401 U.S. 481 (1971), 5928, Durham v. United States

Docket NºNo. 5928
Citation401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200
Party NameDurham v. United States
Case DateMarch 08, 1971
CourtUnited States Supreme Court

Page 481

401 U.S. 481 (1971)

91 S.Ct. 858, 28 L.Ed.2d 200

Durham

v.

United States

No. 5928

United States Supreme Court

March 8, 1971

ON PETITION FOR CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

Per curiam opinion.

PER CURIAM.

Petitioner was convicted of having knowingly possessed a counterfeit $20 bill. After the Court of Appeals for the Ninth Circuit affirmed his conviction, he filed this petition for a writ of certiorari. We are now advised that petitioner has died.

It is true that the petition for certiorari is out of time under our Rule 22(2), though timeliness under our rules, of course, presents no jurisdictional question. Subsequent to the affirmance of his conviction below, petitioner filed a timely petition for rehearing. Upon his inquiry to the Court of Appeals, he was informed that he would be notified as to the disposition of his petition as soon as the court acted. When several months passed without any word, petitioner again wrote to that court. In reply, on September 8, 1970, he received a copy of the

Page 482

order dated March 5, 1970, denying his petition for rehearing. Within three weeks from receipt of the denial from the Court of Appeals, his petition for a writ of certiorari was docketed in this Court. On these facts, waiver of our Rule 22 is proper.

Our cases where a petitioner dies while a review is pending are not free of ambiguity. In a recent mandamus action, the petitioner died, and we granted certiorari, vacated the judgment below, and ordered the complaint dismissed. Fletcher v. Bryan, 401 U.S. 126. In a state habeas corpus case, we granted certiorari and vacated the judgment so that the state court could take whatever action it deemed proper. Garvin v. Cochran, 371 U.S. 27. Our practice in cases on direct review from [91 S.Ct. 860] state convictions has been to dismiss the proceedings. See Gersewitz v. New York, 326 U.S. 687. In an earlier case, the Court announced the appeal had abated, Johnson v. Tennessee, 214 U.S. 485, while, in another, the Court stated the cause had abated. List v. Pennsylvania, 131 U.S. 396.

In federal criminal cases, we developed the practice of dismissing the writ of certiorari and remanding the cause to the court below. Singer v. United States, 323 U.S. 338, 346; American Tobacco Co. v. United States, 328 U.S. 781, 815 n. 11; United States v. Johnson, 319 U.S. 503, 520 n. 1. We have cited United States v. Pomeroy, 152 F. 279, rev'd sub nom. United States v. New York Central & H.R.R. Co., 164 F. 324, and United States v. Dunne, 173 F. 254, in suggesting such disposition on remand "as law and justice require," but, beyond this, we have basically allowed the scope of the abatement to be determined by the lower federal courts.

The status of abatement caused by death on direct review has recently been discussed by the Court of Appeals for the Eighth Circuit in Crooker v. United States, 325 F.2d 318. In reviewing the cases, that court concluded

Page 483

that the lower federal courts were unanimous on the rule to be applied: death pending direct review of a criminal conviction abates not only the appeal, but also all proceedings had in the prosecution from its inception. * Id. at 320. As stated in List v. Pennsylvania, supra, on death of the...

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148 practice notes
  • 410 F.Supp.3d 1114 (D.Mont. 2019), CR 15-07-H-DWM, United States v. Robertson
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Montana
    • October 7, 2019
    ...United States, 423 U.S. 325, 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976) (per curiam) overruling in part Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971); Page 1116 Warden, Green Haven St. Prison v. Palermo, 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221 (......
  • United States v. Rorie, 070103 CAAF, 02-0949
    • United States
    • Federal Cases Military Appeals
    • July 1, 2003
    ...state courts. For a number of years, the United States Supreme Court’s position on abatement lacked clarity.1 In Durham v. United States, 401 U.S. 481 (1971), the Court acknowledged its previous "ambiguity," id. at 482, and adopted the policy of abatement ab The unanimity of......
  • 933 So.2d 377 (Ala.Crim. 2004), CR-02-0374, Cherry v. State
    • United States
    • Alabama Alabama Court of Criminal Appeals
    • October 1, 2004
    ...Dove, the Supreme Court stated that to the extent that its holding was inconsistent with its previous opinion in Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), Durham was overruled. Upon the death of the petitioner in Durham while his petition for certiorari was......
  • 514 P.2d 1325 (Colo. 1973), 26025, People v. Quintana
    • United States
    • Colorado Supreme Court of Colorado
    • October 9, 1973
    ...392 U.S. 933, 88 S.Ct. 2294, 20 L.Ed.2d 1391 (1967); Durham v. United States, 403 F.2d 190 (9th Cir. 1968), vacated on other grounds, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971). See also United States v. Roth, 391 F.2d 507 (7th Cir. 1967); United States v. Pearce, 275 F.2d 318 (7th C......
  • Request a trial to view additional results
145 cases
  • 410 F.Supp.3d 1114 (D.Mont. 2019), CR 15-07-H-DWM, United States v. Robertson
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Montana
    • October 7, 2019
    ...United States, 423 U.S. 325, 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976) (per curiam) overruling in part Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971); Page 1116 Warden, Green Haven St. Prison v. Palermo, 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221 (......
  • United States v. Rorie, 070103 CAAF, 02-0949
    • United States
    • Federal Cases Military Appeals
    • July 1, 2003
    ...state courts. For a number of years, the United States Supreme Court’s position on abatement lacked clarity.1 In Durham v. United States, 401 U.S. 481 (1971), the Court acknowledged its previous "ambiguity," id. at 482, and adopted the policy of abatement ab The unanimity of......
  • 933 So.2d 377 (Ala.Crim. 2004), CR-02-0374, Cherry v. State
    • United States
    • Alabama Alabama Court of Criminal Appeals
    • October 1, 2004
    ...Dove, the Supreme Court stated that to the extent that its holding was inconsistent with its previous opinion in Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), Durham was overruled. Upon the death of the petitioner in Durham while his petition for certiorari was......
  • 514 P.2d 1325 (Colo. 1973), 26025, People v. Quintana
    • United States
    • Colorado Supreme Court of Colorado
    • October 9, 1973
    ...392 U.S. 933, 88 S.Ct. 2294, 20 L.Ed.2d 1391 (1967); Durham v. United States, 403 F.2d 190 (9th Cir. 1968), vacated on other grounds, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971). See also United States v. Roth, 391 F.2d 507 (7th Cir. 1967); United States v. Pearce, 275 F.2d 318 (7th C......
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1 firm's commentaries
  • Supreme Court Concurs with TBA Attorney Argument on Abatement
    • United States
    • LexBlog United States
    • March 30, 2009
    ...stating: “Although Carmona filed a general notice of appeal, he died before submitting an opening brief. In Durham v. United States, 401 U.S. 481,91 S.Ct. 858, 28 L.Ed.2d 200 (1971) the Supreme Court adopted the “abatement rule”, holding that “(d)eath pending direct review or a criminal con......
2 books & journal articles
  • Innocence after death.
    • United States
    • Case Western Reserve Law Review Vol. 60 Nbr. 3, March 2010
    • March 22, 2010
    ...doctrine and thus refusing to vacate the conviction of a defendant who died pending review of his petition for certiorari). (171) 401 U.S. 481 (1971) (per curiam), overruled in part by Dove, 423 U.S. at 325. (172) Id. at 483. (173) Moehlenkamp, 557 F.2d at 127. The only exception to this co......
  • The decade of Supreme Court avoidance of AIDS: denial of certiorari in HIV-AIDS cases and its adverse effects on human rights.
    • United States
    • Albany Law Review Vol. 61 Nbr. 3, March 1998
    • March 22, 1998
    ...(342) See id. at 61 (stating that "a party could no longer be affected by a challenged statute"). (343) Durham v. United States, 401 U.S. 481, 483 (1971). (344) Nowak & Rotunda, supra note 171, at 60. (345) 48 F.3d 784 (4th Cir.), cert. denied, 116 S. Ct. 107 (1995). (346) See......