Chewning v. Cunningham – Oral Argument – December 05, 1961

Media for Chewning v. Cunningham

Audio Transcription for Oral Argument – December 04, 1961 in Chewning v. Cunningham

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Earl Warren:

— Morgan C. Chewning, versus W. K. Cunningham, Jr., Superintendent of Virginia State Penitentiary.

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

Reno S. Harp, III:

Mr. Chief Justice, may it please the Court.

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

Earl Warren:

Well, Mr. Harp, if it just for me, you may go on to your other argument, I’ve read your — I’ve read your brief and I know your position.

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

Reno S. Harp, III:

Thank you Mr. Chief Justice, then I’ll refer to it only briefly.

Earl Warren:

Yes.

Reno S. Harp, III:

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

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

That is the point I was trying very desperately —

Earl Warren:

Yes.

Reno S. Harp, III:

— to make on yesterday.

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

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

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

There are no other facts alleged.

He does not contend he was indigent.

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

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

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

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

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

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

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

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

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

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

There is no such rule in Virginia.

There is no case that says this in Virginia.

Felix Frankfurter:

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

Reno S. Harp, III:

I believe Mr. Justice Frankfurter that you have stated my proposition very succinctly sir.

That’s exactly it.

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

I know of none.

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

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

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

Now, as the cases progress —

Felix Frankfurter:

Well, that isn’t — that isn’t the question.

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

Reno S. Harp, III:

The Supreme Court of Appeals of Virginia denied —

Felix Frankfurter:

Denied?

Reno S. Harp, III:

— the petition for writ of error.

Felix Frankfurter:

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

” That’s what you are saying they impliedly did.

Is that it?

Reno S. Harp, III:

That is correct sir.

The same thing they did in the Newsom case.

Felix Frankfurter:

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

Reno S. Harp, III:

That is true sir.

Felix Frankfurter:

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

That would be the question.

Reno S. Harp, III:

Well, I would say this to the Court.

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

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

Felix Frankfurter:

Well then —

Reno S. Harp, III:

— and this would put the case in a different posture.

Felix Frankfurter:

And — and suppose he had alleged it and from that — go from there on —

Reno S. Harp, III:

Alright —

Felix Frankfurter:

— what’s your position?

Reno S. Harp, III:

— assume that he has alleged that he was indigent and was denied counsel, that’s all.

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

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

Felix Frankfurter:

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

Reno S. Harp, III:

I think that more than the bare allegation of indigency would be required.

He would have only had to (Voice Overlap)

Felix Frankfurter:

Required under what, under local law?

Reno S. Harp, III:

Local, local.

Felix Frankfurter:

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

Reno S. Harp, III:

That is correct sir.

Hugo L. Black:

What is the rule in the Supreme Court of Virginia when a person comes before them asked to be admitted to proceed in forma pauperis?

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

Reno S. Harp, III:

To proceed in forma pauperis?

Hugo L. Black:

Yes —

Reno S. Harp, III:

Yes sir.

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

Hugo L. Black:

Did he do that in this case?

Reno S. Harp, III:

Sir?

Hugo L. Black:

Did he do that in this —

Reno S. Harp, III:

Yes sir.

Hugo L. Black:

Where is that allegation?

Is that —

Reno S. Harp, III:

That is not — I don’t know whether that’s printed in the record sir or not.

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

Hugo L. Black:

On page 15, is that it?

Reno S. Harp, III:

Yes sir.

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

Hugo L. Black:

Where does it say he’s indigent?

Reno S. Harp, III:

It’s — he asked leave to file in forma pauperis.

Reno S. Harp, III:

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

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

Hugo L. Black:

But isn’t this the whole request he made to the state to fill out to proceed in forma pauperis?

Reno S. Harp, III:

Yes sir and he’s been allowed to proceed in forma pauperis.

Hugo L. Black:

But did he allege he was indigent?

Reno S. Harp, III:

Yes sir.

He alleged he was indigent and —

Hugo L. Black:

If that’s so material, why isn’t it in the record?

Is that — do you mean as jurisdictional and it’s not (Inaudible)?

Reno S. Harp, III:

That is correct sir.

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

I filed (Inaudible) designation.

Hugo L. Black:

Well, did you know that this didn’t show that this — this jurisdictional fact was absent?

Reno S. Harp, III:

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

Hugo L. Black:

But you admit it — you admitted all along, but you say he cannot proceed unless he said he’s indigent on this ground.

Reno S. Harp, III:

He cannot proceed in regard to alleging.

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

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

We’re talking about two entirely different proceedings sir.

Hugo L. Black:

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

Reno S. Harp, III:

The statement is not contained in this printed record.

It’s in the file sir.

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

Hugo L. Black:

Is it in the record that’s here?

Reno S. Harp, III:

Yes sir.

Hugo L. Black:

It is here on — printed?

Reno S. Harp, III:

Yes sir.

I would assume that it is sir.

Felix Frankfurter:

Let’s — straighten me out.

I seem to be all confused.

Felix Frankfurter:

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

Reno S. Harp, III:

That’s what Mr. Meador is claiming sir.

Felix Frankfurter:

Well, that’s the claim in this case?

Reno S. Harp, III:

Yes sir that is the claim.

Felix Frankfurter:

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

Reno S. Harp, III:

Yes sir, that is correct.

Felix Frankfurter:

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

Reno S. Harp, III:

That is correct sir.

William J. Brennan, Jr.:

(Inaudible)

Reno S. Harp, III:

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

He deals with cases —

William J. Brennan, Jr.:

No.

He doesn’t — he doesn’t (Inaudible)

Reno S. Harp, III:

That is correct sir.

William J. Brennan, Jr.:

(Inaudible)

Reno S. Harp, III:

Well that — I’m afraid I must answer that question negative sir because that gets back to Judge Young’s authority and the premises which is limited, very limited because of his jurisdiction.

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

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

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

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

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

William J. Brennan, Jr.:

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

Reno S. Harp, III:

That is correct.

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

William J. Brennan, Jr.:

Well, I believe — obviously (Inaudible)

Reno S. Harp, III:

That’s what he concluded and that’s what he concluded in the Newsom case sir.

William J. Brennan, Jr.:

(Inaudible)

Reno S. Harp, III:

That is correct sir.

William J. Brennan, Jr.:

Suppose he had the jurisdictional (Inaudible)

Reno S. Harp, III:

That is correct sir.

William J. Brennan, Jr.:

And he has no argument on the (Inaudible) or whatnot. That is the general argument on that ground.

Reno S. Harp, III:

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

William J. Brennan, Jr.:

(Inaudible) state law.

Reno S. Harp, III:

Well I believe that —

William J. Brennan, Jr.:

(Inaudible)

Reno S. Harp, III:

That is correct sir.

William J. Brennan, Jr.:

(Inaudible)

Reno S. Harp, III:

Well, I think that’s what the reason the Supreme Court of Appeals deny the writ of error, so that’s the only —

William J. Brennan, Jr.:

Do you know?

Reno S. Harp, III:

No sir.

The only — my only reason for making that statement —

William J. Brennan, Jr.:

(Inaudible)

Reno S. Harp, III:

There’s a great deal of speculation in that regard sir but my authority for that proposition —

William J. Brennan, Jr.:

Well, I do speculate (Inaudible)

Reno S. Harp, III:

No sir.

I don’t think that I am — I haven’t asked.

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

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

Felix Frankfurter:

I’d like to ask you —

Reno S. Harp, III:

— the same situation.

Felix Frankfurter:

I’d like to ask you two questions.

Forgive me.

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

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

What are we reviewing here?

Reno S. Harp, III:

You’re reviewing —

Felix Frankfurter:

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

Reno S. Harp, III:

You’re reviewing the judgment of the Supreme Court of Appeals of Virginia.

Felix Frankfurter:

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

We’re referring (Voice Overlap) —

Reno S. Harp, III:

That is correct.

Felix Frankfurter:

— or the Supreme Court of Virginia.

Reno S. Harp, III:

But if I might finish that sentence I started sir, you’re reviewing as I understand it, the decision of Judge — of the Supreme Court of Appeals of Virginia in connection with the denial, the bare denial of the petition for writ of habeas corpus, that’s what you’re reviewing.

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

Felix Frankfurter:

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

Reno S. Harp, III:

That is correct.

Felix Frankfurter:

That’s why we’re here.

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

Maybe it was brought here improperly.

I don’t know.

I haven’t thought about it.

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

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

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

Did you — have you said anything on that subject?

Reno S. Harp, III:

I think I’ve got two sentences in today sir.

Felix Frankfurter:

Well, would you mind repeating?

Let me ask you specifically, assume you’re wrong on this indigence point —

Reno S. Harp, III:

I assume —

Felix Frankfurter:

— should the case — are you then in effect confessing error and saying there should be a reversal?

Reno S. Harp, III:

No sir.

I am not.

Felix Frankfurter:

Well, I haven’t heard any argument on that substantive issue?

Reno S. Harp, III:

My brief is —

Felix Frankfurter:

Unless I’ve been deaf while you were talking.

Reno S. Harp, III:

My brief answer if I may make it to that question sir is that the bare — assuming that he was denied counsel, assuming he was indigent, he has not alleged any other facts which would indicate that he was denied that he’s rather — that this particular proceeding, under the recidivist statute which is not —

Felix Frankfurter:

Well then you’re back on your state ground namely that more must be alleged.

Reno S. Harp, III:

Yes sir.

Felix Frankfurter:

All —

Reno S. Harp, III:

I’m right back on the state ground.

Felix Frankfurter:

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

Reno S. Harp, III:

That is correct sir.

Felix Frankfurter:

But with — alright —

Reno S. Harp, III:

Thank you sir.

Felix Frankfurter:

(Inaudible)

Earl Warren:

Mr. Meador.

Daniel J. Meador:

Mr. Chief Justice, may it please the Court.

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

Felix Frankfurter:

Just document that last statement on the merits.

Daniel J. Meador:

Yes sir.

In the petitioner’s reply brief —

Felix Frankfurter:

(Inaudible) the record please.

Daniel J. Meador:

Yes sir, I’m citing a statute first.

A statute of Virginia —

Felix Frankfurter:

Well does it?

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

Daniel J. Meador:

Yes sir, in the record at page 29.

Felix Frankfurter:

Alright.

Well if that — it’s done that then that’s a short answer.

Daniel J. Meador:

The Court states that the record had been materially considered and inspected.

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

Felix Frankfurter:

What was the judgment of the lower court?

Daniel J. Meador:

The judgment of the court was a judgment of dismissal of the petition —

Felix Frankfurter:

That’s all —

Daniel J. Meador:

— for habeas corpus.

Felix Frankfurter:

— they affirmed.

Daniel J. Meador:

Yes sir.

Felix Frankfurter:

They don’t — the Court doesn’t affirm an opinion when it affirmed the judgment.

Daniel J. Meador:

No sir, I won’t argue that.

The court below though did write an opinion.

Daniel J. Meador:

Now, if I can —

Felix Frankfurter:

Which court below, the Supreme Court of Virginia?

Daniel J. Meador:

The Law and Equity Court wrote it in.

Felix Frankfurter:

What?

Daniel J. Meador:

The Law and Equity Court wrote an opinion which was part of the record before the Supreme Court of Appeals of Virginia.

Felix Frankfurter:

I know, but is that part of the judgment which is up here?

Daniel J. Meador:

No sir, I won’t contend that.

Felix Frankfurter:

Well then, you may be right in your conclusion but — but this isn’t — this isn’t a game or this isn’t any tricky stuff that I am suggesting.

Daniel J. Meador:

I — yes sir.

Felix Frankfurter:

We are here reviewing the judgment of the Supreme Court of Virginia.

Daniel J. Meador:

Right.

Felix Frankfurter:

Now, I want to know what that judgment was.

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

Daniel J. Meador:

Right.

Felix Frankfurter:

And that’s all that’s here before us.

Daniel J. Meador:

I’m in complete agreement.

My next point and I would simply —

Hugo L. Black:

It was a dismissal on the merits or an opinion which discussed the merits.

Daniel J. Meador:

Yes sir.

Felix Frankfurter:

But the judgment dismissed the petition, is that all?

Daniel J. Meador:

Correct.

Hugo L. Black:

Do you understand it’s our duty to try to find out that the Supreme Court of Virginia had a view that was trying to conceal from us?

Daniel J. Meador:

No sir.

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

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

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

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

John M. Harlan II:

I suppose you could bring to your court also the assignment of errors, couldn’t you, on which they went up?

Daniel J. Meador:

It went up clearly on the federal question.

The respondent doesn’t deny that.

Felix Frankfurter:

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

Daniel J. Meador:

Yes.

Felix Frankfurter:

— the Supreme Court of Virginia did.

Daniel J. Meador:

Yes sir.

Felix Frankfurter:

They weren’t playing hocus-pocus.

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

Daniel J. Meador:

I simply say there isn’t one there when we look.

Felix Frankfurter:

That’s a good answer.

Hugo L. Black:

Ordinarily, we like to have another (Inaudible)

Felix Frankfurter:

So they give reasons to these cases (Voice Overlap) —

Hugo L. Black:

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

Daniel J. Meador:

I would assume that particularly if we can’t find such a state ground —

Felix Frankfurter:

Well, if you can’t —

Daniel J. Meador:

— in the law of Virginia.

Felix Frankfurter:

— find it then there isn’t any.

Daniel J. Meador:

Correct sir.

Thank you very much.

Earl Warren:

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

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

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

Both sides have done well.

Daniel J. Meador:

Thank you Mr. Chief Justice.

Reno S. Harp, III:

Thank you.