DAVIS v. UNITED STATES

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Argument of Marvin M. Karpatkin

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-1454, Davis against The United States.

Mr. Karpatkin?

Mr. Marvin M. Karpatkin: Mr. Chief Justice, and may it please the Court.

This case is here on certiorari for review of the Ninth Circuit’s denial of post conviction relief under 28 U.S.C. Section 2255 to petitioner Joseph Anthony Davis, who was convicted of refusal of induction into the Armed Services.

It is conceded that he was ordered to report as a delinquent without a prior physical examination, and a statement of acceptability as the Selective Service regulations required for all persons not delinquents.

It is likewise conceded that he was declared delinquent by his local board because it unilaterally determined that he did not comply with the prior order to report for a physical examination.

And it is also conceded that, but for his delinquency status, he could not have been ordered to report for induction without the prior pre-induction physical examination, and the statement of acceptability issued at least 21 days before the induction date.

His conviction was affirmed by the Ninth Circuit not withstanding and argument made on direct appeal that his delinquency induction order was invalid under the doctrine established by this Court in Gutknecht against United States.

While petitioner’s case was pending before this Court on certiorari, a change in the law occurred.

The Ninth Circuit decided United States against Fox, a case concededly identical to that of Davis, holding what the Gutknecht Doctrine required the invalidation of delinquency based induction orders when the order to report without a prior physical examination and statement of acceptability was based upon a declaration of delinquency.

Post conviction relief was sought on the basis of this intervening Fox decision and denied by the District Court and the Ninth Circuit.

Thus, there are two principle questions, may it please the Court in this case.

The first is whether post conviction relief under 2255 is available when there has been an intervening change in the law to the 2255 petitioner’s benefit and a case concededly identical to petitioner’s case on the facts and on the law which was decided after appellate affirmance of petitioner’s conviction and while a prior petition for certiorari was pending.

Based on, I respectfully submit some unexplained and inexplicable motion of law of the case which is totally erroneous, the Ninth Circuit held per curiam that there was no basis for 2255 relief because petitioner’s claim had been advanced albeit unsuccessfully in the absence of the new law on direct appeal.

Indeed, the change in the law occurred four months after the direct appeal.

The Government has apparently confessed error, either in whole or in part on this point, but our view is against post conviction relief for other reasons which we respectfully submit are equally without merit.

The second question, of course and perhaps the fundamental question is whether the intervening new law decision in United States against Fox which invalidated a species of delinquency sanction which was not before this Court in Gutknecht, the sanction of induction without a prior pre induction physical examination, and the statement of acceptability was a proper interpretation by the Fox court of this Court’s decision in Gutknecht and also this Court’s decision in Oestereich.

Gutknecht and Oestereich as would be recalled of course invalidated somewhat more dramatic species of delinquency sanctions than that involved in this case.

Now, the Government admits that Davis, this case, and Fox are utterly inconsistent which the Ninth Circuit again astonishingly refused --

Justice Byron R. White: What if we disagree to the Court of Appeals that 2255 -- on the availability of 2255 in these circumstances?

Wouldn’t we just remand to have them get to the issue they thought should be reassessed?

Mr. Marvin M. Karpatkin: That is certainly a possible solution Mr. Justice White, but I respectfully suggest that since that if Fox is the law and if Fox is correct, that a remand would be an unnecessary waste of judicial time on the part of the Ninth Circuit, and perhaps I even fear to think on the part of this Court, because this case has been in the Ninth Circuit on three occasions and these very arguments were brought to the attention of the Ninth Circuit.

And when we were previously here on certiorari, indeed, we suggested that this Court might wish to remand to the Ninth Court with the suggestion for reconsideration.

But thus far, nothing is available.

Justice Potter Stewart: Has the Ninth Circuit continued to follow Fox since the Fox decision, conceding it beside this case?

Mr. Marvin M. Karpatkin: Your Honor, we cite in our brief the one or two Ninth Circuit decisions which cite and follow Fox and we find no others and none depart from it.

If I may represent to the Court as a member of the bar of the Ninth Circuit, I have been informed by United States Attorneys in the Ninth Circuit that it is the uniform prosecutorial practice to act as the Fox is law.

Indeed, the United States Attorney told me that Fox is considered the son of Gutknecht.

Justice Potter Stewart: The son of Gutknecht?

Mr. Marvin M. Karpatkin: Yes.

Justice Potter Stewart: Okay, and so the Attorney now can prosecute him for refusing an order to take a physical exam?

Mr. Marvin M. Karpatkin: Yes Your Honor, yes Your Honor which of course is the very gist of the constitutional defect in the prosecution here.

The man was prosecuted for a crime of which he did not have constitutionally committed under this Court’s decision in the Gutknecht case.

Justice William J. Brennan: I thought that maybe the Ninth Circuit was ruling that Fox would not be retroactive?

Mr. Marvin M. Karpatkin: It is hard to gleam that from the Ninth Circuit’s --

Justice William J. Brennan: You didn’t say that [Voice Overlap].

Mr. Marvin M. Karpatkin: The Ninth Circuit to the extent that it said anything in the brief opinion which is reprinted in the appendix said that they do not agree that Fox changed the law, and it also made the species I respectfully suggest of the case argument.

But of course, the day after Fox or the same day as Fox, another panel of the Ninth Circuit in the case of Zack against Benson applied Fox obviously retroactively since --

Justice Potter Stewart: Since the kind of a situation?

Mr. Marvin M. Karpatkin: Yes Your Honor, and in our reply brief, we recite the statement of facts from Zack against Benson which makes this clear and I am sure the Government won’t contest it.

Justice Potter Stewart: What have the other Circuit’s done with the Fox if anything --

Mr. Marvin M. Karpatkin: Your Honor, the Fifth Circuit in the Batiste case presaged Fox, presaged the Ninth Circuit and announced the same kind of per se decision, reasoning from this Court’s decision in Gutknecht that even though it might be interesting to speculate on whether or not there was acceleration in fact, we believe that Gutknecht requires us to hold that any delinquency based induction order is per se invalid, that is the decision of the Fifth Circuit in Batiste.

The Government views the decision somewhat differently, but I’m sure Your Honors can read it.

The Fourth Circuit in Dobie took a somewhat different view.

The Fourth Circuit in Dobie stated that where there is delinquency based induction order, there is a heavy burden of proof upon the Government to show that there was not acceleration in fact.

Justice Potter Stewart: In fact?

Mr. Marvin M. Karpatkin: Yes.

And the Fourth Circuit in Dobie in a very careful decision by Judge Butzner pointed out the only proper standards which can be used to overcome this heavy burden of proof.

And we submit that that is an alternative ground on which the decision below must be reversed, but we would hope that it would be reversed on Fox and Batiste grounds rather than on Dobie grounds.

Justice Potter Stewart: But except for Fox, Batiste, Dobie, except for Batiste and Dobie in those two circuits, the other circuits haven’t dealt with it?

Mr. Marvin M. Karpatkin: No Your Honor.

There are various decisions of District Courts, but I’m not aware of any other circuit dealing with it.

Of course, the underlying question by the -- presented by this case is the scope and the legal significance of the constitutional holding of this Court in Gutknecht.

I believe that it is apparent from the reading of the Gutknecht decision that the essential holding is that Congress never vested the authority to induct as delinquents in either the President or the Selective Service system, and that any such standard was delegation would be unconstitutional.

Now, as I noted before, the case has been to the Ninth Circuit three times into this Court twice, consequently, it has a somewhat elongated history which we try to set forth and explicate in our briefs.

But the essence, the essential facts which provided the basic legal posture of the case is that the local board in the effect accused petitioner of failing without reasonable excuse I assume to appear at the physical examination, that it warned him that he might be delinquent, and that in that warning stated that he would be denied various rights under the law and subject to induction.

And shortly thereafter, it declared him a delinquent and notified him that he had been declared a delinquent by reason of his failure to appear for the physical examination, and also by reason of his failure to keep the board informed of his current address.

As we set forth in the record in the briefs, many of these notices which petitioner was charged was not receiving and was being delinquent on the basis of were not received by him or according, there was no record that they where ever receive by him.

Needless to say, the determination that he committed these infractions if indeed, he committed him was made unilaterally by the board.

There was no hearing.

There was no opportunity for any presentation of witnesses.

There was no opportunity even for the personal appearance and appeal which is normally available in the Selective Service classification process.

Justice Lewis F. Powell: Whatever the cause, he managed for more than two years to avoid taking the physical --

Mr. Marvin M. Karpatkin: We don’t know Mr. Justice Powell on the facts and the record show that.

Justice Lewis F. Powell: The fact is he had record (Voice Overlap)

Justice Potter Stewart: Although ordered to do so.

Justice Lewis F. Powell: Although ordered to do so and although the notices was sent to the address given by him.

I don’t know that this is relevant but I was just interested in your statement.

Mr. Marvin M. Karpatkin: Mr. Justice Powell, it is also a crime to violate the Selective Service regulation that requires one to keep the Selective Service board informed of current address.

And indeed, there are many prosecutions for that offense, just as there are many prosecutions with failure to appear with the physical.

But petitioner was not prosecuted for either of these offenses.

Rather, he was ordered to report for induction and prosecuted for induction refusal.

I submit that if this Court said in Gutknecht that Congress never gave the President or/and never authorize him to give to the Selective Service system any power to set up a delinquency scheme for priority induction, then regardless of what might be the underlying factual situations of other infractions that the board never had authority to send them an induction order.

Justice Lewis F. Powell: I understand your legal position.

I was just curious that you would try to elicit our sympathy for a fellow who managed for more than two years to avoid the draft?

Mr. Marvin M. Karpatkin: The only I can say in response to that Mr. Justice Powell is that since there was never hearing, since there was never any due process determination, indeed, there was never even any quasi due process determination, I don’t think it’s really fair to speculate that he avoided the draft or that he had good and bona fide reasons for not responding to those notices, because no finding was ever made.

Justice Potter Stewart: Well, what would be a good and bona fide (Inaudible) on a wild goose chase, but what would be a good and bona fide reason for not responding to a direction to take a physical exam?

Mr. Marvin M. Karpatkin: Oh, I presume --

Justice Potter Stewart: In fact or in law?

Mr. Marvin M. Karpatkin: I presume illness.

I presume unavailability because of some other legal commitment and possibility of performance.

Justice Potter Stewart: For two years?

Mr. Marvin M. Karpatkin: Well, I presume that of boards often -- boards often postponed physicals upon the request of the registrant.

Justice Potter Stewart: But this board didn’t get any request?

Mr. Marvin M. Karpatkin: I’m sorry.

Justice Potter Stewart: It didn’t get any request from the registrant?

Mr. Marvin M. Karpatkin: No, Your Honor.

Justice Potter Stewart: Just got his absence.

Mr. Marvin M. Karpatkin: I submit that this is not the brunt of --

Justice Potter Stewart: No, I know it isn’t.

Justice William J. Brennan: Actually, it has nothing to do with the issue.

Justice Potter Stewart: No, it doesn’t.

Justice William J. Brennan: Well, we cover enough the one we have to face there but --

Justice William H. Rehnquist: Well, probably be hearing because you’re accustomed to answer questions that are put to you by the court, aren’t you?

Mr. Marvin M. Karpatkin: I try to as best I can Your Honor.

In any event, the -- on appeal of petitioner’s conviction, the Ninth Circuit reversed and remanded the consider in the light of Gutknecht, this was Davis one.

On remand, the District Court gave the same narrow interpretation to Gutknecht which the Government now advances and which since been disapproved by the Ninth Circuit in Fox.

On the remand hearing, the Court held that petitioner’s induction had not accelerated in fact, based largely on the opinion testimony of the local board clerk to the affect that petitioner would have been ordered to report in any event on or prior to the date of his order to report as delinquent.

The Ninth Circuit affirmed per curiam holding that there was no acceleration within the meaning of Gutknecht.

Certiorari was sought based on the tripartite circuit conflict and denied by this Court after the Court had been informed of the intervening Fox decision.

A petition for rehearing out of time, accompanied by a full brief on the merits was presented to the Ninth Circuit but denied without opinion.

And consequently, this 2255 proceeding was started and denied by the District Judge without opinion and by the Ninth Circuit in Davis three.

I respectfully submit that a change in the law occurred, although disputed by the Davis-three panel as conceded by the Government in a self-evident.

And the apparent basis for denial of relief by the court below on some notion of law of the case is likewise concededly erroneous.

Indeed, the Government does not deny that change in the law is a proper subject for Section 2255.

What the Government attempts to do is to minimize the statements by this Court in Sanders and Kaufman that an intervening change in the law is appropriate subject -- is an appropriate subject for post-conviction relief.

And then the Government asked some rhetorical questions and engages in some handwringing as to dire effects of recognizing the change in the law based on non-binding decisions from other circuits, but that indeed is a red herring because there’s no such issue before this Court.

Petitioner seeks only the benefit of the law of the circuit which has jurisdiction over the court which has convicted him.

Justice Potter Stewart: Is there some difference of opinion between you and your brother as to whether the Gutknecht was a constitutional decision, that is a decision based upon a constitutional violation?

Mr. Marvin M. Karpatkin: There is a considerable difference and it’s precisely the point that I’m about to address Mr. Justice Stewart.

Justice Potter Stewart: Okay, fine.

Mr. Marvin M. Karpatkin: It is our view, and this perhaps is the fundamental question in this case, though it’s very hard to find what’s the fundamental question that the Government’s argument that Section 2255 relief is only available if there is a denial of a fundamental constitutional right and that there was no such denial here, totally mis-characterizes and minimizes the holdings in Gutknecht and in Fox.

In fact in our view, Gutknecht is a constitutional decision of the first magnitude because it holds that Selective Service boards are without power to promulgate and enforce delinquency regulations.

The decision in Gutknecht --

Justice Potter Stewart: Because there were not authorized by the statute to do so, was that it?

Mr. Marvin M. Karpatkin: Because they’re not authorized by -- because neither the President nor the Selective Service System are authorized by Congress to do so.

Justice Potter Stewart: Right, that was the basic holding.

Mr. Marvin M. Karpatkin: Yes, Your Honor.

And if that is so, it seems to me, it is incredibly myopic or worst for the Government to say that since there was not a specific provision of the Bill of Rights which the court pointed its finger at in Gutknecht that it can’t be considered a constitutional holding.

Justice Byron R. White: What if it wasn’t the constitutional holding, does it make it any difference?

Mr. Marvin M. Karpatkin: There are members of this Court Your Honor and distinct --

Justice Byron R. White: What’s your position?

Mr. Marvin M. Karpatkin: Your Honor?

Justice Byron R. White: What’s your position?

Mr. Marvin M. Karpatkin: My position is that it does not make any difference.

My position is that even --

Justice Potter Stewart: Or our position too, you have two positions if you want [Voice Overlap]?

Mr. Marvin M. Karpatkin: Yes, Your Honor.

The first position is that Gutknecht is a constitutional holding and I advance that is the major position.

But even that Gutknecht to seem is a non constitutional holding, we have of course first, 2255, the statute itself which has constitution or laws, and we have the absence of any decision by this Court which states other than in dicta that 2255 is only available in the constitutional case.

And then I respectfully suggest, we have a perhaps common sense argument if I may advance it.

There are certain types of rights which it seems to me that even though they have not been in ensconced with a constitutional category by this Court are so fundamental that their denial would have to be the basis for 2255 relief, and take for example, if someone is denied the right to an appeal.

Now, this Court had said on many occasions that it is not clear whether there was constitutional right to an appeal, but of course, there’s a statutory right to an appeal.

And surely, someone who through some mischance was denied a right to an appeal and as some prisoner sent in a writ three years after he had been denied the right to appeal based on 2255, I doubt if he could be properly be denied the hearing on whether he was improperly denied as right to an appeal which is non-constitutional.

If I may just pursue the constitutional point one minute more.

The Government says that there is no reference to any provision of the constitution in the Gutknecht case.

But Gutknecht relies on Kent against Dulles, and Kent against Dulles turn cites the famous Youngstown against Sawyer case, and also perhaps even more famous in somewhat older, Panama Refining case.

And both of these cases obviously stand for the proposition that where there is an absence of law, where there is an absence of authority, then it is beyond constitutional power.

And if one needs to put one’s finger on a Constitutional Clause, I respectfully suggest to my learned brother that the Constitutional Clause is Article I, Section 1.

Justice William H. Rehnquist: I thought Panama Refining turned on delegation in the absence of standards, was it a constitutional holding?

Mr. Marvin M. Karpatkin: Mr. Chief Justice, you recited Article I, Section 1, and we have extracted what we believe is a fair summary and quotation from that opinion in a reply brief which we’ve just recently filed Mr. Justice Rehnquist.

But I think, to argue that Gutknecht is not a constitutional holding is to argue that Panama Refining and Youngstown are not constitutional holdings, and I submit such an argument is absurd.

If there’s anymore fundamental argument than a violation of the constitution because of the violation of a constitutional provision, it is acting in the absence of constitutional authority.

Now, of course, there is also Fifth Amendment procedural due process questions which the Government at various points in its briefs seems to partially concede.

Now, the fact that Gutknecht and Fox must be retroactively applied, I respectfully submit is another reason why Section 2255 relief is appropriate here.

Of course, the retroactivity argument which the Government vigorously argues against our position assumes that Fox is correct, otherwise, we wouldn’t be here talking about retroactivity.

Indeed, we wouldn’t even be here talking about 2255.

Now of course, first, Fox is already been held retroactive by the very circuit which decided it.

Second, Gutknecht has been retroactively applied universally and we cite all the cases on page 46 of our brief, I would particularly and respectfully invite the Court’s attention to the very careful analysis of retroactivity of Gutknecht by Chief Judges of that in United States against Kelly.

Moreover, there is no need, there is no occasion to engage in the pragmatic Linkletter/Stovall type analysis which the Government urges upon us, because this is not a case which seeks to determine the retroactivity of procedural rules which bind the contact -- which govern the conduct of a trial.

Like Robinson against Neil, as Mr. Justice Rehnquist points out in the opinion for the Court, this case is similar to a valid claim of double jeopardy, because if Fox is correct, then there will not be any fact-finding burden, and there will not be any further trial.

There would be no question of the integrity of the fact-finding process because the fact-finding process is at an end.

Finally, the ends of justice will be served by granting post-conviction relief and we are reminded in Kaufman and in Sanders and another decisions that that must always be borne in mind.

I first may say that the problems which have been raised by Justices of this Court and by distinguished scholars, some of which are referred to in Mr. Justice Powell’s concurring opinion in Schneckloth against Bustamonte are not simply, not available in this case.

There was no problem here of any deliberate bypass of other available remedies.

Petitioner has been knocking at every conceivable judicial gate looking for a remedy these past years.

Furthermore, it’s obviously no delicate question of federal state relations, and as I stated before and as I think should be stressed it is no question here of a guilty person going free because of some exclusionary rule or some similar prophylactic device.

If Fox is correct and Mr. Justice Powell, if I may again respond to your prior question, the Ninth Circuit in Fox indicated that they weren’t very happy about his Selective Services to (Inaudible).

But if Fox is correct, then the induction order is invalid and the indictment just must be dismissed because the crime of induction refusal has just not been committed.

Now, the Government at one point notes the various scholarly criticism of 2255, but then at another point states that even if Fox is right and even if this is a meritorious claim, then nevertheless should not be 2255 relief because of the Government’s own conception of how narrow it should be.

The Government therefore is making its own unique --

Justice Byron R. White: Which is what the Court of Appeals for the Ninth Circuit said I take it?

Mr. Marvin M. Karpatkin: May it please the Court, I just don’t know what the Court of Appeals --

Justice Byron R. White: At least they said it wasn’t available because of some idea of law of the case?

Mr. Marvin M. Karpatkin: Yes, Your Honor.

Yes and I don’t believe the Government is seriously --

Justice Potter Stewart: I dispose that idea.

Mr. Marvin M. Karpatkin: I don’t think so, but there is -- as we note in our reply brief, they seem to sneak it in somewhere towards the end of their brief as a partial reason.

But I think that the Government is making its own unique contribution to this debate on the scope of 2255.

While many justices and scholars are arguing that it should be construed so as not to help the guilty, the Government now argues that it should also be construed so as not to help the innocent.

And that I think is the import of the government saying that 2255 should be narrowed even beyond that suggested in the various critical literature which I’ve referred to.

With the Court’s permission, I’ll save the rest of my time for rebuttal.

Chief Justice Warren E. Burger: I think, we’ll not ask you to start for one minute, counsel we'll resume after lunch.[Luncheon Recess]

Mr. Kitch.

Argument of Edmund W. Kitch

Mr. Edmund W. Kitch: Mr. Chief Justice and may it please the Court.

The Government in this case has three independently sufficient reasons that the judgment of the Ninth Circuit below should be affirmed.

It is a rhetorical difficulty with our posture that in order to argue any one point, we must for purposes of argument concede the validity of petitioner’s position on the other two points, and then my brother has been able to find a cumulatively, we concede our entire case.

Our three points are that the subject matter of this claim is not cognizable under Section 2255 proceeding, brought and after the judgment of conviction has become final.

That in any event, the conviction of the District Court was proper and that if it was not proper and the rule of United States against Fox is correct, that rule should not be applied retroactively.

In our brief, we argue the merits of the conviction first for purposes of exposition, however, logically, this Court must reach the jurisdictional issue under 2255 before it would reach the merits and therefore I will address the 2255 question first.

This is a question of considerable importance on which even a casual reading of the many Court of Appeals opinion dealing with 2255 will reveal a need for this Court’s attention.

For instance, Zack against Benson in the Ninth Circuit on which petitioner relies as a holding on all points of the Court with his position.

In that case, the Ninth Circuit was not aware that there was a 2255 issue to be addressed before relief should be automatically granted.

I have discussed our position in this case with a number of members of the bar of some experienced who -- although finding our position persuasive, have expressed some surprise in saying that although they hadn’t really thought about it, they always understood that the federal system was a double trial, double appeal system.

You went in first, your conviction an appeal, and then you had a second bite at the apple.

Now as I think, we have argued in our brief and on the basis of the authorities in our brief, it’s clear the 2255 plays a very narrow role in the administration of criminal justice.

The reasons, the policy reasons for this narrow scope of collateral attack after a criminal judgment becomes final are I think important ones in bear repetition here.

First of all is the importance of finality for the function of a criminal law itself, the functions of rehabilitation and deterrence.

A criminal law cannot rehabilitate if the convicted defender is constantly faced with the uncertainty about whether he’s conviction is really valid and whether if he just didn’t raise one more claim, he would in fact discover that he had been wrongly and unjustly convicted.

Also, --

Justice Byron R. White: I take that you’re talking about the availability of 2255 no matter what the issue is, if it’s once has been decided on appeal?

Mr. Edmund W. Kitch: These are general policy reasons why 2255 is narrowly available.

Justice William J. Brennan: We have to retreat from some cases to be with, wouldn’t we?

Mr. Edmund W. Kitch: No sir.

I think our opinion -- our position in this case is sustainable under the all of the views of habeas corpus which had been advanced the opinions of this Court.

Your opinion in Fay against Noia or the dissenting opinion in Schneckloth.

Your opinion in Fay against Noia assumes that where -- in habeas corpus, we’re talking about allegations of denial of fundamental constitutional rights which go to the very heart of the process of justice itself.

And that’s not the kind of issue and claim which petitioner makes in this case --

Justice Byron R. White: So you do make -- I ask you a question whether you would distinguish between various issues and you now say you would?

Mr. Edmund W. Kitch: Oh, I must -- I misunderstood.

We certainly -- there are different kinds of issues which already have historically and under the opinions of this Court been treated different under 2255.

Justice Byron R. White: And you would treat 2255 and habeas corpus together for this purpose?

Mr. Edmund W. Kitch: Yes.

Justice Byron R. White: And right out the words or read out the words laws of the United States?

Mr. Edmund W. Kitch: No, Your Honor.

The Section --

Justice Byron R. White: About what ones do you say?

Mr. Edmund W. Kitch: The Section reads a prisoner in custody under sentence of a court, claiming the right to be released upon the ground of the sentence was imposed in violation of the constitution or laws of the United States.

Justice William J. Brennan: And the habeas statute has comparable --

Mr. Edmund W. Kitch: That the habeas statute has comparable --

Justice William J. Brennan: Such as they are detained by a state in violation of the laws?

Mr. Edmund W. Kitch: That’s correct, and not a sentence of a court which is imposed after error in the trial.

Justice William J. Brennan: You distinguish that from detention and violation of the constitutional laws in the habeas statute?

Mr. Edmund W. Kitch: No, the sentence itself is not illegal.

This is collateral attack that goes to the legality of the sentence, and the modern habeas corpus practice which this Court has developed has said that certain errors or such a fundamental nature that effect the very legality of the sentence itself.

But not every error is an error which affects the legality of a sentence.

This Court’s own policy on finality in criminal judgments has said and I don’t mean federal rules of criminal procedure adopted by this Court.

Rule 33 is the --

Justice William J. Brennan: [Voice overlap] adopted by this Court -- sent to the Congress by this Court?

Mr. Edmund W. Kitch: Sent to the Congress by this Court after this Court approved them.

Rule 33 provides --

Justice William J. Brennan: [Voice overlap] transmitted to them, it couldn’t approve.

Mr. Edmund W. Kitch: Well, --

Chief Justice Warren E. Burger: Let’s continue the debate counsel what you probably can’t solve here.

Justice Byron R. White: That’s a house -- that’s a house debate.

Mr. Edmund W. Kitch: The Congress has ceded in the rules as transmitted by the Court --

Chief Justice Warren E. Burger: Right.

Mr. Edmund W. Kitch: -- and the rules provide in Rule 33, in the motion for new trial which is the great traditional method for correction of errors after judgment in the trial court that errors or in allegations the discovery of new evidence when relief is sought under Rule 33, release should be sought within two years, and that as to all other errors, relief should be sought within seven days.

Now, I think that the policy reflected Rule 33 which is subject can be revised is a policy which emphasizes these values of finality.

The -- 2255 is not a substitute for or an alternative version of the Rule 33.

It is a statute which makes available to the sentencing court a remedy in the great tradition of habeas corpus for errors of a fundamental constitutional nature affecting the legality of the sentence.

Not just all errors of law which the court may or may not have made in the course of its trial.

And old law in 28 U.S.C. 2255 does not mean that all errors of law are cognizable in a 2255 proceeding and this Court has always described the section and the writ of habeas corpus in precisely those terms.

Some of the other policy reasons for the narrow scope to collateral attack criminal judgments are spelled out in Mr. Justice Powell’s dissent in Schneckloth and I will not deal with them further --

Justice Potter Stewart: Mr. Justice Powell dissented in Schneckloth?

Mr. Edmund W. Kitch: Quite correct.

He’s concurring special concurring opinion that one concurred in by only three justices in the Court, you’re quite right.

The -- another factor I think that finality serves is the important factor of insuring that the effort in trying criminal cases concentrated in the first trial.

And that there is not a general feeling of on always available another remedy that we will try defense line one at this trial and defense line two.

Justice Byron R. White: Well, your proposition is that habeas corpus in 2255 are fundamentally the same for this purpose?

Mr. Edmund W. Kitch: Yes.

Justice Byron R. White: State criminal trial, constitutional issue presented the state court denied conviction, conviction sustained and constitutional question decided adversely in the State Supreme Court. Petition for certiorari here denied.

Constitutional question raised in habeas corpus, dismissed for lack of jurisdiction.

Mr. Edmund W. Kitch: No, because it’s been litigated before.

Justice Byron R. White: Yes.

Mr. Edmund W. Kitch: In the state court?

Justice Byron R. White: Yes.

Mr. Edmund W. Kitch: No, we do not rely upon the aspect of the prior litigation of the issue.

If in this case --

Justice Byron R. White: Would you think the Court of Appeals for the Ninth Circuit did?

Mr. Edmund W. Kitch: Their opinion is enigmatic and brief.

They appear to some extent.

Justice Byron R. White: You disown that then?

Mr. Edmund W. Kitch: To that, we do not rely upon the theory and the reason is that we feel that here or there has been a vigorous and effective effort to pursue all remedies.

And that the fact that remedies were pursued in direct appeal should not result in their denial in collateral attack if they are available that this petitioner should not be in the worst position than a petitioner who had not appealed.

In fact, he should be in the better position because he has responsibly pursued his remedies, and he is quite correct when he says he is in that position.

We don’t think he should be penalized for failing to responsibly pursue his remedies.

Now, there’s a separate issue, a related issue in the habeas corpus tradition about when the failure to pursue remedies available on direct appeal, results in a denial of the right to the writ and of course in Sunal against Large in the opinion by Mr. Justice Douglas, the Court said that the failure to appeal there resulted in denial of the availability of the writ.

That issue is not before us and the extent to which that bypass of remedies has to be conscious knowing or reach the level of waiver is a separate issue.

There may be cases where the failure to pursue a remedy will of itself deny habeas corpus relief, collateral attack relief without regard to the nature of the issue.

But where the relief has been pursued on direct appeal, I don’t think we can responsibly say that petitioner has somehow lost his collateral remedies.

Now, the history of habeas corpus has been canvased in the opinions of this Court in the literature.

It’s limited some of its scope as always been emphasized.

And we rely upon those precedents in that history and there is not as far as we’re aware precedent in this Court where habeas corpus has issued for a non-consti -- for a claim which do not relate to the denial of non-constitutional right.

I’d like to turn now and discuss our view of the questions to whether the conviction was proper and petitioner’s arguments on the merits.

In our view, the Gutknecht decision is simply not in point, insofar as this case is concerned.

As we read Gutknecht, it held that the delinquency regulations were not -- could not be used by the Selective Service system to punish registrants for failure to comply with the violations of the regulations that the punitive scheme of the statute is a criminal scheme and that the enforcement through the criminal law is the exclusive means for extracting compliance with the regulations promulgated by the Selective Service system.

And in the Gutknecht case of course, the record clearly showed an application of just such a punitive use of a delinquency regulation.

As soon as the petitioner in Gutknecht had -- where the defendant in Gutknecht had sent his draft card into the draft board, he was declared delinquent and immediately ordered to report for induction.

Now, the record here is quite different.

The record here shows that between the initial notice to report for physical examination and the final second order of induction, there was a long and patient effort by this draft board to locate and obtain from the registrant fundamental substantial compliance with his obligations under the Selective Service system.

When he failed to appear for his first physical examination, he wrote to the board, explained that he had been ill and the board responded simply by ordering him for another physical examination.

And just as he was about to be declared a delinquent after having failed to appear twice, he appeared again and gave a new address, and the board then did not, having him prosecuted for failing to appear for physical, the board merely sent him an order to that address to appear for induction.

Due to this patience and the record is ambiguous as to whether this was a young man who is confused about his obligations or a young man who is attempting to evade his obligations and that’s I think counts for the patience of the board, by the time the induction order came about, he was behind others in the same age category who had complied with their obligations under the statute and have been ordered for induction and were inducted.

So he benefited from the difficulties he had from the Selective Services to whatever the reasons that they occurred.

Now, the delinquency regulations as they remain after Gutknecht continue to serve other purposes than those held bad in Gutknecht and enable the Selective Services system simply to keep track of the compliance status of registrants.

They enable the service to notify registrants of compliance difficulties and they reflect I think together with the amendment to the regulation of 1970 to simply provide for induction orders without medical examinations, a policy of minimum criminalization that is if young man can be induced to report for induction, even though they did not report for medical examination there is not an effort to escalate the sanction and to make everyone who does not appear for medical examination an immediate subject of a prosecution under the criminal statute.

In the face of this argument, position to petitioner is that since under the regulation, you had to be declared delinquent to be inducted without a medical examination, he lost his right to a pre-induction medical examination and this right conferred by the regulations is of such a substance that it required that he not be convicted and that it be available in collateral attack.

In his reply brief to our position in the petition for certiorari, petitioner suggested his real theory was that there was a statutory right relying upon the Castillo opinion to our pre-induction physical, that argument he has now abandoned.

If there is any technical error in the processing of this induction order as a result of the complexities of the fallout of Gutknecht in the time in the fact that this induction order was issued before the Selective Service opinion, the system had the advantage of the Gutknecht opinion.

We argue that error is entirely technical.

It is harmless error and would not be available in any case at the original trial as a defense and therefore also, the conviction was proper.

Now as to retroactivity --

Justice Potter Stewart: It is Mr. Kitch a criminal offense or it’s a criminal offense to willfully fail to report for a physical examination, is it not?

Mr. Edmund W. Kitch: That is correct.

Justice Potter Stewart: And is that an offense of the same gravity in terms of the permissible punishment as the offense of failing to report for induction?

Mr. Edmund W. Kitch: Yes, it is my understanding that it’s all under the same Section of the statute 462 which does provide for generally -- generally for violations Selective Service regulation.

Justice Potter Stewart: So if Fox remains the law, the Government could simply bring the charge of failing to report of the physical examination, couldn’t it?

Mr. Edmund W. Kitch: Well, I think that we could do that or we could -- we really have no problem after the amendment of the regulations in 1970 which eliminated the category of delinquency as a basis for issuing an induction order without a pre-induction physical.

If a man did not appear for their physical, the system can move ahead without the physical and the induction order can be issued in normal course without any declaration of delinquency and at that point issues --

Justice Potter Stewart: But wouldn’t it -- with or without a declaration of delinquency, would it be procedurally proper to order a man for induction who haven’t been given a physical examination in the present --

Mr. Edmund W. Kitch: Yes.

Justice Potter Stewart: It wouldn't?

Mr. Edmund W. Kitch: Yes.

Justice Potter Stewart: It is?

Mr. Edmund W. Kitch: Yes.

But the regulations were so --

Justice Potter Stewart: Quite apart from whether or not he disregarded a direction to show up for a physical?

Mr. Edmund W. Kitch: The amendment regulation is reprinted in our brief at page -- on page 7.

Justice Potter Stewart: 7?

Mr. Edmund W. Kitch: “Notwithstanding any other provision when a registrant classified Class 1-A and so on has refused or otherwise failed to comply with an order report for and submit to an Armed Forces physical exam, he maybe selected in order to report for induction even though he is not been found acceptable.”

There is a regulation basically requires the examination of statement of acceptability than it provides an exception for persons who fail to report --

Justice Potter Stewart: Whoever refused, who have refused, but my question is can --

Mr. Edmund W. Kitch: It is not a sole declaration of delinquency.

It’s -- it doesn’t go through the delinquency regulation.

Justice Potter Stewart: But it’s basically the same provision, isn’t it in substance?

Mr. Edmund W. Kitch: Yes, precisely.

Justice Potter Stewart: And -- but for a person who hasn’t refused, it violates the procedures of the Selective Service Act to call a person for induction who has not been even asked to have physical examination, is that correct?

Mr. Edmund W. Kitch: That is correct, yes, yes, and --

Justice Potter Stewart: And that continues to be true.

Mr. Edmund W. Kitch: That continues to be true.

Justice Potter Stewart: As it was true at the time of --

Mr. Edmund W. Kitch: Yes.

Justice Potter Stewart: -- of Mr. Davis’ induction and it continues to be true that as it was at the time of his induction that if a person refuses a physical examination, he can then nevertheless be called for induction.

The only difference now is you don’t label it a delinquency?

Mr. Edmund W. Kitch: Right and therefore, we don’t have the argument that relying -- the argument can’t be made relying upon delinquency regulations under Gutknecht as a precondition for issuance of the order.

The thing is it should be emphasize --

Justice Potter Stewart: That continues to be true, therefore now as it was then that the Government been prosecuting for refusal to report for a physical examination.

Mr. Edmund W. Kitch: That is also true.

Justice Potter Stewart: And that carries the same penalty you’ve just told me as a refusal to report for induction?

Mr. Edmund W. Kitch: Right.

Although, I think you can tell from many of the cases that often the induction order is issued and then if induction takes place, that’s the end of it.

If there isn’t an induction and sometimes the induction charge is joined with the physical charge.

Here, there was a two-year gap between the physical and the induction which may have been the factor and the failure to join the physical -- failure to appear for the physical in the charge.

Justice Lewis F. Powell: Mr. Kitch --

Mr. Edmund W. Kitch: Now -- but, I think is important to emphasize that under that the pre-amended procedure, the pre-Gutknecht procedure and the procedure now, the physical is still given before induction occurs.

It’s given at the induction station and if the young man is found not acceptable by the military, he is not inducted.

He still then has the right if you will, he is still able to demonstrate his unsuitability for the Armed Forces and avoid the effect of the induction order.

It’s just --

Justice Potter Stewart: And then he cannot be prosecuted I suppose if he’s found physically disabled.

He cannot then be prosecuted even though he has absolutely defied a previous order to report for a physical, is that correct?

Mr. Edmund W. Kitch: No, he could be prosecuted for that if it was within the statute limitations, but I believe it’s our policy not to prosecute for that offense alone where he has appeared for induction and then defendant that --

Justice Potter Stewart: And doesn’t pass his physical.

Mr. Edmund W. Kitch: That’s right.

The -- I think one has to understand this is difficult business of the Administration Selective Services involving young man.

Many of whom are confused about their obligations and rights and if the induction order instead of proceeding from the failure to appear for the physical right criminal prosecution but proceeding through in the induction order, the induction order which has a little more gravity to it, it may make many of these young men realized that they actually should appear and have to appear and may keep out of the criminal justice system.

Many young man of good intent and who are confused, and I think that’s the policy, the benevolent policy that is reflected in the record of this case that underlies the thrust so it's just a very different manner than the Court it was dealing with in Gutknecht.

Sir?

Justice Lewis F. Powell: I think you answered the question I had in mind.

Mr. Davis would have had a physical examination in any event, even if had that examination before he could have been inducted in any event, is that correct?

Mr. Edmund W. Kitch: That is correct.

Justice Lewis F. Powell: The District Judge so found.

Mr. Edmund W. Kitch: Yes, he did and that is provided for in the Armed Forces regulation.

On retroactivity, again, the Court in Zack against Benson on which petitioner relies, it seems to upheld the rule of retroactivity but without stating there is an issue present in the case, and I don’t think that petitioner urges that we are now foreclosed from having review of the retroactivity of the Ninth Circuit rule once this case is here.

But we do feel the issue is the retroactivity of Fox and not the retroactivity of Gutknecht.

Of course, if this petitioner contends the rules are precisely the same, there’s just no meaningful distinction between the cases, then this point has no separate merit.

But we think the rules are quite distinguishable and we think that the analysis of retroactivity requires that the Court look at the possible purposes for the Fox rule an issue on which the opinion of the Ninth Circuit is not very expansive.

But as far as we really make out, the rule does have the effect of just saving the courts from the kind of collateral or factually inquiry that was made here on remand, the examination of the delivery list and that kind of inquiry a court might well feel is not really essential to the systems since induction can be accomplished through amendment of the regulations without delinquency declaration.

And that purpose, it seems to me is achieved by perspective application and the fact that the courts are called upon to examine for acceleration.

In fact in those few cases where induction orders occurred before the Gutknecht opinion is not such a burden on the courts is to require retroactivity application of the Fox rule.

Chief Justice Warren E. Burger: You have about six minutes left Mr. Karpatkin.

Rebuttal of Marvin M. Karpatkin

Mr. Marvin M. Karpatkin: Thank you Mr. Chief Justice.

It may come as a surprise to the Government, but we believe that this issue at least in one sense has been before this Court before.

And that was when this Court had before it, a petition for certiorari in the case of the United States against Peet from the Ninth Circuit and --

Unknown Speaker: Peet?

Mr. Marvin M. Karpatkin: P-E-E-T, Mr. Justice cited in our brief on page 43.

Unknown Speaker: Thank you.

Mr. Marvin M. Karpatkin: That in Peet on the basis of Gutknecht, the conviction was vacated and remanded for re-sentencing since there was a two-count conviction in that case, and Peet had been declared delinquent for non-appearance at a physical examination.

But of course, there was no written opinion, but a vacation of a judgment of a Court of Appeals, I always understood, is action on the merits.

Now, it is our basic contention that there are three species of delinquency sanctions which were created in the delinquency regulations.

And that each and all of them are equally invalid because equally without congressional authorization.

Congress did not authorize delinquency induction without a physical examination, and without a statement of acceptability, anymore than it authorized punitive reclassification as in the case of Oestereich, or accelerated induction as in the case of Gutknecht.

The offense to the basic constitutional right that is involved is not so much the facts of any particular case or the nature of sanction, but the offense is the existence of this delinquency power because it implies an extra penal sanction, the sanction of induction under extraordinary conditions for asserted wrongdoings.

Now, perhaps, Congress has this power under the constitution.

The Solicitor General speculates at Note 17 of his brief as to whether Congress might have the power to induct draft card burnings.

But the fact is that Congress has not sought to exercise that power, to either give it to the President or to the Selective Service system.

And I submit that in the words of Oestereich and Gutknecht, what we have here is sheer administrative lawlessness, blatantly lawless conduct on the part of the executive authority creating this power and bestowing it by executive order to the administrative agencies.

Now, insofar as prejudice is concerned, the petitioner Davis was prejudiced because he was inducted without this congressional authorization.

He’s prejudice was as great as someone who is prejudiced by being tried and convicted before a judge without jurisdiction.

Or perhaps more to the point for an act, however, it might be considered reprehensible which is not been declared a crime.

It seems to me that the effect of Gutknecht is as in United States against United States Claim and Currency is to declare that persons who have failed to report for induction following the declaration of delinquency are constitutionally immune from punishment, and that any acts which they may have committed may be susceptible to other kinds of criminal enforcement, but not susceptible to this kind of criminal enforcement because it has never been authorized by the only body under Article I, Section 1 which has the power to authorized punishment, the Congress.

Consequently, I don’t think that there is any point to getting into a discussion as to whether Davis and other similarly situated are prejudiced by not having the 21-day statement of acceptability and the time to seek to obtain review by not having two physical examinations rather than one, and by not having all of the rights to seek additional deferments and exemptions which as this Court knows from the Evett case are automatically cutoff upon the issuance of an induction order.

Now, some reference has have been made to New Section 1631.7 in the colloquy between Mr. Justice Stewart and the Solicitor General.

We respectfully submit that the New Section 1631.7 which presumably allows induction upon a finding of refusal without the use of the badge word delinquency does not cure the problem and was not the basis of the Ninth Circuit decision in Fox.

We would respectfully refer to the Court the opinion of Chief Judge Cancio in United States against Castillo in the District of Puerto Rico which is cited in our brief, but I do not believe the decision has yet been reported.

And Judge Cancio points out that a rose is a rose is a rose, and that a local board that making a unilateral due process less determination that someone refused to attend the physical without using the word delinquency is just as much offending the Gutknecht principle as a local board that does it with the utilization of the badge word delinquency.

Insofar as concern Zach against Benson, I don’t know whether the Ninth Circuit was aware or was not aware of what the Solicitor General thinks that should have been aware, but I do know what was said to the Ninth Circuit and the briefs which will presented before it.

And the first line of the argument points out that this is a Section 2255 case, and the Ninth Circuit is fully aware of the fact in Zach against Benson, the brief of which I just read from that it was 2255 case and that was before it.

Of course, it does not preclude this Court, but it certainly shows that view taken by the one panel in the Ninth Circuit which has ruled on it.

Finally, the Government speaks of the purposes of deterrence and rehabilitation of Section 2255.

The purposes of the deterrence it seems to me are completely satisfied by the existence of the alternative sanction, of prosecution and conviction for failure to report for a physical examination which carries the same five-year, $10,000.00 maximum penalty as refusal of induction.

And insofar as concerns the purpose of rehabilitation, I wonder what rehabilitative purpose is served by allowing two men in exactly the same situation to be in the status of one being free and the other being under criminal conviction and possibly in jail.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.