Fleenor v. Hammond

• Decision Date: 13 January 1941
• Docket Number: No. 8446.,8446.
• Citation: 116 F.2d 982
• Parties: FLEENOR v. HAMMOND, Superintendent of Kentucky State Reformatory.
• Court: U.S. Court of Appeals — Sixth Circuit

116 F.2d 982 (1941)

FLEENOR v. HAMMOND, Superintendent of Kentucky State Reformatory.

No. 8446.

Circuit Court of Appeals, Sixth Circuit.

January 13, 1941.

Leslie W. Morris, of Frankfort, Ky. (Leslie W. Morris and Marion Rider, both of Frankfort, Ky., on the brief), for appellant.

W. Owen Keller, of Frankfort, Ky. (Hubert Meredith and W. Owen Keller, both of Frankfort, Ky., on the brief), for appellee.

Before HICKS, SIMONS, and HAMILTON, Circuit Judges.

SIMONS, Circuit Judge.

The appellant, by petition for a writ of habeas corpus, assails the constitutional validity of his confinement in the Kentucky State Reformatory upon the revocation of a conditional pardon granted to him by the Governor. The District Judge, though concluding that the appellant's constitutional rights had been invaded, dismissed the writ but issued a certificate of probable cause to permit decision by us following the precedent adopted by his predecessor to which we gave approval in Jones v. Commonwealth of Kentucky, 6 Cir., 97 F.2d 335.

The facts upon which the petitioner relies, are not in controversy. He had been convicted in April, 1934, of voluntary manslaughter and sentenced in November of that year, to a term of 15 years in the State Reformatory. On December 4, 1934, Laffoon, the then Governor of Kentucky, by an executive order, granted to the petitioner and others a pardon on the condition that the persons named therein would "until the expiration dates of the sentences which they are now serving, conduct themselves as useful, upright and law-abiding citizens of the Commonwealth of Kentucky; and provided that if any of them shall fail to so conduct themselves for said period, those so failing may, by executive order made and entered upon the Executive Journal, be re-arrested and re-confined in either of the two named penal institutions of the Commonwealth of Kentucky, and be required to serve out the full unexpired terms of their respective sentences." The pardon also provided that if any of the persons therein granted clemency should be convicted of a felony, it was to become null and void, and if they "conduct themselves as law-abiding citizens and violate none of the conditions of this executive order and of this conditional pardon, then they, and each of them, shall on the dates shown herein as the dates when their respective terms would have expired had they remained in prison, be granted a full and free pardon and restored to full citizenship, and all the rights and privileges thereof; * * *" The petitioner accepted the pardon and on December 4, 1935, was released from the reformatory.

On December 10, 1938, Edwin C. Dawson, then Acting Governor of Kentucky, entered an executive order reading in part as follows:

"Whereas the said Lee Fleenor has heretofore and since the issual of said conditional pardon flagrantly, frequently, openly, willfully, and knowingly violated the conditions subsequent of said pardon, as enumerated above, and is now conducting himself in a manner violative of the conditions above, all of which is known to A. B. Chandler, Governor, and

"Whereas the undersigned governor of the Commonwealth of Kentucky is of the opinion that said conditional pardon should be, and the same is hereby revoked and held for naught, and the said Lee Fleenor should not be permitted to further enjoy the privileges provided for under the said conditional pardon;

"Now, Therefore, it is ordered that the said conditional pardon granted on the 4th day of December, 1935, by Ruby Laffoon, then Governor, be revoked, set aside, canceled and held for naught insofar as the same pertains to Lee Fleenor of Harlan County, Kentucky."

The executive order then directed that Fleenor be re-arrested and returned to the reformatory to serve out the remainder of his 15-year sentence.

The order of the Acting Governor was entered without notice to the petitioner, and without an opportunity afforded him to be heard. Following its entry he was summarily arrested and returned to the custody of the appellee where he still remains. On January 24, 1939, the petitioner instituted habeas corpus proceedings in the Oldham County Court of Kentucky, but before the petition could be heard the Attorney General of the Commonwealth sought and obtained a writ of prohibition from the Court of Appeals of Kentucky, staying the County Court from proceeding further with the matter. On March 24, 1939, the Court of Appeals announced its decision, making the stay permanent and holding the petitioner's confinement to be under the circumstances not in denial of due process of law. Commonwealth of Kentucky v. Hall, County Judge, 277 Ky. 612, 126 S.W.2d 1056.

The petitioner thereupon filed his application for a writ of habeas corpus in the United States District Court, under the provisions of 28 U.S.C.A. §§ 452 and 453, alleging that the summary revocation of his pardon without notice and without hearing, and his arrest and confinement, constituted denial to him of due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States, with the result we have indicated.

There is no statutory provision regulating or prohibiting the granting of conditional pardons in Kentucky. The Court of Appeals, upon an examination of state authority declaratory of the common law, Ex parte Davenport, 110 Tex.Cr.R. 326, 7 S.W.2d 589, 60 A.L.R. 1403, concluded that the power given to the executive by the Constitution of the State to grant a pardon, includes the right to annex any conditions precedent or subsequent that are not illegal, immoral or impossible of performance, and that there is a generally recognized rule that the executive may insert in the pardon an express reservation of a right of summary revocation without notice to the person affected, though in the absence of this reservation the holder of the pardon is entitled to a judicial determination of the question whether the conditions of the pardon have been violated, before it can be effectually revoked, State ex rel. O'Connor v. Wolfer, 53 Minn. 135, 54 N.W. 1065, 19 L.R.A. 783, 39 Am. St.Rep. 582. The court then proceeded to construe the provisions of the pardon granted to Fleenor. It found that by its terms it might be revoked by an order on the Executive Journal, without requiring the judgment of a court, and that revocation was the basis for a rearrest. Therefore, since it was contemplated that revocation might precede notice in time, it must necessarily have been intended both by the Governor and the convict, that it might be revoked upon an ex parte finding. No violation of due process was therefore involved. Fleenor, being at large by virtue of executive clemency accepted on the condition that power to withdraw it was reserved solely to the executive, could not complain of its exercise without notice or hearing.

The District Court was unable to agree with this interpretation of the terms of the pardon. Assuming that the phrasing used gave the Governor power to make findings, it was unable to derive therefrom any express reservation of power to make such findings without a hearing. It pointed to the dangers inherent in ex parte proceedings, in hearsay testimony or that of unsworn, partisan or interested witnesses, and expressed the view that, in the absence of clearly and unambiguously reserved power to the chief executive to revoke the pardon without a hearing because of its alleged violation, such arbitrary revocation could not be made. The writ should be granted were it not for the fact that the highest court of the state had denied it upon a similar showing. Constrained by the rule announced in United States v. Tyler, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138, that the due and orderly administration of justice in a state court is not to be interfered with by the courts of the United States, save in rare cases where exceptional circumstances of peculiar urgency are shown to exist, and failing to find such circumstances the District Judge followed the practice approved in Jones v. Commonwealth, supra, dismissed the writ, and issued a certificate of probable cause as provided by 28 U.S.C.A. § 466.

The Court of Appeals of Kentucky, having declared it to be the law that in the absence of statutory regulation a pardon may be granted upon condition that it may be revoked summarily by the Governor upon an ex parte consideration of an alleged breach of conditions therein contained, we must accept its decision as declaratory of the law of that state. The court having construed the pardon to contain an express reservation of power to summarily revoke, we must accept that construction as likewise authoritative in Kentucky. The question before us, therefore, is not whether the Court of Appeals of Kentucky correctly applied the common law of that state or correctly interpreted the terms of the pardon, but...