Moss v. State of Maryland

• Citation: 272 F. Supp. 371
• Decision Date: 31 July 1967
• Docket Number: 17982.,Civ. A. No. 17896
• Parties: Robert Lee MOSS v. STATE OF MARYLAND. Ellie SISKOS v. STATE OF MARYLAND, William A. Linthicum, and Ralph Offutt.
• Court: U.S. District Court — District of Maryland

272 F. Supp. 371

Robert Lee MOSS v. STATE OF MARYLAND.

Ellie SISKOS v. STATE OF MARYLAND, William A. Linthicum, and Ralph Offutt.

Civ. A. Nos. 17896, 17982.

United States District Court D. Maryland.

July 31, 1967.

Karl G. Feissner, Alpern & Feissner, Rockville, Md., for petitioners, Robert Lee Moss and Ellie Siskos.

Francis B. Burch, Atty. Gen., and Edward F. Borgerding, Asst. Atty. Gen., for the State of Maryland.

WATKINS, District Judge.

Initially petitioner Moss filed in this court a petition for the issuance of a writ of habeas corpus alleging that (1) he was being held "in custodia legis", that (2) he had fully and completely exhausted all available state remedies and that (3) he was being placed in double jeopardy by certain state court appellate proceedings pending against him contrary to the dictates of the Fifth Amendment to the Constitution of the United States. Thereafter, petitioner Siskos filed in this court a petition for the issuance of a writ of habeas corpus making allegations identical with those of petitioner Moss. Upon a representation to the court that the petitions presented for consideration identical issues and upon the request of all the parties the cases were ordered consolidated for hearing and argument. In truth the two petitions pose almost entirely different problems. It is only as to the question of "standing" that the two proceedings can be jointly treated.

Petitioners have in common that both are at large pending further state court appellate proceedings against them, Moss having been released on bail and Siskos having been released on her own recognizance. Thus, the first question for consideration becomes, is one on bail "in custody" as that term is used in Title 28, U.S.C. section 2241(c) (3), which provides:

"(c) The writ of habeas corpus shall not extend to a prisoner unless —

"(3) He is in custody in violation of the Constitution or laws or treaties of the United States".

The courts have uniformly¹ held that one at large on bail does not meet the jurisdictional requirements of this section. (Johnson v. Hoy, 1913, 227 U.S. 245, 248, 33 S.Ct. 240, 57 L.Ed. 497; Stallings v. Splain, 1920, 253 U.S. 339, 343, 40 S.Ct. 537, 64 L.Ed. 940; Unverzagt v. United States, 9 Cir. 1925, 5 F.2d 494, 495, cert. den. 1925, 269 U.S. 566, 46 S.Ct. 24, 70 L.Ed. 415; United States ex rel. Potts v. Rabb, 3 Cir. 1944, 141 F.2d 45, 47, cert. den. 1944, 322 U. S. 727, 64 S.Ct. 943, 88 L.Ed. 1563; Rowland v. State of Arkansas, 8 Cir. 1950, 179 F.2d 709, 710, cert. den. 1950, 339 U.S. 952, 70 S.Ct. 841, 94 L.Ed. 1365, reh. den. 1950, 339 U.S. 991, 70 S.Ct. 1022, 94 L.Ed. 1392).

Indeed the entire statutory scheme relating to federal habeas corpus proceedings indicates that Congress contemplated resort to habeas corpus only where substantial restrictions were placed, allegedly illegally, on the one seeking such relief. For example, section 2241 defines the "standing" or the jurisdictional qualifications of a petitioner in terms of "a prisoner" and a prisoner "in custody." Section 2254, dealing specifically with persons seeking relief from state action, speaks in terms of "a person in custody pursuant to the judgment of a State court" (emphasis supplied), thus introducing, in addition to the element of restraint, the element of finality of state action as a prerequisite to the seeking of federal habeas corpus relief. Section 2255, dealing with one attacking federal proceedings, defines the petitioner as a "prisoner in custody under sentence of a court". The statutory scheme is further emphasized by section 2242, which provides that the application for a writ of habeas corpus "shall allege the facts concerning the applicant's commitment or detention, the name of the person who has custody over him and by virtue of what claim or authority, if known." As clearly appears, the language quoted from these various sections is peculiarly inapplicable to one at large on bail.

However, petitioners take the position that the Supreme Court case of Jones v. Cunningham, 1963, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285, holding that one placed on parole under the "custody and control" of a Parole Board is "in custody" within the meaning of section 2241, requires a rejection of all earlier cases holding that one on bail is not in custody as that term is used in section 2241 et seq. While the Supreme Court in the Jones case reversed the United States Court of Appeals for the Fourth Circuit in Jones v. Cunningham, 4 Cir. 1961, 294 F.2d 608, in so doing it was not carving out new law. It was in effect merely reminding the Fourth Circuit of its earlier and correct holding to the effect that:

"* * * The status of the prisoner while under conditional release was that of a prisoner on parole. 18 U.S. C.A. § 716b. While this was an amelioration of punishment, it was imprisonment in legal effect. Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 45, 68 L.Ed. 247. He was bound to remain in the legal custody and under the control of the warden of the penitentiary; and the issuance of the warrant for his arrest was but the assertion of the authority over him vested by law in the Board of Parole because of his imprisonment." (United States ex rel. Nicholson v. Dillard, 4 Cir. 1939, 102 F.2d 94, 96; emphasis supplied).

The differences in status between a convicted prisoner released on parole or on mandatory conditional release and an accused at liberty on bail pending an appeal were pointed out by Chief Judge Bailey Aldrich in, as is his wont, a lucid opinion in Allen v. United States, 1 Cir. 1965, 349 F.2d 362, 363, where he stated:

"Defendant, relying principally on Jones v. Cunningham, 1963, 371 U. S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285, asserts that `custody' includes the relatively minor restrictions imposed by the conditions of bail. The Court there held that a petition for habeas corpus was not rendered moot when petitioner had been released on parole. Jones v. Cunningham, and the cases cited therein, teach that `custody,' for the purposes of habeas corpus, can include something less than total confinement. In view of section 2255's similarity in purpose to the federal writ of habeas corpus, see Hill v. United States, 1962, 368 U.S. 424, 427-428, 82 S.Ct. 468, 7 L.Ed.2d 417, we may assume that the requisite custody is not different for the two post-conviction remedies. However, Jones does not determine the decision in this case. The parole board regulated in detail petitioner's economic, social, and moral life. Petitioner was subject to recommitment for any violation. Essentially the only restriction imposed upon a defendant on bail is to be subject to the court's call upon reasonable notice, and his bail is unlikely to be revoked except for conduct inconsistent with that duty. In view of those differences, Jones warrants neither overruling these cases which hold that habeas corpus is not available to one enlarged on bail, e. g., Stallings v. Splain, 1920, 253 U.S. 339, 40 S.Ct. 537, 64 L.Ed. 940, nor tenuously construing `custody' virtually to read the word out of the statute."

Likewise, this court declines to reverse two opinions of the Supreme Court of the United States, declines to read out of the statutes in question the jurisdictional requirements heretofore quoted in this opinion, and declines to nullify the expressed intent of Congress.

This ruling is, of course, dispositive of both petitions. However, as reversals on appeal are not unknown, to avoid piecemeal litigation of the petitioners' various claims the court will consider and rule on the other issues presented to it by the parties. It is at this point that the two proceedings diverge and require separate consideration.²

Petitioner Moss was arrested and charged in Charles County, Maryland with an offense cognizable in either the Magistrate's Court or the Circuit Court for Charles County. He elected to proceed in the Magistrate's Court and on February 15, 1966 was tried on the charge of operating a motor vehicle while under the influence of alcohol. (Article 66½, section 206, Annotated Code of Public General Laws of Maryland, 1957), and was found not guilty. Thereafter the State of Maryland noted an appeal to the Circuit Court for Charles County, purportedly pursuant to the provisions of Article 52, section 13 (b) Annotated Code of Public General Laws of Maryland, 1964 Replacement Volume. On March 28, 1966 Moss filed a motion in the Circuit Court for Charles County to dismiss said appeal on the grounds that, having been acquitted, such a proceeding placed him in double jeopardy contrary to the provisions of the Fifth Amendment to the Constitution of the United States. On December 1, 1966, the Circuit Court for Charles County denied Moss's motion to dismiss. Thereafter Moss turned to this court seeking federal habeas corpus relief again on the ground that his constitutional rights under the Fifth Amendment to the Constitution of the United States had been violated in that the contemplated appeal by the state placed him twice in jeopardy for the same offense. In the view that this court takes of the proceedings against Moss to date it is not necessary to reach the double jeopardy issue.

First, it should be noted that the State of Maryland purported to enter its appeal under the provisions of Article 52, section 13(b), which section deals with the criminal jurisdiction vested in trial magistrates and which section in paragraph 1 thereof authorizes the state to appeal from a judgment rendered by a trial magistrate. However, paragraph 2 of said subsection specifically exempts motor vehicle cases from the provisions of paragraph 1. The pertinent language is as follows:

"In the trial of all charges of any offense, crime, or misdemeanor, except motor vehicle cases, and in the conduct of all prosecutions or proceedings for the recovery of any fine or penalty, as described in the preceding paragraph of this section, the proceedings and the method of trial,

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