Warren E. Burger: Number 40, Conway against California Adult Authority. Mr. Ralston you may proceed whenever you're ready.
Charles Stephen Ralston: Thank you Your Honor. Mr. Chief Justice and may it please the Court. This case is on the writ of certiorari to review the denial by the Chief Judge of the United States Court of Appeals the Ninth Circuit of an application for a certificate of probable cause to appeal from the denial petition for writ of habeas corpus. The Federal District Court had denied the petition on the merits without requiring either a response from the respondents here and without a hearing. It was denied on the grounds of the petition failed to present a federal constitutional question and the certificates of probable cause were denied by both courts on the same ground. Our petitioner in this case, James Conway, was convicted in California in 1952 on two counts of a robbery in the first degree. He -- since that time and his presently incarcerated by the State of California under the provisions of the California indeterminate sentence law and it is this law and the petitioners challenges to them that our issue in this case not only the law itself but the manner in which it has been administered by the California Adult Authority or the respondent in this case. Petitioner claims on a numbered basis that the law in manner of which it is administered violates of Fourteenth Amendment guarantees against the denial of due process. Before discussing petitioner's contentions themselves, I'd like briefly to describe the functioning of the Adult Authority and the California in determining Sentencing Law in relation to the particular facts of petitioner's case as he is alleged in this petition for writ of habeas corpus. I stated before petitioner was convicted in 1952 on two counts of a robbery in the first degree. Following his conviction, petitioner was sentenced to state prison and in doing this the Court neither gave him a suspended sentence or gave him probation. Parenthetically, it is not evident at all from the record in this case on what basis probation or suspended sentence was denied. It might have been under the provisions of Section 1203 of the California Penal Code that at that time the Superior Court Judge was prohibited from granting probation. That section particularly as it existed in 1952 contain the a prohibition against probation in the certain kinds of cases among them arm robbery for a deadly weapon was used. In any of that, since no probation or suspended sentence was given, the judges action is governed by California Penal Code Section 1168. That Section, specifically prohibits the judge from specifying the term or duration of sentence that requires him to merely sentenced the defendant to the term prescribed by law in state prison. For the crime of robbery in the first degree, the law prescribes a five-year minimum term but establishes no maximum. Section 671 of the Penal Code states that where there is no maximum set by the specific statute but only a minimum term of years, then punishment shall be imprisonment during natural life subject to the provisions of part three of the penal code and part three is that section which deals with the powers in the duties of the California Adult Authority. Specifically, Section 3020 of the Penal Code which states that for all persons sentenced under the provisions of Section 1168. The California Adult Authority may determine and re-determine what length of time the person shall be imprison. Yet, another section the Penal Code, Section 5077 delineates the two basic powers of the Adult Authority, the granting of the revocation of parole which is not involve in this case and the fixing of sentences which is the issue here. Our petitioner following his sentence by the Court, following his imprisonment, made the number of appearances before the Adult Authority. Finally, in 1959 after he's been imprisoned for some seven years, approximately, the Adult Authority acted pursuant to such in 3020 and fixed petitioners terms at two-five years sentences to be served consecutively. I just point out that the Superior Court Judge had specified that the sentences were to be served consecutively. Again however, no term or whatsoever was that by the Superior Court Judge.
Warren E. Burger: Mr. Ralston is it -- if you know is it usual for the Adult Authority to come in at a point and fix the sentence in the way it was done here, generally?
Charles Stephen Ralston: You mean in -- Well, under the statute, it has the duty to do so.
Warren E. Burger: Yes, I understand they have the power and the duty, is there any pattern that is reflected as to when that power is exercised in --
Charles Stephen Ralston: I do not have any specific information as to -- at what point this power is exercised. As my understanding that these terms are in facts set at some point during the persons stay in the prison particularly to deal with once the minimum term is going to be served as to exactly the pattern that I could not say. Petitioner has claimed in his petition for habeas corpus that he believes the reason the Adult Authority do not act before it did. Was it he had refused to confess dealt to the crimes of which he was punished, convicted.
William O. Douglas: Is that apparently his challenge to?
Charles Stephen Ralston: No, this -- I do not believe the Attorney General has challenges his contention about the initial fixing. The Attorney General has challenged that the revocation of that fixing was based on his later refusal but the petitioners also alleged that it is -- he believes that the Adult Authority did not set his sentenced prior to 1959 because he had consistently refused every time he came up before the Adult Authority to admit that he was guilty of the crimes. It was only when he did in 1959 to say, “I'm guilty” that they then set the terms of the two to five years sentences of the minimum. As to what the general practices the Adult Authority, this record is not reflected and on myself are not sure what the specific practice.
William O. Douglas: Unless that -- unless we know the factual basis for that action were how can we know that we have federal question here?
Charles Stephen Ralston: Well, that's the problem in this case Mr. Justice Douglas is that there isn't -- there is an essence no record in this case. All there is the petition for writ of habeas corpus and is because of the lower courts statement that there's no federal question presented at all by this challenge to the action in the Adult Authority and the dismissal on that basis it did not require response in the attorney general, no response his file, there is no evidence taken. It was simply denied on its face as basic contention here is that at the least. There should be remand to the lower court in order -- so that the facts can be develop to find out, what in fact the California Adult Authority did do in petitioners case. And also the allegations of the Attorney General made for the first time in this Court concerning the practices in terms of procedures available. The unfortunate thing about this case, there is no record because of the attitude of the lower courts towards challenges to the Adult Authority. They have simply in the sense said that the Adult Authority is insulated from constitutional challenge, so that state in set up this system and it can work on whatever the way it works and of these issues are not raisable in the federal habeas corpus.
Byron R. White: The state says you're out of time in the Court of Appeals, is that so?
Charles Stephen Ralston: No, Your Honor. We feel that the state has basically misconstrued the federal habeas corpus act the requirements. It's clear from the record, the petitioner did file in the District Court in an application for a certificate of probable cause within 30 days from the denial of the petition for writ of habeas corpus. That was denied. He attempted to file a notice of appeal according to the allegations of his affidavit which he filed in Ninth Circuit. The District Court clerk refuse to take it, the notice of appeal presumably because there is some certificate of probable cause. He then attempted to go the Ninth Circuit. The Ninth Circuit that Judge Chambers treated the certificate of probable cause on its merits and denied it on its merits. We believe that the correct approach in their correct rules was that taken by the Third Circuit in the case cited our reply brief. But the crucial thing is that something showing adequately and clearly showing an intension to appeal be filed within 30 days after being initial denial, particularly when you have a state prisoner acting pro improper. Otherwise, the whole system gets encrusted with totally artificial high on time limits that are not warned by the habeas corpus act toward the federal rules or federal statute.
Potter Stewart: Technically at least to what we only have here is a denial of a certificate of probable cause by Chief Judge Chambers, is that correct?
Charles Stephen Ralston: Yes, Your Honor. It's the same situation as House versus Mayo for example, where as Court decided that the denials is certificate of probable cause was in error send the case back down of the District Court for determination on the merits.
Potter Stewart: Under the statute after a denial by a circuit judge of the certificate of probable that can every in an application to justice for such a certificate?
Charles Stephen Ralston: I am not sure, Mr. Justice Stewart. I cannot say. I think its clear though that --
Potter Stewart: That would be what 2241 or 2242?
Charles Stephen Ralston: I think it's clear from cases such as House versus Mayo that the certiorari does lie from the denial of the certificate of probable itself.
Byron R. White: By a judge? By one judge?
Charles Stephen Ralston: Yes, Your Honor.
Potter Stewart: How about by the District Judge?
Charles Stephen Ralston: Well, from the district judge but then -- then what has to be done as to go to the Circuit Court.
Potter Stewart: But not on the appeal? You don't go to a Circuit Court on the appeal. You go to a circuit judge and that you're asking him for a certificate.
Charles Stephen Ralston: Yes.
Potter Stewart: And if that denied. If there is authority then you apply to a justice, a circuit justice, or another justice shouldn't that be the way to proceed?
Charles Stephen Ralston: Quite frankly, I have not looked into the specific matter. I believe, however, that it is proper to go on with the certiorari from the denial of the certificate of probable cause itself, to the new application for the certificate of probable cause from the justice. Some of circuit justice is not required and does not divest this court of jurisdiction over certiorari.
Potter Stewart: Well, I think you have some cases on your side, doesn't it?
Charles Stephen Ralston: I believe in the case of Maxwell versus Bishop as I recall and one of prior appearances this was a situation.
Byron R. White: Well, how long these are -- when you're denied as strictly probable cause of the District Court and you don't -- you're not -- you don't go up on appeal then but you go to the Court of Appeals. Is there a time limit on when you have to go and you waited years to ask the Court of Appeals first of the probable cause?
Charles Stephen Ralston: Your Honor, the Third Circuit has essentially -- I don't believe set any particular time limit on it and their particular rule.
Byron R. White: If the appeal -- if the appeal time applied, you would be out of time?
Charles Stephen Ralston: If were the appeal from the denial for the certificate of probable cause.
Byron R. White: Yes.
Charles Stephen Ralston: If that were the thirty day period. However, petitioner did file as an application received certificate of probable cause which clearly show his intention to appeal with the District Court within the thirty days and then he attempted and begin his affidavit demonstrated the team made every attempt.
Byron R. White: That was a wrong route where his mistaken to say he was going to appeal.
Charles Stephen Ralston: To mean appeal to from the denial of --
Byron R. White: He should have gone -- He should have gone to the Court of Appeal?
Charles Stephen Ralston: Well, he attempted to do that. His affidavit states that he had tried to file the appropriate papers to show his intention to appeal in the Court of Appeals within a time. But this have been blocked by the actions of the State Prison Authority, who'd taking away his papers.
Byron R. White: But nevertheless his proper procedure was to ask the Court of Appeals for certificate of probable cause.
Charles Stephen Ralston: Yes, Your Honor and the Judge Chambers treated the affidavit he filed as that.
Byron R. White: But the moment that you would say that he eventually did that and you would say there isn't any time limit on when you been asked for that certificate of probable cause?
Charles Stephen Ralston: There might be some --
Byron R. White: Well, isn't that -- Isn't what happens when you get a certificate of probable cause then there is an appeal?
Charles Stephen Ralston: Yes, Your Honor.
Byron R. White: So what you're really saying is that you're going to have to perfect in the appeal and I were supposed the appellant time limit might relevant to when you have get organized to get a certificate of probable cause?
Charles Stephen Ralston: Yes, Your Honor. But again the Third Circuit could set down notes specific guidelines as to how long or lapse their might be. But again looking the facts in the situation, that it was action within the thirty days and every effort was made by petitioner. Who, again, was sitting in the prison acting on his own to get things filed in the Court of Appeals on time and it was block according to his affidavit by actions of the state. It was perfectly proper for the Chief Judge of the Ninth Circuit to accept that as a certificate of probable cause and denied on the merits which is what he did. Now in June of 1961, nine months before petitioners discharge date would have been set. The petitioner appeared for what he alleges was an annual parole here. He was asked what he planning to do in his release and he said, “he wish to return the Bakersfield to fight his case.” At this point, according to petitioner, objections are raised to his doing this and mentioned was made for the first time of extending his term to allow for a period, longer period of supervision of the parole. Petitioner declined, he said he wished to stay with his previous he set the sentence and served it and be released. Then subsequently at some later time not revealed by this record. The Adult Authority revoke the two to five year terms would be effective re-sentencing petitioner to two consecutive life term. Our petitioner contends in this factual context, it is rights to do process as guaranteed by the Fourteenth Amendment have been violated in a number of respects. First, he urges that the California Adult Authority hasn't giving a broad and sweeping power to sentence and re-sentence on circumstance destroyed by any standards or controls or specific procedures that is it has an arbitrary power which he claims it is in fact exercised in petitioners case. By revoking its prior determination in essence re-sentencing petitioner for an invalid reason. From this argument, our petitioner urges that the lack of either standards or constitutional inadequate procedures, permits the Adult Authority to revoke and refix for invalid reason. And essentially prohibits the petitioner from effectively influencing and bringing the bare on the determinations the Adult Authority. Those considerations which probably go into a fixing of the sentenced. Petitioner in this second major argument urges after refixing in the sentence once said and began to be served violated petitioners rights under the Double Jeopardy Clause as it applies to the states by virtue of the Fourteenth Amendment. Now, returning the point one petitioner, he contends of these cases govern in its essentials by this court's decision in numbered decisions and in a number of cases including Towns versus Burke, Nympha versus Ray, and North Carolina versus Pearce which is decided the last term of this Court. These cases and others established beyond the question the requirements of the Due Process Clause do apply to the sentencing function. And what the State of California has done in this case is to transfer a substantial and significant portion of that sentencing function from the judge to an administrative agency the California Adult Authority. But its doing so, it does not therefore divest that function of these constitutional protection. In these protections as set out in the cases that I've mentioned involve the number of things. Nympha for instance, involve the statutory scheme quite similar to California. Where the judge is required to sentenced for the maximum terms for the actual fixing of the sentenced was done by a board. The court there, although, it recognized that the sentencing judges functions had been circumscribe. Said nevertheless is basic constitutional protection, must apply to even what the judge did which was simply to gather information to pass on the board which would make its eventual determination. It would seem to follow necessarily that these same protections wouldn't hear through the board itself when it makes the determination it does. And among these protections, in addition to this involve directly in Nympha is that of not increasing or even originally setting a sentence for an improper reason. And petitioner has contented and seeks to show that there was in fact an improper reason for the Adult Authorities action in his case.
Warren E. Burger: I think Mr. Ralston that permanently you're warning right?
Byron R. White: The act of this --
Warren E. Burger: I see.
Charles Stephen Ralston: That to an essence revoke a previous he set sentence and put a prisoner back on like term merely because he wishes to prove his innocence once he gets out. It applies in the face of the rules and decisions of this Court and again for instance, the Pearce case, where an analogous situation. This Court made it clear that the State could not imposed condition such as increase of the sentence on a petitioners trying to fight his case in another means through appeal or habeas corpus. It might be noted in this case that there is no indication of the Adult Authority was it meant when it did not want petitioner to fight his case. If the action of the Adult Authority can stand, it could very well set up and enforce a rule that a person who did not admit guilt and completely subject himself to the Adult Authority even to the extent of giving out any rights to legal process would not be let out or they term was set would be revoke and increase. Further, petitioner contends that because the state of California has granted the kind of arbitrary power it has to the Adult Authority, that its action must be circumscribe by adequate procedures. So that the reasons and basis for its actions appear. And so that again, the petitioner can adequately bring to bear whatever considerations he fills are necessary for the adult authorities' decision. These procedures, again on the basis of this record, do not exist certainly nothing like the procedures of protections and here in when a judge in a court trial sentences and determines of sentences are here.
Warren E. Burger: Would you concede Mr. Ralston that in this kind of sentencing scheme or system was that some considerable flexibility must be allowed to the state to deal with it, is that your point but you claim it needs procedural devices to protect it?
Charles Stephen Ralston: Yes, Your Honor. Flexibility is one thing but arbitrariness is another in order the flexibility can be preserved in such a system with sufficient protection, so that the sentencing board does not just anything it feels like doing it is involved.
Warren E. Burger: Yes, as I read your brief accurately. My impression is that you say, once having fixed that they never can increase it, is that correct?
Charles Stephen Ralston: This is the second part of the argument which is an independent from the first part and that very briefly and then -- unless there are any questions. I'd like to reserve the remainder my time for rebuttal. Is that a line of cases? A long line of cases in this Court and in virtually every Circuit Court has held at once a sentence has been set and fixed and begun to served it cannot then be reset. Except appears allows an exception where the reason of sentence no longer exist is because in the appeal has been taken in one. Then under certain circumscribe situation a longer sentence maybe set but this is not this case. In this case, there has been no appeal. The sentence have not been set aside. It is the same sentence and the petitioner contends that Double Jeopardy Clause prohibits the resetting of it to higher amount after it is been fixed.
Byron R. White: Can I ask you please?
Charles Stephen Ralston: Yes, Your Honor.
Byron R. White: Where in the petition for habeas corpus in the District Court, it is alleged that he was denied, his a parole -- his parole was revoke because he wouldn't confess?
Charles Stephen Ralston: Yes, Your Honor. There is a footnote on page 14 and again it was not parole revocation. Pages 14 or 15 where it set out the colloquy between petitioner and the Adult Authority. And petitioners says that when he appeared before the Adult Authority, he was asked where he go if released on discharged and petitioner replied a Bakersfield. And then subsequently, they began discussing about why about increasing a parole and the bottom of the paragraph it says, “and obviously, the only reason for this action was of course the petitioner to plead guilty and not challenges conviction after being released on this charge.”
Byron R. White: And but your only federal question you raised in the petition was that the California law was void as vague.
Charles Stephen Ralston: And also the double jeopardy --
Byron R. White: Yes.
Charles Stephen Ralston: -- issue was raised. Yes, that is vague and uncertain to the extent to that it grants the Adult Authority. The ability to act and this is in top of page 16 of their own will caprice.
Byron R. White: Well, they ask but you just say it on the ground that's a sentences vague and uncertain?
Charles Stephen Ralston: Well, yes Your Honor but I think it was can be reasonably construed to include the issues of when the grant of this time has been giving that allows the Adult Authority to act again freely and had its own will in caprice. With this requires certain times of the constitutional protections to have some assurance that this will not in fact happen.
Warren E. Burger: Thank you, Mr. Ralston. Mr. Smith.
Arlo E. Smith: Your Honors, I might reply to your question if you look at page 4 Mr. Justice White will note --
Warren E. Burger: Of the Appendix?
Arlo E. Smith: Of the Appendix. The document called the petition for writ of habeas corpus. He does raised the issue of cause, denial for cause.
William J. Brennan, Jr.: Page what?
Arlo E. Smith: Page 4.
William J. Brennan, Jr.: Where, where, where?
Arlo E. Smith: Page 4 of the Appendix.
William J. Brennan, Jr.: For what of your Appendix?
Arlo E. Smith: Oh, C, 10C the printed appendix that --
William J. Brennan, Jr.: California includes submitting new evidence --
Arlo E. Smith: C, under both 10 and 11. It seeks to raise a issue of unconstitutional revocation or unconstitutional for lack of cause.
Byron R. White: What's -- you have it -- that's what it raises state court and also, I'm trying to say that --
Arlo E. Smith: He's trying to raised those well --
Byron R. White: What --
Arlo E. Smith: We don't contest the --
Byron R. White: On page he says what the question he's presenting to the federal court in the California?
Arlo E. Smith: I can see directly the record is very confusing.
William J. Brennan, Jr.: Well, I think --
Arlo E. Smith: I -- there are
William J. Brennan, Jr.: It does or does not California concede that repetition of serve, I mean, the petition for habeas alleged a federal question. Do you doubt you can see that? Just on the face of the petition for habeas?
Arlo E. Smith: Alleged the federal question?
William J. Brennan, Jr.: Yes. Does it or does not?
Arlo E. Smith: It alleges of a violation of a constitutional right. Yes. But it is our contention, we have three contentions. First, we contend that this matter isn't even properly in this Court. First, because it was untimely appeal for the Court of Appeals. Secondly, as to the issue of an unconstitutional cause that that matter was not even properly before District Court in a review of the documents filed in this case indicates clearly that this contention was never presented to any California Court.
William J. Brennan, Jr.: Well, what I'm trying to get at --
Arlo E. Smith: Third --
William J. Brennan, Jr.: In Federal District Court, if you say does the allegation of the habeas petition alleges as a substantial federal questions. How can you say then that the -- a federal question was not before the District Court?
Arlo E. Smith: But we say that federal -- we say that was no improper denial of the certificate of probable cause is our third point. But the circuit judge here, base on the fact that the constitutionality of these statutes in determinant sentence law has been determined for some nearly 70 years has been nearly uniformly upheld this constitutional by circuit courts and state courts. That it is our contention that if the chief judge cannot deny certificate of probable cause base on such a long life President, then the requirement of Congress, requiring as certificate of probable cause --
William J. Brennan, Jr.: -- that the only federal question raised was the constitutionality generally of the California statute?
Arlo E. Smith: That is the raised also the question that cause --
William J. Brennan, Jr.: Well after get at some point a little more. What this that was just been pointed out to this at footnote one. This as the statement of the California Adult Authority have been accused of cursing each person that coming before them to plead guilty of a condition to getting a call of discharge before expiration the maximum sentence provided by law. Now, do you --
Arlo E. Smith: We say that was not properly before the District Court, those facts.
William J. Brennan, Jr.: Anyway, well this allegation --
Arlo E. Smith: That allegation was not properly before the Court and not properly before this Court for two reasons.
William J. Brennan, Jr.: Why wasn't adopt properly before the District Court? It was, was it --
Arlo E. Smith: This is a footnote to a supplement to a petition for a writ of habeas corpus which is unsworn to. Which it appears in the printed record and appears in the record before the District Court. As pointed out, we enter the case for the first time on the petition for served. We will never served with the documents filed in the District Court as noted in the original denial of the petitions by the district judge and in fact have never received those documents. However, we contend that after this particular --
William J. Brennan, Jr.: -- claim the supplement were --
Arlo E. Smith: Yes, yes I can. It's a supplement. The petition for --
William J. Brennan, Jr.: Where's that appear that it is a supplement?
Arlo E. Smith: Well, the petition for habeas corpus has starts at page 2. It ends at --
William J. Brennan, Jr.: Wait a minute now, page 2?
Arlo E. Smith: Yes. It ends a page 7 that's the form petition for habeas corpus.
William J. Brennan, Jr.: What it is that start of page 8?
Arlo E. Smith: Page 7.
William J. Brennan, Jr.: Yes, what's start at page 8?
Arlo E. Smith: You'll that is your affidavit of property, that is sworn to. The second document which is dated April 27th before file August 25th for reports that would be a petition for writ of habeas corpus. It is a discussion, as you can see, of the statement of the case of the proceedings and state court in the review of the proceedings in the federal court. There is a footnote to what is not clear whether it be to the proceedings in the state of the Federal Courts which contains these statements of fact. This document is not sworn to as indicated by page 16. There is no statement that your add is submitted a review of the original record on the file in this Court will indicate, why? There was no jury on. It was not sworn.
William J. Brennan, Jr.: Does it appear whether the District Court acted -- well, let me put rather the other way. Does it appear on what the District Court acted when it denied the state of federal court?
Arlo E. Smith: It doesn't. There are three documents --
William J. Brennan, Jr.: Do we know that it did not act on this for which you call supplement?
Arlo E. Smith: What we say it's --
William J. Brennan, Jr.: No, no. Do we know whether the district judge?
Arlo E. Smith: No, we do not. But I say, he could not act on it because it was not a sworn to allegation statement of fact. We cannot accepted this through in this Court.
Thurgood Marshall: But if the certificate had been issued, you would have had hearing and you would have had to record?
Arlo E. Smith: That's correct.
Thurgood Marshall: And would have had quotes wrong testimony in Court?
Arlo E. Smith: What you mean if the district judge had issued in order to show cause.
Thurgood Marshall: Sure!
Arlo E. Smith: Yes, we would have -- the record have been developed that's correct. We would have served, we would have --
Thurgood Marshall: Are these Adult Authority proceedings was transcribed? And if so, are they available to the Court?
Arlo E. Smith: They are not transcribed. The procedure -- the Adult Authority is to -- in the both in the fixing of terms and in the refixing of terms is a result of a hearing for quotes surround it with the inmate involve. After the correctional counsel and the Adult Authority have reveal the entire case final which includes what is called a case summary. Which includes of reports of the psychological report, the psychiatric report, the vocational report, the educational report, the social report, and the custodial report. All referring to is adjustment his rehabilitation as training, his if the guidance he is taking.
Thurgood Marshall: Well, how can we ever find out as to whether or not the Adult Authority requires everybody to admit their guilt or they stay in? How can we find out that whether that's a rule or not?
Arlo E. Smith: Well, I think that there are two answers and I was hoping to summarize my argument but let me summarize that point of our argument right now. First, on this point it is our contention that due process does not required at this stage of the proceedings that refixing, the fixing of the term. Any moment then the Adult Authority or other body not at arbitrarily in capriciously or with invidious discrimination.
Thurgood Marshall: How do we find out whether its arbitrary?
Arlo E. Smith: Well, under the rule in the California Courts, it can call for and does call for the records of the Adult Authority which include the kind of document attached here, disciplinary proceedings, and the case summary, the correctional officer's case summary. As our contention that that is the only open review require by due process.
Thurgood Marshall: You mean if you change your sentence from five years to light, you don't have to give any reasons for it?
Arlo E. Smith: No. It is our contention first that that is not changing the sentence.
Thurgood Marshall: Well --
Arlo E. Smith: That under California law --
Thurgood Marshall: Well, whether it state --
Arlo E. Smith: It's only tentative. It's not fix. It's subject to being refix. It's tentative only. It's a no right.
Thurgood Marshall: Yes, it's tentative in case he dies ahead of that.
Arlo E. Smith: But no Your Honor. They can be reason to reduced --
Thurgood Marshall: But it is true that the Adult Authority can say, “We have decided at your sentence is five years.” And then they called him in and say, “Do you admit your guilty of this or not?” I say, “I'm not guilty.” “Well, now sentenced you to life.” Is that possible? I'm not saying about this case, if that's possible?
Arlo E. Smith: If that allegation is made in the Court in California that his unconstitutional cause was the basis. In other words, that the allegations that appear here for the first time in the District Court were made in the California Courts. The California Court would inquire into it. If the burden would shift in effect to the Adult Authority to contradict that.
Hugo L. Black: I thought your point was in virtue of develop act to the alliance. Tell us in which they brought the case here namely? It is involved or initiated Mr. Justice Marshall was talking, in fact it is not showing by this record. Isn't that your point?
Arlo E. Smith: That is --
Hugo L. Black: Well, I develop it.
Arlo E. Smith: Yes.
Hugo L. Black: -- clearly after lines its been here?
Warren E. Burger: You have a minute or two you have before we --
Arlo E. Smith: Well, let me address myself to that particular point. What we have here in the District Court are three documents. Two of them labeled writs of that applications for petitions for writs of habeas corpus and another document which is labeled the 76 paid supplement. Now, when you examine those documents in the 76 paid supplement purports to include copies of documents filed another court stating back to 1963. The examination of those documents, you will note that in none of it is there this allegation concerning to unconstitutional cause made. The allegation was not made in the California Supreme Court or any other Federal or State Court. It occurs for the first time in a document dated April 27, 1967, some six years later and several writs later. For the first time in the footnote, to supplement to a petition which is not sworn to and I suggest that the District Court may well have considered the fact that this is a new a ennoble and improved allegation that did not appear before and indeed was not sworn to. Therefore, it is our contention that that matter was not before the District Court properly. It is not properly here. We need not accepted this true. Should not and cannot be considered as true for purposes of this proceeding. It shows us that there was no exhaustion of state remedies on the very record file here. It shows that it is simply unsworn footnote to a supplement to a petition which the District Court could not and should not of considered and which is should not and need not be consider as a factual truth, factual allegation in this Court.
Warren E. Burger: Mr. Smith, you may pick where you left off.
Arlo E. Smith: Thank you, Your Honor. I would like to devote a few minutes to the question of the timeliness of this appeal. The rules of Ninth Circuit are quite simple. It requires as the federal statutes that there be a notice of appeal within 30 days from the file order of the District Court denying the petition for writ of habeas corpus and that pursuant to the statute requiring a certificate of probable cause that such a certificate be obtained either within 30 days after denial of the petition for writ of habeas corpus or 30 days after a denial of the certificate of probable cause by the District Court. These are four more liberal rules and that followed in after circuits such as the first and others. The Court itself have the chief judge granted the certificate under the cases we've cited, the panel would have examined this question either on our motion or on its own motion and would have dismissed the case. The rules are very liberal there, any paper that notes so intent to appeal will be deem as a notice of the appeal. And what happen here was that the district judge denied the petition on September 27th. On October 10th, the petitioner filed eight application for a certificate of probable cause. He denied -- the district judge denied that application on October 31st. However, under the rules of the Ninth Circuit, that application for certificate of probable cause maybe deemed a timely notice of appeal. But of course, that does perfect the appeal, there must be a certificate of probable cause granted timely. The application in subsequent denial by the District Court added to his time, 30 days from October 31st to apply for a certificate of probable cause in the Court of Appeals or as indicated by the earlier question the circuit with the judge designed of the circuit of the Supreme Court. However, nothing was done to the record reflects until December 14th. When the Clerk received the document labeled an affidavit in which two allegations are made. One, that the petitioner had sought the file a notice of appeal in the District Court on November 17th and had tendered the $5.00 fee which was taken from the trust account of the fellow inmate and the Clerk had refused the file. Well, this is irrelevant because there is a good notice of appeal under the rules already filed. He also asserts that he attempted the file in the Circuit Court. A writ of mandate, for a petition for writ of mandate, requiring the warden to permitting to withdraw $5.00 from the trust account of the same fellow inmate for the purpose of his filing fee which is of course inconsistent with his earlier statement that he tendered $5.00. Then, he ask generally for an extension of time but this is some 44 days after the denial of the certificate of probable cause in the District Court and some 74 days after or longer after the denial of the petition for writ of habeas corpus is out time. The judge did deem this document to be an application for a certificate of probable cause and denied it. But we say and reviewed the panel would have under the rules of that Court have filed it untimely. Such a rule and certainly not unreasonable, certainly done in constitutional. There must time limitations of policy of other of the statute requiring 30 days for a notice of appeal. Certainly contemplates that the time for appeal that notice be given timely and that clerk, the court, the parties, now that the appeal is pending and that the option for protecting the appeal are not be left with the petitioner. Secondly if facilitates the policy of Congress requiring in limiting the appeals in this kinds of cases by the virtue of a fact that in large major they place burden upon the Federal Courts and upon the states because as a plus they are generally in their authorities. Furthermore, this man is not cut off on any right. The denial of their petition for an application of petition for habeas corpus is not filed, it always go back in front. File, he's not anything as you like news are right to pursue a point in an appeal from the criminal conviction. Finally, we have argued that the -- there was no abuse of discretion here by the Circuit Court in the denial of the appli -- denial of the application for a certificate of probable cause based on the long standing precedents both of this Court and of the circuit courts. We say that there was no substantial federal question presented. Our next contention is that on the facts of this case, the petitioner has in fact received what he claims he must received by the Adult Authority. His term has been refixed for a cause and I might clarify the point raised earlier that this is not final, under state law there is in determined of the sentence. In this case filed the life consecutive. Its fixed by statute at maximum. The Adult Authority fixed it. The term and the minimum in this case. They then refixed it as they do in case of any violations at the maximum but that is not final. They normally, usually, in virtually every case refixed it again at less than maximum. Now, in this case the petitioner, the record reflects that there was cause. He was in fact and that he'd receive notice and a hearing. He was engage in a -- his term was fixed in 1959. He appeared before the board in 1960. December of 1960 engaged in the fight, fellow inmates. He was given notice and a complaint which set out those facts. He was notified there would be a hearing before the disciplinary board. The hearing was granted. He appeared. He gave version of the facts. He was found that he participated in this fight as report pursuing to the rules of the Adult Authority were forwarded to it. It adopted the findings of the prison disciplinary group. It sets his hearing over for six months. At that hearing, the record reflects that by his own allegations that he discussed turn. He had a hearing in that sense. He had noticed and the notice original note is filed in the December indicated that one of the results of this hearing could be refixing. So, he has notified in the writing. He knew in fact.
Thurgood Marshall: In California, what's the maximum for assault and battery?
Arlo E. Smith: Assault and battery? Oh, this is a miss to me.
Thurgood Marshall: Was the appellee was guilty of?
Arlo E. Smith: You mean in this -- well, I don't know the facts the man had the cut -- cut lip by --
Thurgood Marshall: Well, assume they were just to fight?
Arlo E. Smith: That in assault by a prisoner of another prisoner serving a life term. It's a very serious.
Thurgood Marshall: But my point is, if he had been charged -- If he'd been tried on the fight charge assault and battery, could he have gotten life?
Arlo E. Smith: The answer of that is no.
Thurgood Marshall: But he did?
Arlo E. Smith: He did not.
Thurgood Marshall: What did he get here?
Arlo E. Smith: He got his term refixed.
Thurgood Marshall: At what?
Arlo E. Smith: At the maximum. But subject to being refix.
Thurgood Marshall: Which is life?
Arlo E. Smith: That's true but its not final, it tentative. He can be refix at any point and it is end that. It is no way a punishment for that act. It simply an indication that he is not adjusted or rehabilitated. There's not presented a sufficient risk to be placed on the parole and to have the term fixed and go into the community. That is all that indicates. Our final argument is that, there is Constitution does not require in this situation, anymore than there be cause. Due process and I simply requires the Sixth Amendment is not applicable. These are not criminal proceedings. There is then an argument here that this is the keen to sentencing and that indeed the judges is very limited which is not so in California. As we indicated in our brief, only 17% of those people convicted of felonies are ever sent to the State Prison. The other 83% are given probation, jail, conditions of probation, sent to other institutions such as the Narcotic Treatment Center or mental ins -- other mental institutions. The fact is that at that point, the punitive part of the criminal process has ended. The punitive part of the prison term is that which is the minimum set for the legislature. But he sentence him to the state prison, the minimum represent the legislature determination that fact will suffice -- that that will suffice to deter a third persons from committing these kinds of acts here arm robbery and that will serve to punish the individual involve. But as Judge Goodrich has said, once the period of contentious litigations is over, when a man accused of crime its tried in the sentenced. Now, the problem becomes one of an attempt that rehabilitation. There is no place for the punitive process once that minimum term in state prison is fixed. As our contention that Minford versus Ray does not apply here as your other point out that involve counsel. That on the revocation of parole, the sentence had not been entered. The counsel was neither to marshal the facts one and you stated that even more important was the necessity of counsel to preserve rights which otherwise would have been lost to with an appeal and specifically, an appeal and a right to withdraw of that plea. No rights are lost in this process. It can always be fixed and refixed, there is nothing final. Secondly, the case of Minford versus Ray did not overrule the case of Williams versus New York, in which this Court stated it at that point at sentencing a man was not entitled to all of the procedural protections that were recorded to the man during the criminal trial. Specifically, that he did not have the right of confrontation in cross examination. That the judge could rely upon probation reports, hearsay as to the man background, he's social adjustment, his education, his training, his jobs, his family, all of those factors that go into the determination of sentence along with the punitive element in the sentence. This Court has said in cases and indeed. Mr. Justice Black said, “they have the Due Process Clause should not be treated as the device for freezing the evidential procedure of sentencing in the mold of trial procedure.” As our contention here that the kind of procedure and the very nature of the thing involve as indicated in numerous cases of such as Hannah versus Larthe. The nature of the proceeding must be look to in determining what due process rights are applicable here. The nature of the proceeding and the burden placed upon that proceeding. The courts have indicated that they use a lot of terms that this is a privilege, it's a never of grace, its not an adjudication. But I think that the Court miss the circuit properly pointed out that his characterization does not answer the question that we must look to the nature of what it is. Not simply characterized as a privilege or approach of right and the nature of what we are dealing with here is the determination by a group of experts who are concerned with the rehabilitation and the readjustment of people committed to the state prisons. At the other hand, they must look at the risk they present to the public and there is one point I would like to make and that is that the in making these evaluations, the wider the latitude they have in making it, the greater possibility before error. That is that there are greater possibility that they made a mistake, that the man maybe a bad risk. And on the other hand, the more difficult is it is for such groups to correct that error, then the less latitude they will have in making that determination. Either as a matter of fact or as a matter of state law. I say, we do the prisoners know service when we impose upon this procedure, any burden be on that that requires that agency to act with cause. I suggest that the board must and does look at his entire background in the fixing and refixing of these terms. Thank you.
Warren E. Burger: Thank you Mr. Smith. Mr. Ralston you have about one minute left.
Charles Stephen Ralston: I -- thank you, Your Honor. I would like to make two very quick points. Number one, the issue has been raised concerning whether there is an exhaustion of state remedies in this case. The lower court did not dismiss this petition on the basis of exhaustion. Number two, there are allegation in the second habeas petition on page 11 as to what was raised in the Supreme Court of California and his allegations are brief warden says in the Adult Authority took advantage of its loose definition to coerce petitioner making weaken submissive. What else may have been in this habeas petition is not set out here. It is part of the record, it was part of the record in the lower court. Again, this issue of exhaustion whether these issues are properly raised before the State Courts is a matter that could be best be resolved by the District Court on remand. This is again the problem in this case for the dismissal without asking for response, without having a hearing, without exploring the record to find out what in fact has happened in this case. Thank you.
Warren E. Burger: Would it not be more accurate or perhaps accurate to say that the state -- that the federal court in the first go around had no occasion to or even reach the matter of exhaustion of state remedies? By the way that the case was treated.
Charles Stephen Ralston: Yes, Your Honor. They just said, no federal question was raised. So, with that disposition, they wouldn't even consider.
Warren E. Burger: Mr. Ralston, you acted that the request on the appointment of this Court and we thank you for you assistance to the Court. And of course, to the petitioner and to the whole system. Thank you for your submission. We thank you for your submission Mr. Smith.
Arlo E. Smith: Thank you, Mr. Chief Justice.
Warren E. Burger: The case is Submitted.