Carter v. Rafferty, 85-5735

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Citation: 781 F.2d 993
• Docket Number: C-70,No. 85-5735,85-5735
• Parties: Rubin CARTER and John Artis, Appellee, v. John J. RAFFERTY et al., Appellant. ().
• Decision Date: 17 January 1986

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781 F.2d 993 Rubin CARTER and John Artis, Appellee,
v.
John J. RAFFERTY et al., Appellant. No. 85-5735 (C-70). United States Court of Appeals,
Third Circuit. Argued Jan. 7, 1986.
Decided Jan. 17, 1986.

Ronald G. Marmo (argued), Chief Asst. Pros., Passaic County Pros., Paterson, N.J., for appellant.

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Leon Friedman, (argued), Hofstra University Law School, Hempstead, N.Y., for appellee.

Before HUNTER, GARTH and MANSMANN, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

Rubin Carter was indicted and convicted of murder by New Jersey in 1976. His petition for a writ of habeas corpus was granted by the United States District Court for the District of New Jersey, 621 F.Supp. 533 (Sarokin, J.) on November 7, 1985. ¹ On the following day, November 8, 1985, Carter executed a recognizance bond assuring his appearance on the order of the United States District Court and was released from custody.

The State of New Jersey has moved in this court to revoke Carter's enlargement and seeks an order that Carter be placed in custody pending the State's appeal of the District Court's order granting the writ. The State, asserting that Carter is a danger to the community, seeks in the alternative an order compelling him to undergo psychiatric examination so that the State may establish his dangerous propensities. In support of its application, the State has submitted various records of prison incidents and has reported, as well, an incident which occurred in 1976 during the period of Carter's enlargement after the reversal of his first conviction and prior to his second conviction. The State further asserts that Carter has steadfastly refused to undergo psychiatric examination during the past fifteen years. In light of the analysis that follows, we do not find it necessary to make reference to Carter's responses to these assertions.

I.

Our review of the enlargement of a victorious habeas petitioner is necessarily controlled by Fed.R.App.P. 23(c) and (d). These provisions, which by their terms prescribe our plenary review, read:

(c) Release of Prisoner Pending Review of Decision Ordering Release. Pending review of a decision ordering the release of a prisoner in such a proceeding, the prisoner shall be enlarged upon his recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order.

(d) Modification of Initial Order Respecting Custody. An initial order respecting the custody or enlargement of the prisoner and any recognizance or surety taken, shall govern review in the court of appeals and in the Supreme Court unless for special reasons shown to the court of appeals or to the Supreme Court, or to a judge or justice of either court, the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made.

Relatively little has been written with respect to the interpretation of Rule 23, but the available authority does provide some general principles:

First and foremost, a petitioner who has established that his confinement is based on an unconstitutional trial is presumptively entitled to release immediately or, more commonly, after an appropriately circumscribed period to allow the state time to retry the accused. United States ex rel. Thomas v. State of New Jersey, 472 F.2d 735, 743 (3d Cir.1973); United States ex rel. Barnwell v. Rundle, 461 F.2d 768, 769, 770 (3d Cir.1972). ²

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Second, the federal court has a strong interest in assuring the appearance of the petitioner in subsequent proceedings in the federal court or, if the granting of the writ is overturned on appeal, for the purpose of restoring the petitioner to state custody. Thomas, 472 F.2d at 743. Therefore, "any recognizance with or without surety must in a habeas case run to and be filed with the federal court." Id.

Third, it is clear that federal statutory bail standards relating to federal prisoners, see 18 U.S.C. 3141 et seq. (West Supp.1985), do not govern release of state prisoners under Rule 23(c) and (d). ³ A fortiori, state bail rules and procedures have no role in federal habeas proceedings. Indeed, Rule 23 itself does not provide any standards, factors, or conditions to be considered by the court with respect to release, other than those connected with the imposition of surety and the attendant requirement that the habeas petitioner assure the court of his presence at future federal court proceedings.

Apart from these general principles, we have little to guide us other than the language of the rule itself. There is no authoritative case law, for example, on whether the "special reasons" requirements of Rule 23(d) applies both to a "modified" order and to an "independent" order entered by a court on appeal, ⁴ and indeed there is little explanation in the case law of what sort of "special reason" must be demonstrated to a reviewing court in making an order "respecting custody, enlargement or surety." Rule 23(d).

A.

The State has urged before us that Carter represents a danger to the community and therefore should be incarcerated, and that the facts necessary to support this conclusion, in addition to the materials submitted, could be obtained through a court-ordered psychiatric examination. Documents submitted in support of the State's application are intended to show that Carter is a dangerous sociopath and a human "time bomb."

In view of the strong federal interest identified above, we are satisfied that the power to condition release so as to assure the petitioner's future presence is a necessary incident of the federal court's power to enlarge a prevailing habeas petitioner. Therefore, if the State's application to revoke enlargement were related to Carter's likelihood of response to federal process, there is no question but that we would act under our power and authority to enter whatever constitutionally permissible order we deemed necessary to ensure that response. In our view, the "special reasons" to which Rule 23(d) refers must, at the very least, embrace those matters which are related to an assurance that the petitioner will appear in response to federal court orders.

In this case, however, the State has not urged that Carter will fail to respond to federal process. Indeed it has conceded that it is not concerned with flight. Nor has any suggestion been made by the State that, whatever propensities might be established by a psychiatric examination, they would affect flight. Its sole concern appears to be Carter's general dangerousness to society. Moreover, the psychiatric examination

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which the State asks us to order for Carter relates only to his dangerousness and does not relate to assuring Carter's appearance in future federal proceedings. Although a psychiatric examination might be justified where the State presents evidence that a petitioner's mental condition may keep him from honoring a federal court's process, an examination for this purpose was not, and is not, sought in this case, and we therefore need not consider such a circumstance.

The other reason put forth by the State for Carter's examination or incarceration--his alleged dangerousness--is a matter traditionally reserved to the state authorities to decide. It is the state and not the federal government which establishes commitment procedures, criminal and civil, for individuals who are a danger to themselves or a danger to others. See N.J. Const. art I, Sec. 11;...