Holiday v. Johnston, No. 14

• Court: United States Supreme Court
• Writing for the Court: ROBERTS
• Citation: 85 L.Ed. 1392,61 S.Ct. 1015,313 U.S. 550,313 U.S. 342
• Parties: HOLIDAY v. JOHNSTON, Warden. riginal
• Docket Number: No. 14,O
• Decision Date: 26 May 1941

313 U.S. 342 61 S.Ct. 1015 313 U.S. 550 85 L.Ed. 1392 HOLIDAY

v.

JOHNSTON, Warden.

No. 14, Original. Argued May 5, 6, 1941. Decided May 26, 1941. As Amended June 2, 1941.

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Mr. Charles A. Horsky, of Washington, D.C., for petitioner.

[Argument of Counsel from page 343 intentionally omitted]

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Messrs. Robert H. Jackson, Atty. Gen., and Herbert Wechsler, of Washington, D.C., for respondent.

[Argument of Counsel from pages 344-346 intentionally omitted]

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Mr. Justice ROBERTS delivered the opinion of the Court.

The petitioner applied to the District Court for the Northern District of California for a writ of habeas corpus. His petition alleged that he was unlawfully detained by the respondent in Alcatraz Penitentiary; that he had been indicted in the District Court for North Dakota under an Act of May 18, 1934, Sec. 2,¹ the indictment being in two counts, one for robbery of an insured bank and the other for jeopardizing the lives of officials of the bank in the course of the robbery; that he pleaded guilty to both counts and was sentenced to ten years under the first and to fifteen years under the second, 'commencing at the expiration of the sentence imposed under count one.' The petition charged that he was unlawfully detained because he was tried without the advice and assistance of counsel, was ignorant of his right to have counsel although unable to pay for an attorney, was not advised by the court that he was entitled to counsel, and was unable to, and did not, intelligently waive his constitutional right to have counsel. The petition alleged that the two counts of the indictment charged but one offense and that the petitioner was placed in double jeopardy by the imposition of the consecutive sentences.

The court issued a rule on the respondent to show cause why a writ should not issue. The respondent made return showing that the petitioner was held under a commitment issued pursuant to his conviction upon the indictment in question. He attached a certificate of the judge who imposed the sentence attesting to his uniform practice of inquiring of prisoners charged with felony whether they wanted counsel and his firm belief that he so inquired of the petitioner, and the affidavit of a deputy marshal to the effect that petitioner said he did not desire counsel.

Petitioner filed a traverse in which he denied that the

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trial judge had interrogated him as stated and denied that he had made the alleged statement to the deputy marshal. The district judge issued a writ commanding the respondent to produce the petitioner before a commissioner of the District Court at the Alcatraz prison on a day named. This was done and the commissioner there took the petitioner's testimony and later received the depositions of two witnesses on behalf of the respondent. The commissioner submitted a report in which he recited his proceedings, summarized the asserted grounds for relief, made findings of fact, stated conclusions of law, and recommended that the application be denied. After hearing argument on the report the judge entered an order discharging the writ.

The petitioner applied for leave to appeal in forma pauperis. This was denied by an order which recited that, so far as the petition was based on the alleged invalidity of the sentence on the second count of the indictment it was premature and, so far as it was grounded on the deprivation of the assistance of counsel, the evidence sustained the finding of the commissioner that the petitioner had competently and intelligently waived his right to such assistance. Accordingly, the judge denied an appeal for want of merit in the application.

The petitioner moved the Circuit Court of Appeals for leave to appeal in forma pauperis, which was denied. He then petitioned this Court for certiorari², Ex parte Holiday, 312 U.S. 673, 61 S.Ct. 727, 85 L.Ed. —-, and for leave to proceed in forma pauperis. Both petitions were granted and counsel was appointed to represent him in this Court.

The burden of petitioner's complaint is that the procedure adopted by the District Court,—that of a hearing before a commissioner and the disposition of the cause on the record made before him—is a plain violation of

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the Acts of Congress regulating the practice in habeas corpus cases. In addition, he seeks a reversal of the judgment on the ground that the sentence on the second count is void. He insists that he is entitled to a decision to this effect so that he may apply for parole under the sentence imposed on the first count.

The respondent argues that we need not consider the question of the regularity of the hearing in habeas corpus since the petition should have been denied as premature so far as it rested on the asserted illegality of the sentence and since the District Court should have dismissed the petition for insufficiency of the allegations concerning the denial of assistance of counsel.

1. The respondent admits that § 2 of the Act of May 18, 1934, supra, does not create two separate crimes but prescribes alternative sentences for the same crime depending upon the manner of its perpetration. This concession, however, does not aid the petitioner. The erroneous imposition of two sentences for a single offense of which the accused has been convicted, or as to which he has pleaded guilty, does not constitute double jeopardy. And if, as the petitioner contends, the first sentence of ten years is valid and the second void, he is no better off. Conceding, without deciding, that he is right in saying the first sentence is the only valid one, he has not served that sentence and is not entitled now to be discharged from custody under it. He urges that if the second sentence is adjudged void he will now be entitled to apply for parole...