Davis v. United States

RESPONDENT: United States
LOCATION: Pennsylvania State Capital Building

DOCKET NO.: 71-6481
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 411 US 233 (1973)
ARGUED: Feb 20, 1973
DECIDED: Apr 17, 1973

Edward R. Korman - for respondent
Melvin L. Wulf - for petitioner

Facts of the case


Media for Davis v. United States

Audio Transcription for Oral Argument - February 20, 1973 in Davis v. United States

Warren E. Burger:

We’ll hear arguments next in Number 71-6481, Davis against the United States.

Mr. Wulf, you may proceed whenever you are ready.

Melvin L. Wulf:

Mr. Chief Justice, may it please the Court.

Now, this case which is here on the petition for certiorari from the United States Court of Appeals for the Fifth Circuit, presents the question whether petitioner who is a Negro may challenge the exclusion of Blacks from the federal grand jury which indicted him in a post conviction proceeding where the claim was not made before trial.

It deals with the scope of Section 2255, the equivalent of habeas corpus for federal prisoners.

The facts are that petitioner, who is Black, was indicted for bank robbery in the Northern District of Mississippi in January, 1968.

His court appointed counsel appeared with him for arraignment several weeks afterwards and was given 30 days for motions.

On March 6, the motions were filed, including a motion to quash the indictment, but only on the ground that the arrest which led to his indictment was illegal.

That motion was denied.

The case went to trial.

The petitioner was convicted by the jury and sentenced to 14 years in jail.

Potter Stewart:

Was it a trial of him alone, I notice there were two others indicted?

Melvin L. Wulf:

There were two others, they were separately charged Your Honor, they were separate.

Potter Stewart:

So this trial was of him alone?

Melvin L. Wulf:

Yes sir.

Potter Stewart:

Thank you.

Melvin L. Wulf:

He was sentenced to 14 years and the conviction was affirmed on appeal by the Fifth Circuit.

And although it's not in the record, I do want to point out that Davis was released on parole last August after serving three years and eleven months of his sentence.

In January 1971, Davis filed a motion under Section 2255 alleging that Negroes were systematically excluded from the grand jury which had handed down the indictment against him.

And he specifically rested on the Fifth and Sixth Amendments and the relevant statutes in Title 28, which were then applied.

He also alleged that his attorney in fact had made such a motion, but as appears from the opinions, both of the District Court and the Court of Appeals, that does not appear in the printed record, but I’ll return to that claim later on, it's not terribly important at this stage.

At the same time that Davis --

Harry A. Blackmun:

Mr. Wulf, in as much as he professes to have made that objection, then I take it you must concede that he knew he had the right to object to the composition of the grand jury before trial?

Melvin L. Wulf:

Well, all I would concede about his claim that he made it is that he didn’t intend to waive it, and it might also imply that he knew he had the right to make it.

But what would have to be gone into at the hearing on remand, if there is a hearing on remand, would be, what reasons, if any, his lawyer did not raise that if Davis had in fact wanted him to raise it.

But that is an issue that would really have to be canvassed and would go to the whole waiver problem, which is the central issue in the case.

At the same time that he filed this 2255 motion, Davis also filed a motion for a discovery and inspection of facts relating to the claim of exclusion of Blacks from the jury selection system in the Northern District of California; both for the year 1968 and for the 20 years preceded.

The reply by the government was in effect a general denial which pointed out that he had not raised it before trial as extensively required by Rule 12 (b) (2) of the Federal Rules of Criminal procedure and also denied that any exclusion was practiced in the district.

The District Court, without granting Davis a hearing, dismissed, writing an opinion saying that his having failed to raise it prior to trial as required by 12 (b) (2) and adhering to Shotwell that he had waived the claim.

He also concluded that in the language of the Rule, there was no cause shown to grant relief from the waiver and he had made this finding also without having granted any hearing.