Carafas v. LaVallee

PETITIONER:Carafas
RESPONDENT:LaVallee
LOCATION:Jewelry Store/Post Office Contract Station # 7

DOCKET NO.: 71
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 391 US 234 (1968)
ARGUED: Mar 27, 1968
DECIDED: May 20, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – March 27, 1968 in Carafas v. LaVallee

Earl Warren:

No.71, James P.Carafas, Petitioner, versus J.Edwin LaVallee, Warden.

Mr. Cally.

James J. Cally:

Mr. Chief Justice Warren and Honorable Justices of this Court.

In this case here we have several violations, we believe, of the Constitution of the United States as they apply to this individual, Carafas.

The facts are simply as follows, on June the 3rd, of 1959, a theft complaint was given to the detectives of Nassau County which is in Mineola, New York.

Someone had — someone has stolen furniture from a development.

It developed that a Cadillac and a trailer was seen in the vicinity of this area sometime earlier that day.

And as a consequence of the situation, the detectives learned who the owner that automobile, a Cadillac automobile was and it was James Carafas.

Thereafter, the detectives learned where he resided — 35-53 36th Avenue, in New York — in Queens, New York and they went to the premises.

This is a premises which contains two-stories.

The first storey was occupied by a physician and the second story was occupied by Mr. Carafas and his family.

Upon arriving there, Detective Grame and Capler (ph) turned the knob of the door and entered the premises in the vestibule.

Thereafter, they said they went into the doctor’s office and they inquired where Carafas lived and someone said, “upstairs”, and Detective Grame and Capler (ph) then mounted the stairway.

As they mounted the stairway, they said they noticed some furniture which was on the landing which was of the type described to them by the owner of the Development.

And upon reaching the top of the stairway, they said they put one James Carafas under arrest.

The version of the defendant or the petitioner in this instance is quite different.

His version is that he was lying on a divan in his living room, and that these two detectives walked into his living room, awakened him and then start to run — rushed at into his premises.

So much so that quite a commotion was caused and other police had to be called from the City of New York.

Both husband and wife were put under arrest.

Now the issues involved in this particular case are as follows: whether or not the evidence that was procured at this time should have been suppressed under the Mapp rule, which this Court decided on June the 19th, 1961.

And whether or not the violations of the Constitution also occurred as to the individual rights as to whether or not he had to be questioned without an attorney or whether he had to be given his constitutional guarantees.

Now, we contend —

William J. Brennan, Jr.:

Aren’t you going to argue the mootness question?

James J. Cally:

I will sir, on my reply.

Potter Stewart:

Oh!

Byron R. White:

I’m not (Voice Overlap) —

James J. Cally:

I’m not sure (Voice Overlap) —

Earl Warren:

I think that’s very important.

I’d like to hear it on your case in chief that’s a —

James J. Cally:

I see, sir.

Earl Warren:

— is clear.

James J. Cally:

Alright.

Earl Warren:

Very much this and that — I don’t mean you have to do it right now but I mean before you sit down I’d like to hear that face of your case.

James J. Cally:

Alright, sir.

Now, it is also suggested that in a companion case of which you all note that there are the minutes in the appendix, in a particular page 239 of the appendix, you will note the testimony of Detective Grame (ph).

You’ll also note his testimony in the trial minutes which are covered in the appendix 149 through 155 and you’ll also note his testimony in the appendix concerning the hearing that was held before District Judge James T. Foley of the Northern District of the State of New York.

You’ll find that the version is quite different on each occasion.

There are variant differences.

We say that there was a violation and this is born out by this fact that on the hearing to suppress on a companion case, and if the — another matter which covered the Bath Oceanside Development, the Court there determined that that evidence should have been suppressed, but this came after the Mapp rule had been invoked.

Byron R. White:

Well, are you — you’re arguing now the merits, the search and seizure claims, is that it?

James J. Cally:

Right, sir.

Byron R. White:

Now, that was reviewed in the Court of Appeals?

James J. Cally:

No, sir, it was not reviewed in the Court of Appeals, it dismissed the appeal.

Byron R. White:

Does — should we reach that question at all here if the Court of Appeals has never looked at it.

I thought the Court of Appeals dismissed your appeal after you’d filed briefs.

James J. Cally:

No, sir.

Byron R. White:

You didn’t have it — oral argument, it dismissed your petition in to — hear it in forma pauperis, but you at all — but didn’t state and you both submit papers at that time?

James J. Cally:

Yes, sir, we did.

Byron R. White:

So you had briefs but no argument?

James J. Cally:

We had affidavits, sir.

Byron R. White:

Affidavits and some legal argument —

James J. Cally:

Right.

Byron R. White:

— in them?

James J. Cally:

In them — that’s right, sir.

Byron R. White:

So they were in effect briefs, and so this was sort of a (Inaudible) appeal?

James J. Cally:

Right, sir.

Byron R. White:

But the Court did reach the merits?

They didn’t write an opinion but it must have reached the merits of the appeal.

James J. Cally:

It did because it dismissed the appeal.

The decision was made —

Byron R. White:

So it — in effect, it allow it to — would you accept that as a ruling on the merits of the search and seizure claim?

James J. Cally:

I would say so, sir —

Byron R. White:

So that —

James J. Cally:

— because, Mr. Justice White, the —

Byron R. White:

So, that you’re not making any claim that there wasn’t — that you were cheated out by an appeal in the Court of Appeals?

James J. Cally:

No, sir.

No sir, I’m not alleging that we were but I am alleging this —

Byron R. White:

This isn’t a Nowakowski case, is it or anything like that?

James J. Cally:

No, I’m alleging this Judge.

Byron R. White:

Do you think it’s alright to the Court of Appeals to have just summarily acted on your briefs and affidavits and rule on the merits for the search and —

James J. Cally:

I don’t think so, if Your Honor, please because I believe that they should have —

Byron R. White:

Oh, I know you disagree with them with the result they reached?

James J. Cally:

Not at the result, sir.

I believe that they should have passed upon these particular questions because these very same questions were being appealed —

Byron R. White:

Well, they did, did they?

James J. Cally:

— from the District Court to the Court of Appeals for the Second Circuit.

Byron R. White:

Yes, but they did pass on them, didn’t they?

The Court of Appeals for the Second Circuit when you brought your — you tried to get in the Second Circuit, you filed some affidavits with some (Voice Overlap) —

James J. Cally:

Well, Mr. Justice White, let me say this to you as a basis for this statement.

I don’t believe that they passed upon any of these questions to be quite frank with you because what we did was refiled a notice of appeal.

After the notice of appeal was filed, then this man proceeded to — proceeded in forma pauperis and of course and the Attorney General of the State of New York filed their affidavits and opposition and then asked in a cross motion to dismiss the appeal and subsequently, a reargument was made on the behalf of the — of Carafas and of course that was denied also.

Byron R. White:

But they did have the papers before — from both of you.

James J. Cally:

They had all of the papers from the District Court —

Byron R. White:

And they had a (Voice Overlap) —

James J. Cally:

— a hearing.

Byron R. White:

— affidavits and briefs and whatnot from the —

James J. Cally:

From the previous —

Byron R. White:

— on the merits, from the merits.

James J. Cally:

From the previous proceedings, yes, sir.

Byron R. White:

So you think at least you want to argue the merits up here for the search and seizure claim?

James J. Cally:

I think so, sir, because I think it amounts the consideration of this Court.

Well, is that a deal with the case of Parker and Ellis.

James J. Cally:

Yes, sir, I will deal with that case.

That’s a threshold question —

James J. Cally:

I understand that.

— and yet, nothing else, if that’s the case is, well, good luck.

James J. Cally:

Mr. Justice Harlan, I understand that.

And I’ve read the dissenting opinion in that particular case, handed down by Mr. Justice Warren quite thoroughly.

I think as far as the mootness is concerned, it really slams the door upon an indigent individual who — for no fault of his own but through — of course a quagmire of legal morass in — on his way up to the Supreme Court has been estopped from urging this particular matter.

Now, it is true that he was dismissed on March the 6th, 1967, but by that time, we had already filed for writ of certiorari which was granted in October 19 —

This isn’t necessarily a question of mootness.

The question also, is it not, whether the District Court or the statute as the power issue with, respect for the man not intentionally.

James J. Cally:

It is true.

But this Court also came to this conclusion in another case, if Your Honor pleases.

In the case of Potter against the United States, which is also under the same Title, Title 28, but it’s under Section 2255.

Under that particular Section, the Court came to the conclusion that if there was an error in the judgment, even though this man had been dismissed and was no longer in custody, that could be corrected and they proceeded to correct it, to correct the error in the record.

Now, I think this is analogous to the situation in this particular case even though Ellis against Parker says, “Well, once you’ve been dismissed, once you’ve been discharged from custody of the law, then you no longer have a right to be heard on the problems that had transpired.

I think you it would be sure irony if we — if the defendant didn’t have or the petitioner didn’t have a right to be heard on the transgression of these constitutional rights because economically and politically he’s through.

What’s this man doing now?

James J. Cally:

He is working as a hotel assistant manager, sir.

And of course, this stops him from getting a good job with a large hotel which is now been built in Brooklyn, Manhattan Hotel as a resident manager.

And of course, if this was made known for those authorities, this man certainly will not be able to hold that job.

Abe Fortas:

Mr. Cally, I wish you’d tell me how you get around Nowakowski.

Here, as I understand it, the Court of Appeals, the District Court granted leave to appeal in forma pauperis, did it not?

James J. Cally:

Yes, sir.

Abe Fortas:

And the Court of Appeals denied the — dismissed the motion for leave to appeal in forma pauperis and dismissed the appeal.

James J. Cally:

Yes, Mr. Justice Fortas.

Abe Fortas:

Now how do you justify that in view of Nowakowski and if it — the Court of Appeals acted wrongly there, isn’t that the only issue before us assuming we can get over — go along with you on the mootness point in a way?

Assuming we go along with your mootness, don’t we then have to face up to Nowakowski

James J. Cally:

That is true, Judge —

Abe Fortas:

And what’s your answer to the Nowakowski problem?

James J. Cally:

My answer to the Nowakowski problem is this, if Your Honor pleases, I think it has no application at all to the instant case.

Abe Fortas:

Well, that’s fine.

Now, why?

Why is that?

James J. Cally:

I think the facts are entirely different.

Abe Fortas:

Well, in Nowakowski, we held that — when the District Judge grants a certificate of probable cause, the Court of Appeals must grant an appeal in forma pauperis, assuming there is showing of poverty and must proceed to a disposition of the appeal in accordance with its ordinary procedure.

Now the Court of Appeals here, as I understand it, denied despite the fact that the District Judge had issued a certificate of probable cause.

The Court of Appeals here denied the application for leave to appeal in forma pauperis.

James J. Cally:

But they went a step further, Judge.

What they did here was this, Judge, an appeal was filed before this motion was made so that the only question that they had before them was the question as to whether or not they would allow this man to appeal in forma pauperis.

They did not have the appeal before them at that time but they wanted little further, Judge.What they did then is state — has made a sweep in rule and then said, “We’ll deny your appeal too”.

Earl Warren:

Miss Soloff?

Brenda Soloff:

Mr. Chief Justice and may it please the Court.

The threshold question here as has been recognized is that this case falls squarely within the decision of this Court in Parker against Ellis.

Like the petitioner here — there, the petitioner here has completed his sentence and he has been released from custody.

Since, to secure habeas corpus relief, the petitioner must be in custody.

He must be challenged in the constitutional validity of that custody and the only relief authorized is a form of discharged from custody.

This case is moot within the meaning of the habeas corpus statute and the decisions of this Court.

The habeas corpus statute, 28 U.S.C.

Sections 2241 through 2254 speaks consistently and exclusively of the availability of habeas corpus to someone who is in custody.

Each Sections speaks of custody, custody must be alleged, the custodian must make the return, it’s just — pardon me.

Even the rules of this Court, especially Rule 49, recognized that continued retention is essential to continue jurisdiction in a habeas corpus proceeding.

William J. Brennan, Jr.:

I gather Miss Soloff, he was still serving his time when this petition for habeas was filed?

Brenda Soloff:

When petition was filed, it was Your Honor.

William J. Brennan, Jr.:

It’s before the conclusion of the proceeding that he completed service of his —

Brenda Soloff:

He completed —

William J. Brennan, Jr.:

Now, what point was it?

Had it got through the District Court Or —

Brenda Soloff:

It had gotten through the Circuit Court, Your Honor.

Brenda Soloff:

He completed his service —

William J. Brennan, Jr.:

But I mean, at what point was he released had he — did he finished servicing his sentence?

Brenda Soloff:

On March 6, 1967, that —

William J. Brennan, Jr.:

And what was the status of this proceeding then?

Brenda Soloff:

After the dis — it was between courts.

It was after the disposition by the Second Circuit and before the petition was filed to this Court.

William J. Brennan, Jr.:

After the disposition by the Circuit?

Brenda Soloff:

That’s right.

William J. Brennan, Jr.:

I see.

Brenda Soloff:

And before the petition was filed with some two weeks.

Earl Warren:

I understood counsel to say that it was after he filed the petition here.

Brenda Soloff:

Well, I think that’s an error of thought —

Earl Warren:

It is, its.

Brenda Soloff:

Yes.

Earl Warren:

Very well.

Brenda Soloff:

According to the cover on his appendix —

Earl Warren:

Yes.

Brenda Soloff:

— the petition was filed on March 20, which was some two weeks later.

After the decisions of this Court in Parker and Ellis, Jones against Cunningham and Fay against Noia, Congress amended the habeas corpus statute, at least three sections of it, and it continued the custody requirement.

And in fact, it added a new subdivision (a) to Section 2254 which provides, “That the Supreme Court or Justice thereof, a Circuit Judge or a District Court shall entertain an application for writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the constitution or laws or treaties of the United States”.

So I think that Congress has in effect — there was never any question about it, adopted the Parker against Ellis.

William J. Brennan, Jr.:

What was the date of that?

Do you know that (Voice Overlap) —

Brenda Soloff:

These are the 1966 amendments, I believe, Justice Brennan.

William J. Brennan, Jr.:

19 — after Parker and Ellis have been decided here?

Brenda Soloff:

Oh, yes.

Earl Warren:

May I ask you, if Parker versus Ellis is fav — is followed here, that there’s any procedure under New York law whereby this man can get any relief from that conviction?

Brenda Soloff:

I think at this point, I could not say that there is any procedure by which he could get relief from the conviction itself although there is a procedure by which he could be relieved of any civil disabilities attaching to it.

Earl Warren:

Even not because of a defect in the trial?

Brenda Soloff:

No, not because of a defect in —

Earl Warren:

That’s something that applies to all prisoners that —

Brenda Soloff:

New York —

Earl Warren:

— that they can go — they can have some relief in order to get the civil liberties back, isn’t that right but —

Brenda Soloff:

It applies to first offenders.

Earl Warren:

Yes.

Brenda Soloff:

Then they get back their voting rights —

Earl Warren:

Yes.

Brenda Soloff:

— and the — they may apply for licenses which might otherwise be barred if they procured the necessary certificate.

As far as post conviction relief, I might say this New York has a coram nobis procedure.

It has been applied on occasion to vacate judgments of conviction.

I would not urge that that relief would be available here.

In the first place, the petitioner here went through the state appellate process when at the time of his conviction, including the denial of certiorari by this Court so that there would be no further basis for post-conviction relief.

Earl Warren:

What disabilities does this man labor under now that he has been convicted of this felony?

Brenda Soloff:

The only ones that I know of are the ones that he mentions in his reply brief.

He talks about the right to vote.

He talks about the right to serve on a jury.

And he mentioned certain unspecified licenses which he might or might not be able to obtain.

Earl Warren:

And he stands convicted of a felony for impeachment purposes, and that — and as a witness, I would suggest?

Brenda Soloff:

I’m not — I don’t know the law on that, Your Honor.

But I will assume —

Earl Warren:

Well, he is —

Brenda Soloff:

— that’s true.

Earl Warren:

Then as a witness who take the stand, I think —

Brenda Soloff:

Oh!

Earl Warren:

— if they asked if he’s ever been —

Brenda Soloff:

I see.

Earl Warren:

— convicted of felony and —

Brenda Soloff:

I understand.

Earl Warren:

— then he would have to say yes, would he not?

Brenda Soloff:

Yes, he would.

Earl Warren:

Well now, if that is true if he has no relief of any kind from this conviction, what would prevent any state from releasing a man whenever he asked for a writ of habeas corpus before he gets to the Supreme Court and thereby deprive him, deprive all applicant — or petitioners for a writ of habeas corpus?

Brenda Soloff:

Well, I don’t think that we can assume that the state is going to do this in bad faith, —

Earl Warren:

No, but I —

Brenda Soloff:

— in essence.

Earl Warren:

Nor can we assume that they will not do it because it has been done to our knowledge in cases in this Court, many of them.

Brenda Soloff:

Well, may I say with respect to this case that during the entire period that it was in the state appellate process, including the application for certiorari to this Court, petitioner was on bail.

His sentence was not running.

It began to run on —

Earl Warren:

But let’s take the case where a man is in jail.

Everybody can’t get out on bail, you know.

Brenda Soloff:

Where a person is in jail and he’s —

Earl Warren:

Yes.

Brenda Soloff:

— and the state releases him?

Earl Warren:

The state —

Brenda Soloff:

They could —

Earl Warren:

— just before he gets to the Supreme Court releases him and deprives us a jurisdiction.

Brenda Soloff:

I would say that on the direct appellate process — if that were on the direct appellate process.

Earl Warren:

No, I’m talking about habeas corpus.

Brenda Soloff:

About collateral attack in the state courts.

Earl Warren:

I’m talking about habeas corpus.

Brenda Soloff:

State habeas corpus?

Earl Warren:

(Inaudible)

Brenda Soloff:

You’re talking about state habeas corpus or federal habeas corpus (Voice Overlap) —

Earl Warren:

Well, I wouldn’t take either.

Well, you can start either place you want,

Brenda Soloff:

Well, as far as federal habeas corpus goes, I would say that this particular petitioner and most appellants, in order to secure relief by habeas corpus at all must have gone through the state courts and have had the opportunities —

Earl Warren:

That’s right.

Brenda Soloff:

— to apply to this Court and that therefore it is not — it’s not an unjust result that they don’t have further collateral attack by way of habeas corpus where they have had the benefits of full appellate review.

Earl Warren:

Well, even though there are constitutional violations in his conviction, you mean this — he had no right to come to this Court?

Brenda Soloff:

Not by way of habeas corpus.

Brenda Soloff:

Habeas corpus traditionally is a method of attacking what we call unconscionable custody.

Once custody runs, so does habeas corpus jurisdiction.

Congress hasn’t provided that I know of any plenary appellate review of state court judgments of conviction by way of collateral attack.

They’ve provided only this attack on custody and this is I think perfectly just in view of the fact that the administration of criminal justice is left to the states and that they have that — petitioners have had the opportunity to go through the states and to come to this Court.

Earl Warren:

Suppose in this case the man had already applied for certiorari here and jurisdiction had attached, and then after that the state had released him?

Brenda Soloff:

I think this is Parker against Ellis and I think that that’s —

Earl Warren:

You think that’s still Parker versus Ellis?

Brenda Soloff:

I think it is because that’s what happened in Parker against Ellis as I understand it.

Byron R. White:

This is a — is this really not — the issue here isn’t mootness, is it?

Brenda Soloff:

Only —

Byron R. White:

The issue here is that construction —

Brenda Soloff:

— jurisdiction —

Byron R. White:

— of the federal statute as to where the habeas corpus lies?

Brenda Soloff:

That’s right.

I used the term mootness only because —

Byron R. White:

It’s a question whether the — Parker and Ellis said it’s a custody problem —

Brenda Soloff:

That’s right.

Byron R. White:

— not a mootness problem.

Brenda Soloff:

That’s right, Mr. Justice White.

The only reason I used the term mootness is because Parker and Ellis does and it uses it I think in the context of the statute —

Byron R. White:

Because it could well be held that this case isn’t moot at all and still habeas corpus wouldn’t lie.

Brenda Soloff:

Yes, that’s right.

The statutory jurisdiction is what’s important here.

The existence or non-existence of collateral disabilities, I think, is not properly —

Byron R. White:

That would go to — that would go if it was here on direct appeal when he released —

Brenda Soloff:

That’s correct.

Byron R. White:

— then the question would be mootness?

Brenda Soloff:

That’s correct.

That’s —

Byron R. White:

And he might — it might not be moot.

Brenda Soloff:

That’s our position.

It may very well not be moot but that is not the issue in a habeas corpus case.

William J. Brennan, Jr.:

Miss Soloff, could you tell me again what section you say that was amended in 1966, and how that amendment reads?

I don’t find it in my (Voice Overlap) —

Brenda Soloff:

Oh!

It’s the new subsection (a) of Section 2254, the Exhaustion Statute.

William J. Brennan, Jr.:

Do you have it, the language?

Brenda Soloff:

Yes, I have, Your Honor.

William J. Brennan, Jr.:

Would you mind reading it?

Brenda Soloff:

The Supreme Court or Justice thereof, a Circuit Judge or a District Court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States”.

William J. Brennan, Jr.:

Well, but here, I gather, of the — at the time I think you told us, that he filed that application with the District Court.

Brenda Soloff:

He was indeed in custody —

William J. Brennan, Jr.:

But doesn’t that’s — then really, that amendment, doesn’t answer the Parker and Ellis question for instance.

Brenda Soloff:

Oh, I think its further evidence.

Byron R. White:

Was there ever a writ issued in the hearing?

Brenda Soloff:

No, no writ ever issued.

A hearing was held by the District Court.

Byron R. White:

And they would still have to — a writ still have to be issued if he won this case here.

Brenda Soloff:

That’s right because —

William J. Brennan, Jr.:

But this speaks in turn that (Inaudible) may apply to it, is that it?

Brenda Soloff:

I’m sorry.

William J. Brennan, Jr.:

They’ll entertain an application for isn’t that the way it’s done.

Brenda Soloff:

Only.

William J. Brennan, Jr.:

Yes, but it’s entertained an application for it, not an issue of writ, is that the way it is?

Brenda Soloff:

That’s right.

William J. Brennan, Jr.:

Yes.

Brenda Soloff:

Nevertheless, I would think that in view of Parker and Ellis and in view of the fact that this falls not only in Parker and Ellis but language in Fay against Noia.

William J. Brennan, Jr.:

No, I perhaps — I misunderstood you.

I thought when you referred as to that amendment, you were suggesting that Congress has definitely answered —

Brenda Soloff:

No.

William J. Brennan, Jr.:

— the question, (Voice Overlap).

Brenda Soloff:

No, I’m sorry.

No, but I think that this is a very strong evidence of their intention to accept the Parker and Ellis rule just as I think Rule 49 of the rules of this Court is strong evidence of recognition that this is in fact the law and we would suggest that they’re — that this is a just result in view of the fact that the states do have primary concern for the —

William J. Brennan, Jr.:

Are you going to address yourself to the Nowakowski claim?

Brenda Soloff:

I am.

I would just like once more to return to the idea that — just to emphasize that there has been no bad faith by the state in seeking to insulate petitioner from review by this Court because he was on bail during the whole period of his appeal and all the time that his run has ran while he’s been seeking federal relief.

Petitioner’s claim on the merits —

Earl Warren:

Can you make any distinction between the fact that he was on bail now and not in actual custody?

Brenda Soloff:

I’m not sure I understand the question, Mr. Justice Warren.

Earl Warren:

Well, in some states anyway, a man cannot apply for habeas corpus if he is on bail.

Do you make any distinction between the situation where he’s on bail and when he’s in custody?

Brenda Soloff:

Not for purposes of this case, Your Honor.

I don’t know whether the law is that in New York or not.

I don’t think it is but I’m not sure.

My only point in bringing that up is to show that the time didn’t run while he was going through the state courts.

Petitioner’s claim on the merits has always been that he was the victim of an unlawful search and seizure.

I’d like briefly to say that our first response to this is that this is a pre-Mapp trial and we would urge at this point in this case that Mapp should not be held to apply to people who were in the direct appellate process but passed the trial stage at the date of the Mapp decision.

I think that this Court has not held to the contrary and I think that the decisions in Johnson against New Jersey and Stovall against Denno, indicate that Mapp should be brought into conformity with the Miranda rule and with the Wade and Gilbert rulings.

Potter Stewart:

Well, the — but the specific decision, you’re concerned with is the Linkletter decision, isn’t it?

Brenda Soloff:

Yes, but Linkletter is also not a bar to this, to this reading of the case because the facts in Linkletter were and I think that the decision limited itself to those facts quite specifically that the entire process, the entire appellate process had in fact been concluded before Mapp was decided so that the retroactivity of Mapp had only to reach back to that point.

Potter Stewart:

Well, Linkletter was pretty clear in what it said, didn’t he — isn’t it?

Brenda Soloff:

I believe that there’s — I don’t have Linkletter in front of me, but I believe there’s a statement in Linkletter to the effect that we’re dealing with the facts of this case and I believe it’s in the context of chronology.

I am sorry.

I don’t have the opinion here.

In any event, we believe that there is no bar by any decision of this Court to this result and at the same reasons which led this Court to hold Mapp not retroactive.

It should lead it to hold Mapp not retroactive to this point.

We can’t seek to avoid the merits of this case for any particular reason because the case is clearly frivolous on the merits.

The facts are in the brief.

Judge Foley made quite complete findings after reviewing a — some 1181 page trial record and holding his own hearing, and I won’t go into them here.

The reason that I bring up the fact that the appeal is clearly frivolous is the Nowakowski reason, that is, petitioner says in his brief that the appeal was dismissed by the Second Circuit.

Brenda Soloff:

He’s (Inaudible) here today because it was frivolous and we have absolutely no quarrel with that position.

Earl Warren:

Did the Court decide it on the merits, the Court of Appeals?

Brenda Soloff:

The Court of Appeals filed a one line order in which it granted our motion to dismiss the appeal and denied relief in forma pauperis because it included an order denying — pardon me, because it included the order granting our cross motion to dismiss and because our cross motion to dismiss was for want of merit.

And because —

William J. Brennan, Jr.:

Did you submit something in support of the argument, which you (Inaudible)?

Brenda Soloff:

We submitted an affidavit which contains arguments of law.

It’s in the appendix.

Here, in opposition and in cross-moving and petitioner filed an opposing affidavit.

William J. Brennan, Jr.:

Also with argument?

Brenda Soloff:

Also with argument of law.

The Circuit Court had before the entire District Court record including the trial transfer of the hearing minutes.

Byron R. White:

(Inaudible)

Brenda Soloff:

It is.

It’s very much that —

Byron R. White:

They dismissed the appeal (Inaudible)?

Brenda Soloff:

That would be the only explanation —

Byron R. White:

(Inaudible)

Brenda Soloff:

— that they did pass on the merits, that it was — he described it a bobtail appeal.

William J. Brennan, Jr.:

(Inaudible)

Brenda Soloff:

In Nowakowski, there was no cross motion made so that it couldn’t be determined what basis the decision of the Third Circuit went on.

William J. Brennan, Jr.:

(Inaudible)

Brenda Soloff:

I haven’t looked at the Nowakowski record.

I’m not sure.

I do know that there were records from the District Court — pardon me.

There were records from the District Court before the Court in — before the Third Circuit in Nowakowski.

I do not believe that there were opposing papers but I’m not absolutely sure of —

Potter Stewart:

Miss Soloff what Nowakowski held, as I remember it, I understand it is that once a certificate of probable cause has been granted by the District Court, then it is incumbent upon the Court of Appeals to treat that appeal as an ordinary appeal as of right, to treat it in accordance with its usual procedures, the way it treats appeals as of right to the Court of Appeals and I suppose then the question becomes whether this is a — consistent with the regular procedures of the Second Circuit Court of Appeals to dismiss an appeal as of right in the manner that this was — this case was dismissed without argument but simply on the records.

I know, in my experience in the Court of Appeals that the one where I sat, sometimes did do that if it was — upon motion to dismiss, the Court sometimes did so with appeals as of right if it could be shown that there was a failure to prosecute or some other grounds.

But some Court of Appeals don’t do that and I suppose the inquiry therefore should be whether this is in accordance with the ordinary and regular procedures of the Court of Appeals with respect to appeals as of right.

Brenda Soloff:

Well —

Potter Stewart:

Maybe you don’t know the answer, I know, I don’t know the answer.

Brenda Soloff:

Let me say this.

Certainly, I think that they have a right to truncate appeals in accordance with what they consider to be the priorities in the merits of appeals.

We handle in our office very few appeals as of right to the Second Circuit.

We handle in the New York Attorney Generals’ Office, usually habeas corpus and cases involving constitutional questions in which there would really — usually be no basis for dismissing for want of merit.

So I can’t say that the Second Circuit — but I know for sure the procedure of the Second Circuit although I have seen them dismiss appeals.

William J. Brennan, Jr.:

Are the rule, the court rule requires (Inaudible)?

Brenda Soloff:

No, they don’t provide that.

Abe Fortas:

Well, the offer it and as here is that the Court of Appeals did expressly reject the application for leave to appeal in forma pauperis.

They rejected that expressly, which would technically would indicate that they — that that end of the proceedings and — but then they went on to dismiss the appeal.

Brenda Soloff:

Well —

Abe Fortas:

But may I ask you another question here, if you know the answer to this.

As of what date did the petitioner here become unconditionally released?

Brenda Soloff:

March 6, 1967.

Abe Fortas:

March 6.

Now, was that after or before he filed — that was after he had filed the application for habeas corpus?

Brenda Soloff:

Yes, it was well after he had filed the application.

Abe Fortas:

Yes.

Brenda Soloff:

This Court — this case —

Abe Fortas:

And it was — it was — at what stage in the appellate process was that?

It was before he had filed his appeal with the Court of Appeals?

Brenda Soloff:

No, it was after the Court of Appeals had determined that there was no merit to the appeal.

Abe Fortas:

I see.

And there was —

Brenda Soloff:

That was in —

Abe Fortas:

— between that stage and —

Brenda Soloff:

His application to this Court.

I see, yes.

So that he was in custody, if we assume that being out on parole is in custody, as of the time of the application was filed, the application for habeas corpus was filed, and then he was out of custody as of the time that the application was that — the appeal was — the writ was — most of the writ was filed here?

That’s right.

Abe Fortas:

Thank you.

Brenda Soloff:

He was in custody through the disposition by the Second Circuit.

And we —

William J. Brennan, Jr.:

(Inaudible) Do you know of any instance that made the view that the Court of Appeals of New York has to — without oral argument composed off merely on submission to make (Inaudible) —

Brenda Soloff:

I don’t know of an instance where paid appeal has been dismissed without oral argument but I do know of instances where paid appeal has been dismissed without briefs on a motion of some sort in the Second Circuit.

I’ve handled one myself, my associate here has handled another.

They will dismiss appeals from the bench as being without merit, paid appeals.

William J. Brennan, Jr.:

But on a motion?

On a motion?

Brenda Soloff:

On a motion.

William J. Brennan, Jr.:

(Inaudible)

Do you suggest that’s all we did?

Brenda Soloff:

That’s what we suggest.

That’s all what happened here and the denial of leave to proceed in forma pauperis was in effect moot to the extent that any further relief would be forthcoming in forma pauperis.

And the only further relief which would be forthcoming after the original record was before the Court and the notice of appeal had been filed, would be to file further briefs and hear oral argument and we suggest that it is within the power of the court not to do this.

And if that’s — this was a dismissal on the merits and for a very good reason.

Earl Warren:

Mr. Cally.

James J. Cally:

Mr. Chief Justice, I think I’ve terminated my argument.

There’s nothing noble as (Inaudible) to hear, of the — when I’ve said if there are any questions, I’ll be happy to answer them.

Earl Warren:

Very well.

James J. Cally:

Thank you.