CHEWNING v. CUNNINGHAM

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Argument of Daniel J. Meador

Chief Justice Earl Warren: Number 63, Morgan C. Chewning, Petitioner, versus W. K. Cunningham, Jr., Superintendent of Virginia State Penitentiary.

Mr. Meador.

Mr. Daniel J. Meador: Mr. Chief Justice, may it please the Court.

This is a habeas corpus case, here on certiorari to the Supreme Court of Appeals of Virginia.

The petitioner is confined in the Virginia Penitentiary under a 10-year sentence imposed upon him under the State's recidivist law which is Section 53-296 of the Code.

That Section provides for a separate, independent judicial hearing on the recidivist charge.

It empowers a trial judge on finding three valid trial penitentiary sentences to make a decision whether any further imprisonment is called for, if so, what is the appropriate sentence for any number of years up to life imprisonment.

The question here in this case is whether under the Fourteenth Amendment a prisoner, an indigent prisoner without a lawyer, has a right to the assistance of court-appointed counsel at this recidivist trial.

The case here was commenced below by tuning in the Law and Equity Court of the City of Richmond by the filing of a habeas corpus petition.

This petitioner has been denied all the way up in the Virginia courts without a response, without any hearing, so we take the facts here set out in the petition and in the attached exhibits as true.

Those facts show that the following occurred.

In June 1958, the petitioner was confined in the Virginia Penitentiary under a sentence for some prior offense which is not revealed in the record.

On June 25th, 1958, he was brought before the Circuit Court for the City of Richmond along with an unknown number of other defendants.

At that time, and on that date, the Commonwealth's attorney filed an information against the petitioner under the recidivist statute.

That information alleged that the petitioner had been three times convicted and sentenced to confinement under the laws of Virginia and it averted that certified copies of those three previous convictions were being shown to the court.

The convictions were not enumerated or described in any way in this information.

At that point, the petitioner requested that the Court provide him with the assistance of counsel, but the court denied that request and proceeded to sentence the petitioner along with the other defendants to 10 years in the penitentiary.

This is a sentence that the petitioner is now serving and it is the sentence which he attacks in this proceeding.

He averts in his habeas corpus petition that the court there was without authority and jurisdiction to sentence him without the assistance of counsel and hence he is now being held illegally by the respondent.

The judge in the Law and Equity Court dismissed his petition, as I stated, without calling for response and without any hearing.

He delivered an opinion, accompanying a dismissal, in which he held that under the law of Virginia there was no right to court-appointed counsel at a recidivist trial and he further expressly held that under the Fourteenth Amendment there was no right to court-appointed counsel at this type of proceeding, citing this Court's decision in Gryger against Burke and Chandler against Fretag.

Following that dismissal of his petition, the petitioner took appropriate and reasonable steps to appeal the case to the Supreme Court of Appeals of Virginia.

In his petition for writ of error, he expressly set out several times that he was invoking a right to counsel under the Fourteenth Amendment and he cited, he discussed relevant decisions of this Court.

On the basis of that petition, within the record from the Law and Equity Court, the Supreme Court of Appeals denied the writ of error and entered an order, affirming the judgment below on the ground that it was plainly right.

This Court then granted a petition for writ of certiorari and appointed counsel to represent the petitioner.

We thus have here before us a final decision of the highest court of Virginia in a proceeding in which the federal constitutional right to counsel was claimed in this decision of the state court as necessarily decided that claim against the petitioner.

Hence, it seems clear that this Court has jurisdiction to review the Virginia judgment.

Now, petitioner here is contending that the failure of the Circuit Court of Richmond to provide him with counsel at his recidivist trial denied -- violating both the Due Process and Equal Protection Clause of the Fourteenth Amendment.

If it please the Court, I shall leave the equal protection argument to the brief and focus here on due process problem.

Under the Due Process Clause, there are two grounds, two propositions on which this case could be decided for petitioner, indeed should be decided on one of the other grounds.

First is that the circumstances of the case, particularly the nature of the recidivist trial itself show that the absence of counsel deprived the petitioner of a fundamental right of a fair hearing.

Second proposition, a bit broader, is that the assistance of counsel is necessary to a fair hearing whenever a state moves against a person to put him into penitentiary for substantial number of years of life.

Now, turning to the circumstances of this recidivist trial here which demonstrates the need of counsel, the first point I would make is that the cluster of questions which surround the prior convictions under Section 53-296, asserts that no layman can meet them, asserts that no layman could even appreciate the questions existed.

Now, the statute itself which for the Court's convenience is in the petitioner's brief at pages 2 and 3, the statute itself simply says that the prisoner may deny the existence of any such reference, but the Supreme Court of Appeals of Virginia has indicated that there are a number of other questions that may be raised and litigated concerning these records.

So it might be pointed out here that even if the petitioner, a layman in jail, read the statute carefully, read it intelligently, he would not be apprised of the questions, the qualifications thrown around the use of certain prior records which have been put there as a matter of judicial gloss.

Now, for instance, there is a strong indication that if one of these prior convictions are still pending appeal at the time of the recidivist trial, the defendant can object to its use on the theory that it's not conclusive.

Moreover, if two of these prior convictions occurred at the same term of court or on the same day, they cannot both be used.

This is not altogether clear, but there is a strong indication it so, but the most important point I would think about the use of these record is the fact that they are open to collateral attack.

It seems fair to say that any ground of collateral attack on these convictions can be raised and litigated in the recidivist trial itself whether it be a want of jurisdiction in the convicting court or whether it'd be some constitutional defect.

Justice John M. Harlan: Is that by judicial gloss or it's not under the statute?

Mr. Daniel J. Meador: Yes sir.

It's by the Supreme Court of Appeals of Virginia in their opinions by way of holding in dictum, I would say.

Frequently, this has come up by way of suggestion that a denial of counsel in one of the underlying convictions were voided and hence remove it from consideration in the recidivist trial, but it seems to me fair to say that any federal constitutional defect in one of these convictions would operate to void it and to remove it from consideration.

For this case, that might be a great importance because if one of the three underlying convictions in this case was successfully attacked, that would leave only two convictions which would mean under 53-296 a maximum recidivist sentence would be five years whereas, for three or more previous convictions, the maximum is life imprisonment.

The petitioner here in fact received 10 years so it would be possible by attacking one of the convictions to cut his sentence in half in this case.

Now, last term in Reynolds against Cochran, the Court here pointed to this feature of Florida, habitual criminal proceeding as one aspect of it which demonstrated the need for counsel and showed how counsel could be a benefit to the defendant.

Now, the feature of this Virginia proceeding, which above all else, indicates a necessity of counsel, is the sentencing power vested here in the trial judge.

This statute gives the trial judge the broadest kind of granted power.

There is no minimum and no maximum prescribed, that is the maximum is life imprisonment.

He need not give any sentence at all, as I read the statute.

That is open for his decision in this hearing.

There is no time limit prescribed on how far back he can go in using old convictions.

Whether the conviction happened one year ago, 20 years ago, or 40 years ago is immaterial with the statute to the power of the trial judge.

It's also immaterial to what interval went by between these convictions, whether they were a year or two apart or 20 or 30 years apart.

A man may have committed an offense as a youth in decades past, he commits another offense this -- the power of the trial judge comes into play.

It's immaterial, the circumstances, the type of the prior offense are immaterial under the statute.

The only qualification is that it carry a sentence to the penitentiary.

Whether it is homicide or relatively minor lapse is immaterial to the power of the judge here.

Or whether it would be a crime of violence or not is of no consequence to the power of the judge.

In short, the legislature in this statute has given the trial judge a blank check over this defendant for remainder of his life, assuming three valid prior sentences.

That this sweeping power vested in the judge, differentiates this proceeding from a number of other habitual criminal statutes, particularly the West Virginia statute that's just been discussed here.

There it might fair to be said that the whole purpose of the proceeding is simply to identify the defendant as a person upon whom the law has already placed a sentence of life imprisonment.

Here the law itself has placed no sentence on the defendant.

The law is simply saying to the trial judge, bring him in and hold the hearing and you decide whether any sentence at all is necessary and if so how much up to life imprisonment.

There is a judicial hearing here on that vital question and here is where I would contend that the need of counsel is the greatest in this proceeding.

Justice John M. Harlan: Why couldn't that argument be made on a Betts and Brady approach to any case where there was a substantial statute -- a substantial sentence with regards to the judge?

Mr. Daniel J. Meador: Your Honor, I think it might well be.

All I can say here is that as a matter of degree, the power vested in this trial judge is so much greater.

For one thing in an ordinary criminal prosecution, the judge vested with the discretionary sentencing power will have presided over the trial.

It's tied to a substantive offense.

It gives him some context in which to impose a sentence.

Some frame of reference, some body of factual information about the defendant and about what he did.

Here, the man is brought before the court with no background of this sort, simply records of three prior convictions.

Now, to pursue this point further on the sentencing power, this Court itself has recognized in cases that this kind of decision, the matter of sentence, where a sentence is not fixed by law is one of the most difficult kinds of questions that the trial judge can face and that's particularly so in this type of case.

As I say, this is not tied to a substantive offense.

Here, the judge's problem is how much more time shall we put this man in the penitentiary over and above all the time he will have served for each one of his offenses.

The law is already exact with this penalty for each offense.

Now, the question is, shall we keep him there over and above that?

Various writers in courts had mentioned that the judge here has to take into account a number of elements such as protecting society against these habitual offenders, deterring others from repeating crime, to punish him further, to rehabilitate him if he's capable of being rehabilitated.

All these package of intangible factors here, the judge has to take into account.

Now, if we're going to have any kind of rational decision on this question.

A decision on the sentence if not a mere whimsical decision by the trial judge it's essential that he have before him a body of facts, facts concerning this defendant, his record, his character, his personality, the totality of the factual data surrounding this individual defendant.

Justice John M. Harlan: Do you have a pre-sentencing report system in Virginia?

Mr. Daniel J. Meador: Yes sir, there's a statute providing for pre-sentence report in felony cases.

That's one of the questions I touched on in the brief.

It's not clear to me.

There's no Virginia decision that I've found which says this is available in a recidivist trial.

However, it appears to me to be discretionary with the trial judge so that he could call on a probation officer to make a pre-sentencing report.

Again, one of our points is that without a lawyer, the defendant is not apt to be aware of this, not apt to call it to the trial judge's attention so that the trial judge could, in his discretion, call for this pre-sentencing report.

Now, it's in this problem of developing the facts relating to this defendant that the lawyer services are so necessary.

In the first place, by hypothesis, in all recidivist trials under this statute, the defendant will be already in the penitentiary, locked behind walls and hence disabled from getting out, investigating his case, contacting witnesses, preparing in all of the multitude of ways in which a case is prepared on facts.

He cannot do it himself even if he had the capabilities and the know-how because he's locked up and he's without money.

So the lawyer is necessarily in that regard, but more than that the lawyer is essential because this is the kind of problem here that even a prisoner who is faced some prosecutions in the past will not be familiar with.

This is a peculiar proceeding.

A prisoner might very well have some appreciation of how to meet a substantive charge.

Did he do it or not do it, was he there or not there and all of the various kinds of issues that might come up in an orthodox criminal prosecution.

Justice Felix Frankfurter: Mr. Meador, in this statute here, did this (Inaudible)

Mr. Daniel J. Meador: No sir, I find none.

The statute itself says the sentence that he may deem proper.

I find that to be no standard in my view and I find no standard even in the legislative history as it is or in the decisions of the courts which points out my argument that the judge sits there with his enormous power over the man's liberty unfettered by any standards, not hedged in by any limitations imposed either by statute or decision.

Justice Felix Frankfurter: How many (Inaudible)

Mr. Daniel J. Meador: Mandatorily life?

Justice Felix Frankfurter: Yes.

Mr. Daniel J. Meador: I don't have the exact count on that.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Something less than 26.

It would purely be a guess, perhaps it does have more but it's purely a guess.

Justice Felix Frankfurter: What about the other (Inaudible), what about the other 44? What kind of (Inaudible)

Mr. Daniel J. Meador: Among those 26 states --

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Alright.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: The sentence -- the Florida statute which was before the Court last term, I suppose would be representative of that.

The sentence is expressed in terms frequently of the amount of punishment that could have been imposed in the last principal offense.

Sometimes it will say not more than twice the maximum.

It could have been imposed for the last principal substantive offense.

There's tremendous variation here in these provisions.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Yes sir.

Justice Felix Frankfurter: And (Inaudible)

Mr. Daniel J. Meador: Yes sir, in this case.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Except in this --

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Not so in this statute Mr. Justice.

In the Virginia statute, the moving -- the initial moving party that the statute contemplates is the director of the Department of Welfare and Institutions.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Yes sir.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Yes sir.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Yes sir, and he is not under the Virginia statute given discretion.

It stated that he shall report.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: No sir.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Commonwealth's attorney.

Justice Felix Frankfurter: Commonwealth's attorney (Inaudible)

Mr. Daniel J. Meador: Yes sir.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Yes sir.

Let me add one more comment on that though.

This differs from the West Virginia statute in this regard.

Under the Virginia statute, exclusive jurisdiction over these cases is vested in one court, the Circuit Court of the City of Richmond.

So it's not at the discretion of prosecutors all over the state to bring or not bring the recidivist charge.

The duty is placed upon the Director of the Department of Welfare when a prisoner is received into the penitentiary, to bring to the attention of this one court, the Circuit Court of City of Richmond.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Yes sir.

As a matter of fact, that case is pending now setting this up as a denial of equal protection, the failure to invoke the statute against other prisoners.

Specifically the case that's pending before the Supreme Court of Appeals of Virginia now is that the statute is not brought to bear against prisoners with out of state convictions.

Justice Felix Frankfurter: That means that (Inaudible)

Mr. Daniel J. Meador: Well, that wouldn't --

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: That wouldn't bother me in this case because it's left to the --

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Yes sir.

I don't see why the director though would shy away from invoking it in this case in this -- under this statute because the trial judge has this wide choice on the sentencing question.

He's not compelled to give life or nothing as in West Virginia.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: Well in the Circuit Court of the City of Richmond which is the exclusive court for this, my impression is now there are two judges that handle the recidivist cases, maybe Mr. Hopkin.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel J. Meador: They may well have a system of other circuit judges serving.

Justice Felix Frankfurter: I demand you setting on the (Inaudible)

Justice William J. Brennan: Mr. Meador, let's see if I follow you.

There's only a single official line of the executive of the department being the director of the welfare or whatever it is who may initiate this proceeding.

Mr. Daniel J. Meador: That's according to the statute, yes.

Justice William J. Brennan: And secondly, if it is initiated, the sentence may have been imposed in some remote county from Virginia -- from Richmond by another judge I gather and that the judge who imposes the enhanced punishment is one of the judges sitting in Richmond, is that it?

Mr. Daniel J. Meador: He sits in the Circuit Court of the City of Richmond.

That's the only court that has jurisdiction to impose a recidivist sentence.

Justice William J. Brennan: Isn't this unique?

In other words, it's not the sentencing judge.

I gather there's initial sentence imposed, is there?

Mr. Daniel J. Meador: In one of the substantive offenses.

Justice William J. Brennan: Yes and that it comes to Richmond as being an enhancement --

Mr. Daniel J. Meador: Right.

Justice William J. Brennan: -- on the application of the director?

Mr. Daniel J. Meador: An entirely separate independent proceeding from any other criminal proceeding in Virginia.

That's one of the unique features of our case.

Justice Felix Frankfurter: How many (Inaudible) Mr. Meador?

How many cases does the director -- your record, (Inaudible)

Mr. Daniel J. Meador: My only information on that is outside the record and it's --

Justice Felix Frankfurter: (Inaudible) with that report.

Mr. Daniel J. Meador: I do have a report for the year in which our man here was sentenced and this does not show the number of recidivists actually sentenced under the recidivist statute.

This report simply shows those persons received in the penitentiary who were subject to the recidivist statute and for the year ending June 30, 1958, this report showed a total of 417 who had prior convictions.

Justice Felix Frankfurter: Well does that mean that the record offers (Inaudible) of recidivist?

Mr. Daniel J. Meador: Well, the statute says if it shall come to the knowledge of the director.

Justice Felix Frankfurter: Well, if it's -- if this information come to your knowledge (Inaudible)

Mr. Daniel J. Meador: No sir, the statute would seem to lay it upon him to report then to the Circuit Court of the City of Richmond and then the information is filed.

Justice Felix Frankfurter: (Voice Overlap) is that it?

Mr. Daniel J. Meador: It says that he shall report, shall give the information thereof without delay to the Circuit Court of the City of Richmond.

Justice Felix Frankfurter: I take it, there are other provisions too, is that it?

Mr. Daniel J. Meador: It would seem to me that he has number of other duties, yes sir.

The strange thing about this case, I might just comment on and this is not disclosed by the statute is that in this case, the information in the Circuit Court of the City of Richmond was filed by the Commonwealth's attorney.

Now, the statute doesn't mention who files the information in the court.

It says the director gives information to the court and that the information shall be filed but it doesn't say who files it so as a matter of practice inferring from what is true in this case, I would take it that the prosecuting attorney comes in, in the name of the Commonwealth of Virginia and files this information in this wholly independent criminal proceeding.

If it please the Court, I might save my remaining minute or two for rebuttal.

Chief Justice Earl Warren: You may.

Mr. Harp.

Argument of Reno S. Harp Iii

Mr. Reno S. Harp Iii: Mr. chief justice, may it please the Court, if I may initially attempt to answer a few of the questions which were propounded to Professor Meador.

In regard to the pre-sentence report, there is no pre-sentence report filed in these cases.

I have never known and I don't prosecute to understand but in my investigation, I have never known that any pre-sentence report has been filed.

However, there is before the court at the time each man is brought before the court, his folder, his folder which is made up at the time he is admitted to the penitentiary which contains all of his pre-sentence reports, all of the -- all of the neurological, psychological tests made in his regard and this matter is available to the judge of the Circuit Court of the City of Richmond.

In answer your question Mr. Justice Frankfurter, there are two judges of the Circuit Court of the City of Richmond and it is only these two judges that sit.

I have not known since I have been in the Attorney General's office of any other judges sitting in this court on habitual offender cases.

Justice Felix Frankfurter: Is their jurisdiction exclusively criminal?

Mr. Reno S. Harp Iii: The Circuit Court of the City of Richmond, Mr. Justice Frankfurter, is an unusual court.

Its jurisdiction is limited by statute to specified state cases.

In other words, you can only sue the state there.

And they have the --

Justice Felix Frankfurter: (Inaudible)

Mr. Reno S. Harp Iii: Something like that, something like that.

I will try to first briefly discuss the motion to dismiss which we have filed in this case.

We feel that this case is very similar to the Newsom case which was before this Court earlier this year.

The petition for a writ of habeas corpus filed in the Law and Equity Court of the City of Richmond does not allege, it's not alleged in there that the petitioner was indigent at the time he was tried as a recidivist.

The man was represented by court-appointed counsel at the time of his habeas corpus proceeding in the Law and Equity Court.

The petition was not amended.

No effort was made to amend it.

Moreover, this same thought would be applicable with regard to Professor Meador's argument as to the possible invalidity of the three prior convictions which form a basis for this sentence and for all other pertinent matters relative to the statute.

He was represented by counsel and no amendment was made.

He does not allege or suggest that he told the court that he was indigent or and that in fact he was indigent at the time he was tried as a habitual offender.

Moreover --

Justice William O. Douglas: Would that make a difference if it was to say a murder, he was being charged for murder, in the Virginia law it would that make a difference?

Mr. Reno S. Harp Iii: Yes sir.

No, I beg your pardon.

The statute in Virginia in regard to criminal cases which is now 19.1-241 on which the petitioner is relying herein provides that in every criminal case, in every felony case, the court must appoint counsel and they do this even when the man says I do not want a lawyer and then once we try them and convict them then they apply for a writ of habeas corpus, I might add.

Chief Justice Earl Warren: How did your -- how did your court, the Supreme Court treated this case, as an indigent case?

Mr. Reno S. Harp Iii: It did -- it treated the case as an indigent case, yes sir.

Chief Justice Earl Warren: Why did your Supreme Court treated it as an indigent case (Inaudible) should we treat it different?

Mr. Reno S. Harp Iii: Well, what I am saying is this Mr. Chief Justice, sir, is that we're talking about indigency at two different periods, there are two different periods.

He is indigent now or at least he alleges that he is indigent and the pauperis oath attached to his petition verifies this together with the statement as to the amount of funds which he has in his spending account in the penitentiary.

What I am saying sir is that he did not allege or suggest at the time he was tried as a recidivist.

He didn't allege in his petition that I was indigent when I was tried as a recidivist.

Chief Justice Earl Warren: Well, I understood you to say though that your highest court of the state treated him as though he was an indigent.

Mr. Reno S. Harp Iii: At this point --

Chief Justice Earl Warren: And have followed the appropriate procedure.

Mr. Reno S. Harp Iii: Yes sir, at this point.

Chief Justice Earl Warren: No, not at that point, then what do you say this point, you mean in this point.

Mr. Reno S. Harp Iii: I'm --

Chief Justice Earl Warren: I'm talking about in your state court.

Mr. Reno S. Harp Iii: That is correct sir.

Chief Justice Earl Warren: Did your case came up to the State Supreme Court that that court treated him as though he was properly there as an indigent?

Mr. Reno S. Harp Iii: That's correct sir.

Chief Justice Earl Warren: Are you objecting to him from being treated that way here?

Mr. Reno S. Harp Iii: I don't object to the Court permitting him to proceed in forma pauperis and permitting him to have very able and competent court appointed counsel.

What I am saying sir is this that at the time he was tried as a recidivist, we're considering that now, just eliminate everything else in my thoughts where in the petition for writ of habeas corpus filed below, which is the entire basis for this proceeding, he does not state that he was indigent at the time he was tried as a recidivist.

Chief Justice Earl Warren: Now, let me ask you, did he take that case from that trial court to the Supreme Court?

Mr. Reno S. Harp Iii: Yes sir.

Chief Justice Earl Warren: And your Supreme Court treated him as an indigent and as though he was properly there?

Mr. Reno S. Harp Iii: Yes, there is no question that he is properly everywhere as he has come up the line sir.

What I am -- apparently, I am not making myself clear obviously, let me try it once -- let me try -- let me try it once more sir.

In 1958, this man was tried as a recidivist and received additional time in the state penitentiary.

Now, in his petition for writ of habeas corpus, he says that I ask the court to appoint a lawyer for me.

That's all he says.

What I'm trying to emphasize Mr. Chief Justice is the fact that he did not state in his petition for writ of habeas corpus that in 1958 when I was tried as a recidivist, I told the court that I was a pauper, that I was poor and didn't have any money, that I couldn't afford an attorney and that is the entire basis for our motion to dismiss the writ of certiorari sir.

Chief Justice Earl Warren: How long do we have to do this?

Did you raise that question on the Supreme Court of Virginia?

Mr. Reno S. Harp Iii: We did not file any response or anything in regard to that.

No sir.

No sir.

Chief Justice Earl Warren: You did not and didn't the Supreme Court of Virginia treated him as an indigent properly before the Court.

Mr. Reno S. Harp Iii: It treated him as an indigent at the time --

Chief Justice Earl Warren: No, in that proceeding.

Mr. Reno S. Harp Iii: Yes sir.

Chief Justice Earl Warren: In that proceeding.

Mr. Reno S. Harp Iii: Yes sir.

Chief Justice Earl Warren: That exactly is the case before us on that basis.

Mr. Reno S. Harp Iii: It affirmed the judgment of the Law and Equity Court.

This is a collateral attack on habeas corpus sir of the conviction in 1958 and not an appeal of that conviction.

Chief Justice Earl Warren: This was an original -- this was an original petition for habeas corpus in the Supreme Court of Virginia?

Mr. Reno S. Harp Iii: No sir.

It's a collateral attack which was begun in the Law and Equity Court of the City of Richmond sir.

Chief Justice Earl Warren: But he was -- when he was in the Court of Appeals of Virginia, he was there on appeal?

Mr. Reno S. Harp Iii: That is correct sir.

Chief Justice Earl Warren: And from the -- from the judgment of the lower court, would you say that it should not consider the man as indigent?

Mr. Reno S. Harp Iii: No sir.

The Law and Equity Court of the City of Richmond --

Chief Justice Earl Warren: I think we've got to go on to something else.

It might be --

Justice Hugo L. Black: Would it bother you -- would it bother you -- you said when he was tried as a recidivist, would it bother you if you would state just exactly how he was tried?

Mr. Reno S. Harp Iii: Yes sir.

The procedure followed is this and I neglected to point --

Justice Hugo L. Black: I mean in this case.

Mr. Reno S. Harp Iii: In this case?

Justice Hugo L. Black: Yes.

Mr. Reno S. Harp Iii: I don't know how exactly he was tried in this case sir because the record does not reveal it other than the court orders appending -- the information and the court order appended to the petition for writ habeas corpus and the man's statement which is limited, very limited to the fact that he said I ask for counsel and no counsel was appointed for me.

He does not state that I told the judge that I didn't -- couldn't afford counsel and I was indigent and that's why I couldn't employ a counsel, he gives no reason for that sir.

Justice Hugo L. Black: Has there been any denial of the fact that he has (Inaudible)

Mr. Reno S. Harp Iii: No sir.

In other words, what -- my position in this case is very simple.

Under Morris versus Smith which is the latest decision in the Supreme Court of Appeals of Virginia and Penn versus Smith, it's well settled that well-pleaded allegations must be accepted as the truth and in Penn versus Smith which is cited in page 12 of our brief, we pointed out that it is necessary any petition for writ of habeas corpus to allege facts and we are contending in regard to our motion to dismiss that the petition fails to allege sufficient facts for Judge Young who was judge of the Law and Equity Court of the City of Richmond act on it because Judge Young is limited in his jurisdiction.

He has jurisdiction to entertain the petition.

He has no jurisdiction to hold a hearing in this case because under the applicable provisions of law, he can only issue the writ returnable to the court wherein the original proceeding took place because the man has alleged certain unrecorded matters of fact.

Now our position is that the man failed to allege sufficient facts to justify Judge Young in issuing the writ and that that was the sole question which was before our Court of Appeals.

Justice Hugo L. Black: Why, why did -- what facts were omitted?

Mr. Reno S. Harp Iii: The fact that was omitted in this case sir was the identical fact which was omitted in the Newsom case except at a different point.

Justice Hugo L. Black: What?

Mr. Reno S. Harp Iii: The fact of indigency.

In other words, our position I believe is quite simple.

The man is represented by counsel at the time of his habeas corpus proceeding, appointed by the court.

The petition was not amended to allege that at the time I was tried as a recidivist, I was indigent.

Justice Hugo L. Black: Did the state raise any objection on that ground?

Was there a ruling?

Mr. Reno S. Harp Iii: The state has not appeared in -- the state has not appeared -- excuse me sir.

Justice Hugo L. Black: Then there was no chance to amend on account of a ruling to dismiss the petition --

Mr. Reno S. Harp Iii: There was plenty of chance to amend sir but the State was never called upon to appear in the proceeding.

This is the same judge that's cited in the Newsom case.

The same judge, the same thing happened.

He opined, and he didn't have anything to opine on because the case was not before him.

He had nothing that he could do except issue a writ returnable to another court, so the only question he had was -- are the allegations sufficient to justify the issuance of the writ.

That's the only question he had.

He had no pure question of law and so he couldn't write an opinion sir.

There was nothing for -- the opinion which he has written is immaterial and irrelevant and is not pertinent to this controversy.

Now, if we may proceed along a little bit in connection with --

Justice Hugo L. Black: How do we know about the reason he dismissed the order?

Mr. Reno S. Harp Iii: I didn't say that was the reason he dismissed it sir.

I said that is the only reason that he could have had sir under the Virginia statute.

Justice William J. Brennan: But the reason he gave was that there was no merit for the right to counsel.

Mr. Reno S. Harp Iii: That is --

Justice William J. Brennan: I thought, I thought -- am I wrong about this whether he was right or wrong apparently despite the omission which you say was in the petition before him, that there was an omission, despite that he went ahead and decided the constitutional point on the premise that in fact at a recidivist trial it had been understood that he was representing to this Court.

Isn't that right?

Mr. Reno S. Harp Iii: I would have to answer your question in the negative sir because the opinion of the -- of Judge Young never states that the man is indigent.

Justice William J. Brennan: I don't say he does but it would -- he go -- he went ahead and decided --

Mr. Reno S. Harp Iii: That's right sir.

Justice William J. Brennan: -- can I complete the question, which was he was not have had the reach if in fact the man were not an indigent.

Mr. Reno S. Harp Iii: That is correct sir.

Justice William J. Brennan: Alright.

Mr. Reno S. Harp Iii: And that's exactly what he did in the Newsom case which this Court --

Justice Felix Frankfurter: Is that so?

Mr. Reno S. Harp Iii: Sir?

Justice Felix Frankfurter: Is that so because the judge gave a reason that he doesn't have to give (Inaudible) who doesn't give?

Mr. Reno S. Harp Iii: Well, would you mind trying that question once more sir [Attempt to Laughter]?

Justice Felix Frankfurter: All I'm saying is, as I understand you, (Inaudible) as I understand you, you say that on the face of the -- of the application, in the face of this writ, he showed them -- disqualified from getting the writ that he asked for.

Mr. Reno S. Harp Iii: That is correct sir.

Justice Felix Frankfurter: And that that the state doesn't have to reply to something that they should be so clear that he doesn't need a trial.

Mr. Reno S. Harp Iii: Yes, well we don't have any right to come (Voice Overlap).

That's right sir.

We were not called upon sir.

Justice Felix Frankfurter: Yes and therefore you didn't (Inaudible)

Mr. Reno S. Harp Iii: That's right, very simple.

Now, in regard (Voice Overlap) sir?

Justice Felix Frankfurter: Well, it's as simple as that (Inaudible)

Mr. Reno S. Harp Iii: Well I hope I am correct sir.

Justice Felix Frankfurter: Well I'm not questioning (Inaudible)

Mr. Reno S. Harp Iii: To conti --

Justice Felix Frankfurter: (Inaudible)

Mr. Reno S. Harp Iii: In regard -- to continue on, in regard to what the Virginia law requires in connection with filing a petition for writs of habeas corpus.

It is well settled that it is necessary to plead facts.

Now, the -- our authority for that is as we have said before Morris versus Smith and the Penn versus Smith case.

Now, the petitioner in his reply brief has contended that in Virginia, this is not necessary and it cited several cases in this regard and it has compared this case to one which is met by demurrer.

This of course is not so because of the decision of the Supreme Court of Appeals of Virginia in the Morris case.

Print this transcript Transcript: 

Argument of Reno S. Harp Iii

Chief Justice Earl Warren: -- Morgan C. Chewning, versus W. K. Cunningham, Jr., Superintendent of Virginia State Penitentiary.

Mr. Harp, you may continue with your argument now.

Mr. Reno S. Harp Iii: Mr. Chief Justice, may it please the Court.

At the time of adjournment yesterday, it was manifest to counsel that apparently because of his own inaptness or perhaps too great of -- familiarity with the problem that he had failed to state to the court in a clear and distinct manner his position in this case, in connection with his motion to dismiss, counsel had stated that he thought it was a simple question perhaps because he deals with it quite daily and day in and day out and quite often in fact twice more this week, so with the Court's permission in a few minutes remaining, I'll try to present it, perhaps, I hope a little bit more clear than I -- clearly than I did yesterday.

Chief Justice Earl Warren: Well, Mr. Harp, if it just for me, you may go on to your other argument, I've read your -- I've read your brief and I know your position.

If you would like to state it, it's alright, but I don't like to take your -- take your time for it, unless you want to do it.

Mr. Reno S. Harp Iii: Thank you Mr. Chief Justice, then I'll refer to it only briefly.

Chief Justice Earl Warren: Yes.

Mr. Reno S. Harp Iii: It is the respondent's position that the petitioner in his petition for writ of habeas corpus failed to state sufficient factual grounds to justify the Law and Equity Court of the City of Richmond in issuing a writ of habeas corpus for a hearing returnable to the Circuit Court of the City of Richmond wherein the previous judicial proceeding took place of which the petitioner complained.

This is because the petitioner failed to state in his petition for a writ of habeas corpus that when he requested counsel at the time of his recidivist proceedings that he was indigent at that particular point.

That is the point I was trying very desperately --

Chief Justice Earl Warren: Yes.

Mr. Reno S. Harp Iii: -- to make on yesterday.

Now, the only thing which is before this Court for its consideration is this record which contains the petition for the writ of habeas corpus in two exhibits appended thereto.

That is the only thing that this Court has to rule upon.

An examination of the petition reveals that there is a bare allegation that this man was denied counsel.

There are no other facts alleged.

He does not contend he was indigent.

He does not contend that he was denied any federal constitutional right.

He does not contend that he was unfamiliar with court proceedings.

He does not suggest anything in connection with the proceeding that counsel could have done for him.

He does not allege that any of his previous convictions were unlawful or illegal or constitutionally invalid.

Indeed, in fact, he'd meant before this -- been through this proceeding once before as a second time offender in the Circuit Court of the City of Richmond.

Now, on that bare allegation, it is our position that he has failed to state a case.

My learned friend, Professor Meador, has suggested in his reply brief that it is unnecessary for the petitioner to avert facts in his petition for a writ of habeas corpus.

This is contrary to Virginia law as I pointed out yesterday in connection with Morris versus Smyth which is found on pages 3 and 11 our -- of our brief and Penn versus Smith which is found on page 12 of our brief.

In both of these cases, the Court said that the petitioner must state facts to the respond -- the petitioner rather in this Court has suggested that under Tomkins versus Missouri, and Williams versus Kaiser, that it is unnecessary for the petitioner to state that he was indigent at the time he requested counsel.

An examination of the opinion of this Court in those cases, opinions rather, reveals that the rule in Missouri is and it has been so stated by these highest court in the State of Missouri that if a man alleges that he was tried without counsel or was denied counsel, the highest court in that state has held that it will assume, that it will assume that he was indigent at the time he requested counsel.

There is no such rule in Virginia.

There is no case that says this in Virginia.

Justice Felix Frankfurter: Are you suggesting in the -- are you suggesting that this case turns on a rule or law of local practice that there -- that this case turns on the state ground that certain requirements are made by Virginia for pleading or particularity of pleading in this kind of a case?

Mr. Reno S. Harp Iii: I believe Mr. Justice Frankfurter that you have stated my proposition very succinctly sir.

That's exactly it.

It not only turns on that ground, on a state ground, but I know of no federal case and there may be many that I have not found, but I know of no federal case that says that you can come in and say, “Now, judge, I want a lawyer appointed for me.”

I know of none.

You've got to state that you're indigent first.

Now, there may be a limited number of situations as you Mr. Chief Justice pointed out during the course of my argument in Newsom case where a man has plenty of money, but can't get a lawyer but that is not applicable to this particular situation.

We are suggesting sir that the petition on its face even in this Court fails to allege sufficient grounds.

Now, as the cases progress --

Justice Felix Frankfurter: Well, that isn't -- that isn't the question.

If suppose your Supreme Court had spelled out as you just have done, suppose the Supreme Court dealt with this -- but this -- what did the Supreme Court here do?

Mr. Reno S. Harp Iii: The Supreme Court of Appeals of Virginia denied --

Justice Felix Frankfurter: Denied?

Mr. Reno S. Harp Iii: -- the petition for writ of error.

Justice Felix Frankfurter: Well, suppose in denying it, they said, “We think the allegations are inadequate under our requirements.

" That's what you are saying they impliedly did.

Is that it?

Mr. Reno S. Harp Iii: That is correct sir.

The same thing they did in the Newsom case.

Justice Felix Frankfurter: I don't see why you mix it up as to what the requirement on the federal law is because of the several other considerations come into play.

Mr. Reno S. Harp Iii: That is true sir.

Justice Felix Frankfurter: But if they just said that, this doesn't set forth then we have to decide whether the procedural ground claimed or avowed by the Supreme Court of Virginia is a procedural ground that the State may take or is an evasion of -- of a federal right.

That would be the question.

Mr. Reno S. Harp Iii: Well, I would say this to the Court.

If -- if the man had stated he was indigent, I would not take this position in this case.

I would -- I would admit the fact that he was indigent because he would have alleged it, but he has not done so --

Justice Felix Frankfurter: Well then --

Mr. Reno S. Harp Iii: -- and this would put the case in a different posture.

Justice Felix Frankfurter: And -- and suppose he had alleged it and from that -- go from there on --

Mr. Reno S. Harp Iii: Alright --

Justice Felix Frankfurter: -- what's your position?

Mr. Reno S. Harp Iii: -- assume that he has alleged that he was indigent and was denied counsel, that's all.

On those bare allegations, it would appear to me that he would not have alleged sufficient grounds even then.

As he had said, “I was indigent, I am ignorant --”

Justice Felix Frankfurter: Sufficient grounds under the Due Process Clause or sufficient grounds under the requirement of Virginia procedure (Inaudible) or appellate that he hasn't made out of that more is required as the matter of allegation.

Mr. Reno S. Harp Iii: I think that more than the bare allegation of indigency would be required.

He would have only had to (Voice Overlap)

Justice Felix Frankfurter: Required under what, under local law?

Mr. Reno S. Harp Iii: Local, local.

Justice Felix Frankfurter: Because if the local law makes the requirement, I repeat, suppose they spelled it out then we'd be confronted with the question whether Virginia has a right to make those requirements of -- if you please, these stringent allegation as its mode of bringing issues before a court which is a very different question from the question that Mr. Meador has raised.

Mr. Reno S. Harp Iii: That is correct sir.

Justice Hugo L. Black: What is the rule in the Supreme Court of Virginia when a person comes before them asked to be admitted to proceed in forma pauperis?

Does the Supreme Court of Virginia require him to allege that he is indigent?

Mr. Reno S. Harp Iii: To proceed in forma pauperis?

Justice Hugo L. Black: Yes --

Mr. Reno S. Harp Iii: Yes sir.

He must comply with Section 14-180 of the Code of Virginia.

Justice Hugo L. Black: Did he do that in this case?

Mr. Reno S. Harp Iii: Sir?

Justice Hugo L. Black: Did he do that in this --

Mr. Reno S. Harp Iii: Yes sir.

Justice Hugo L. Black: Where is that allegation?

Is that --

Mr. Reno S. Harp Iii: That is not -- I don't know whether that's printed in the record sir or not.

I would have to look and see whether or not he put in --

Justice Hugo L. Black: On page 15, is that it?

Mr. Reno S. Harp Iii: Yes sir.

That's where it goes to the Supreme Court by notice of appeal sir.

Justice Hugo L. Black: Where does it say he's indigent?

Mr. Reno S. Harp Iii: It's -- he asked leave to file in forma pauperis.

Now the entire petition is not printed in this booklet sir.

The petition is, but not the papers, filed therewith.

Justice Hugo L. Black: But isn't this the whole request he made to the state to fill out to proceed in forma pauperis?

Mr. Reno S. Harp Iii: Yes sir and he's been allowed to proceed in forma pauperis.

Justice Hugo L. Black: But did he allege he was indigent?

Mr. Reno S. Harp Iii: Yes sir.

He alleged he was indigent and --

Justice Hugo L. Black: If that's so material, why isn't it in the record?

Is that -- do you mean as jurisdictional and it's not (Inaudible)?

Mr. Reno S. Harp Iii: That is correct sir.

The record was designated by counsel for the petitioner in this case sir.

I filed (Inaudible) designation.

Justice Hugo L. Black: Well, did you know that this didn't show that this -- this jurisdictional fact was absent?

Mr. Reno S. Harp Iii: I did not consider it quite candidly Your Honor as particularly pertinent to the consideration of this Court because I have admitted all along that the man had been proceeding in forma pauperis in his habeas corpus proceeding sir.

Justice Hugo L. Black: But you admit it -- you admitted all along, but you say he cannot proceed unless he said he's indigent on this ground.

Mr. Reno S. Harp Iii: He cannot proceed in regard to alleging.

Now, let's see whether I can differentiate the two situations sir.

My position is that he has failed to allege in his petition for a writ of habeas corpus that at the time he was tried as a recidivist under the habitual criminal statute and at the time he asked for counsel in connection with that proceeding, he has failed to allege that he was indigent at that particular point or that he told the judge he was indigent.

We're talking about two entirely different proceedings sir.

Justice Hugo L. Black: I understand that but I -- I don't quite understand why the -- this Court would hold that that's a vital, crucial, fatal thing in a petition to the District Court and the Supreme Court of the state, proceed on a statement where he doesn't say he's indigent.

Mr. Reno S. Harp Iii: The statement is not contained in this printed record.

It's in the file sir.

When he filed his petition for writ of habeas corpus he appended --

Justice Hugo L. Black: Is it in the record that's here?

Mr. Reno S. Harp Iii: Yes sir.

Justice Hugo L. Black: It is here on -- printed?

Mr. Reno S. Harp Iii: Yes sir.

I would assume that it is sir.

Justice Felix Frankfurter: Let's -- straighten me out.

I seem to be all confused.

This is a habeas corpus grounded on the fact that at the time an enhanced sentence was imposed, it was imposed on the conditions that deprived him of a claim, constitutional right under the Fourteenth Amendment, is that right?

Mr. Reno S. Harp Iii: That's what Mr. Meador is claiming sir.

Justice Felix Frankfurter: Well, that's the claim in this case?

Mr. Reno S. Harp Iii: Yes sir that is the claim.

Justice Felix Frankfurter: Now, there is no doubt as I understand from you that in this habeas corpus proceeding, he was an indigent and was allowed to proceed by your court in forma pauperis.

Mr. Reno S. Harp Iii: Yes sir, that is correct.

Justice Felix Frankfurter: But what you say is that the constitutional claim has no basis because in the proceeding, the constitutional invalidity of which he -- which he asserts is lacking in a foundation because at that time, no showing was made, no showing was made that at that time, he was not in a position to have counsel.

Mr. Reno S. Harp Iii: That is correct sir.

Justice William J. Brennan: (Inaudible)

Mr. Reno S. Harp Iii: Judge Young who wrote this opinion and also wrote the opinion in the Newsom case does not find insofar as I am able to ascertain as a fact that the petitioner was indigent.

He deals with cases --

Justice William J. Brennan: No.

He doesn't -- he doesn't (Inaudible)

Mr. Reno S. Harp Iii: That is correct sir.

Justice William J. Brennan: (Inaudible)

Mr. Reno S. Harp Iii: Well that -- I'm afraid I must answer that question negative sir because that gets back to Judge Young's authority and the premises which is limited, very limited because of his jurisdiction.

He has no jurisdiction to decide any question presented to him except a pure question of law because he is judge in the Law and Equity Court in the City of Richmond.

In this particular case, this man is confined in Richmond.

Judge Young is vested with the jurisdiction to entertain the petition.

The only jurisdiction he has to do -- has then at this point, he can do two things.

He can either determine that the allegations are sufficient to justify the issuance of a writ to another court wherein the previous judicial proceeding took place.

Justice William J. Brennan: Well, he has jurisdiction does he not, on this habeas corpus to determine whether or not the petitioner was entitled (Inaudible).

Mr. Reno S. Harp Iii: That is correct.

He had jurisdiction to determine whether or not the petition presented a proper showing of probable cause to believe that the man is illegally detained.

Justice William J. Brennan: Well, I believe -- obviously (Inaudible)

Mr. Reno S. Harp Iii: That's what he concluded and that's what he concluded in the Newsom case sir.

Justice William J. Brennan: (Inaudible)

Mr. Reno S. Harp Iii: That is correct sir.

Justice William J. Brennan: Suppose he had the jurisdictional (Inaudible)

Mr. Reno S. Harp Iii: That is correct sir.

Justice William J. Brennan: And he has no argument on the (Inaudible) or whatnot. That is the general argument on that ground.

Mr. Reno S. Harp Iii: The only way that you can ascertain that fact sir is by reading 8 -- Section 8-596, 8-598 of the Code of Virginia and the cases which I have made reference to in my brief particularly Morris versus Smyth and --

Justice William J. Brennan: (Inaudible) state law.

Mr. Reno S. Harp Iii: Well I believe that --

Justice William J. Brennan: (Inaudible)

Mr. Reno S. Harp Iii: That is correct sir.

Justice William J. Brennan: (Inaudible)

Mr. Reno S. Harp Iii: Well, I think that's what the reason the Supreme Court of Appeals deny the writ of error, so that's the only --

Justice William J. Brennan: Do you know?

Mr. Reno S. Harp Iii: No sir.

The only -- my only reason for making that statement --

Justice William J. Brennan: (Inaudible)

Mr. Reno S. Harp Iii: There's a great deal of speculation in that regard sir but my authority for that proposition --

Justice William J. Brennan: Well, I do speculate (Inaudible)

Mr. Reno S. Harp Iii: No sir.

I don't think that I am -- I haven't asked.

But, if it pleases the Court, I deal with this subject as I said before, ad infinitum and the fact of the matter is that this Court determined in the Newsom case last term and in that case, the same situation occurred, it was the same identical judge.

He has not done this since the Chewning case, because the Chewning case came after the Newsom case --

Justice Felix Frankfurter: I'd like to ask you --

Mr. Reno S. Harp Iii: -- the same situation.

Justice Felix Frankfurter: I'd like to ask you two questions.

Forgive me.

What are we reviewing here?

Are we reviewing Judge Young or the Supreme Court of Virginia?

I'd like to ask both of you and Mr. Meador when he gets on his feet again.

What are we reviewing here?

Mr. Reno S. Harp Iii: You're reviewing --

Justice Felix Frankfurter: Are we reviewing Judge Young or the Supreme Court of Virginia?

Mr. Reno S. Harp Iii: You're reviewing the judgment of the Supreme Court of Appeals of Virginia.

Justice Felix Frankfurter: So therefore (Voice Overlap) therefore, what is relevant to our purpose is the legal significance of that determination and not what Judge Young did.

We're referring (Voice Overlap) --

Mr. Reno S. Harp Iii: That is correct.

That is correct.

Justice Felix Frankfurter: -- or the Supreme Court of Virginia.

Mr. Reno S. Harp Iii: But if I might finish that sentence I started sir, you're reviewing as I understand it, the decision of Judge -- of the Supreme Court of Appeals of Virginia in connection with the denial, the bare denial of the petition for writ of habeas corpus, that's what you're reviewing.

In a petition form, the petition itself forms a basis for the whole proceeding.

Justice Felix Frankfurter: Well, alright, of course (Inaudible) it must have been in some pleading on the basis of which some judgment was entered, loose as pleadings are these days and generally be granted as they seem to be but people just wanted to abstract justice but that's the basis of this decision.

Mr. Reno S. Harp Iii: That is correct.

Justice Felix Frankfurter: That's why we're here.

This case was brought here not from the Circuit Court of -- of Richmond, it's brought here from the Supreme Court of Virginia.

Maybe it was brought here improperly.

I don't know.

I haven't thought about it.

But if we're reviewing the Supreme Court of Virginia, then what we are reviewing is that judgment and therefore we must speculate, and if that judgment can rest fairly, not speculatively, but fairly on the state ground and (Inaudible) though the Supreme Court had written in the state ground.

The other thing I want to ask you before you sit down, you're about to sit down and you haven't said a thing, at least nothing that I have heard on the assumption that all this argument thus far is -- is decided against you.

You haven't said anything on the merits on the assumption that Chewning was an indigent when he was -- when he got his enhanced sentence.

Did you -- have you said anything on that subject?

Mr. Reno S. Harp Iii: I think I've got two sentences in today sir.

Justice Felix Frankfurter: Well, would you mind repeating?

Let me ask you specifically, assume you're wrong on this indigence point --

Mr. Reno S. Harp Iii: I assume --

Justice Felix Frankfurter: -- should the case -- are you then in effect confessing error and saying there should be a reversal?

Mr. Reno S. Harp Iii: No sir.

I am not.

Justice Felix Frankfurter: Well, I haven't heard any argument on that substantive issue?

Mr. Reno S. Harp Iii: My brief is --

Justice Felix Frankfurter: Unless I've been deaf while you were talking.

Mr. Reno S. Harp Iii: My brief answer if I may make it to that question sir is that the bare -- assuming that he was denied counsel, assuming he was indigent, he has not alleged any other facts which would indicate that he was denied that he's rather -- that this particular proceeding, under the recidivist statute which is not --

Justice Felix Frankfurter: Well then you're back on your state ground namely that more must be alleged.

Mr. Reno S. Harp Iii: Yes sir.

Justice Felix Frankfurter: All --

Mr. Reno S. Harp Iii: I'm right back on the state ground.

Justice Felix Frankfurter: -- you're back unless our cases say that a mere claim of indigency under these circumstances is not enough as a matter of federal constitutional law, United States constitutional law to sustain his place.

Mr. Reno S. Harp Iii: That is correct sir.

Justice Felix Frankfurter: But with -- alright --

Mr. Reno S. Harp Iii: Thank you sir.

Justice Felix Frankfurter: (Inaudible)

Chief Justice Earl Warren: Mr. Meador.

Argument of Daniel J. Meador

Mr. Daniel J. Meador: Mr. Chief Justice, may it please the Court.

If I might take the questions from Mr. Justice Frankfurter and Mr. Justice Brennan together here, to answer them both, we are here, the Court here is reviewing the judgment of course of the Supreme Court of Appeals of Virginia, a judgment which has affirmed on the merits, a judgment of the Law and Equity Court of Richmond.

Justice Felix Frankfurter: Just document that last statement on the merits.

Mr. Daniel J. Meador: Yes sir.

In the petitioner's reply brief --

Justice Felix Frankfurter: (Inaudible) the record please.

Mr. Daniel J. Meador: Yes sir, I'm citing a statute first.

A statute of Virginia --

Justice Felix Frankfurter: Well does it?

I don't want to interrupt you, but does the Supreme Court -- did the Supreme Court in Virginia say in terms you're affirming Judge Young on the merits?

Mr. Daniel J. Meador: Yes sir, in the record at page 29.

Justice Felix Frankfurter: Alright.

Well if that -- it's done that then that's a short answer.

Mr. Daniel J. Meador: The Court states that the record had been materially considered and inspected.

The Court being of the opinion that the said judgment is plainly right does reject the petition, the effect of which is to affirm the judgment of the Law and Equity Court.

Justice Felix Frankfurter: What was the judgment of the lower court?

Mr. Daniel J. Meador: The judgment of the court was a judgment of dismissal of the petition --

Justice Felix Frankfurter: That's all --

Mr. Daniel J. Meador: -- for habeas corpus.

Justice Felix Frankfurter: -- they affirmed.

Mr. Daniel J. Meador: Yes sir.

Justice Felix Frankfurter: They don't -- the Court doesn't affirm an opinion when it affirmed the judgment.

Mr. Daniel J. Meador: No sir, I won't argue that.

The court below though did write an opinion.

Now, if I can --

Justice Felix Frankfurter: Which court below, the Supreme Court of Virginia?

Mr. Daniel J. Meador: The Law and Equity Court wrote it in.

Justice Felix Frankfurter: What?

Mr. Daniel J. Meador: The Law and Equity Court wrote an opinion which was part of the record before the Supreme Court of Appeals of Virginia.

Justice Felix Frankfurter: I know, but is that part of the judgment which is up here?

Mr. Daniel J. Meador: No sir, I won't contend that.

Justice Felix Frankfurter: Well then, you may be right in your conclusion but -- but this isn't -- this isn't a game or this isn't any tricky stuff that I am suggesting.

Mr. Daniel J. Meador: I -- yes sir.

Justice Felix Frankfurter: We are here reviewing the judgment of the Supreme Court of Virginia.

Mr. Daniel J. Meador: Right.

Justice Felix Frankfurter: Now, I want to know what that judgment was.

That judgment was affirming the judgment of the lower court and the lower court's judgment was a dismissal.

Mr. Daniel J. Meador: Right.

Justice Felix Frankfurter: And that's all that's here before us.

Mr. Daniel J. Meador: I'm in complete agreement.

My next point and I would simply --

Justice Hugo L. Black: It was a dismissal on the merits or an opinion which discussed the merits.

Mr. Daniel J. Meador: Yes sir.

Justice Felix Frankfurter: But the judgment dismissed the petition, is that all?

Mr. Daniel J. Meador: Correct.

Justice Hugo L. Black: Do you understand it's our duty to try to find out that the Supreme Court of Virginia had a view that was trying to conceal from us?

Mr. Daniel J. Meador: No sir.

I do think it's open to this Court though to look and to see if there is any state ground, tenable state ground adequate to support this judgment wholly independent of the federal claim and I would say there is none and I would say the respondent here is resting with ghost so to speak.

He has not cited a single decision, a single rule of court, a single statute in Virginia which requires an explicit allegation of indigency in a habeas corpus petition.

And against that, we do have the view generally taken of pleadings by the Virginia Court that we take us through not only to the facts which are brought in the petition but facts which may be fairly inferred from those avowed and I would say indigency is one of them in this case and this Court itself has said so in several different cases.

So in substance, I say, you search the record, you search the law of Virginia, we find no state ground which can support this judgment of the Supreme Court of Appeals affirming the dismissal of the petition.

Justice John M. Harlan: I suppose you could bring to your court also the assignment of errors, couldn't you, on which they went up?

Mr. Daniel J. Meador: It went up clearly on the federal question.

The respondent doesn't deny that.

Justice Felix Frankfurter: Well how -- how can you do that if the Court -- when this Court dismisses something and doesn't get rid, it doesn't conceal its reasons, it doesn't deem it's fit to give reasons, that isn't concealing and so you of course say what you said that this Court must see if there is a state ground which can justify what --

Mr. Daniel J. Meador: Yes.

Justice Felix Frankfurter: -- the Supreme Court of Virginia did.

Mr. Daniel J. Meador: Yes sir.

Justice Felix Frankfurter: They weren't playing hocus-pocus.

They made known something so clearly that they don't have to give a reason which is why we don't give reasons very often.

Mr. Daniel J. Meador: I simply say there isn't one there when we look.

Justice Felix Frankfurter: That's a good answer.

Justice Hugo L. Black: Ordinarily, we like to have another (Inaudible)

Justice Felix Frankfurter: So they give reasons to these cases (Voice Overlap) --

Justice Hugo L. Black: If their (Voice Overlap) if their reason for the action of the lower court and those in the judgment is affirmed because it's a right, I would assume that neither the Court of Virginia doesn't want to play hocus-pocus even with indigent defendants or defendants who are jail.

Mr. Daniel J. Meador: I would assume that particularly if we can't find such a state ground --

Justice Felix Frankfurter: Well, if you can't --

Mr. Daniel J. Meador: -- in the law of Virginia.

Justice Felix Frankfurter: -- find it then there isn't any.

Mr. Daniel J. Meador: Correct sir.

Thank you very much.

Chief Justice Earl Warren: Gentlemen, before we call the next case, I would like to express my appreciation to both of you for the diligent manner in which you represented the issues to the Court.

To Ms. Meador -- Mr. Meador, I want to express the appreciation of the Court to you for having accepted this assignment and having performed this public service.

We always feel competent when lawyers are willing to do that and to you sir, we want to express our appreciation to you for the diligent and able manner in which you represented your state.

Both sides have done well.

Mr. Daniel J. Meador: Thank you Mr. Chief Justice.

Rebuttal of Reno S. Harp Iii

Mr. Reno S. Harp Iii: Thank you.