SWAIN v. PRESSLEY

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Argument of Robert H. Bork

Chief Justice Warren E. Burger: We will hear arguments next in 75-811, Swain v. Pressley.

Mr. Solicitor General, you may proceed whenever you are ready.

Mr. Robert H. Bork: Mr. Chief Justice, may it please the Court.

We are here on writ of Certiorari to the Court of Appeals for the District of Columbia Circuit.

That Court sitting en banc and held with one dissent of United States District Court for the District of Columbia has jurisdiction to entertain Respondent Pressley’s application for a writ of habeas corpus seeking post conviction relief.

The conviction from which he seeks relief occurred in the Superior Court of the District of Columbia.

We contend that the District Court has no jurisdiction to entertain such applications.

The issue was obviously important one to the objectives Congress sought to attain in the 1970 reorganization of the Court system in the District of Columbia.

Major part of that before in reorganization was intended to relieve the District Court system of local criminal law enforcement.

The judgment of the Court of Appeals which we think to have reversed brings the District Court back in part into local criminal law matters.

The issue in this case is first, the meaning and second, the constitutionality of Section 110 (g) of Title III of the District of Columbia Code.

Meaning is rather clear in the Section 110 (g) deprives the District Court jurisdiction over applications for habeas corpus by those who have been convicted in the Superior Court.

The Court of Appeals held to the contrary that 110 (g) is a mere exhaustion of remedies provision so that prisoners must seek relief initially in the Superior Court but may then.

If that relief is denied, proceed into the District Court with the same application, knowing construing the statute.

The Court of Appeals stated, indeed insisted, that its interpretation was heavily influenced by its desire to avoid constitutional issues which is regard to this trouble.

Always there are two propositions: the first is the Section 110 (g) is so clear and so unambiguous in denying jurisdiction.

The Federal District Courts in a case such as this one that no amount of constitutional concern can justify interpreting the statute as a mere exhaustion of remedies provision.

It is clear what Congress has done and there is no legitimate way to avoid constitutional issues if constitutional issues there be.

My second point therefore is that 110 (g) of the District Code passes the relevant constitutional tests and does so relevantly easily.

I would like to turn first to the statutory question.

110, as a general manner, gives Superior Court the power to entertain collateral tax upon its own senses, and that power is just as broad in scope and of the same nature as a collateral attack would be in the Federal District Court under 2255, for example.

Now, the relevant language to this case which is in 110 (g) is this: “An application for a writ of habeas corpus shall not be entertained by any Federal Court if it appears that the applicant has failed to make a motion for relief under this section or that the Superior Court has denied him relief.”

I can think of no way that language could be made clear.

No Federal Court may entertain the Superior Court, convict’s habeas corpus petition if the convict has not made a motion in the Superior Court or if he has done so and lost.

There are two clauses.

The first one is an exhaustion of remedies provision.

The second one is clearly a denial of jurisdiction provision and to read second clause as a mere exhaustion of remedies provision is to read it out with the statute which I submit is not interpretation, it is revealed.

This is not a case like Gusik v. Schilder, where the Court through it would have required a strain to read the finality language as other than the exhaustion of remedies provision and if refused to strain the language in order to reach a constitutional issue.

I think this can be made clear if you ask yourself, what would congress do?

If it meant this to be a denial of jurisdiction, what would it do after the Court of Appeals’ decision in order to make that fact clear.

I cannot think of anything, that will make it clear unless it italicize that language in the code, and then said, we really mean the italicized language.

It is done as much as it can to make this point.

Now, there is much argument about the legislative history in this case.

The truth is there is very little legislative history in this case; it is very enlightened.

But, the Court of Appeals to some extent responded, used an argument which is a wide variety of arguments none of which from the legislative history really go to overturn the language in the text, but we do know two things.

We do know that Congress intended to remove local matters from the Federal District Courts.

We know that the statute does that as we read it, and that supports it, but more importantly is the fact that Section 110 (g) is model.

The Congress said, it was using as a model 28 U.S.C. 2255 and indeed the language is almost identical.

We know that 2255 the post conviction relief statute is not an exhaustion of remedy statute, it is a jurisdictional statute.

It says that you must go back to the sentencing court to get your post conviction relief, you may go and replace else and that tends to remove the jurisdiction from all other courts, but the sentencing court.

110 (g) copies that language and removes jurisdiction from any court other than the sentencing court, which in this case is the Superior Court.

I suppose if there is any difference between the two and there is, it is that 110 (g) is even clear, because whereas 2255 simply says that the motion shall not be entertained, language was added to 110 (g) in the District Court and say the motion shall not be entertained by the Superior Court or by any Federal or State Court which (Inaudible).

Now, against all of this the Court of Appeals replaces reliance one, two points, the first one is that the local court system of District of Columbia, the Article I court system was intended to be in many respects analogous to a state court system, and that is quite true, but an analogy is by no means of identity.

This system differs in many respects, and one of them is the respect, which is plainly before us here.

The second part of reliance was the Congress could not have meant what it plainly said because that would have provoked heated constitutional debate, and there was none.

The answer to that is that there was no constitutional excitement, because Congress had done the same thing 20 years before, and there had been no constitutional excitement about that and it probably could completely do the same thing again.

Under 2255 collateral attacks, upon sentences imposed by territorial courts organized in the Article IV of the constitution, and non Article III court must be brought exclusively by motion in those courts, which is parallel to situation here.

No court has suggested that the unconstitutional will send those is unconstitutional to require a person convicted in the territorial court to go back for his post-conviction relief under 2255 to that sentencing court.

So there was no occasion for Congress to think that there was anything unique or exciting or troublesome about what it was doing in the statute.

I think the statutory argument is clear, so I turn to the constitutional argument.

Now, the constitutional objection really is that although respondent maybe constitutionally convicted and sentenced in an Article I court created for the District Court of Columbia.

He may not be required to seek his post-conviction relief in that same court.

I think this court’s decision in United States against Palmore affectively disposes of that contention is implausible that a person who can be tried initially, constitutionally in such a court may not have his post-conviction relief motion determined by such a court.

I think that is not with the case, but the argument is dressed up here by a statement that to require a convict to go back to the Superior Court is to spend the privilege of the writ of habeas corpus, which contravenes Article I, Section 9, Clause 2 of the constitution and also the Court of Appeals suggested contravenes the protection concept of the Due Process clause.

Neither of those claims I think is plausible after Palmore and I will say a few words.

The suggestion that 110 (g) violates the suspension clause is dispose quite quickly I think.

It is our position expressed in our brief that history shows that the guarantee of the suspension clause was not intended to apply to any post-conviction applications for habeas corpus.

At the time the constitution was drafted and adopted, the common law rule was that the post-conviction application for habeas corpus could be defeated by showing that there was a judgment in conviction by a criminal court of general jurisdiction, and that is our position so the Congress would be free to wish to suspend the writ entirely, but we don’t rest upon that.

Our main point, we may not reach that historical point because our main point is clear that what was done here was in no sense a suspension of the privilege of the writ.

It’s exactly the motion under 110 (g) or under 110 is exactly commensurate with the writ of habeas corpus as is exactly commensurate with 2255, so there is no suspension of the writ in this case.

The nature of the relief is the same.

The grounds upon which it can be cited are the same, the procedure is the same, and the only difference that is pointed to is that the court considered the motion is to create under Article I rather than the Article III because I say I think Palmore answers that contention, because if Article I court given the special powers of Congress or the District of Columbia is capable of providing a legitimate constitutional trial, and I think is capable of providing a legitimate constitutional post-conviction review.

Besides, it is clear that we are dealing that the purpose of the suspension clause was to prevent the effective denial of the writ altogether and was not to regulate -- prohibit Congress from regulating the details, its procedural details.

Otherwise, if that is not true we are going to get in the questions about whether the new rules which allow the dismissal of a motion one of the latest filing prejudices the government was that is a suspension or the privilege of the writ or as the rules were originally promulgated, I understand that they required, is that an application under 2255(b) sworn to during oath.

Let us suppose we have an argument about whether that is a suspension of the writ.

I think it is quite clear that those procedural details are not -- would beyond Congress’s power by this suspension clause, and certainly here when you have federal judges appointed by the President, confirmed by the Senate, 15-year terms and with a post-conviction procedure, which is specified by the Congress and is as broad as the writ of habeas corpus.

It seems to me that it is impossible to say that there is any suspension of the writ.

The Court of Appeals had attained some speculations about the equal protection concept, which respondent has not pressed here particularly, but I think I should mention him any of them because they are in the opinion below.

The theory apparently is that equal protection maybe in question, because under 28 U.S.C. 2254, a person convicted in the state court may petition an Article III Court for post-conviction collateral attack.

While a Superior Court found that the District of Columbia must petition in Article I court.

It seems to me that this is nothing more than the Suspension Clause argument all over again, ends up once more in for that reason it’s answered by the Palmore decision.

The argument whether it is a suspension clause or whether it is placed in the equal protection context is always contains the hidden assumption that the Superior Court is less legitimate in some way than an Article III court is, and if that assumption is rejected as it was in Palmore then I think there is no equal protection issue here just as there is no Suspension Clause issue here, and I think that is the end of the matter but I suppose there are two other or few other points that should be mentioned.

The equal protection concept obviously does not encompass the right to deprive the particular tribunal.

If the remedies available are equal then I think there is no problem.

Justice William H. Rehnquist: Well, it does not this there are little more to the equal protection argument then you suggest in that prisoners who are convicted in any of the state forums, which are presumably legitimate nonetheless have the right to petitioner Federal District Court for habeas and affect someone convicted in the District of Columbia Court is the only person who does not have the right to petition to Federal District Court for habeas.

Mr. Robert H. Bork: I think Mr. Justice Rehnquist that that is the argument as I understand, but I think the argument necessarily rest upon the premise that even in the District of Columbia where the Congress has special powers under Section 1.

There is something less legitimate about in Article I court than there is -- less legitimate Article I court than an Article III court because if that assumption is not present and there is really no denial of equal protection.

Unknown Speaker: It was no different standards mainly is the defendant and a federal defendant.

Mr. Robert H. Bork: In essence that federal defendant is that we made it to the sentencing court.

Justice Byron R. White: Well he goes 2255, but he goes to an Article III court, but he cannot go two places.

Mr. Robert H. Bork: That is true in that sense --

Justice Byron R. White: The state prisoner can go to state habeas; they can go to federal habeas.

Mr. Robert H. Bork: That is true, and if the Court of Appeals decision were upheld and in that sense Mr. Justice White, prisoners here would be better off and prisoners under 2255 if one consider that being better off, because they would get both the local system and a federal system.

So I suppose you have ---

Justice William H. Rehnquist: That would be better off if you treat them as the same as if they were state prisoners.

Mr. Robert H. Bork: I think the conclusion we are coming to Mr. Justice Rehnquist is that no matter which way one goes if one adopts a rather artificial view of this matter there will be denial of equal protection, because if the Court of Appeals -- 2254 prisoners go from state system to a federal system, and therefore is sent by the Court of Appeals.

Prisoners here should go from the Article I system to the federal Article III system.

But Mr. White points out that that would -- if that is an advantage, which one is entitled to examine under equal protection concept, which I deny.

Mr. Justice White points out that that would then create a disparity, which one would have to examine, because persons who were entitled to go from Article I court to an Article III court would be better off in some sense had two systems.

Better off than those proceeding under 2255, who were always in Federal Court and go right back to the sentencing court for their post-conviction relief.

Chief Justice Warren E. Burger: But if the prisoner feels he is getting in the best in first place, he isn’t concerned about having that denied what he regarded to at least as less than the best that is less than an Article III court.

Mr. Robert H. Bork: Well, that is true I think Palmore says that an Article I court in the District of Columbia given the powers that the Congress has them in the district and given away it has established these course is not inferior.

Chief Justice Warren E. Burger: One thing it is not Mr. Solicitor General to say what kind of a judge you must have filed the case in the first instance or perhaps another thing say what kind of a judge must be given jurisdiction for habeas corpus, is that would analogize to the state situation versus the federal, would it not?

Mr. Robert H. Bork: Well, I suppose Mr. Chief Justice you see that here I think -- the state analogy there is, I think there is clear difference between this and the states that is Congress has created this court system with many safeguards that some state systems do not have and Congress has prescribed a careful set of post-conviction remedies that many states do not have.

Chief Justice Warren E. Burger: But you emphasized the 15-year tenure, suppose the tenure of judges in the District of Columbia was three years instead of 15 years.

Mr. Robert H. Bork: Well, I don’t know offhand that that would of itself make a difference, but it should be noted of course that 110 (g) like 2255 provides that if the Federal Court regards the procedures as inadequate, ineffective that it may entertain the writ of habeas corpus, so that should conditions change with respect to the District of Columbia courts.

The statute by its terms allows access to the Article III courts.

I do not know if that is a sufficient answer to the question you put to me, but I am basically saying if we are required to assume that there is a difference with constitutional significance or as rises to a level of constitutional notice between the Article III courts in the rest of the country and the Article I courts in the District of Columbia.

Then I think there is a very rational reason why Congress has treated them someone differently and that rational reason is that Congress has no control over the state court systems or their post-conviction remedies.

It does have that control of the Article I courts here and over the remedies, and they have crafted a very careful and fair system with all of the rights of post-conviction review that any federal prisoner anywhere.

Justice John Paul Stevens: General Bork, do you think it would be constitutional for Congress to provide with respect to state prisoners that there shall be no habeas corpus petition entertained unless the Federal Court first determines that the state collateral attack procedure was ineffective.

Mr. Robert H. Bork: Well, I think I’ll like to answer that, but let me make clear that I don’t think this is necessarily involved with the decision of this case.

Justice John Paul Stevens: If your answer one way would control this case as well.

Mr. Robert H. Bork: Well, I have speculated --

Justice John Paul Stevens: That you rely on this ineffective exception in the statutory language here in one of your answers and then we go.

What I am saying is if that is an adequate answer that in another way last phrase in the statute you just refer to then would take care of the whole case.

Mr. Robert H. Bork: Well, let me go into that Mr. Justice Stevens and see if I understand the problem.

I have speculated, this is speculation and I suppose one should not engage in that but I will.

I don’t think it is directly well appear that Congress might be able constitutionally to say that those days which adopt a post-conviction relief statute which is like 2255 in all of those procedures and mechanisms and reset another criteria of that judicial system shall be freed of 2255 and the post-conviction relief will be in those courts but otherwise you have access to the Federal Court.

Justice John Paul Stevens: That freed of 2255 really, freed of 2254 really.

Mr. Robert H. Bork: I am sorry, quite right.

Justice John Paul Stevens: That’s right, yeah.

Mr. Robert H. Bork: If it has to be adequate, and I think that is true but that would be an example of -- that’s is why I say, I think congress constitutionally in that case turnover the post-conviction relief to a non Article III court where it can prescribe the adequate procedures and that is precisely what is done here.

Justice John Paul Stevens: That would not be regarded as the suspension of the writ, because the office of the writ would be performed by the state system whereas here it is performed by the District of Columbia system.

Mr. Robert H. Bork: Quite right Mr. Justice Stevens, even in fact that could not be regarded as the Suspension of the writ, because Congress is free not the head of any lower Federal Courts, no District Court, no Courts of Appeals.

We know that is from the constitution from Article III itself, and so turning that as over the state courts as we do through much of our historic federal questions would not be a suspension of the writ if the writ is adequate.

But that is our basic presentation.

I think the statute cannot be gotten away from it.

I think it says, it is clearly and words can ever say the District Court here has no jurisdiction.

I think the constitutional arguments are basically answered by the Palmore with additional observations I have made at the moment, and for that reason we ask the judgment of the Court of Appeals, we reversed.

Chief Justice Warren E. Burger: Mr. Foster.

Argument of Mark W. Foster

Mr. Mark W. Foster: Mr. Chief Justice, and may it please the court.

My name is Mark Foster and I represent the respondent Jasper C. Pressley.

Mr. Pressley contends here in this court today as he has from the day when he was arrested back in 1971 that he is innocent of the charges, which he was convicted in this case, and it given the reasonably effective assistance of an attorney that he can establish that he is not guilty of these charges, and the merits of his claim and that he was denied the effective assistance of counsel are not before this court.

Not before this court because when Mr. Pressley went to the Federal District Courts, the Article III courts in the District of Columbia to present his federal constitutional questions.

He found that the doors of the courthouse were closed against him, and to say that his petition for a writ of habeas corpus was dismissed for one jurisdiction.

Now, let me ask the court to consider this dismissal on jurisdictional grounds in the context which arises.

There is a general federal statute that says by in his terms that the United States District Court for the District of Columbia Circuit in the District Court here in this district like all other United States District Courts has the jurisdiction to hear habeas corpus petitions on behalf of persons who are in confinement by color under the authority of the United States.

There is an affirmative statute which grants in that jurisdiction.

Now, according to the government and tucked away and a remote corner of the new District of Columbia Court is a statute which cause out a small exception and to the general federal statute and that statute is the statute which is before this court today under 23 D.C Code 110 (g).

Judge Tam(ph) and joined by writing for eight judges of United States Court of Appeals for District of Columbia Circuit found that the statute did not have the effect that the government urges upon this court and Judge Tam and the judges of the Court of Appeals found that the government’s argument suffers from two principle license.

The first is that they force upon this statute and result that Congress never intended and let me take exception with the respected Solicitor General this court has said that there can be no rule of law which requires that a statute be given in effect that Congress never intended no matter how clear the words may appear on their surface and the second base found by the Court of Appeals --

Unknown Speaker: Sometimes it protects quite an undertaken to prove that the Congress did not intend what it said.

Mr. Mark W. Foster: I think it is often difficult task Your Honor but this is an area particular where this court has felt that incumbent upon the court to examine these statute of great care as they worked together and in the context of protection of federal rights and in many instances this court has said, this language cannot be read literally, it must be read in context, and I am only asking the court to apply that same general -- I believe there is a tradition of interpretation of federal habeas corpus statutes that they will be examined closely to make sure that they are given the effective Congress intended.

Unknown Speaker: Mr. Foster, you can see that none of the literal language of the statute is against you.

Mr. Mark W. Foster: Your Honor, I do not feel there is any grammatical reading of these words, which yields the result that I desire.

However, I do not think that this court sits to decide questions of grammar and sits to decide questions of law, and the question is in the context of these statutes does the statute have the effect of the government urges.

I think, one thing must be clear, and that is that when one looks to Congress as expressed intention in passing the statute there is no thread of evidence that Congress intended this statute to have the effect that the government urges upon this court.

Unknown Speaker: There is an addition to the plain language.

Mr. Mark W. Foster: Outside the parameters of the statute to be sure, Your Honor.

Unknown Speaker: Now, when they use languages like that maybe Congress did not think it needed to leave a lot of trails behind.

Mr. Mark W. Foster: That might be true Your Honor except the Congress explain that with some clarity what it did think the statute did and that --

Unknown Speaker: So you will get to that I am sure.

Mr. Mark W. Foster: That is in fact where I hope I am Your Honor.

The legislative history I agree with the Solicitor General is not lengthy in this case, but its brevity gives it some clarity.

Let me review how this statute rose.

There had been hearings going on, it was considerable debate as to the possibility of reorganizing the courts in the District of Columbia.

The justice department came forward with a proposal for the reorganization of the courts in the District of Columbia.

This statute was a part of the justice department’s proposal to Congress.

The justice department explained to Congress what the statute meant and Congress adopted the justice department’s words, explanation of what the statute meant in so many words, and the exact words which were picked up from the report that accompanied the statute when it represented the Congress and carried on through the Senate, through the House, through the conference report are these.

Section 110 is new, rather than relying upon the inherent power of the Superior Court to review judgments of conviction.

The news that section provides statutory procedures for post-conviction challenges.

Section 110 is modeled upon 28 U.S.C. Section 2255 with only the necessary technical changes.

Now, to the trained eye to someone who is familiar with post-conviction law on the District of Columbia that legislative history speaks very clearly.

It refers to two cases.

The first is the case of Burke v. United States where the old Article I courts in the District of Columbia talking about whether or not they had the power to review their own judgments of conviction said, the power of the juvenile court to vacate sentence maybe regarded as inherent.

The very words that appear in the legislative history and again in the Ingle’s case the court said the municipal court has inheritance power to vacate a sentence.

Unknown Speaker: Did they cite you in that case?

Mr. Mark W. Foster: Yes, Your honor, but I cannot give you a citation in that form in this context; those cases are discussed in the legislative history.

There is no discussion on any aspect of any of these constitutional questions that we think are started at a later point.

I think if you turn to the oral presentation that the Deputy Attorney General and Mr. Clindings (ph) gave when he presented this bill, the reference becomes even clear.

He said that Title IV which this sections are part just sort of a general grab bag of miscellaneous investigators of the United States Attorney serving our codefendant’s consecutive sentences.

He said this title, most of the sections are merely restatements of existing law and wherever appropriate the language of federal statutes or federal rule has been used and then when he got to 110 in particular he said, although the local court may have inherent power in the matter of post-conviction remedies a special procedure was created to eliminate unnecessary litigation and to add certainty to law.

Once again that has an obvious reference to the Burke case.

It was suggested by counsel in the Burke case that the court if it relied upon its inherent powers to review judgments would lead counsel in litigants with no guidance, and the court should suggest some rules and some procedures and the court declined to do so in the Burke case.

Unknown Speaker: It sounds that that is in the reference to eliminating unnecessary litigation also cover the situation where you only have one collateral attack instead of two.

Precisely, what the government at least (Inaudible).

Mr. Mark W. Foster: That would be true if the first part of this statement did not exist that the sections here are restatements of existing law and there is no way that in the context of this being a restatement of existing law.

Unknown Speaker: Well, it cannot be both, the restate existing law and also change law on the second part eliminating unnecessary procedures necessarily applies the change, doesn’t it?

Mr. Mark W. Foster: We argue that what they were doing was not changing the law, but simply codifying what was an inherent or a common law procedure and therefore there is no change.

It is in fact the restatement of the laws that existed in the District of Columbia, which was at the Superior Court the Article I courts in the District of Columbia have the power to review their own judgments on motion and therefore we simply are making clear of writing down in the form of statutes of what was the law in District.

Unknown Speaker: I am little puzzled on how you deal with the reference to eliminating unnecessary litigation.

Mr. Mark W. Foster: I assume that the reference is to unnecessary litigation of what the parameters of the remedy were, what the proper procedures were, whether one had to institute an independence civil suit and serve process and so forth and so on, and they wanted to adopt to make it clear that the procedure here is the federal procedure of simply filing a motion within the context.

Unknown Speaker: Mr. Foster I gather your position isn’t that you go directly to the United States District Court with the petition of habeas corpus.

Mr. Mark W. Foster: Absolutely not Your Honor.

Unknown Speaker: Now, Must you go to local court first.

Mr. Mark W. Foster: Well, I think the question is what procedure you must exercise.

The question is under Francisco v. Gathright.

Unknown Speaker: But under that statute, right now under the statute that you are operating under must you go if you want collateral attack must you file your petition with the trial court.

Mr. Mark W. Foster: Let me say that in this case it was done and so my position would be that one does not, and if the local courts have had one fair opportunity to decide these questions citing Francisco and Gathright then that is all what is required for exhaustion, but in Mr. Pressley’s case he did file such a motion in the local courts and these issues were thoroughly heard.

Unknown Speaker: Would if he privileged to file?

Mr. Mark W. Foster: Absolutely and clearly.

Unknown Speaker: Well then neither clause of the statute means anything in your view of that part of 110, either the requirement that he make a motion for relief for that not be denied?

Mr. Mark W. Foster: Well, I think what it means is that the issues must be presented to the local courts, first before he had the right to go to the Federal Court.

Unknown Speaker: But you say that is presented in the trial as enough?

Mr. Mark W. Foster: Clearly not a trial, but if there were thoroughly issued on aired on appeal Your Honor.

You have to raise them on.

Unknown Speaker: On direct appeal?

Mr. Mark W. Foster: On direct appeal.

Unknown Speaker: Well, let’s assume he does present his issues on direct appeal and they are fully aired denial.

Now, under this statute you say that he would have the right that he maybe and wouldn’t have to for exhaustion, but he would have the right to file a collateral petition with the local court.

Mr. Mark W. Foster: No question.

Unknown Speaker: And have them rule on it.

Mr. Mark W. Foster: No question Your Honor.

Unknown Speaker: And then I think that’s more than the state prisoners get in similar circumstances, but most state collateral procedures are not available if the issues have been presented on direct review.

Mr. Mark W. Foster: Well, as I understand Your Honor every state -- well the question of whether of not a state must constitutionally provide that some form of post-conviction attack, I think has never been squarely decided by this court.

It was before this court in Case v. Nebraska and while the case was pending in this court Nebraska passed the statute.

Unknown Speaker: But if you say that the Congress intended to give this fellow the right to go to two courts even though he has presented the issues in direct appeal, you are arguing for much more in the state prisoners to get lots of states.

Mr. Mark W. Foster: Well, that maybe Your Honor, but it seems to me that clearly Congress can provide an additional procedure for people under District of Columbia.

Unknown Speaker: When they say they are trying to avoid unnecessary litigations?

Mr. Mark W. Foster: In the context of a restatement of the law that stood in the District of Columbia?

Yes, Your Honor, that’s my position.

Unknown Speaker: Mr. Foster, may I just ask you a question right before this statute was passed was it the practice in the Article III court sitting in the District to require exhaustion in the District of Columbia Court?

Mr. Mark W. Foster: Your Honor I know of no case that discusses the exhaustion issue but I certainly -- that is my impression that that was the procedure that one is based on.

Unknown Speaker: They whether or not required by statute they treated his all section via 2254 applied in the district?

Mr. Mark W. Foster: I do not even come up very often, because normally people try to get to the Article III courts by certiorari the United States Court of Appeals this whole procedure, which is going here so exhaustion.

I don’t think it would arise as a problem very often that kind, so I know of no case that talks about.

Unknown Speaker: I was thinking if that were the practice then normally to codify existing law would have been to grab the paragraph comparable to 2254 (b) rather than one comparable to 2255.

Mr. Mark W. Foster: Well, I think that if one can trace out the intellectual history of the statute relatively easily.

If you want to say that there is a motion in the local courts and it’s a simple modern post-conviction motion where do you look?

You look to the federal statute, which sets up such a motion in the Federal courts and if you apply that language without looking at it terribly, carefully.

The last paragraph may have an effect that you don’t intend your purpose as Congress said it was, was simply to set up such a procedure in the local courts.

Unknown Speaker: When the Superior Court setup the court was setup at the same time it was not before that, was it?

Mr. Mark W. Foster: There were a local Article I courts here in --

Unknown Speaker: There were in Superior Court.

Mr. Mark W. Foster: No, it was in the court of general sessions, the police court.

Unknown Speaker: (Inaudible)

Mr. Mark W. Foster: Yes, but there were a non-Article III courts here in the District of Columbia that sat and people convicted in those local non-Article III courts once they had presumably litigated their issues in the local courts could then go to Federal District Court, and file for a writ of habeas corpus and have their federal constitutional and questions heard in Article III court.

So to the extent that this statute is a restatement of a law that stood in the District of Columbia it would be a statement of those principles.

Your Honor, the Solicitor General has argued that Congress was trying when it passed the Court Reorganization Act to get the Federal Courts out of the business of local law enforcement.

We have no quarrel with that proposition.

That is clearly was designed so far as trials were concerned on local charges on the statute that apply only in the District of Columbia.

However, the Solicitor General then seeks to bootstrap that argument into an argument that Congress also wish to remove post-conviction attack entirely from the Federal District Court here.

There is no statement, and I would suggest to this court no implication in the legislative history that Congress went that further step.

It is very nice to argue that maybe in some philosophical way implied but I would argue to the contrary it’s not implied to move trials to a new court system is one thing but to move the form where once federal constitutional rights are heard is quite another thing.

There is nothing local about the issue that Mr. Pressley seeks to raise.

There is nothing local about one’s right to have a reasonably confident attorney is just want a trial that is a federal constitutional right and a right which applies nationwide.

Unknown Speaker: How does that relate to what kind of a judge must hear?

Unknown Speaker: You think the Superior Court judge is less confident to evaluate the effective assistance of counsel on a district judge?

Mr. Mark W. Foster: No Your Honor I don’t think here we have argued or need to argue that there is anything less legitimate as the Solicitor General characterized it about the Superior Court.

What we are saying is that it is different; it is not the same as a court where the judge of that court is first allegiance is to the United States of Constitution and his judgment is unimpaired is protected by the fact that his salary and his tenure in office are protected by the constitution.

There is a difference between that and a judge who was appointed for a 15-year-term who maybe removed at the direction of a legislative body, which sits under the very vaguest kind of guidelines whose salary can be adjusted upwards or downwards by the Congress and who at the end of the 15 years is subject to reevaluation upon no standards at all, this is a difference.

Unknown Speaker: Now, you are getting under equal protection, which -- do you accept the Solicitor General’s characterization that you were reemphasizing your equal protection argument?

Mr. Mark W. Foster: The Solicitor General said I would abandon and I do not accept that.

Unknown Speaker: Tell me that could be emphasized to that thing?

Mr. Mark W. Foster: But I think it is clearly to be emphasized Your Honor.

It is in a footnote at this time and I suppose that implies the emphasis, but I think --

Unknown Speaker: I thought so.

Mr. Mark W. Foster: Well, I think the reason that it is there, in fact, I know the reason that it is there is because it arises in the context -- I am not arguing to this court demerits of the equal protection question or the Suspension Clause question.

All I am saying to this court is should this court decide in the context of this statute, federal, constitutional questions which are wide open as far as this court is concerned.

If this is the case which precipitates by force this court into an area of constitutional law whether our very few guideposts of any kind whatsoever.

An equal protection argument is simply another example.

There is a rolling line of cases in the District of Columbia and talks about this doctrine, never been before this court, this court has denied certiorari several times and yet this court will have to decide that question.

That’s why it is in the form that it is not because I intend to abandon this Your Honor.

Now, the government --

Unknown Speaker: Mr. Solicitor General want this court has decided that Article I court can convict you legally and constitutionally.

Mr. Mark W. Foster: I take respectful issue with the Solicitor General because in fact I think Palmore is the case on our side.

I think Palmore if to the extent that he decides this question tends to support our point of view asked in the Court of Appeals.

What this court said in Palmore was that in the context of the Court Reorganization Act which created two parallel court systems in the District of Columbia, it is constitutional to try people in the Article I court, and there were many persons for that; the court’s marshal, the territorial courts, the Indian tribal courts and so forth and so on.

It is quite different to say that for the purposes of post-conviction attack will be confined to one of those two courts.

In fact the Palmore opinion is a pain to point out.

Unknown Speaker: My point was that the conviction in an Article I court is legal.

Mr. Mark W. Foster: No question.

Unknown Speaker: That is what I asked you in the previous one.

Mr. Mark W. Foster: Yes, it is decided well Your Honor that in Article I court is constitutionally confident to try and convict someone on the felony created by the United States.

Unknown Speaker: But not constitutionally sufficient to hear.

Mr. Mark W. Foster: I say it is not the same thing for the purposes of the Suspension Clause as an Article III courts.

Unknown Speaker: Why?

Mr. Mark W. Foster: Because the gist of an Article III court what distinguishes an Article III court from all other courts that is state courts, military courts, whatever, on the salary and tenure protections.

Two protections that throughout our history have been fought to be absolutely critical to the quality of the highest Federal Courts.

Now the government wants to say --

Unknown Speaker: You mean all the Federal Courts, the lowest if you take the District Court has the third tier.

Mr. Mark W. Foster: I meant only if there are some Federal Courts of limited jurisdiction like the military courts marshal to which it would not apply, but the set piece under Article III of the constitution would federal --

Unknown Speaker: But you include this Courts of Massachusetts in that?

Mr. Mark W. Foster: To me the courts of Massachusetts are non-Article III courts and therefore the analysis is the same.

Unknown Speaker: On Article III but they have the very elements of the tenure that you are talking about constitution the federal?

Mr. Mark W. Foster: Certainly and I suppose the people of Massachusetts and their wisdom might have amended their constitution and removed those provisions, but so long as the presumption in our federal constitution is that these question ought to be presented to federal Article III judges.

Unknown Speaker: And you have lost me there, couldn’t the people of this country amend the constitution and give all federal judges a tenure term.

Mr. Mark W. Foster: No question, but they have not done and what I am saying is in the context of this case that arises in this court.

What the lynchpin of the organization the way the constitution was put together and still stands is the idea that federal judges were going to be these judges who had no local bias, no local -- at least they were protected from the passions of the moment and political vogue by the salary and tenure protections.

That makes them different in my view from any of the judge who does not have those protections, and this court has said repeatedly that any substitute for federal habeas corpus must be exactly commensurate.

Now, I am not here to say what is more legitimate or less legitimate, better or worse, I am simply here to say that it is not exactly commensurate to say that the judge who will hear your claims is different in quality.

Those qualities have been thought to be very important.

In fact this court in Palmore said, we do not deemphasize the importance of the distinction between Article I and Article III.

It’s just that Article III is not required here and my argument let me be perfectly clear on this federal constitutional point.

My argument is not that Article III requires that these federal constitutional questions be heard in Article III courts; it is that the Suspension Clause requires that these questions to be heard --

Unknown Speaker: The question if you heard when you are running to this problems, and if the difference is great enough to make the Article I file an ineffective remedy then you have statutory protection in the last clause and the statute that the decrees unless it also appears that the remedy by motion is inadequate or ineffective then you are not heard.

But if it is a lesser difference to that you then have to say it is a total suspension.

Mr. Mark W. Foster: Well, I suppose that this court can say that is what the last clause means and that the Article I court is ineffective, and therefore you come out at the same point at the end of the argument.

I think that that argument suffers from the fact that those words have been interpreted many times by this court in the 2255 context and they have been held not to mean that in the particular form.

For instance, in the 2255 context if you are in a circuit that doesn’t hold your way.

You cannot say well my remedy is unaffected because if I can go back to my home circuit they give me a different result, and so though I suppose it is open on grammar grounds to arrive at that result.

I am not anxious to press the argument.

Unknown Speaker: Have the state court prisoners have a federal habeas corpus available in some 1789?

Mr. Mark W. Foster: No, Your Honor absolutely not.

Unknown Speaker: When did they?

Mr. Mark W. Foster: They required it after the Civil War and the Act passed in 1867 and in fact the Federal Courts held that there was no right before them but I am not saying --

Unknown Speaker: So that your argument really doe not prove that the constitution was absolutely clear on this point.

Mr. Mark W. Foster: Well, I think -- let me backup a little bit, because I think I have not yet had an opportunity to say that as I do not say that Mr. Pressley, the Suspension Clause requires an Article III judgment Mr. Pressley because he is like a state prisoner.

That’s not my argument.

My argument is that 2241 is jurisdiction to the Federal District Courts to grant writ of habeas corpus for people who are confined by the authority of the United States, and that power has existed uninterrupted from the Federal Judiciary Act of 1789.

In fact, those words have stood unaltered over 200 years of federal constitutional history, and I think there is something -- I am very frank to say to this court that the question presented by this case, the federal constitutional question presented by this case has never been decided by this court.

That is to say that whether or not the suspension clause requires an Article III court.

Unknown Speaker: Is another way of phrasing that to say was the writ of habeas corpus suspended during the first 80 years of this country’s history?

Mr. Mark W. Foster: I do not think so Your Honor because you mean as the state prisons?

Unknown Speaker: Yeah.

Mr. Mark W. Foster: But I am not arguing by analogy to state prisoners.

Unknown Speaker: Well, but is there any evidence in any decision of this court prior to say after the Civil War that even a federal prisoner could bring a collateral attack on a final judgment of a court of the confident jurisdiction under the relief available in the first habeas act?

Mr. Mark W. Foster: On account conviction?

Unknown Speaker: Yeah.

Mr. Mark W. Foster: Yes, Your Honor, there are many, many cases.

There are cases that books are replete with cases of people between 1789 and the Civil War being held by power of the United States now.

Unknown Speaker: I am not talking about being held by power of the United States; I am talking about a case from this court, which said federal habeas prior to the Civil War would reach a final judgment of a court of confident jurisdiction of United States.

Mr. Mark W. Foster: Yes, Your Honor, there are I think many such cases especially as the Article I courts, the military courts for instance where frequently there are judgments who were reversed upon review and there are of course analogies because they are Article I courts like the Superior Court in the District of Columbia.

That right I think has existed from 1789 without any interruption.

The government has not cited case or suggestion.

Unknown Speaker: Where you get military courts in the Article I?

Military courts are temporary courts.

They are not appointed for any time.

Mr. Mark W. Foster: That is correct Your Honor but they are created under the same constitutional power that Congress exercised.

Well, there are other examples of course the special courts that have been set up through our history of Article I courts and in every case where an Article I court has or any non-Article III authority of United States has the power to lock people up.

This court and the other Federal Courts have always found without exception that the writ of federal habeas corpus would reach those people everyone, and that is of course one of the major differences between this case and Palmore because this court in Palmore was faced with many examples of people who could be tried and convicted in non-Article III courts.

But in this case it is not faced with an example of anyone who could be confined by the power of the United States and could not ultimately go after exhaustion to a federal Article III court for resolution of his federal constitutional plans.

There is no such case.

And many times in our history, in our legislative history Congress has passed statutes, which would appear to reach the result and I once again force to disagree with the Solicitor General and Gusik case.

This court was faced by a statute which says that judgments of court’s Marshall shall be final binding and conclusive on all courts of United States.

How much clear could it be.

This court said unanimously that language means that you must exhaust your remedies in the Article I courts before you present your question to the federal Article III courts.

It is the same question that is presented in this case.

Does a statute -- is this a finality statute or exhaustion statute or it is the other side of the same coin, and I would claim that the same considerations, which move the court to say if we decide otherwise that this is not a finality statute in Gusik.

It is going to launch us into an area of constitution that we have not yet adjudicated and is not necessary on the statute though it was reasonably clear.

It is no way to argue that final binding conclusive could be anymore clear.

Nonetheless this court compelled to avoid the issue where it was fairly possible to do some, and that is my argument to the court here today on this statute.

Now, the government withdraws much solace from the fact that the words not bars from 2255, and yet it must be clear that they have a different purpose.

2255 was an effective traffic rule; it said, we don’t want to -- we are going to direct this litigation, we are going to spread it out overall the circuits, because it is unfairly lumped up in Kansas and in Albatross where the big federal prisons were.

That problem does not exist in the District of Columbia.

There is no traffic problem here.

There is one court, one jurisdiction.

Therefore, the words of 2255 could not have been barred to the same purpose; they were barred from some other purpose and I would suggest to this court that the way, the place to look for what that purpose would have been is to the statute, the federal statute which regulates these relations in the state federal analogy.

Now, I am not arguing that Congress created the 51st state when it reorganized the courts in the District of Columbia.

I am simply saying that the legislative history of this act is replete with references to the fact that Congress wanted the District of Columbia to be treated like a state.

Unknown Speaker: Why did it authorize the file suits?

The District of Columbia against Joe Doe United States against Joe Doe?

Mr. Mark W. Foster: I am not sure I understand the court’s question.

Unknown Speaker: If they wanted to make it a state, and just on the judicial side then you would file the case of the District of Columbia against the defendant.

But they did as in United States against (Inaudible)

Mr. Mark W. Foster: Well, it is perfectly clear--

Unknown Speaker: At least they did in the same, in the judiciary to make a state.

Mr. Mark W. Foster: Well, no matter what label is attached there is only one sovereignty here in the District of Columbia, and that is the United States of America, whether the United States of America act in its --

Unknown Speaker: Well that is out of state.

Mr. Mark W. Foster: No that is why I was careful to say that I am not arguing that they created a 51st state.

They said that for the purpose of how this will work out, it will work out like the states do as if this were a state not that it is the same and therefore I would suggest that the place to look for Congress’s purpose in picking up this language from 2255 is to the statute we have regulated these relations between the state and the federal government and that statute is 2254 and what 2254 requires in this regard is exhaustion of non-Article III remedies, state remedies in that case, before you come into Federal Court for resolution of your federal constitutional question.

Unknown Speaker: Mr. Foster is it any part of your argument that to -- is through the statute the way the government will have it construed would lead to a constitutionally inadequate relief under 110 (g) as compared with Article III not only in terms of the District of Columbia judges being Article I judges with non-tenure, and non financial security.

But in terms of the possibly inadequate freedom of a District of Columbia judge to consider a constitutional claim compared to an Article III judge and let me give you case to illustrate with not what my question goes to.

Let us assume my conviction in the Superior Court and appeal to the District of Columbia Court of Appeals on some constitutional claim by the defendant and the District of Columbia Court of Appeals rejects the claim that affirms the conviction.

The defendant then comes into the Superior Court under 110 (g) making the same constitutional claim would not be Superior Court field absolutely bound to reject that claim by contrast with an Article III court, which would not be bound by the decision of the President of the District of Columbia Court of Appeals.

But it would be free to consider the claim and accept it on the merits by contrast with the Superior Court under 110 (g), is that any part of the argument?

Mr. Mark W. Foster: I certainly think Your Honor, I certainly agree with the implication.

Unknown Speaker: I have not made a statement that is a question.

Mr. Mark W. Foster: I understand that Your Honor.

I certainly think and I cannot because this is a new act there is not enough experience for me to cite of this court a case, which would stand for that proposition.

The case in which the Superior Court on 110 (g) has said we are not free to consider this question, because it is already been decided on direct --

Unknown Speaker: By our Court of Appeals on direct appeal.

Mr. Mark W. Foster: Exactly and their war hands are therefore tied.

Unknown Speaker: In an Article III court and the District of Columbia would not -- its hands would not be similarly tied I assume, its reviewing court have not yet spoken.

Mr. Mark W. Foster: And under favor I would assume that the spirit of the review is to take a fresh look at it from the perspective of the judge who is primary allegiance is to the federal constitution with all the protections we have talked about and to make a new determination on that and that is what I think is protected by the ultimate ride of people confined by the authority of the United States to go to a federal Article III court for ultimate resolution.

Unknown Speaker: And so it is not only the complaint that the Article I courts are staffed by judges who do not have tenure and do not have salary protection, but also that there might be a constitutionally less adequate remedy for that reason.

Mr. Mark W. Foster: Because they are institutionally located differently than the federal Article III.

Unknown Speaker: I did not see that precise argument in your brief, but you have answered my question.

Mr. Mark W. Foster: I hope it is there because I certainly indented it to be there.

They are institutionally set and situated differently vis-à-vis the constitution on the case before them then is in the Superior Court, the trial court in the District of Columbia when we have automatic appeal of right and appointed counsel for all people and there are direct appeals in most of the criminal cases here and their situation would be very different vis-à-vis the case that have already been decided by the District of Columbia Court of Appeals.

Unknown Speaker: Well, if the claim that Mr. Justice Stewart has suggested that you urge as to the unconstitutionality, because of the inability of the Superior Court to freely voice its view with the local Court of Appeals is always spoken.

Is that situation any different in the federal prisoner earlier convicted in Federal Court seeing the Fourth Circuit that he goes into the District Court in Richmond and says I want federal habeas I was denied certain rights in the District Court in Richmond says, well I may think you were, but the Fourth Circuit considered these same claims on direct appeal and turned it down.

That Article III judges are free to rethink the thing.

Mr. Mark W. Foster: I think Your Honor he is in a different situation under this court’s decisions dealing with post-conviction attack than the Superior Court judgment and that is this court has emphasized that a federal judge in reviewing a federal constitutional question on post-conviction attack has a different job before him.

The question is not guilt or innocence, but the preservation of certain federal constitutional values that are paramount and the focus shifts slightly.

Now, I do not deny Mr. Justice Rehnquist that the opinion of the Fourth Circuit Court of Appeals in your example is a great way, but as I understand that the situation of a judge facing that question he is bound to determine it again.

Unknown Speaker: The law (Inaudible) judges are presumably bound by the appellate reviewing courts, they are not.

Mr. Mark W. Foster: Yes Your Honor no question with that.

I am just saying when you have, when a judge has before him a petition for habeas corpus, his focus is slightly different than it would be if you were trying the things, thank you.

Chief Justice Warren E. Burger: Mr. Solicitor General, do you have anything further?

Rebuttal of Robert H. Bork

Mr. Robert H. Bork: Just the minor thing Mr. Chief Justice.

If it were true that a prisoner had a right to go into a different court system, because his own systems always decided the issue when he has to go some place where the issues has not been decided.

If that were constitutional principle then I think, I would follow Mr. Justice Rehnquist that the federal prisoners here would have a right to go into the Superior Court system and the federal prisoners around the country would find 2255 by constitution, and they would all have a right to go to the state court systems.

Chief Justice Warren E. Burger: Or another circuit.

Mr. Robert H. Bork: One other circuit I think that might be, unless the Supreme Court here spoken Mr. Chief Justice which case and again be unconstitutional.

It has been rather clever I think argument about the statute.

I think the constitutional issues must be addressed, because what has happened is repeatedly plain statute that says this in words as plainly as can be, and we are told that the burden of proof is upon us to prove the Congress really meant what it said like the burden goes the other way.

Now, it turns out that Mr. Clindings the couple of pages before the language that was quoted said that the effort was to transfer the entire criminal jurisdiction to the Superior Court.

We could debate the ambiguities of the Mr. Clindings testimony.

But, I think I would rather debate for clarity of the statute.

One other point, there was a suggestion that although Congress explicitly said we are using 2255 as a model and then did it.

The appropriate place to look is 2254 which I think this argument in the same tenure is the constitutional interpretation here as been, thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.