470 F.2d 95 (1st Cir. 1972), 72-1309, Glynn v. Donnelly

Docket Nº:72-1309, 72-1310.
Citation:470 F.2d 95
Party Name:Francis T. GLYNN, Petitioner-Appellant, v. Robert DONNELLY, Respondent-Appellee. John M. FARRELL, Petitioner-Appellant, v. Robert DONNELLY, Respondent-Appellee.
Case Date:December 12, 1972
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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470 F.2d 95 (1st Cir. 1972)

Francis T. GLYNN, Petitioner-Appellant,


Robert DONNELLY, Respondent-Appellee.

John M. FARRELL, Petitioner-Appellant,


Robert DONNELLY, Respondent-Appellee.

Nos. 72-1309, 72-1310.

United States Court of Appeals, First Circuit.

December 12, 1972

Argued Nov. 9, 1972.

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James W. Kelleher, Boston, Mass., for appellants.

Charles E. Chase, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen. and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., were on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

ALDRICH, Senior Judge.

Petitioners Glynn and Farrell were convicted in two Massachusetts state court trials and their convictions were affirmed on appeal. Commonwealth v. Beneficial Finance Co., 1971 Mass.Adv. Sh. 1367, 275 N.E.2d 33, cert. denied 407 U.S. 910, 92 S.Ct. 2435, 32 L.Ed.2d 683. On July 21, 1972, the day after commencing service of sentence, they filed petitions for habeas corpus in the district court, alleging that their convictions were tainted by constitutional error. In connection therewith they sought bail, and upon this being denied, they appeal.

A question arises as to our appellate jurisdiction. Petitioners allege that in our recent case of Woodcock v. Donnelly, 1 Cir., 1972, 470 F.2d 93, casting doubt upon that jurisdiction, we overlooked certain decisions indirectly in point. We regard the question as interesting, but unimportant. 1 Concededly we have original jurisdiction to issue an order of mandamus under the All Writs Act, 28 U.S.C. § 1651(a), and, of greater consequence, we are satisfied that the

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particular jurisdictional source is immaterial to the substantive issue. Whatever the basis of our power, petitioners must carry an exceptional burden before we can reverse the district court. We observe, however, that sound practice would seem to suggest resort to original rather than appellate jurisdiction.

Quite apart from our own reviewing standard, petitioners bore in the district court itself a heavy burden, a burden derived from an appreciation of the particular use they are seeking to make of the writ. The writ of habeas corpus, an ancient bulwark of liberty, served traditionally to protect against arbitrary abuse of power by the Crown. Subjects held without trial employed the writ to secure their liberty pending a judicial determination of their guilt. See Darnel's Case, 3 Cobbett's St.Tr. 1 (1627); 9 W. Holdsworth, A History of English Law 114-119 (2d ed. 1938). It was ultimately held that the court hearing this traditional habeas was authorized to investigate the legality and the cause of the detention in deciding whether to release the prisoner. See Developments in the Law, Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1044-45 (1970). For a prisoner whose case had already been judicially processed, on the other hand, a habeas court historically restricted its review, inquiring only if the committing court possessed the competence and jurisdiction to issue the commitment order. See Ex parte Watkins, 1830, 28 U. S. (3 Pet.) 193, 202-203, 7 L.Ed. 650.

Over the years the issues cognizable by a federal habeas court reviewing a judicial confinement have multiplied significantly, partly as a result of statutory developments, see Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385 (now 28 U.S.C. § 2241(c)(3) (1971)) and partly as a result of judicial expansion of the concept of jurisdiction. See, e. g., Frank v. Mangum, 1915, 237 U.S. 309, 326-327, 35 S.Ct. 582, 59 L.Ed. 969; Johnson v. Zerbst, 1938, 304 U.S. 458, 465-468, 58 S.Ct. 1019, 82 L.Ed. 1461. In a more recent, and probably more significant, broadening of the writ, the Supreme Court has made it clear that a federal habeas court has jurisdiction regardless of the adequacy of the state judicial process, or the fact that the state has fully and fairly considered the prisoner's claim. Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469. See Bator...

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