393 U.S. 483 (1969), 40, Johnson v. Avery

Docket Nº:No. 40
Citation:393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718
Party Name:Johnson v. Avery
Case Date:February 24, 1969
Court:United States Supreme Court

Page 483

393 U.S. 483 (1969)

89 S.Ct. 747, 21 L.Ed.2d 718

Johnson

v.

Avery

No. 40

United States Supreme Court

Feb. 24, 1969

Argued November 14, 1968

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Syllabus

Petitioner, a Tennessee prisoner, was disciplined for violating a prison regulation which prohibited inmates from assisting other prisoners in preparing writs. The District Court held the regulation void because it had the effect of barring illiterate prisoners from access to federal habeas corpus and conflicted with 28 U.S.C. § 2242. The Court of Appeals reversed, finding that the State's interest in preserving prison discipline and limiting the practice of law to attorneys justified any burden the regulation might place on access to federal habeas corpus.

Held: In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners. Pp. 485-490.

382 F.2d 353, reversed and remanded.

Page 484

FORTAS, J., lead opinion

MR. JUSTICE FORTAS delivered the opinion of the Court.

I

Petitioner is serving a life sentence in the Tennessee State Penitentiary. In February, 1965, he was transferred to the maximum security building in the prison for violation of a prison regulation which provides:

No inmate will advise, assist or otherwise contract to aid another, either with or without a fee, to prepare Writs or other legal matters. It is not intended that an innocent man be punished. When a man believes he is unlawfully held or illegally convicted, he should prepare a brief or state his complaint in letter form and address it to his lawyer or a judge. A formal Writ is not necessary to receive a hearing. False charges or untrue complaints may be punished. Inmates are forbidden to set themselves up as practitioners for the purpose of promoting a business of writing Writs.

In July, 1965, petitioner filed in the United States District Court for the Middle District of Tennessee a "motion for law books and a typewriter," in which he sought relief from his confinement in the maximum security building. The District Court treated this motion as a petition for a writ of habeas corpus and, after a hearing, ordered him released from disciplinary confinement and restored to the status of an ordinary prisoner. The District Court held that the regulation was void because it in effect barred illiterate prisoners from access to federal habeas corpus and conflicted with 28 U.S.C. § 2242.1 252 F.Supp. 783.

Page 485

By the time the District Court order was entered, petitioner had been transferred from the maximum security building, but he had been put in a disciplinary cell block in which he was entitled to fewer privileges than were given ordinary prisoners. Only when he promised to refrain from assistance to other inmates was he restored to regular prison conditions and privileges. At a second hearing, held in March, 1966, the District Court explored these issues concerning the compliance of the prison officials with its initial order. After the hearing, it reaffirmed its earlier order.

The State appealed. The Court of Appeals for the Sixth Circuit reversed, concluding that the regulation did not unlawfully conflict with the federal right of habeas corpus. According to the Sixth Circuit, the interest of the State in preserving prison discipline and in limiting the practice of law to licensed attorneys [89 S.Ct. 749] justified whatever burden the regulation might place on access to federal habeas corpus. 382 F.2d 353.

II

This Court has constantly emphasized the fundamental importance of the writ of habeas corpus in our constitutional scheme,2 and the Congress has demonstrated its solicitude for the vigor of the Great Writ.3 The Court has steadfastly insisted that "there is no higher duty than to maintain it unimpaired." Bowen v. Johnston, 306 U.S. 19, 26 (1939).

Since the basic purpose of the writ is to enable those unlawfully incarcerated to obtain their freedom, it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed. For example, the Court has held that a State may not validly make the writ available

Page 486

only to prisoners who could pay a $4 filing fee. Smith v. Bennett, 365 U.S. 708 (1961). And it has insisted that, for the indigent as well as for the affluent prisoner, post-conviction proceedings must be more than a formality. For instance, the State is obligated to furnish prisoners not otherwise able to obtain it with a transcript or equivalent recordation of prior habeas corpus hearings for use in further proceedings. Long v. District Court, 385 U.S. 192 (1966). Cf. Griffin v. Illinois, 351 U.S. 12 (1956).

Tennessee urges, however, that the contested regulation in this case is justified as a part of the State's disciplinary administration of the prisons. There is no doubt that discipline and administration of state detention facilities are state functions. They are subject to federal authority only where paramount federal constitutional or statutory rights supervene. It is clear, however, that, in instances where state regulations applicable to inmates of prison facilities conflict with such rights, the regulations may be invalidated.

For example, in Lee v. Washington, 390 U.S. 333 (1968), the practice of racial segregation of prisoners was justified by the State as necessary to maintain good order and discipline. We held, however, that the practice was constitutionally prohibited, although we were careful to point out that the order of the District Court, which we affirmed, made allowance for "the necessities of prison security and discipline." Id. at 334. And in Ex parte Hull, 312 U.S. 546 (1941), this Court invalidated a state regulation which required that habeas corpus petitions first be submitted to prison authorities and then approved by the "legal investigator" to the parole board as "properly drawn" before being transmitted to the court. Here again, the State urged that the requirement was necessary to maintain prison discipline. But this Court held that the regulation violated the principle that

the state and its officers may not

Page 487

abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus.

312 U.S. at 549. Cf. Cochran v. Kansas, 316 U.S. 255, 257 (1942).

There can be no doubt that Tennessee could not constitutionally adopt and enforce a rule forbidding illiterate or poorly educated prisoners to file habeas corpus petitions. Here, Tennessee has adopted a rule which, in the absence of any other source of assistance for such prisoners, effectively does just that. The District Court concluded that,

[f]or all practical purposes, if such prisoners [89 S.Ct. 750] cannot have the assistance of a "jail-house lawyer," their possibly valid constitutional claims will never be heard in any court.

252 F.Supp. at 784. The record supports this conclusion.

Jails and penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited.4 This appears to be equally true of Tennessee's prison facilities.5

In most federal courts, it is the practice to appoint counsel in post-conviction proceedings only after a petition for post-conviction relief passes initial judicial evaluation and the court has determined that issues are presented calling for an evidentiary hearing. E.g., Taylor v. Pegelow, 335 F.2d 147 (C.A.4th Cir.1964); United States ex rel. Marshall v. Wilkins, 338 F.2d 404 (C.A.2d Cir.1964). See 28 U.S.C. § 1915(d); R. Sokol, A Handbook of Federal Habeas Corpus 71-73 (1965).6

Page 488

It has not been held that there is any general obligation of the courts, state or federal, to appoint counsel for prisoners who indicate, without more, that they wish to seek post-conviction relief. See, e.g., Barker v. Ohio, 330 F.2d 594 (C.A. 6th Cir.1964). Accordingly, the initial burden of presenting a claim to post-conviction relief usually rests upon the indigent prisoner himself with such help as he can obtain within the prison walls or the prison system. In the case of all except those who are able to help themselves -- usually a few old hands or exceptionally gifted prisoners -- the prisoner is, in effect, denied access to the courts unless such help is available.

It is indisputable that prison "writ writers" like petitioner are sometimes a menace to prison discipline and that their petitions are often so unskillful as to be a burden on the courts which receive them.7 But, as this Court held in Ex parte Hull, supra, in declaring invalid a state prison regulation which required that prisoners' legal pleadings be screened by state officials:

The considerations that prompted [the regulation's] formulation are not without merit, but the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus.

312 U.S. at 549.

Tennessee does not provide an available alternative to the assistance provided by other inmates. The warden of the prison in which petitioner was confined stated that the prison provided free notarization of prisoners' petitions. That obviously meets only a formal requirement. He also indicated that he sometimes allowed prisoners to examine the listing of attorneys in the Nashville telephone directory so they could select one to write to in an effort to interest him in taking the case, and

Page 489

that, "on several occasions," he had contacted the public defender at the request of an inmate. There is no contention, however, that there is any regular system of assistance by...

To continue reading

FREE SIGN UP
1251 practice notes
  • 372 F.Supp. 1104 (E.D.Pa. 1974), Civ. A. 71-3049, Bauer v. Sielaff
    • United States
    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • 4 Marzo 1974
    ...right to have reasonable access to the courts. Ex parte Hull, 312 U.S. 546, 61 S.Ct 640, 85 L.Ed. 1034 (1941); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). But access to the courts and not access to particular legal documents at specific times is the real issue. If a......
  • 392 F.Supp. 834 (E.D.N.Y. 1973), 72-C-898, Wallace v. Kern
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • 10 Mayo 1973
    ...them. Federal courts have forbidden state officials to screen applications made to the courts by persons in custody. Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969); Beard v. Alabama Board of Corrections, 413 F.2d 455 (5th Cir. 1969). To the extent that there m......
  • 573 F.Supp.2d 456 (D.N.H. 2008), Civ. 06-cv-347, Cossette v. Poulin
    • United States
    • Federal Cases United States District Courts 1st Circuit District of New Hampshire
    • 28 Agosto 2008
    ...of retaliation for helping another inmate exercise his right of access to the courts. McDonald, 610 F.2d at 19 (citing Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969)). Putting aside the question of whether this holding survives the Supreme Court's subsequent decision in......
  • 838 F.Supp.2d 861 (W.D.Wis. 2012), 10-cv-492-bbc, Ripp v. Nickel
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • 14 Marzo 2012
    ...action, Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 85 L.Ed. 1034 (1941), or from seeking assistance in litigation. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). In addition to these prohibitions on interference, the Court has held that prison officials have an af......
  • Free signup to view additional results
1222 cases
  • 372 F.Supp. 1104 (E.D.Pa. 1974), Civ. A. 71-3049, Bauer v. Sielaff
    • United States
    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • 4 Marzo 1974
    ...right to have reasonable access to the courts. Ex parte Hull, 312 U.S. 546, 61 S.Ct 640, 85 L.Ed. 1034 (1941); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). But access to the courts and not access to particular legal documents at specific times is the real issue. If a......
  • 392 F.Supp. 834 (E.D.N.Y. 1973), 72-C-898, Wallace v. Kern
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • 10 Mayo 1973
    ...them. Federal courts have forbidden state officials to screen applications made to the courts by persons in custody. Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969); Beard v. Alabama Board of Corrections, 413 F.2d 455 (5th Cir. 1969). To the extent that there m......
  • 573 F.Supp.2d 456 (D.N.H. 2008), Civ. 06-cv-347, Cossette v. Poulin
    • United States
    • Federal Cases United States District Courts 1st Circuit District of New Hampshire
    • 28 Agosto 2008
    ...of retaliation for helping another inmate exercise his right of access to the courts. McDonald, 610 F.2d at 19 (citing Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969)). Putting aside the question of whether this holding survives the Supreme Court's subsequent decision in......
  • 838 F.Supp.2d 861 (W.D.Wis. 2012), 10-cv-492-bbc, Ripp v. Nickel
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • 14 Marzo 2012
    ...action, Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 85 L.Ed. 1034 (1941), or from seeking assistance in litigation. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). In addition to these prohibitions on interference, the Court has held that prison officials have an af......
  • Free signup to view additional results
29 books & journal articles
  • Recasting prosecutorial discretion.
    • United States
    • Journal of Criminal Law and Criminology Vol. 86 Nbr. 3, March 1996
    • 22 Marzo 1996
    ...401 (1989), the Court upheld the broad discretion of a warden to reject publications from entering the prison. (161) In Johnson v. Avery, 393 U.S. 483 (1969), Justice Fortas wrote for the Court that "it is fundamental that access of prisoners to the courts for the purpose of presenting......
  • The constitutionality of federal restrictions on the indemnification of attorneys' fees.
    • United States
    • University of Pennsylvania Law Review Vol. 156 Nbr. 2, December 2007
    • 1 Diciembre 2007
    ...518 U.S. 343, 355 (1996) (requiring that prisoners be provided the tools to challenge conditions of their confinement); Johnson v. Avery, 393 U.S. 483, 490 (1969) (rejecting restrictions on prisoners providing legal assistance to each other); Ex parte Hull, 312 U.S. 546, 549 (1941) ("[......
  • Not so meaningful anymore: why a law library is required to make a prisoner's access to the courts meaningful.
    • United States
    • William and Mary Law Review Vol. 45 Nbr. 3, February 2004
    • 1 Febrero 2004
    ...violation of equal protection and due process, Id. (19.) See, e.g., Younger v. Gilmore, 404 U.S. 15 (1971) (per curiam); Johnson v. Avery, 393 U.S. 483 (1969); Ex parte Hull, 312 U.S. 546 (1941). (20.) See Hull, 312 U.S. at 549 ("[T]he state and its officers may not abridge or impair [......
  • STRUCTURAL CHANGE IN STATE POSTCONVICTION REVIEW.
    • United States
    • Notre Dame Law Review Vol. 93 Nbr. 2, December 2017
    • 1 Diciembre 2017
    ...356-58 (1963). (195) See infra notes 196-209. (196) 481 U.S. 551, 555 (1987). The Court had previously suggested, in Johnson v. Avery, 393 U.S. 483 (1969), that no constitutional right to postconviction counsel existed. See id. at 488. (197) 417 U.S. 600 (1974). (198) See Finley, 481 U.S. a......
  • Free signup to view additional results