. Black: Or might not be done at all.
William E. Pfadt: It's true it may not have been done at all, but the action of Justice Biggs or the Circuit Court of Appeals in which the appeal is dismissed in order to justify it without looking to any wording in the opinion it would have to be done on the basis of some provision of Section 1915.
Hugo L. Black: Should that be done if you didn't say it was. If there's nothing in the record that indicates that it was dismissed under the 1915, why should've it been dismissed at all, or why should we hold it if it's dismissed on that one?
William E. Pfadt: Well I believe that the basis for dismissing without knowing the basis for dismissing, without knowing what they may be in the particular case would have to be assumed to have been done properly under this Section.
Byron R. White: In what respect under this Section? You mean just denying permission to proceed in form of paupers?
William E. Pfadt: Denial of the entire petition Your Honor which included in form of paupers counsel and the --
Byron R. White: No but counsel --
William E. Pfadt: -- the merits of the appeal.
Byron R. White: Well didn't he also move for a transcript?
William E. Pfadt: No. His petition was in three parts Your Honor, in form -- petition to proceed in form of paupers, appointment of --
Byron R. White: How about page 136, petition for records and documents in form of pauper? Petitioner contends he needs a transcript thinking his hearing in the District Court. And there's a denial of that motion.
William E. Pfadt: That's true Your Honor, but as later -- as the petition states later, there are other reasons given in the bear.
Byron R. White: Well that may be so, but they did -- he did ask for a transcript and it was denied, along with counsel.
William E. Pfadt: Considering part of his petition, the petition was denied there's no question, but that wasn't the only point of his petition. He actually was -- had set forth his entire appeal.
Byron R. White: What do you think the Court's grounds were for denying this petition with all of his grounds, whatever they were?
William E. Pfadt: I believe that assuming that the Court's actions were according to statutory authority that the Court dismissed on the basis of frivolity.
Byron R. White: So it passed on the merits?
William E. Pfadt: To the extent that they could determine from the record presented to them that this appeal was frivolous.
Byron R. White: So you don't contend that the Court denied because any doubt of being a pauper or anything like that?
William E. Pfadt: No, I do not believe so Your Honor.
Byron R. White: And that you think they've got appointed counsel said he thought the merits were not frivolous.
William E. Pfadt: I believe sir. I believe that they would have.
Byron R. White: So it comes down to frivolity and whether the court sitting without a record, without counsel, without argument or without briefs can dismiss it as frivolous?
William E. Pfadt: Can do that yes. I think that that's the question, the narrow question involved and I think that the argument of petitioner is that there is discrimination on account of an indigent defendant because the Court, under Section 1915 may dismiss for -- on the basis of frivolity sake. Whereas, in the case of paid counsel, the petitioner would have the opportunity to have briefs presented and argument and at least a motion by someone to dismiss before he were denied his appeal. And I think that's the narrow question whether there is -- whether that difference in treatment of indigent defendants and treatment of defendants with paid counsel constitutes a constitutional discrimination against indigent defendants. If I may, my answer to that is that it is a difference, certainly, indigent defendants are handled differently -- the petitions of indigent defendants are handled differently than are the petitions of defendants with paid counsel, but I don't believe that there's discrimination. I don't believe the difference means discrimination. My reason for that is that I think that the Court of Appeals and there are cases cited in the brief which point out that the Court of Appeals may dismiss on motion an appeal. It may request in fact if they believe there's frivolity in the appeal, may request that the -- that a motion be filed which has been done in certain Courts of Appeals. So that the end result is that the defendant with paid counsel may find themselves in the very position that an indigent defendant finds himself when he isn't represented in argument and by filing a briefs before the Court.
Byron R. White: Let me just make sure I understand. Do you say that a paid fellow who hired his own lawyer and is paying it can have his petition for habeas corpus dismissed for the trial judge and then the trial judge issue a certificate of probable cause, and then have -- and he hire his own counsel for the appeal. And you say he can have his -- the same thing happen to him has happened to this man in the Court of Appeals without ever a brief or an argument?
William E. Pfadt: It is possible Your Honor, I believe yes.
Byron R. White: In spite of the fact --
William E. Pfadt: It wouldn't happen in the same way --
Byron R. White: In spite of the fact that 2253 provides for certificate of probable cause either from the trial court or from the Court of Appeals.
William E. Pfadt: Well I don't know this 2253 enters into this part of it. I say that in regard to with defendant with a paid attorney, he may be able to file briefs. He may be allowed some extra proceedings, but the end result without ever --
William J. Brennan, Jr.: Well they're rather important extra proceedings aren't they? You say that --
William E. Pfadt: Well they aren't necessary because --
William J. Brennan, Jr.: He can answer a motion to dismiss. He can file a brief in support of an argument, rather should not be a dismissal. The judges at least have to read it if they don't hear oral argument that this indigent gets nothing like that.
William E. Pfadt: Your Honor, I agree that the opportunity is greater in the case of a paid attorney for --
William J. Brennan, Jr.: Well but its purpose is rather important one.
William E. Pfadt: It is very important. I meant to say that the end result without ever --a review could be reached by the Court of Appeals acting within the scope of their authority. Without ever having a hearing, without briefs being submitted, the Court on motion could dismiss.
William J. Brennan, Jr.: Well on motion, there wasn't any motion here was it?
William E. Pfadt: No, there can't be because there's no one on the other side at this point Your Honor, I agree. I say that in the case of a paid counsel for a defendant, you may have the same result, because on motion of the attorney for the respondent that the case be dismissed because of not say frivolity. The Court could make an order and the defendant in that case, even with his paid counsel, would be in exactly the same position as this indigent have been of this here.
Earl Warren: But either have the right to argue the motion wouldn't he?
William E. Pfadt: To that extent, yes.
Earl Warren: Yes.
William E. Pfadt: There are differences -- I don't mean to say and there are important differences as Justice Brennan points out. But I say that because there are those differences, doesn't mean that there's discrimination against an indigent defendant on account of his indigency.
Earl Warren: May I --
Earl Warren: May ask?
William J. Brennan, Jr.: -- excuse me.
Earl Warren: May I ask if this petition was filed pro se or was it filed by a lawyer?
William E. Pfadt: It was filed pro se. Your Honor, if the record will disclose that a Mr. Stooks of Pittsburgh had represented the defendant in his argument before the District Court evidentiary hearing.
Tom C. Clark: And the District Court relieved him of that post?
William E. Pfadt: Yes, and the District Court have ruled and the attorney had filed the appeal for this defendant, but then asked to be excused before the -- before any further proceedings --
Tom C. Clark: When you say appeal, the notice appeal?
William E. Pfadt: Yes had filed notice, excuse me. And was excuse by the Court before any proceedings before the Court of Appeals.
William J. Brennan, Jr.: May I ask this, what he filed was petition, was any notice by any one given to the state of his filing?
William E. Pfadt: To the circuit court?
William J. Brennan, Jr.: Yes, when he filed to the circuit court.
William E. Pfadt: There was no notice that I know.
William J. Brennan, Jr.: What ordinarily happens? Let's say he had paid counsel who had filed an appeal in the Court of Appeals with the statement of probable cause based on the trial judge's denial of writ of habeas corpus. Now, what ordinarily happens if an appeal taken from that denial and of course the stage is for the warden which I guess it's the warden isn't it?
William E. Pfadt: Yes, the warden.
William J. Brennan, Jr.: Is the respondent on the appeal. Now who, under the rules, who has the duty of notifying the warden, the clerk after docketing or the appellant?
William E. Pfadt: I think that the appellant has to notify the respondent who would be the warden on this one.
William J. Brennan, Jr.: And then I take it there's an affidavit or something of service for the respondent?
William E. Pfadt: That's correct.
William J. Brennan, Jr.: Nothing like that was before this panel of the Court of Appeals at the time it took its action with it?
William E. Pfadt: Your Honor, not that I know of. The record certainly does not disclose that.
William J. Brennan, Jr.: I just wanted to know how we can say this was a docketed appeal in those circumstances.
William E. Pfadt: I only -- perhaps I'm mistaken, but I was under the impression that if the Court, the circuit court, had considered this matter and Justice Biggs had issued an order that it would be a docketed matter.
William J. Brennan, Jr.: Well that suggests then that without the respondent ever hearing about it, the Court of Appeals can throw out an appeal if it thinks that the face of the papers if was decided.
William E. Pfadt: Again, because of the -- I'm not sure that such a notice was ever given. We have no record of it, but we are in the manner of --
William J. Brennan, Jr.: Well do you think the Court of Appeals could in that circumstance, an appellant files whether he has paid counsel or not, I gather your argument is that at least power whether it derives from 1915 or that of other statutes, power in the Court of Appeals, sua sponte with the respondent never having even heard that the appeal was pending to examine the papers and enter an order of dismissal without hearing the appellant for notice of respondent and otherwise. I gather you get that?
William E. Pfadt: I think that yes, I think that 1915 gives at par.
William J. Brennan, Jr.: My, oh my, what did Congress said it would.
Earl Warren: Is this a normal procedure as to indigents in the Third Circuit, or this case just as forwarded?
William E. Pfadt: I think that the Third Circuit has a record, Your Honor, providing counsel of giving hearings. I think that this is somewhat the unusual. If I may, much was said about the certificate probable cause and its function. Under 2253, where certificate of probable cause is made a requirement of appeal, there are cases which hold that that certificate of probable cause standing on its own does not mean anything as to the merits of the case, as to -- as it's not binding in anyway on the Court of Appeals.
William J. Brennan, Jr.: It's only a ticket of entry --
William E. Pfadt: It provides -- that's right it's a requirement, and there are cases which hold that the certificate of probable cause actually is nothing more than that the trial judge believes that the person asking for this is sincere. He may not agree with him and obviously he doesn't agree with him because he just ruled against him. But if he believes that he has a sincere argument and without regard to the merits, then he will grant certificate of probable cause which was done here, because Judge Marsh who was the district judge presiding at the evidentiary hearing was the one who granted the certificate of probable cause within days after he had made the order denying this man his writ. To go back to what I said, I believe that it's the narrow point here. Does Section 1915 create a situation where an indigent defendant is discriminated against because of the procedure set out in that Section, as opposed to what a defendant with paid counsel may be entitled to under his general rights to appeal in the procedures in the Court of Appeals? I say that in answer to that, my answer to the problem is that acknowledge there are differences but denied that there are discriminatory differences.
Earl Warren: Mr. O'Hern.
Daniel J. O'Hern: Mr. Chief Justice, and may it please the Court. The only comment I wanted to make was with respect to your question of whether this case represents a supporting a law, the respondent filed that a brief at pages 8 and 9 of which there are a number of cases which contain language to the effect that the Courts of Appeal have discretion with respect to these pauper appeals. And I think that is, from my reading of the cases, the prevailing opinion in the Circuit Courts of Appeal that they have a discretion under 28 U.S. Code, Section 1915 to deny the leave to appeal in form of paupers if they are satisfied that the issues are frivolous. I think if you analogize it to the direct appeal cases, I think they are reading the same type of thinking into these collateral attack appeals, and putting this issue of frivolity to themselves as a matter of initial determination. And then once they reach that conclusion and they say that we have this discretion to deny the leave to appeal in form of paupers, and that carries with it everything, then the application for counsel, the application for the transcript and whatever other assistance the petitioner or the pauper needs to make a worthwhile appeal are denied to him. Now I think that is the kind of invalid discrimination that this Court has struck down in the past.


Earl Warren: Number 190, United States, Petitioner, versus Thomas Crawley Davis et al.and Number 268, Thomas Crawley Davis et al., Petitioner, versus United States. Mr. Kutz.
I. Henry Kutz: Mr. Chief Justice, may it please the Court. In this consolidated peti -- cross-petitions, my associate, Mr. Wilkenfeld will state the facts and give the argument in Number 268 in which the United States is respondent. With the Court's permission, I will argue Number 190 in which the United States is the petitioner. The issues in Number 190, and the questions are quite desperate in the two cross-petitions, the issue in Number 190 is whether a taxpayer husband realized capital gain when he transferred to his former wife, a stock which had appreciated in value during his ownership. And when the transfer was made in consideration of the wife's release of his marital obligations to her, the Court of Claims have -- has held that no capital gain was realized but in so ruling expressly recognized conflict with decisions of the Second and the Third Circuit. On the other hand, it found support in the reasoning of the decision by the Sixth Circuit. The facts are not in dispute. Both taxpayer and his former wife were residence of Delaware and all the property involved was located in Delaware. Taxpayer was the director and vice president of the du com -- du Pont Company and the stock in issue is du Pont stock. Serious marital disputes arose between them. And by July 1954, they had both retained attorneys and property settlement negotiations commenced being conducted through the attorneys. In November 1954, a formal property settlement agreement was arrived at and signed. And the court explicitly found that all the property involved in the settlement negotiations was owned by Mr. Davis, subject only to her marital rights under the laws of Delaware. Those were the marital rights of the common law state she had. I will describe in a little more detail later. She had a dower, the common law dower interest in his real estate, otherwise, no property rights in his estate.
Potter Stewart: No property rights in any personal --
I. Henry Kutz: That's correct.
Potter Stewart: -- no property rights in what's involved here.
I. Henry Kutz: That's right. The agreement, so far is pertinent, however, provided for various transfers made by him to her under specific categories. The agreement was wrong to say that this and this shall be transferred to her for her support and this and that, including the stock here involved, shall be transferred to her in division of property. But -- in as much as she had no -- no property in the stock, it will be our contention that that's a mere language and could give her no property. The -- so far as pertinent, the agreement provided that he was to deliver to her 500 shares of the du Pont stock, agreement having been made in November 1954. On April 1, 1955 and 500 shares of du Pont stock on April 1, 1956, these shares were to be delivered to her at his cost free and flair.
Potter Stewart: Wait a minute Mr. Kutz. We're not talking about the basis?
I. Henry Kutz: Yes.
Potter Stewart: You're talking --
I. Henry Kutz: Yes.
Potter Stewart: -- that he's --
I. Henry Kutz: And no --
Potter Stewart: -- any expenses would be charged to him.
I. Henry Kutz: --(Voice Overlap) and everything else. In other words, she was to get that stock. And there's no provision that it was any particular stock that he own. He could go out and buy it. Indeed, he's just part of it.
Potter Stewart: This -- this agreement was made while they were husband and wife?
I. Henry Kutz: Yes.
Potter Stewart: Before any suit for divorce have been filed?
I. Henry Kutz: That's correct. Further, for her support, he was to make certain monthly payments. And in addition, he was per some commencing January 1955 equal to the dividends declared upon the du Pont's stock to the extent that he hadn't delivered the stock to her. In other words, if du Pont declared dividends before he actually delivered the stock, he was to pay her an equivalent amount. And this was said to be for her support. In consideration of all of the transfers both those label for support and those label as divisions of property, she expressly released him from all her rights against his property and for any claim of support by him and of herself or their child. The agreement provided that if a divorce was obtained, the divorce should in no way effect the obligations of the party under the agreement. And the provisions of the agreement might but need not be incorporated in the divorce. Actually, a divorce was granted by a Nevada Court in January 1955, a couple of months after the agreement, the decree approved the settlement agreement and directed the parties to carry it out. The --
Potter Stewart: This was the entire agreement between the party where there was -- in addition to this, there was no alimony, no support or (Voice Overlap) --
I. Henry Kutz: Yes. There was ali -- I -- I meant to mention, if I haven't. She was to get 500 -- I think $50 a month for ten years up to -- from 1954 to 1964 in addition to lump sum, I think of $25,000 and in January --
Speaker: So there were other (Inaudible)
I. Henry Kutz: There were also some insurance policies and so on. The Commissioner determined a deficiency against him for the du Pont stock -- for the transfer of the du Pont stock. On --
Earl Warren: We will have recess now, Mr. Kutz.