Jago v. U.S. Dist. Court, Northern Dist. of Ohio, Eastern Division at Cleveland

• Decision Date: 02 February 1978
• Docket Number: No. 77-3333,77-3333
• Parties: Arnold R. JAGO, Superintendent, Petitioner-Appellant, v. UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF OHIO, EASTERN DIVISION AT CLEVELAND, and Harllel B. Jones, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 618

570 F.2d 618

Arnold R. JAGO, Superintendent, Petitioner-Appellant, v. UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF OHIO,

EASTERN DIVISION AT CLEVELAND, and Harllel B.

Jones, Respondents-Appellees.

No. 77-3333.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 7, 1977.

Decided Feb. 2, 1978.

William J. Brown, Atty. Gen. of Ohio, Columbus, Ohio, for petitioner-appellant.

Gary T. Kelder, Syracuse, N. Y., Gordon S. Friedman, Cleveland, Ohio, Richard L. Aynes, Akron, Ohio, for respondents-appellees.

Before CELEBREZZE and ENGEL, Circuit Judges, and GRAY, Senior District Judge. ^*

ENGEL, Circuit Judge.

The Superintendent of the Southern Ohio Correctional Facility has petitioned this court for a writ of mandamus to compel the respondent district judge to withdraw a grant of bail to Harllel Jones, the successful petitioner for a writ of habeas corpus in the district court. ¹ The federal habeas corpus petition challenged the validity of a 1972 conviction in an Ohio Court of Common Pleas for second degree murder and shooting with intent to kill or wound.

Judgment in the habeas corpus proceeding was entered on February 10, 1977, granting the writ and ordering Jones' release unless the state began a new trial within 90 days. On February 15 Jones applied for bail, and on March 2 petitioner Jago filed a notice of appeal and moved for a stay of execution of the judgment. The district court denied both the request for bail and the motion for a stay on March 7. Jago sought in this court a stay of the judgment, which was granted on April 19. Upon a renewed application for bail, the district court on June 24, 1977 ordered Jones released pending the appeal on the condition that he post bail in the amount of $10,000, ten percent deposit. ²

In ordering Jones' release, District Judge Frank J. Battisti noted that the 90-day period for a new trial had long since expired and that the appellate process promised to last several more months. He concluded:

Under these circumstances, continued imprisonment of the petitioner by the state can no longer be justified. The petitioner is possessed of a final judgment that his trial did not meet constitutional standards of fairness and is by now entitled to release on bail while the state pursues its appeal.

The state asserts that after he had originally denied bail and a notice of appeal had been filed, the district judge was without any power to act. At first blush this position appears to have much merit, especially in the light of the express language of Rule 23(d), Federal Rules of Appellate Procedure:

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.

Relying upon a literal reading of the rule, the state argues that the district judge's "initial" order denied release and thus must govern Jones' custody during appeal unless changed by the court of appeals for "special reasons."

Furthermore, the state relies upon the general proposition that the filing of a notice of appeal divests the district court of jurisdiction and transfers such jurisdiction to the court of appeals, citing the following Sixth Circuit cases: Oak Construction Co. v. Huron Cement Co., 475 F.2d 1220 (6th Cir. 1973); Hogg v. United States, 411 F.2d 578 (6th Cir. 1969); Keohane v. Swarco, Inc., 320 F.2d 429 (6th Cir. 1963); United States v. Frank B. Killian Co., 269 F.2d 491 (6th Cir. 1959); Walker v. Felmont Oil Corp., 262 F.2d 163 (6th Cir. 1958), cert. denied, 361 U.S. 840, 80 S.Ct. 61, 4 L.Ed.2d 78 (1959). The order granting bail was entered after the notice of appeal had been filed and the case docketed in this court. Thus the state contends that the district court acted without jurisdiction. The earlier order denying bail, while also entered after the appeal was noted, is not subject to this defect, it urges, because an application had been made prior to the filing of the notice. The state also correctly points out that habeas corpus petitioners are not subject to the provisions of Rule 9, Federal Rules of Appellate Procedure, pertaining to admission to bail of defendants in direct criminal appeals.

In considering similar arguments in the district court, Judge Battisti concluded:

The respondent interprets this rule (23(d)) to mean that modification of an initial order respecting custody is limited to the appellate courts. But, clearly, this is a misreading of the provision. Though the rule indicates the truism that on review in the court of appeals or the Supreme Court an order can only be modified by a judge or justice of that court, it neither states nor implies that the district court is divested of jurisdiction to modify or reconsider its orders concerning custody. In fact this rule states a limitation on the discretion of appellate courts to modify initial orders and, thereby, reemphasizes the responsibility of the district court to determine the propriety of release pending appeal. According to this rule, absent "special reasons," the appellate courts are, in fact, to be governed by the rulings made by the lower courts regarding custody. Hence, this court not only has jurisdiction to consider the petitioner's motion by virtue of Rule 23(c), but also has a special obligation to modify, if the circumstances require, an order which the court of appeals might otherwise consider binding by virtue of Rule 23(d).

Rule 23(c) states that a successful petitioner for habeas corpus "shall be enlarged" pending appeal, unless the court otherwise orders. After thorough review of the historical precedents to Rule 23(c), the Third Circuit Court of Appeals concluded in United States ex rel. Thomas v. New Jersey, 472 F.2d 735 (1973) that under Rule 23(c) there is "a very strong presumption that a petitioner holding a final judgment that his detention is unlawful should not be left in state custody" and, further, that the court should exercise its discretion to allow the state to retain custody only in "limited situations," supra at 743.

The issues raised by the superintendent's petition are ones of first impression in this circuit and have considerable practical importance in the administration of the law of habeas corpus in the federal courts. A consideration of the historical role of habeas corpus generally and of Rule 23 in particular persuades us that Judge Battisti retained the power to release Jones under the circumstances here.

Any consideration of the meaning of Rule 23 and of the retained authority of the district judge to enter orders affecting custody after filing of the notice of appeal must begin with the recognition that "(e)ssentially, the proceeding is unique. Habeas corpus practice in the federal courts has conformed with civil practice only in a general sense." Harris v. Nelson, 394 U.S. 286, 294, 89 S.Ct. 1082, 1087, 22 L.Ed.2d 281 (1969); accord, Schlanger v. Seamans, 401 U.S. 487, 490 n. 4, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971).

While there may be a justifiable inclination to consider contemporary habeas corpus proceedings in federal court primarily as vehicles for the resolution of knotty constitutional issues, the writ is essentially a very physical one. This is its fundamental nature even today. Above all it deals with the issue of personal freedom from imposed restraints. In its most literal terms, a writ commands a custodian to bring the aggrieved party into the presence of the judge issuing the writ and at that time to justify the detention. Historically the judge then inquired into the custodian's reasons, and if he found them unlawful or inadequate, he ordered the immediate release of the person so held and the matter was closed. Immediacy was and is its essence:

This is a high prerogative writ, and therefore by the common law issuing out of the court of the king's bench not only in term-time, but also during the vacation, by a fiat from the chief justice or any other of the judges, and running into all parts of the king's dominions: for the king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.

3 W. Blackstone, Commentaries on the Laws of England 131 (E. Christian ed. 1822) (footnotes omitted).

It is true that in the great bulk of cases in the federal courts prisoners in state custody remain physically in the state institution while their petitions for release under the writ are processed through the district courts and any subsequent appeals. It is important to remember, however, that the prisoners in state correctional institutions are not the only potential beneficiaries of the writ or of the laws authorizing federal judges to issue it. The Supreme Court has commented, "It is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty." Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). ³

The underlying physical nature of habeas corpus proceedings has been well stated by Judge Hastie, concurring in Johnston v. Marsh, 227 F.2d 528, 532 (3rd Cir. 1955):

Unique procedure characterizes the administration of the remedy of habeas corpus. When a court with jurisdiction of the subject matter receives a petition for habeas corpus which is not inadequate on its face, normal procedure is to issue a writ of habeas corpus, ordering the person who is detaining the petitioner to bring him before the court for hearing and decision whether he is unlawfully deprived of his liberty. The district court issued such an order here and in...