Davis v. United States 8212 1454

Decision Date10 June 1974
Docket NumberNo. 72,72
Citation417 U.S. 333,41 L.Ed.2d 109,94 S.Ct. 2298
PartiesJoseph Anthony DAVIS, Petitioner, v. UNITED STATES. —1454
CourtU.S. Supreme Court
Syllabus

After being declared a delinquent, petitioner was ordered to report for induction pursuant to Selective Service regulations, which permitted the ordering of a declared delinquent to report for induction even though he had not been found acceptable for military service. When petitioner did not report as ordered, he was prosecuted and convicted for failure to report for induction. Following a remand by the Court of Appeals for reconsideration in the light of the intervening decision of this Court in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532, the District Court concluded that Gutknecht did not affect the conviction, and the Court of Appeals affirmed. While petitioner's petition for certiorari was pending in this Court, the Court of Appeals decided United States v. Fox, 454 F.2d 593, wherein, on the authority of Gutknecht, that court reversed a conviction based on facts virtually identical to those on which petitioner's conviction was based. This Court subsequently denied certiorari in the petitioner's case. After beginning his sentence, petitioner brought this collateral proceeding under 28 U.S.C. § 2255, asserting that the Court of Appeals in the Fox case had effected a change in the law of the Ninth Circuit after affirmance of his conviction and that the holding in Fox required that his conviction be set aside. The District Court summarily denied relief. The Court of Appeals affirmed on the ground that because petitioner had unsuccessfully litigated the Gutknecht issue on direct review, the court's earlier affirmance was 'the law of the case' and precluded petitioner from securing relief under § 2255 on the basis of an intervening change in law. Held:

1. Even though the legal issue raised in a prior direct appeal from petitioner's conviction was determined against petitioner, he is not precluded from raising the issue in a § 2255 proceeding 'if new law has been made . . . since the trial and appeal.' Kaufman v. United States, 394 U.S. 217, 230, 89 S.Ct. 1068, 1076, 22 L.Ed.2d 227. Pp. 341—342.

2. The fact that petitioner's claim is grounded 'in the laws of the United States' rather than in the Constitution does not preclude its assertion in a § 2255 proceeding, particularly since § 2255 permits a federal prisoner to assert a claim that his confinement is 'in violation of the Constitution or laws of the United States.' Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, distinguished. Pp. 346—347.

3. The issue that petitioner raises is cognizable in a § 2255 proceeding. Pp. 346—347.

472 F.2d 596, reversed and remanded.

Marvin M. Karpatkin, New York City, for petitioner.

Edmund W. Kitch, Chicago, Ill., for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

This case involves the availability of collateral relief from a federal criminal conviction based upon an intervening change in substantive law. While the question presented is a relatively narrow one, it arises as the result of a rather complicated chain of events.

I

In February 1965, the petitioner, Joseph Anthony Davis, was classified I—A by his draft board and ordered to report for a pre-induction physical examination. Davis failed to appear on the appointed date. He later informed his local board that his failure to report was due to illness. Although the board attempted to arrange a second date for the pre-induction physical, its attempts to communicate with the petitioner were frustrated by his failure to keep the board apprised of his correct mailing addresses. As a result, the local board's communications to the petitioner were returned to the board stamped 'addressee unknown,' and Davis again failed to report for the physical. In December 1965, the board sent the petitioner a warning that it was considering declaring him a delinquent because of his failure to report for the second pre-induction physical.1 This communication was also returned to the board stamped 'addressee unknown.'

After another unsuccessful attempt to communicate with the petitioner, the local board declared him a delinquent, pursuant to 32 CFR § 1642.4(a) (1967), 2 both because of his failure to report for the second pre-induction physical and because of his failure to keep the local board informed of his current address.3 At the same time the board mailed the petitioner a delinquency notice. Shortly after the delinquency declaration, the board sent the petitioner an order directing him to report for induction into the Armed Forces. Once again, the order was returned to the board stamped 'addressee unknown.' Several months later, the board sent the petitioner a second order to report for induction. This time the order was mailed to a St. Paul, Minnesota, address that Davis had used when requesting a duplicate draft card. Although there was no indication that Davis did not receive the induction order, he once again failed to report as ordered. This second failure to report for induction resulted in the petitioner's prosecution and conviction under 50 U.S.C.App. § 462(a).4

At the time that the local board issued the second induction order, 32 CFR § 1631.7(a) (1967) provided that registrants could be ordered to report for induction only after they '(had) been found acceptable for service in the Armed Forces and . . . the local board (had) mailed (them) a Statement of Acceptability . . . at least 21 days before the date fixed for induction.' Since, at the time of his induction order, Davis had not yet appeared for a physical examination to determine his acceptability, quite obviously neither one of these requirements was satisfied. The regulation, however, went on to provide that 'a registrant classified in Class I—A or Class I—A—O who is a delinquent may be selected and ordered to report for induction to fill an induction call notwithstanding the fact that he has not been found acceptable for service in the Armed Forces and has not been mailed a Statement of Acceptability . . ..' The only other registrants similarly excepted from these prerequisites were those who had volunteered for induction. In light of this proviso, the local board evidently concluded that the preconditions to induction stated in § 1631.7(a) were inapplicable to the petitioner, whom it had earlier declared to be a delinquent, and that it was thus free to issue an induction order to the petitioner.5

Davis appealed his conviction to the Court of Appeals for the Ninth Circuit. While that appeal was pending, this Court announced its decision in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). In Gutknecht a Selective Service registrant's induction had been accelerated because his local board had declared him a delinquent.6 When he failed to report for induction as ordered, he was prosecuted and convicted under 50 U.S.C.App. § 462. The delinquent registrant's accelerated induction was ordered in accordance with another portion of 32 CFR § 1631.7(a) that, like the provision applicable to Davis, called for exceptional treatment for registrants whom a local board had declared delinquent. Local boards were authorized by 32 CFR § 1642.4 to issue a declaration of delinquency '(w)henever a registrant . . . failed to perform any duty or duties required of him under the selective service law,' other than to report as ordered for induction or for civilian work. Both Davis and Gutknecht were declared delinquent on the authority of § 1642.4.7 In Gutknecht, the Court held that the Selective Service regulations that accelerated the induction of delinquent registrants by shifting them to the first priority in the order of call were punitive in nature and, as such, were without legislative sanction.8 Accordingly, the Court concluded that the registrant could not be prosecuted for failure to comply with an induction order issued pursuant to these regulations.

After Gutknecht, the Court of Appeals remanded the petitioner's case to the District Court 'without limitation of scope but especially for consideration . . . in the light of the intervening decision of Gutknecht v. United States.' 432 F.2d 1009, 1010 (1970). On remand the District Court, after conducting a hearing, concluded that the petitioner's induction had not been accelerated because of his delinquency status and that Gutknecht therefore did not affect his conviction.9 On appeal, the Court of Appeals affirmed. 447 F.2d 1376.

While Davis' subsequent petition for certiorari was pending in this Court, the Court of Appeals for the Ninth Circuit decided United States v. Fox, 454 F.2d 593. The circumstances leading to Fox's induction order were virtually identical to those in the petitioner's case. Like Davis, 'Fox was declared delinquent by his Selective Service Board . . . for his failure to appear for pre-induction physical examinations as ordered . . ..' Ibid. Prior to receiving his induction order, 'Fox . . . was never found to be 'acceptable for service' and he was (not) mailed a Statement of Acceptability . . . at least 21 days before his induction date . . ..' '(T)hus the only authority the Local Board had for its order to Fox to report for induction was the provision of § 1631.7(b)10 for delinquents to be called without a previous finding of acceptability or the mailing of a Statement of Acceptability 21 days before induction.' Id., at 595. This was the same regulation on which the board's induction order to Davis had been preducated.

At Fox's post-Gutknecht trial for failure to report for induction, 'the government offered evidence . . . to show that Fox's induction order was not accelerated by the declaration of delinquency.' 'The trial judge found no acceleration and convicted.' Id., at 593—594. The Court of Appeals reversed Fox's conviction on the authority of Gutknecht. The court held that Fox's...

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