Browder v. Director, Dept. of Corrections of Ill. – Oral Argument – October 31, 1977

Media for Browder v. Director, Dept. of Corrections of Ill.

Audio Transcription for Opinion Announcement – January 10, 1978 in Browder v. Director, Dept. of Corrections of Ill.

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Warren E. Burger:

We will hear arguments first this morning in 76-5325, Browder against Illinois.

Mr. Flaxman, I think you may proceed whenever you are ready.

Kenneth N. Flaxman:

Thank you.

Mr. Chief Justice and may it please the Court.

This case, as was decided by the United States Court of Appeals for the Seventh Circuit in an unpublished, non precedential opinion, involves several Fourth Amendment questions, each arising out of the warrantless arrest one evening of the four teenage black males found one night in the crowded dwelling in Chicago, Illinois.

The director of the Illinois Department of Corrections, the respondent in this Court, asked this Court to resolve the Fourth Amendments questions on the basis of evidence received by the District Court at a hearing on an untimely motion to reconsider.

This is precisely what the Court of appeals did.

It relied on that testimony.

It resolved quite disputed questions of fact in the first instance and it reversed the decision of the District Court.

The first question which the Court, could resolve in this case and which could indeed be dispositive of all the other issues presented, is whether the Court of Appeals was correct in relying on the testimony which had been heard by the district judge in the untimely motion to reconsider.

It is our position, that the District Court lacked jurisdiction to entertain an untimely motion to reconsider and that the Court of Appeals lacked jurisdiction to consider the appeal from that untimely motion to reconsider and that what the Court of Appeals should have done, would have have been to dismiss this appeal.

Warren E. Burger:

Well, if we reach that and decide it we need not decide any other questions, is that not so?

Kenneth N. Flaxman:

That is correct.

The other question which the Court could also resolve is whether it is appropriate for Court of Appeals to rely on an unpublished opinion (Inaudible) deprived its decision of precedent.

That is — it is our position to that — the use of that rule is interrelated with disposition in this case and that question could also be considered by the Court, but the only issue which the Court need to decide in order to grant Mr. Browder the primary relief which he desires is to find that the Court of Appeals lacked jurisdiction to review the decision of the District Court and that the District Court’s order granting Mr. Browder’s application for writ of Habeas Corpus should be reinstated and Mr. Browder re-enlarged in custody.

The time limits in which a motion to reconsider maybe made have for the last 30 years been delimited by the ten days of Civil Rule 59.

The motion to reconsider in this case was made 28 days after entry of the final order and was untimely under Rule 59.

Mr. Flaxman, I suppose that is the argument is it not, as to what is the final order?

Kenneth N. Flaxman:

The final order is the order which disposes of the case, the order which leaves nothing to be done except to execute what the district judge —

Well, that has to be your position, but I suppose one could argue that January 26th order was the final order?

Kenneth N. Flaxman:

That argument could be made, but it would be contrary to the type of final order which is appropriate in Habeas Corpus cases and which this Court has in directing the lower courts to enter when an order less than — an unconditional release is appropriate.

This goes back to, I think Chessman v. Teets where there was some problem in the way the State Court record had been prepared.

This Court felt properly, I believe, that it would be improper to release Mr. Chessmen because of this procedural error which could be cured and directed the District Court to enter such orders as would be appropriate to allow the State a reasonable time to cure the error, failing which the prisoner would be released. That is what the district judge did in this case.

He decided that the petition should be granted and he told Illinois that they have 60 days to retry Mr. Browder, failing which the writ would be executed.

William H. Rehnquist:

Your position is in affect that the judgment is to the invalidity that state conviction was final and the state was just given a couple alternatives as what to do in consequence of that determination?

Kenneth N. Flaxman:

That is correct.

That is the appropriate kind of the final order when an order less to have that release is appropriate and the State could have retried Mr. Browder if it had acted within that 60 days or if the courts, the state courts which you have congested, I am sure the warden could have come to the district judge and say we need more time to retrial because there are delays in State Court and the district judge I think would have extended that time and they would have had an ample time to retrial if that is what they wish to do.

Of course.

The district judge did stay the earlier order pending for the hearing, did he not, pending an evidentiary hearing?

Kenneth N. Flaxman:

That is correct and I think that he erred in doing that, but whether he erred in doing that is not really before this Court. Yes, we did seek review at that stage.

Kenneth N. Flaxman:

We objected to the district judge, proceeding with the hearing, pointing out to him that the time in which he can alter or amend earlier order had elapsed, but the district judge proceeded with the hearing and received evidence.

The argument that is raised by the Director as to why that order, granting the petition was not the final order is the claim that that order left unanswered, the question of whether or not an evidentiary hearing would be required.

That is a difficult point to understand because it seems obvious, that when the district judge said, this petition should be granted on the State Court record, he was making a decision that no hearing was required.

He was making a decision that the state should appeal his order or the state should retry Mr. Browder or the state should release him from custody.

And what the State did, rather that to follow one of those three permissible alternatives was to file an untimely motion to reconsider and asked the district judge to hear further evidence and re-adjudicate the lawfulness of the arrest.

The district judge lacked jurisdiction to hold that hearing and the Court of Appeals lacked jurisdiction to consider the appeal from —

Thurgood Marshall:

What would have happened if the State had made that motion one day after the original order was filed?

Kenneth N. Flaxman:

Then it would be timely under Rule 59, the time to appeal would be tolled.

Thurgood Marshall:

Is there anything in this record to explain why they did not?

Kenneth N. Flaxman:

There is nothing in this record to explain why they did not and there is never been any explanation by the state or by the Director as to why they waited 28 days.

This rule is not a novel rule.

It is — there is no explanation.

The other fact about the untimeliness is that the district judge in this case did nothing to lull the Director into failing to appeal within the 30 days of Rule 4 of the Appellate Rules.

The motion was filed on the 28th day.

Under local rules, in the Urban District of Illinois could have been presented in Open Court for a ruling at that time, but instead it was filed in absolutely dormant under District Court’s calender.

So, there is a decision by the Director to rely upon the presumed power of the district judge to reconsider a final order after more than ten days have elapsed.

The district judge lacked that power and should not have received evidence.

William H. Rehnquist:

Mr. Flaxman, the respondent’s brief, places some way down a decision of this Court a couple of years ago in United States against Dieter which involved a criminal prosecution rather than a civil one and I do not know if you filed a reply brief or not, how do you — how do you distinguish Dieter?

Kenneth N. Flaxman:

Well, Dieter is consistent with our position. Dieter and United States v. Healy arose in cases under the criminal rules where under Rule 4 (b) of the appellate rules, there is no tolling rule on motions to reconsider.

So that — in criminal cases, when a motion to reconsider is filed by the Government in the time in which an appeal can be perfected, the filing of that motion tolls the time to appeal.

The same rule is inapplicable to cases where appealability is determined by Rule 4 (a).

Dieter states the general rule which is applicable that only timely motions to reconsider, stay the time to appeal.

In Dieter, a time, in a criminal case, a timely motion is when filed within the time in which the government can appeal, in Habeas Corpus case, in a Civil case, in any case where appealability or where the time to appeal is governed by Rule 4 (a).

A timely motion to reconsider is one made within the ten day period of Rule 59.

William H. Rehnquist:

But is Dieter and entirely Dependant on provisions of the Rules?

Kenneth N. Flaxman:

It is dependent upon the absence in Rule 4 (b), that any provision, any rule of statute authorizing petitions for the hearing, as in United States v. Healy.

That is what differentiates this case from that case.

The argument is also made, that Rule 4 (a) does not apply to Habeas Corpus cases.

The contention is that the Tolling Rules of 4 (a) are in direct contravention of the conformity clause of Civil Rule 81 (a) (2).

But if we look at the predecessor of Civil Rule 81 (a) (2), that is former Civil Rule 81 (b) which was in existence, when appealability, when the time to appeal a set by the Civil Rules, we see that the Tolling Rule from the Civil Rules were expressly and fully applicable to Habeas Corpus proceedings.

Kenneth N. Flaxman:

The other Civil Rules were applicable only in so far as Habeas Corpus practice that confirm to practice in civil cases, but the civil rules, when they govern appeals, were fully applicable to appeals in Habeas Corpus cases.

So, what we have is the applicability of the ten-day tolling time unless this Court concludes that the order granting the petition and leaving nothing to be done, but to appeal or to execute with the District Court for file and determine was not the final order, then the conclusion we have is that the motion to reconsider was untimely and that the appeal from the denial of the untimely motion to reconsider did not vest the Court of Appeals of Jurisdiction to review the merits of the Districts Court’s final order, that the Court of Appeals erred in reversing the District Court’s decision.

Even if the Court of Appeals did have jurisdiction and it is our position that it is clear it did not have jurisdiction, the Court of Appeals as the respondent in this Court resolved the Forth Amendment questions by making its own findings of fact by reading the testimony, heard by the district judge at the hearing under motion to reconsider in the light most favorable to the Warden who is the loosing party in the District Court.

The ordinary rule followed by Courts of Appeals is that factual questions which are in dispute, which were in dispute are resolved on appeal in the light most favorable to support the Judgment entered.

If the Court of Appeals had followed that view, it would have decided the probable cause question in this case, the way the district judge had decided on the State Court Record.

William H. Rehnquist:

The District Court’s freedom defined facts is somewhat limited by the 66 Amendment to the Habeas Corpus Act though, is not it, if there has been a State Court record made on the point?

Kenneth N. Flaxman:

That is correct.

In this case the — in this case this is why we go into the exceptions of Stone v. Powell, the legality of the arrest, the question is relating to probable cause to arrest were not heard and decided in the state courts.

There was no full and fair adjudication of this issue in the state courts.

William H. Rehnquist:

Of course, Stone against Powell says if you had opportunity to make the claim, it does not say there has be an adjudication?

Kenneth N. Flaxman:

That is correct, but when they has not been an adjudication as in this case there has not been, I think Stone v. Powell says that there has to be a full and fair opportunity and when — the question has not been adjudicated, I think full and fair opportunity has to be read together with Wainwright v. Sykes, to be that when the issue was not raised at the trial, the rule that has to be applied by the state courts to the determine if there is a full and fair opportunity would be to allow the prisoner to show cause for why it was not raised and prejudice resulting from default of trial counsel.

That is the — what the district judge did in this case. Before he adjudicated the the Fourth Amendment question, he decided whether or not the question had been waived by the failure of trial counsel to have raised it in the trial court.

The Director argued that this question should be resolved in the State Court record in favor of a waiver under the precedent of that extent in the Seventh Circuit and the district judge considered that question and found that under that case which adapted standards are virtually identical to those adopted by this Court in Wainwright v. Sykes, but the question did not waive and should be considered in Federal Habeas Corpus as the Court said in Henry v. Mississippi when it made clear with the States can apply any procedural waiver rules that they feel are appropriate, but that if they nonetheless refuse to adjudicate a constitutional question, it is open to the Federal Courts to determine whether or not the procedural rules followed by the State Courts measured up to Federal standards.

William H. Rehnquist:

But when Wainwright v. Sykes did not deal any Fourth Amendment problem which Stone v. Powell did deal with.

I would have read Stone v. Powell to preclude review on Habeas Corpus if there had been an opportunity to litigate the question without regard to the cause and prejudice requirements of Wainwright against Sykes in other types of claims?

Kenneth N. Flaxman:

Well, I would have read it exactly the same way. I think we have to read or I read Wainwright v. Sykes as defining what opportunity means.

William H. Rehnquist:

But not for Fourth Amendment purposes, it is for right of counsel types of claims?

Kenneth N. Flaxman:

Well, I think that is a narrow reading of Wainwright v. Sykes, that the case has to be read together with the issues decided in that case, it was defined what a full and fair opportunity is.

In this case as in Wainwright v. Sykes he had opportunity to raise the constitutional claim at the trial.

It was not raised, in this case we did not have any opportunity in the State Courts to show that there was cause, but why it was not raised and that we are prejudiced from it not being asserted.

I think if those two cases are read together we come out with this case not being controlled by either or Fourth Amendment really is not being barred by either Stone or Wainwright.

And if this Court agrees that the Court of Appeals lacked jurisdiction, that is at the final order was entered in October 21st that notice of appeal was untimely with that order, then of course there is no question about Stone and about Wainwright.

This case would have reached to the final judgment because the appeal was not been taken and there has been no contention that those cases should apply retroactively to cases where relief had been granted which should reach to the final judgment, where prisoner had been enlarged, virtually enlarged.

As the Court of Appeals resolved the probable cause question which is the way that the respondent will, I think come before this Court and argue the probable cause question, the Court of Appeals believe that the police officers had reasonable grounds to suspect that the person who had committed a crime was one of the two persons and the Court of Appeals held that under those circumstances it was permissible for the police to enter the dwelling at night without a warrant and arrest both of these persons, even when the offense under investigation had taken place two days before.

What time did they enter dwelling?

Kenneth N. Flaxman:

At 6 p.m.

And it was night?

Kenneth N. Flaxman:

Well, it was a January day which I think we can acknowledge was night time in Chicago.

Are you placing any emphasis on that fact?

Kenneth N. Flaxman:

We are, we are — the Fourth Amendment questions are three fold.

Kenneth N. Flaxman:

Perhaps the first question is whether it was lawful for the search of the dwelling to be undertaken in the absence of the exigence circumstances without a search warrant.

The Court has considered that question and has refused which adjudicate.

With the client —

I suppose the opposition will take to the position that there were exigence circumstances here.

Are you relying on the fact it was what you call night, even though in May it would be alright?

Kenneth N. Flaxman:

Well, it is our position that it would be irrelevant whether it was day time or night time, but in this case it was night time.

That is why I asked the question.

Kenneth N. Flaxman:

Well, in this case it was night time.

In the next case when it was day time I think that question should be decided, but here we have the evil in its most of vivacious form, which is night time entries to a dwelling and if that reserve question is to be decided —

No it is a little different than 3 a.m, is it not?

Kenneth N. Flaxman:

Oh it is different in degree, but it is still night time.

Warren E. Burger:

What about the consent factor?

Kenneth N. Flaxman:

The consent should have been raised by the Director in the District Court.

The Director had two opportunities to show that the arrest was lawful.

The petition squarely put an issue, the illegality of the search based in the absence of a warrant.

Mrs. Browder was in a District Court.

She testified.

There was no attempt made by the Director to show that there was consent.

Thurgood Marshall:

But did not the record show that she told him that she thought one of them was guilty?

Kenneth N. Flaxman:

The record shows that the police testified that she said that record also shows that she testified and denied having said that.

Thurgood Marshall:

Did she deny having admitted it freely?

Kenneth N. Flaxman:

That she was not asked about that, she testified —

Thurgood Marshall:

My question was, did she deny it?

Kenneth N. Flaxman:

Did she deny it?

Well, she was not asked to deny or to agree with, but she was asked what happened.

She said “the police came to the door.

I asked them what they wanted.

They said we are here for your sons.”

If she had refused to allow the police entry, she probably, under the Illinois law, would have been arrested for refusing to assist an officer in discharging his duties.

Thurgood Marshall:

Did she tell them, do not come in?

Kenneth N. Flaxman:

No, she did not tell them do not come in.

If she had told them do not come in, she could have been arrested.

Thurgood Marshall:

That is interesting, is it in the record?

Kenneth N. Flaxman:

Okay well, the record was not made on this point.

I think it is clear that the duty of showing an exception to the warrant requirement is borne by the party whose trying to uphold the legality of the search.

Warren E. Burger:

What does the State Court record show about the consent factor?

Kenneth N. Flaxman:

The State Court record shows, what I have just answered to Mr. Justice Marshall.

Warren E. Burger:

It shows no claim of a forcible entry?

Kenneth N. Flaxman:

No we are not claiming that the entry was forcible.

We are claiming that —

Warren E. Burger:

It shows on the contrary, that the police testimony was she consented to their entry and permitted them to enter the house, that is not disputed?

Kenneth N. Flaxman:

The consent that is shown by the record is the same kind of consent or accession to official demands that has been rejected by the court as being unknowing and voluntary consent to entry.

In this case the police officers were not knocking on doors asking questions.

They spent the day, they spent the evening getting together to go out Browder household to arrest those people.

It is difficult to see how these police officers would taken no for an answer, when they arrive at the Browder’s residence and said we are here, to get your sons Mrs. Browder.

There were four officers who got together to go out to the Browder household to arrest the people there to find out which one would be identified.

The police officers before they went to the Browder household knew or so they claim knew that they would have to arrest more than one person and they knew that they would be making an arrest to investigation, an arrest to determine whom should we charge.

That is the kind of powers which this Court has been reluctant to allow police officer to exercise consistently with the Fourth Amendment.

The way Weary Davis v. Mississippi is that whenever the police are engaging in a planed investigative series of arrests, the only way, the only conceivable way that, that could be authorized would be if it had been previously authorized by a judicial officer under one of, as suggested or as the American Law Institute, for example, read Davis and they suggested a model statute allowing limited detentions.

In this case, the police decided or suspected that the person they were seeking might be one of the persons in that room, in that dwelling and they went and seized all of them.

There was ample opportunity to get a warrant.

They knew they will be seeking, they will be seizing more than one person and that power, the power to arrest to clear up an investigation is a power which strikes at the —

Well, you concede that if the police had reasonable grounds to believe that one of the four was guilty of this rape that, that would have given probable cause for them to arrest all four of them?

Kenneth N. Flaxman:

No I would not concede.

Then what do you there was ample opportunity to get a warrant?

Kenneth N. Flaxman:

What I mean is that everything the police knew on January 29th when they went to the Browder household, they knew, they knew two days before when the rape was reported.

They knew, if they did know that the offender itself was a teenager named Browder from that block.

They knew that day right after the rape and they waited two days before deciding to act on that.

They could have done further investigation in those two days.

They could have shown photographs to the rape victim.

Kenneth N. Flaxman:

They could have gone to a prosecutor, confront to him with their problems and what should we do?

We think its one of several people, should we go arrest them all?

Should we get a warrant?

Should this be turned over to the grand jury or some these people down, have the rape victim look at them?

They need to any of those things.

They had ample time to do something other than to get together one evening and go out and arrest everybody there.

So we do not concede that under those circumstances it is reasonable, it is lawful for the police to make a warrantless arrest of four people with the expectation or in the hope that one of them would be identified.

They were two teenagers who then address name Browder, were they not?

Kenneth N. Flaxman:

They were two teenagers who said their name was Browder.

There were two other teenagers who said that their names were not Browder, but the police may have suspected that they were lying.

They were there to arrest the teenage Browder like 16, 17, 18, 19.

And they were in fact two of them?

Kenneth N. Flaxman:

That is correct.

Was there any question about there being Browders when you say they said they were Browder?

Kenneth N. Flaxman:

Well, they admitted to being Browders.

There were two other teenagers said they were, that their name was not Browder, but the police officers did not believe two Browders and they said did you commit the rape and they very well might not have believed the two other teenagers, and they said our last name is not Browder.

Is it not conceded that they were two brothers by the name of Browder?

Kenneth N. Flaxman:

It is conceded.

Who were picked up among the four?

Kenneth N. Flaxman:

That is correct.

But then, let me ask another question.

Suppose that your client (Inaudible) Browder was the only one there, would you be making the same argument?

Kenneth N. Flaxman:

Well, I would be making same argument in addition to others, but at the time what we have to do is look at what the police knew at the time they entered the Browder residence to make the arrest and if they had gone to a —

Would you answer the question, would be making the same argument?

Kenneth N. Flaxman:

I would be arguing that they lacked sufficient probable cause to arrest anyone based on what they knew.

They had enough information to get a general warrant to search the 4000 block of Monroe street.

They did not know that this Browder family was the only Browder family who lives in this block.

They made no attempt to determine if there were other teenage Browders.

If for example there had been three Browder families each with five teenage sons, this quantum of information would have allowed the arrest of 15 people.

The police simply did not do enough in this case to narrow the focus to any identifiable person.

Kenneth N. Flaxman:

The only warrant they could have gotten, the only arrest warrant they could have gotten would have been a general warrant, that simply is not enough.

Thurgood Marshall:

If the victim says, the person who committed the crime against me, his name is Browder and he lives at a particular number on a particular street.

Would that be sufficient to go and arrest them?

Kenneth N. Flaxman:

That would be sufficient to go arrest them.

Thurgood Marshall:

So the only difference is that they did not give them the specific number?

Kenneth N. Flaxman:

Well, that is the first —

Thurgood Marshall:

Is that right?

Kenneth N. Flaxman:

That is —

Thurgood Marshall:

Is that right?

Kenneth N. Flaxman:

That is the first difference.

What you are saying is correct.

There is another distinction in that once the police got there, they found there were several people who matched that description.

Thurgood Marshall:

No my point was, but he could have arrested a Browder?

Kenneth N. Flaxman:

They would have probable cause to go out and arrest a Browder.

Once they found this —

Thurgood Marshall:

Well, they did arrest two Browders?

Kenneth N. Flaxman:

That is correct.

Thurgood Marshall:

What is wrong with it?

Kenneth N. Flaxman:

Once they found that there was more than one person who matched that description who lived at that address —

Thurgood Marshall:

So if a man says that the guy that killed me his name is Jones and he lives at 213 M. Street and you go to 213 M. Street, you find two people named Jones, you cannot do anything?

Kenneth N. Flaxman:

Oh! I am not saying you cannot do anything.

What you cannot do is arrest both of them to find out which one–

Thurgood Marshall:

What would you do in that situation?

Kenneth N. Flaxman:

Well, I think you first have to —

Thurgood Marshall:

You find two people who said my name is Jones?

Kenneth N. Flaxman:

We first, police first have to make it a determination because anything could have happened if you do not have prompt.

If they believe that both people are going to flee then we have different situation than what we have here.

Here we have the police going ahead, finding out there are two people–

Thurgood Marshall:

What could they do when two people say my name is Jones?

Kenneth N. Flaxman:

Well, they have to make that first decision, I think both are going flee if they do not do any thing.

Thurgood Marshall:

Well, assume it both ways?

Kenneth N. Flaxman:

Well, if they make determination, nothing is going to happen, if we do not do anything, that both of these people are upstanding over the community, they are not going to leave, then the police cannot arrest them.

Thurgood Marshall:

I did not say nothing about the upstanding members of the community.

How do you know whether man is going to flee or not?

I assume, if you come and say you are looking for man name Jones who have committed murder, so that you can arrest him and convict him, the chances are he might leave, which one of them would you arrest?

Kenneth N. Flaxman:

Under those circumstances —

Thurgood Marshall:

Which one would you arrest?

Kenneth N. Flaxman:

In that hypothetical, I think the police could arrest both.

The problem would be the search warrant question it would be reasonable to enter, it would it be lawful to enter a dwelling to arrest both of them and we would still argue you need a warrant —

Thurgood Marshall:

Well, in line of our cases, if they came to a doorway and caught that someone could they arrest?

Kenneth N. Flaxman:

If they have probable cause to —

Thurgood Marshall:

If they came to the doorway, could they have arrested them —

Kenneth N. Flaxman:

This Court is held that the warrant is needed in that situation, answer would be yes, under —

Thurgood Marshall:

So they could arrested both of them?

Kenneth N. Flaxman:

If they were both in a public place and they both —

Thurgood Marshall:

No, no, in the doorway of their own home?

Kenneth N. Flaxman:

If they were in the doorway, yes.

Thurgood Marshall:

And we would be then what inside the room?

Kenneth N. Flaxman:

That is our argument, a warrant needed to enter.

If I may, I would like to —

Warren E. Burger:

Very well Mr. Flaxman.

Mr. McKoski?

Raymond McKoski:

Thank you, Your Honor.

Mr. Chief Justice and may it please the Court.

I would like to briefly address the issue of the arrest, the probable cause for the arrest and the nature of entry.

I will keep my remarks very limited in this regard.

It is important to keep in mind exactly what the police knew, when they went to the Browder residence.

On January 29, they found out from the victim of the rape that her assailant was the brother of a person, the victim went to school with.

She knew that he was dark complexed, male Negro in his late teens, approximately seventeen years of old, 17 years of age, his last name was Browder and he lived in 4000 West Block of West Monroe.

She narrowed it down to one block.

Raymond McKoski:

This information was received on January 29 by a homicide investigator Stan Thomas.

It was not until the 31st of January, two days later that Mr. Thomas conveyed this information to the Juvenile Authorities, who then went out and arrested him.

On January 31st, the Juvenile Officers received the information about 4:00-4:30 in the afternoon and had made the arrest by six at night.

In that intertwining time they had located a Browder family on the block, they have located a juvenile record on one Tyrone Browder, who lived at 40,53 West Monroe.

They had personally interviewed the victim of rape themselves to verify the information that Mr. Stan Thomas gave them.

They also called for a back up squad.

At six o clock they proceeded to the house.

One of the thing I forgot that is very important.

Before they went to the house the juvenile officer who was heading the investigation called the Browder residence and talked with the mother of Tyrone and then Ben Browder.

He asked her if the sons were home and she said yes and he said would you mind keeping them there and until we get there.

The police then got into the car and went over to the Browder’s residence.

In this time, Mrs. Browder had an opportunity to think over what she wanted to do when police came there, she wanted to change her mind since the phone conversation.

The police arrived, knocked on the door, Mrs. Browder opened the door and the testimony of the police officers, invited them in.

They went in, no search was conducted, the arrest was made, Miranda warnings were given and the four gentlemen were taken to the police station.

Now —

I take it you are conceding that the four were arrested at that time?

Raymond McKoski:

Your Honor, I believe that the real explanation — I am not hesitant to conceive that for the purpose of argument, the four arrested, but I think what really happened in that context and the juvenile officer who was in charge of the investing so testified, they went to the house, they knew two Browder’s would be there and they arrested both Browders because they both fit the description.

They were two other young teenage black males there.

The police knew that there was second assailant Sharon Alexander was raped by a man named Browder, but there was also another assailant with Browder at the time who also raped her.

And so Mr. Conright (Ph) testified that he thought that may be one of the other two could have been the second assailant and that is why he asked the other two if they would go along to the police station to stand in line up.

Mr. Conright testified, they volunteered to go with and that was how description of the events ended.

Once at the police station, arrest slips were filled out for all four youths, so I think that they were arrested, at any event arrested at the police station, when the arrest slips were filled up.

I do not believe Mr. Conright thought that he was arresting them at the time at the house, but I do not think it is really important.

I think the important point there is, not withstanding what Mr. Flaxman said, they were not arresting all four because they thought one of the four was a Browder.

They knew who the two Browders were.

The mother introduced the police officers to the two Browders.

It was the other person the second assailant they thought might be there.

We argue in our brief that there was probable cause like the Seventh Circuit held at the warrantless entry, that warrant was not necessary for the entry because the entry was consented to and even if not consented to, it was acknowledged by Mrs. Browder.

We also argue that in any event a warrant is not necessary to enter a private dwelling to effectuate an arrest and I would like to get back to that a little bit if I could.

I do feel compelled first though to address just very briefly Mr. Flaxman’s initial argument and that was that the Court of Appeals never had jurisdiction to even consider this case.

Raymond McKoski:

There is dispute as to what was the final order, but right now I do not want to concede, but I am willing to assume, October 21st 1975 was a final order.

That order was a minute order and a memorandum opinion, that was filed after respondent filed a motion to dismiss.

The petition was filed, a motion to dismiss was filed by the petitioner — by the respondent and then later District Court granted the writ and impliedly denied the motion of dismissal though that was never specifically stated.

28 days after the writ was issued with a stay of 60 days to retry to petitioner.

The respondent filed a motion, it was entitled motion for an evidentiary hearing and it was respondent’s position —

Thurgood Marshall:

Is there anything in the record to show why it took you 28 days to find out what the law was?

Raymond McKoski:

There is nothing in the record with the exception of one statement in the motion for an evidentiary hearing that said that upon investigation the respondent feels that one may reasonably conclude that there was probable cause.

It is sort of an innocuous statement, but what the purpose of the statement was that this case was an old case.

Thurgood Marshall:

Newly discovered evidence?

Raymond McKoski:

I suppose you could phrase it that way Your Honor.

Thurgood Marshall:

Well, what was the newly discovered evidence, what the law was?

Raymond McKoski:

No Your Honor, it was not what the law was.

Thurgood Marshall:

Well, why was not it?

Raymond McKoski:

The problem that the respondent faced was to find out if there were in fact, facts to present to District Court that they were —

Thurgood Marshall:

And the facts were what you presented, your witnesses?

Raymond McKoski:

That is right.

Thurgood Marshall:

That were in your control, and that is newly discovered evidence?

Raymond McKoski:

Your honor.

Thurgood Marshall:

How can you newly discover your own evidence?

Raymond McKoski:

The respondent in this case, the Director, the warden, the Director of Illinois Department of Correction nor his attorney, the Attorney General had any idea on whether or not there really were other facts presented in the record to establish probable cause.

It has never been litigated.

I certainly —

Thurgood Marshall:

Did not they litigate originally?

Raymond McKoski:

No.

Thurgood Marshall:

Well, who represented the State in Habeas Corpus?

Raymond McKoski:

The Attorney General of the State of Illinois.

Thurgood Marshall:

Oh that is why I thought that was it.

Well, was he incompetent?

Raymond McKoski:

I hope not Your Honor.

Thurgood Marshall:

Well, why did not he put this in then?

Raymond McKoski:

Because he did know that those facts existed.

Thurgood Marshall:

Because he did not know law.

Raymond McKoski:

Because he did not know that Miss. Sharron Alexander gave a description to the police officers.

Thurgood Marshall:

Well, did he not have the facts?

Raymond McKoski:

He did not have the facts, they were never litigated.

Thurgood Marshall:

Did he had to view the police officers?

Raymond McKoski:

Not just merely refile a motion.

Thurgood Marshall:

Well, do we have to change the rules to take care of somebody that do not know how to try a law suit?

Raymond McKoski:

No, I do not think that law should be changed in that regard Your Honor but —

Thurgood Marshall:

But you have no explanation for waiting 28 days to file a motion which should have been filed immediately?

Raymond McKoski:

I have an explanation Your Honor.

Thurgood Marshall:

And I am waiting for it?

Raymond McKoski:

The Attorney General’s office as in all Habeus Corpus cases, receives a copy of the petition, for a writ of Habeus Corpus.

The attorney assigned to the case, reviews the petition.

If he thinks a motion or dismiss would be in order, he writes a motion to dismiss, basically assuming what petitioner said is true, it has not stated the claim, files that, without any factual investigation because none is necessary for a motion to dismisses.

The motion to dismisses rule that.

If it is denied, usually the District Court Judge gives the respondent 10 days or 20 days to file any answer, response of pleading.

In this case no such opportunity was given.

The motion to dismiss was in effect was denied, the writ granted.

Thurgood Marshall:

Did the State’s lawyer ask for any time?

Raymond McKoski:

No Your Honor.

Thurgood Marshall:

Well, what are you complaining about, on that point?

Raymond McKoski:

My first point Your Honor is that the Attorney General, the representative of the respondent needed time to do a factual investigation, the case is five years old.

Thurgood Marshall:

You left that one very important point.

The Attorney General’s office is very over worked, you left that one out?

Raymond McKoski:

Well, Your Honor they were overworked, when I was there and they still are, but I certainly do not rely on that fact, whatsoever.

The fact I rely on, and that it takes time to do investigation, a factual investigation of a case five years old, some of the police officers are no longer with the force and some cannot even be located to testify at the hearing.

Thurgood Marshall:

But the record was there?

Raymond McKoski:

The record unfortunately did not go into the circumstances around the arrest because it probable cause issue was not litigated.

John Paul Stevens:

But Mr. McKoski could not the Attorney General within the 10 days provided by Rule 59 have filed a motion to amend the order to give in time to conduct a factual investigation and file an answer?

Raymond McKoski:

That could have been done Your Honor.

John Paul Stevens:

And that would have avoided the whole problem of the timeliness of the appeal, would not it?

Raymond McKoski:

Well, I do not think, the issue would have probably still been raised.

John Paul Stevens:

If you had filed the motion within the 10 days.

See the problem of your position is I understand it is, that the 10-day requirement just becomes an nullity?

Raymond McKoski:

That is right Your Honor.

Our position is that in Habeas cases, number one the Federal Rules, Civil Rules of Procedure do not apply across the board and its basically at the discretion of the trial judge whether to apply them or not.

John Paul Stevens:

Well if that is true, is it significant that the order, the motion was filed within — in 28 days rather than say 31 or 32 days?

Raymond McKoski:

Yes Your Honor because traditionally and by practice in the Federal Courts, a motion to reconsidered is timely filed, if it is filed within the 30-day period for appeal.

Potter Stewart:

That is under Rule 60 (b), is not it?

Raymond McKoski:

That I am talking about basically United States v. Dieter and United States v. Healy.

That those cases held that a motion to reconsider traditionally in civil and criminal practice is timely filed, if filed within 30 days.

Potter Stewart:

Your pleading was not filed under Rule 60 (b)?

Raymond McKoski:

No, it was not Your Honor.

Potter Stewart:

And even today you do not claim that it was authorized by Rule 60 (b)?

Raymond McKoski:

It was filed under the rights under the Habeas Corpus Act.

Do you not weaken your case by abandoning all reliance on 60 (b)?

Raymond McKoski:

Well Your Honor, I am not saying that 60 (b) could be applied here in our favor.

I think it would be applicable, but we do not make that argument and I cannot say that we made the argument, and we did not.

I know you did not.

On the other hand if this is jurisdictional, may this Court make it for you?

Raymond McKoski:

Well Your Honor, I think if the respondent is left on argument that clearly settles the issue that the Court would probably or should probably, if I can be so bold, use the argument that the respondent did not raise if in fact law ans justice required as the Habeas Corpus Act requires these petitions to be disposed in accordance with.

Thurgood Marshall:

If you do not rely on Rule 60 (b), will you state as shortly as you can on how you avoid the 10-day requirement of Rule 59?

Raymond McKoski:

Rule 59 talks about a motion for a new trial, we never had a trial.

William H. Rehnquist:

Well, or a motion to alter or amend the judgment?

Raymond McKoski:

Our basic argument is that Federal Rules of civil procedure can be applied by a district judge when he feels appropriate, when they are in line with disposing of a petition as law and justice requires.

Potter Stewart:

That is in a Habeas Corpus procedure?

Raymond McKoski:

Right Your Honor.

Potter Stewart:

Your basic argument is that the Federal Rules of Civil procedure do not all literally apply in an (Inaudible) to a Habeas Corpus proceeding, is that it?

Raymond McKoski:

That is correct Your Honor and that is supported by the new rules govern in Habeas procedures and has always been in effect, exercised by the Courts.

William H. Rehnquist:

And what is the test for knowing whether or not a particular rule of civil procedure applies in a Habeas Corpus petition?

Raymond McKoski:

It is in the District Court’s discretion.

If he feels that a rule is applicable then he can apply that and if he does not abuse his discretion, it cannot be disturbed.

It is for him to determine what rules are appropriate to be applied.

William H. Rehnquist:

Well, then you will never know when they think it is appealable.

The whole purpose of rules in civil procedure is to fix deadlines and let people know when the case is over, when it is finally addressed if no notice of appeal has been filed.

Your system would just leave the whole thing up in the air, would not it?

Raymond McKoski:

No Your Honor, I do not believe so.

When an order was entered that disposed of the facts, that disposed of the case, granted relief to one party or the other, than that order would be appealable for a period of up to 30 days, there is no problem with that.

Thurgood Marshall:

So when if the petitioner loses for failure to put up evidence, he could, 28 days later, come in and say I have got evidence?

Raymond McKoski:

If I understand you correctly, Your Honor, yes.

Thurgood Marshall:

He could?

Then could he come in after at another 30 days.

When would your time limit take place?

Raymond McKoski:

Your Honor —

Thurgood Marshall:

Surely you agree at some time it has got end?

Raymond McKoski:

Certainly, Your Honor.

Thurgood Marshall:

When?

Raymond McKoski:

I think that it would be in the same way that the United States v. Dieter or U.S. v. Healy was handled.

We have one motion to reconsider has been allowed traditionally and by practice.

When you have that one motion, however, it is disposed off, you have 30 days from that time to appeal.

Thurgood Marshall:

And that would apply to all the charges in that circuit and would apply to the next circuit?

You leave up to this each Court?

Would you leave up to each Judge?

Raymond McKoski:

Leave what up to each judge, Your Honor, I am sorry.

Thurgood Marshall:

As to when or not, he is going to ignore the 10-day rule?

Raymond McKoski:

That is right Your Honor.

Thurgood Marshall:

It would be up to each judge, but why not do away with the 10-day rule?

Raymond McKoski:

Well, I do not think that the 10-day rule should be applicable to Habeas cases because of their unique nature.

There may be some circumstances when they are.

Thurgood Marshall:

What rule was it, the rule in this case?

Raymond McKoski:

The rule that has traditionally been followed in practice in civil and criminal cases throughout the country in Federal Courts.

Thurgood Marshall:

In Civil and criminal cases.

Raymond McKoski:

Civil and criminal cases; United States v. Healy rules.

We have 30 days to file a motion to reconsider and 30 days from the date of the disposition of motion to appeal.

Thurgood Marshall:

So the 10-say will drop?

Raymond McKoski:

That is right Your Honor.

I think that–

Thurgood Marshall:

Just — just a mistake?

Raymond McKoski:

It was a mistake?

I do not think it was a mistake.

I think it has a place in talking about normal civil suits.

I think,also, that if District Court Judge could apply it if he wanted, if he thought that was appropriate, but I think if he does not apply it, he has that right and only if he abuses his discretion in not applying it, is there a problem.

I think it is in the trial court’s discretion as other civil rules of federal procedure.

The district judge chose not to apply it in this case and I think his reasons for not applying are all sound.

The issue had never been litigated, and the state was making claim that they had probable cause.

Byron R. White:

You would not be making this argument except that this was a Habeas Corpus petition?

Raymond McKoski:

If it was – well, there may be other unique kinds of proceedings that should not be governed all the time by Federal Law.

Byron R. White:

Or would you say this kind of a petition would be out of time in a non Habeas Corpus civil case?

Raymond McKoski:

Our petition to reconsider?

Byron R. White:

Yes.

Raymond McKoski:

I think still it could timely filed within 30 days in a normal civil suit under Dieter and Healy.

Byron R. White:

So you really do say, you should pay no attention to the rule?

Raymond McKoski:

Well, I say that you should pay no attention to it in the Habeas case if the District Court Judge —

Byron R. White:

I am now asking about a non Habeas case?

Raymond McKoski:

Okay.

In a non Habeas case I think the rules of federal procedure should apply strictly to those cases.

Byron R. White:

So this kind of petition would be out of time in a regular civil case, a non Habeas Corpus case, that is the motion to reconsider?

Raymond McKoski:

My reading of Healy —

Byron R. White:

Well ,is not there yes or no, that is enough?

Raymond McKoski:

I am happy to say that this kind of motion would be out of time, but I think that opinion in my opinion, their might be conflict with Healy.

Byron R. White:

Well, what makes you think so?

Raymond McKoski:

Because Healy and Dieter say —

Byron R. White:

Healy never said that their petition for — an out of time petition for re-consideration would extend the time for a appeal?

Raymond McKoski:

If it does not…

Byron R. White:

And none of the cases that in which you have relied said that?

Raymond McKoski:

If it does not Your Honor then I am mistaken and I apologize, but that was my reading in the case also.

Dieter, I think, both of those appeals were filed after 30 days of the original order.

William H. Rehnquist:

But Dieter was a criminal case where you do not have the counter part of Rule 59?

Raymond McKoski:

No that is correct Your Honor, but Dieter says that a petition for re-hearing has been traditionally considered timely filed in civil and criminal cases if within a 30 days.

Dieter was not a civil case.

Did you read the cases that Healy cited for that preposition?

Raymond McKoski:

I do not know of any cases Your Honor, of civil cases, considering a motion to reconsider.

I do not know them and that is why I am saying I do not hesitate to say that the rules of the civil procedure should apply strictly in normal civil cases.

Well, the lead case that the Healy cited says that the filing of an untimely petition for re-hearing does not extend the time for a appeal?

Raymond McKoski:

What case was that Your Honor?

Well, that case is Bowman v. Loperena, you ever read it?

Raymond McKoski:

No, Your Honor I have not.

Well, Healy is – people who wrote Healy have certainly read it?

Raymond McKoski:

And I apologize to the Court, I am not familiar with the case Your Honor.

I want to make —

Warren E. Burger:

I thought the argument you were making at the outset is that for all practical purposes a Habeas Corpus case is a criminal matter and should be viewed in criminal context, just as Congress has viewed it for purposes of the Criminal Justice Act and you have to go beyond that and try to give this unlimited discretion to each district judge, to fix time limits of his own view?

Raymond McKoski:

No, Your Honor.

There is no question that a Habeas case underlying at is solely criminal issues and it arises from a criminal case.

I am afraid that, being as director as I can I got into trouble with the civil, talking about normal civil cases.

I am happy to say that, without exception, Federal Rules of civil procedure, should apply in civil cases.

I only mentioned that I thought it might conflict with Dieter because of the word civil in there in criminal.

I am happy to withdraw that and I think Habeas cases are special.

John Paul Stevens:

But, Mr. Mckoski, even if you treat it as a criminal case, it would not solve your Healy and Dieter problem, because there there was no rule authorizing appeal by the Government, where delay in the time to appeal by the Government, whereas there is a provision for some kind of a motion by a defendant that loses its neck in a criminal case?

Raymond McKoski:

There is provision in a criminal case.

Raymond McKoski:

I am sorry, Your Honor I did not —

John Paul Stevens:

Can a defendant in a criminal case after conviction move into District Court for a new trail?

Raymond McKoski:

Yes, he can.

John Paul Stevens:

Whereas the Government cannot?

Raymond McKoski:

That is correct.

John Paul Stevens:

And is it not the thing that the thing that was missing in the – it is not just a civil, criminal distinction, but also the fact that he was a party who had no right in the District Court to get an extension of time for a new trial, other than by an analogy to a petition for a hearing?

Raymond McKoski:

I think that is correct.

John Paul Stevens:

So, that even if you treated this as a criminal case, you still have your 10-day problem because here there is a rule squarely in point that says within 10 days, the court has power to order or amend the judgment?

Raymond McKoski:

I think that the basis of Dieter was that — based on tradition and history, I mean, besides tradition and history, that it was the most economical way to adjudicate the issues and I think that same rationale that applies here.

To give a respondent 10 days to move for some kind of relief after his motion to dismiss has been denied and nothing else has been stated on the case, I think, provides a burden on him that is very hard to comply with that, any time you are talking about Habeas cases.

William H. Rehnquist:

Well, you say after his motion to dismiss denied, but actually the 10-day period contemplates the motion to be made after a trial also, which is much more burdensome thing.

You try a six months case and figure you got to in within 10 days and file a motion to alter or amend the judgment, and I think you have got a much bigger problem than you do in your typical ruling of law type of thing, hits your head here without any evidence taken?

Raymond McKoski:

When you go through a long trial, at least you know what the facts of the case were.

When our motion was dismissed, it was denied here, we did not know what the facts the police officers had in their possession, in a case that was five years old and we literally tracked down people.

It was not a matter of office work, going through voluminous record or checking the amendments for what happened in the trial.

In a case that you like describe Your Honor, at least you know the facts, here we do not even know what the facts were and had to scale them up.

Warren E. Burger:

How long before had this trial taken place of these events —

Raymond McKoski:

It is August of 1971.

Thurgood Marshall:

And how long was the trail?

Raymond McKoski:

I believe that it was three days.

I think it was, two or three days.

Thurgood Marshall:

And how long would it take you to you as a lawyer to go over three day record?

Raymond McKoski:

It is not very long, Your Honor —

Thurgood Marshall:

It will be less than ten days, would it not?

Raymond McKoski:

The problem —

Thurgood Marshall:

It will be less than ten, would it not?

Raymond McKoski:

Yes, Your Honor.

The problem is that the record included absolutely nothing on a probable cause issue, and we had to go outside the record to locate witnesses around the city of Chicago.

I would also like to mention too in passing on this that if the Civil Rules of Federal Procedure do apply, then the rules were violated by the District Court, by ruling on the merits of the case, with only our motion to dismiss pending.

Certainly in any other kind of civil case where there was Federal Civil Procedure apply, motion to dismiss, the case cannot be decided on the merits with only a motion to dismiss pending.

Raymond McKoski:

He did not consider it as a motion for summary judgment.

The petitioner did not file a motion for summary judgment.

Only thing that we had pending was a motion to dismiss where we admitted everything the petitioner said and said he did not state a claim.

We had a right to a hearing if our motion to dismiss was denied.

The trial judge did not give us that in compliance with the rules.

He did not give us a chance to answer whatever the provision is, ten or fifteen or twenty days to file an answer.

William H. Rehnquist:

But that is something you would ordinarily raise by appeal?

Raymond McKoski:

That is right Your Honor.

To raise that by appeal though was just too big.

Extended litigation over years we would have went up to the Seventh Circuit and ask for a hearing they would have given us a hearing, hopefully.

We would then go back down to the District Court, the District Court would have founds no rule probable causes which make up the Seventh Circuit Court of Appeals, they would have found probable cause if they stuck to their original decision and it would have just taken couple of more years.

It certainly saves a lot of time and I think that was the part of the reason in Dieter, to ask right in there in the District Court for the hearing a void when appealed.

I would like to ask for brief speak — speak briefly if I might citing the Stone v. Powell issue and Wainwright v. Sykes issue.

Assuming that, I am sorry, it is our contention basically that the search and seizure issue, the Fourth Amendment claim is not cognizable in a Habeas case.

And even if it is cognizable the defendant has, the petitioner has an in fact waived his right to present that issue in a Federal Habeas Corpus petition because he did not object the entry of the evidence in the trial court on the basis of unlawful arrest.

Stone v. Powell requires an opportunity, the State gives an opportunity for a petitioner to raise a Fourth Amendment claim. The State of Illinois provide such a procedure.

A motion of suppress of evidence can be made before trial.

The facts were not known at trial.

This opportunity provided by the Illinois statutes safeguards the deterrent effect of the exclusionary rule which was the main concern in Stone v. Powell.

Simply put, as long as the police know that illegal seized evidence can be suppressed or will be suppressed by a State Court there is no incentive for them to disregard the Fourth Amendment.

In fact, there is a deterrent because illegally seized evidence will not be allowed.

The fact that the defendant in trial court, the petitioner here did not choose to challenge the evidence in the State Court, does not detract from the effectiveness of the Illinois procedures in the deterring police conduct.

It would only have an effect under deterrence if we could assume that a police officer will think, well, I can seize this evidence illegally because the defendant’s attorney probably would not raise the issue.

I do not think that can be a valid assumption.

The State did nothing to interfere with the opportunity, petitioner had in State Court to present his issue.

There was an opportunity.

The defendant did not take it, take advantage of opportunity, but it was there, and therefore, this purely Fourth Amendment Claim is not cognizable.

If it was cognizable, if it is cognizable the defendant did not raise the issue in the Trial Court.

He did not raise the arrest issue on a motion of suppress.

He did the arrest issue at trial using it to show that the police officers really did not know whether they were arresting that there was no warrant before arrest and investigation of rape, using it to show to jury that the police were not sure who committed the crime, and therefore, the Jury should not be sure who committed the crime.

Raymond McKoski:

The petitioner’s trial counsel knew the factual basis for an arrest claim.

He filed motions under the contemporary subjection rule so he is aware of that.

In fact, his efforts helped secure the petitioner’s acquittal on the armed robbery charge, although he was convicted of rape.

It was no challenge that he was competent.

Simply the petitioner is not shown cause why his failure to object in trial court should be excused.

Also important here is the reliability of the evidence.

The inquiry identification was from an independent source, not the arrest.

The District Court and Trial Court held that.

The confession was purely voluntary. It was a volunteered statement after two eye witnesses identified the defendant in a line up.

He admitted to one, denied the other.

He called the police officer over to speak to them, no interrogation whatsoever.

Each statement was only a couple minutes long.

Miranda warnings were given three times.

In short it is our position that issue is not cognizable.

Secondly Wainwright v. Sykes application to that rule or at least one result that he waived the because there was no cause and there was no prejudice from the alleged Constitutional violation.

Thank you very much.

Warren E. Burger:

You have any thing further Mr. Flaxman?

Kenneth N. Flaxman:

Yes Mr. Chief Justice.

If you should prevail on the jurisdictional issue, do you think we must reach the Rule 35 issue that you also raised?

Kenneth N. Flaxman:

No I do not think the Court must reach.

Mr. Browder would be happy with the reinstatement of the petition of the writ granted by the District Court.

The primary argument, I have been listening to is that the State or the Director did not have time to get together its motion to reconsider within 28 days.

The motion that was filed in opposition to the petition was not really a motion to dismiss, it was motion for summary judgment.

It was based on facts set out in the State Court record, that will be forwarded to district judge and it relied on those facts.

It was in our memorandum file in support of the petition we suggested that it would not be inappropriate, if the district judge so desired to allow an evidentiary hearing for the Director to show that there was a probable cause for arrest.

If the Director came in within 10 days and said judge you did not hold the evidentiary hearing, you should have held one, even the petitioner thinks that you should have held one, we probably would have been estopped to dispute that and the hearing would have been held.

Rather than coming within 10 days there is this 28 day delay.

William H. Rehnquist:

But the motion instead of being denominated and the motion old remand had been denominate, the motion for a new trial on the base of newly discovered evidence under Rule 60, in the same time sequence it obtained?

Kenneth N. Flaxman:

Well, if it had been, regardless of how it was labeled if the district judge construed it as a Rule 59 motion it would have tolled the time to appeal.

If it had been a Rule 60 (b) motion which could be filed any time after the notice of appeal should have been filed without tolling the time to appeal then there would be the standard for review from the denial of that motion would be right over if the district judge had abused his discretion in refusing to modify his earlier order and there is no abuse of discretion here, evidence before the district judge in hearing the motion to reconsider was contradictory.

William H. Rehnquist:

But at least there the Court of Appeals would have jurisdiction to entertain the appeal?

Kenneth N. Flaxman:

That is correct.

That is exactly what we argued in the Court of Appeals that this motion should be viewed, as this appeal should be viewed as an appeal for the denial of Rule 60 (b) relief.

The Director conceded or represented an urge to Court of Appeals not to view it as a Rule 60 (b) appeal and has urged this Court not to do so.

I think it would be inappropriate for this Court to go back and re construe the case if it had been an appeal for denial of Rule 60 (b) relief.

Even if it had been though, the result necessarily would have been that the district judge should have been referred just to ample contradictions to support his refusal to modify his earlier order.

The argument that Rule 59 is not applied to Habeas Corpus proceedings overlooks what I think Mr. Justice Rehnquist was getting out in his question as to how do we tell which civil rules apply.

We can tell that when it is not explicitly said by looking at former practice and saying if former practice in civil cases confirm to practice in Habeas Corpus cases and indeed it did as we may clear in the two cases that we cite in our brief and at footnote at page 21.

Warren E. Burger:

Your time has expired Mr. Flaxman.

Kenneth N. Flaxman:

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.