Brown v. Cox, 71-1089.

• Decision Date: 28 June 1973
• Docket Number: No. 71-1089.,71-1089.
• Parties: James Arthur BROWN, Appellant, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

481 F.2d 622 (1973)

James Arthur BROWN, Appellant, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellee.

No. 71-1089.

United States Court of Appeals, Fourth Circuit.

Argued March 5, 1973.

Decided June 28, 1973.

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Prof. Daniel J. Meador, Charlottesville, Va. (Court-appointed), for appellant.

Robert E. Shepherd, Jr., Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges sitting en banc, on resubmission.

DONALD RUSSELL, Circuit Judge:

This is a habeas proceeding instituted by a Virginia prisoner, after exhaustion of state remedies, in order to secure his outright release from a life sentence imposed after conviction for robbery in the Corporation Court of the City of Norfolk. The District Court denied relief.¹ On appeal, the hearing panel filed its opinion,² remanding the proceeding for a hearing such as was required in Kemplen v. State of Maryland (4th Cir. 1970), 428 F.2d 169. Rehearing en banc was sought and granted. On rehearing, affirmance of the District Court, though not on the grounds stated by it,³ was agreed on by the en banc court. The earlier opinion is accordingly superseded by the following opinion:

The factual background of this proceeding is not in dispute. At the time of the commission of his alleged offense of robbery, the petitioner was 17 years of age. A petition charging him with the offense was initially filed in the Juvenile and Domestic Relations Court of Norfolk (hereinafter referred to as Juvenile Court). It does not affirmatively appear from the Juvenile Court record that either of petitioner's parents was present at any of the proceedings which followed and it is conceded that the Court did not appoint a guardian ad litem or counsel to represent him. The Juvenile Court found the petitioner "within the purview of the Juvenile Court" and referred the matter "to the Probation Department for an investigation, to be made in Grand Jury form." The matter was continued until September 3, 1963 to permit the investigation to be made. On September 3, 1963 the Juvenile Court conducted a hearing on the basis of the investigation made by the Probation Department and proceeded to transfer the charges against the petitioner to the Corporation Court of the City of Norfolk for criminal proceedings. The transfer was made under the authority of Section 16.1-176, Virginia Code.⁴

The petitioner was thereupon indicted for robbery in the Norfolk Corporation Court, pled guilty in January, 1964, and was given a life sentence. As a result of habeas proceedings begun by the petitioner in 1968, this conviction and sentence were, however, declared null and void because of the failure of the Juvenile Court to appoint a guardian ad litem or counsel for the petitioner or to notify the petitioner's parents in connection with the transfer proceedings.⁵ The Court did not, however, order the petitioner's release but directed that he be detained to await further orders of the Court. The petitioner at this time was 23 years of age.

Shortly thereafter, the petitioner was re-indicted for the same 1963 robbery, tried before a jury, found guilty and again sentenced to life imprisonment. He appealed, contending that his second trial was void because re-trial as an adult for an offense committed as a juvenile would be inconsistent with the constitutional requirements of due process and equal protection. The appeal was denied on the authority of Pruitt v. Guerry (1969) 210 Va. 268, 170 S.E.2d 1. Continuing to press his claims, petitioner commenced this habeas corpus proceeding in the District Court in May 1970. From a dismissal of his petition by the District Court, he appealed to this Court.

I.

Petitioner raises two claims on account of which he asserts he is entitled to immediate release. First, he urges that the jurisdiction of the Juvenile Court over him and his offense has never been validly terminated and that, in order to terminate it and transfer valid jurisdiction to the Corporation Court, a proper transfer proceeding is necessary. He contends, however, that at this late date, almost ten years after the offense, it is impossible for the Juvenile Court or any other Court to hold a meaningful nunc pro tunc transfer hearing in order to effect such a transfer and, under those circumstances, his outright release is the only proper remedy.⁶ In addition, he argues that the hearing before the Juvenile Court put him in jeopardy and any trial of him in the Corporation Court is barred under the constitutional prohibition against double jeopardy.

We find both contentions without merit.

II.

There is no dispute between the parties over the proposition that the transfer order entered by the Juvenile and Domestic Relations Court in 1963 was invalid for failure to accord the petitioner procedural due process and that the conviction thereafter, on the basis of the petitioner's guilty plea in the Corporation Court, was invalid.⁷ The state court has so concluded in declaring that conviction a complete nullity.⁸ Had the petitioner been a juvenile in 1968 when his initial sentence was voided, jurisdiction over his offense would have been vested in the Juvenile Court, which could have held a new transfer hearing, conducted in full compliance with the petitioner's constitutional rights.⁹ But the petitioner was no longer a juvenile; he was an adult. Thus, the Juvenile Court had no further jurisdiction over him and his offense¹⁰ and he could no longer be dealt with by that Court. But that did not mean that he was "home free" and must be released forthwith because, as the petitioner contends, a reconstructed waiver hearing as contemplated by Kemplen would be impractical. As one Circuit Court has observed in a similar case, "when a decision in the criminal law is made retroactive, the consequence is not to free all whose convictions are affected. Normally new hearings or new trials will be held in some or all cases." Mordecai v. United States, supra, 421 F.2d at 1137. As a matter of fact, this demand for immediate release "is the kind of `drastic relief' which the supreme court in identical circumstances in Kent deemed inappropriate." Knott v. Langlois (1967), 102 R.I. 517, 231 A.2d 767, 773. Thus Kent, the foundation for the petitioner's constitutional attack on his earlier sentence, did not require the petitioner's release; rather, after providing for correction of the procedural infirmity in the transfer proceeding it authorized a re-trial. And this is the customary procedure in situations such as that posed here. Habeas is not a remedy to be exploited by the guilty in order to escape trial but a procedure intended to secure to guilty and innocent alike a trial free of constitutional defect. Only when the Commonwealth is unwilling to afford the defendant such trial is release proper.¹¹

Fundamental fairness, though, demands that the public's right to retry the petitioner as an adult for a crime, committed while he was a juvenile and subject to the processes of the juvenile court system, be conditioned upon a judicial determination of some kind that the petitioner has not been improperly prejudiced by the loss of the opportunity, in a properly conducted hearing, to have opposed a transfer from the Juvenile Court in 1963. Beyond question, the petitioner would have been so prejudiced if at such a hearing it would have been likely a transfer would have been refused. Such a refusal would have meant that in no event could the petitioner have been subjected to any form of restraint beyond his twenty-first year. Only if it could be fairly said that such a transfer would have been made, had a hearing carried out with constitutional safeguards been had, would it be proper to try the petitioner as an adult. Faced with this same issue in Kemplen, the Court attempted to fashion a procedure whereby the problem in that case might be resolved in fairness to both the public interest and the defendant's individual right to a just determination.

That is the background for Kemplen in which we held that, under ordinary circumstances, a determination on this issue should take place in the context of a reconstructed nunc pro tunc hearing, in which the Trial Court would decide "what the juvenile court judge would probably have done in light of all the information then available that might reasonably have been proffered by competent counsel."¹² But, as the opinion in Kemplen plainly declares, this remedy is not the only remedy, nor is it a remedy necessarily to be applied inflexibly and blindly in all cases. The decision was careful to point out that the remedy adopted in that case was "the proper remedy for this petitioner, on the facts of this case * * *."¹³ (Italics added)

In short, Kemplen stands for the principle that, while ordinarily a reconstructed transfer hearing is the appropriate remedy where a prior transfer order of the Juvenile Court has been invalidated on procedural due process grounds and the Juvenile Court has lost jurisdiction of the defendant by reason of his age, each case must be considered on its own facts, and, if some other remedy or determination will not result in fundamental unfairness to the petitioner and is more appropriate under the facts of the case and will contribute to a more expeditious resolution of the issue, that procedure should be adopted.

After a careful review of the facts of this case, we are of the firm opinion that this is not a case requiring a nunc pro tunc waiver hearing, as was required in Kemplen. We have no difficulty in finding to a moral and legal certainty that no Juvenile Court, on the record in this case, would have denied transfer. The petitioner, in a proceeding in the Juvenile Court before the filing of his 1963 robbery charge, had been treated by the Juvenile Court as an...