Peyton v. Rowe, 802

• Decision Date: 20 May 1968
• Docket Number: No. 802,802
• Citation: 88 S.Ct. 1549,20 L.Ed.2d 426,391 U.S. 54
• Parties: C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Petitioner, v. Robert Elmer ROWE et al
• Court: U.S. Supreme Court

391 U.S. 54

88 S.Ct. 1549

20 L.Ed.2d 426

C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Petitioner,

v Robert Elmer ROWE et al.

No. 802.

Argued March 27, 1968.

Decided May 20, 1968.

Reno S. Harp, III, Richmond, Va., for petitioner.

John J. Kirby, Jr., Charlottesville, Va., for respondents, pro hac vice, by special leave of Court.

Mr. Chief Justice WARREN delivered the opinion of the Court.

This case concerns the scope of 28 U.S.C. § 2241(c)(3), which specifies that the United States District Courts may issue writs of habeas corpus on behalf of prisoners who are 'in custody in violation of the Constitution * * * of the United States.' The question presented is whether a district court may entertain a petition for a writ of habeas corpus from a prisoner incarcerated under consecutive sentences who claims that a sentence that he is scheduled to serve in the future is invalid because of a deprivation of rights guaranteed by the Constitution. The Court considered this issue in McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), and held that the habeas corpus statute does not authorize attacks upon future consecutive sentences. We granted certiorari in this case to re-examine McNally. 389 U.S. 1035, 88 S.Ct. 782, 19 L.Ed.2d 822 (1968). We conclude that the decision in that case was compelled neither by statute nor by history and that today it represents an indefensible barrier to prompt adjudication of constitutional claims in the federal courts.

Respondents, Robert Rowe and Clyde Thacker, are serving prison terms in the Virginia State Penitentiary. In June 1963 Rowe was sentenced to 30 years' imprisonment after a jury found him guilty of rape. Subsequently, he pleaded guilty to an indictment charging him with felonious abduction with intent to defile arising from the same events which had led to the rape conviction.¹ He was sentenced to a 20-year term on this conviction to run consecutively to the 30-year sentence. After exhausting state remedies,² Rowe petitioned for a writ of habeas corpus in the United States District Court for the Western District of Virginia. He did not attack the rape conviction, but alleged that the conviction for felonious abduction was constitutionally defective because he had been subjected to doubt jeopardy, because his plea of guilty had been involuntary, because the indictment had failed to state an offense and because he had been inadequately represented by trial counsel. Without reaching the merits of Rowe's claims, the District Court denied relief. Applying McNally, the court found Rowe was then detained under the 30-year sentence for rape. Since he did not claim that sentence was invalid, it was held that he was not then 'in custody' under an unconstitutionally imposed sentence within the meaning of § 2241. The court concluded that it could not entertain Rowe's challenge to the conviction for felonious abduction until he was confined under the sentence imposed for that conviction. That time would not arrive until 1993.³

Thacker's § 2241 petition in the Eastern District of Virginia met a similar fate. He is imprisoned under a number of sentences totaling more than 60 years. He asserted that three consecutive five-year sentences imposed for housebreaking in 1953 were invalid because of inadequate representation by counsel at the time he entered pleas of guilty.⁴ Finding that Thacker's attack on these sentences was premature because he had not begun to serve them, the District Court dismissed the petition 'without prejudice to Thacker's reapplication at the proper time.' Under McNally, the 'proper time' will be in 1994 when Thacker commences service of the first of the three sentences he challenges.⁵

The Court of Appeals for the Fourth Circuit consolidated the two cases. After a hearing en banc, it reversed and remanded them to the District Courts. 383 F.2d 709 (1967). Recognizing that the District Courts had correctly applied McNally, the Court of Appeals declined to adhere to that decision. Writing for a unanimous court, Chief Judge Haynsworth reasoned that this Court would no longer follow McNally, which in his view represented a 'doctrinaire approach' based on an 'old jurisdictional concept' which had been 'thoroughly rejected by the Supreme Court in recent cases.'⁶ Id at 714. We are in complete agreement with this conclusion and the considerations underlying it.

The writ of habeas corpus is a procedural device for subjecting executive, ⁷ judicial,⁸ or private⁹ restraints on liberty to judicial scrutiny. Where it is available, it assures among other things that a prisoner may require his jailer to justify the detention under the law.¹⁰ In England where it originated and in the United States, this high purpose has made the writ both the symbol and guardian of individual liberty. 3 Blackstone, Commentaries *131—138; see Ex parte Bollman, 4 Cranch 75, 2 L.Ed. 554 (1807); Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874); Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

The habeas corpus jurisdiction of the federal courts is enumerated in 28 U.S.C. § 2241. Like the predecessor statute which controlled in McNally,¹¹ § 2241 provides for the issuance of writs on behalf of persons 'in custody.' But the statute does not attempt to define the terms 'habeas corpus' or 'custody.' Confronted with this fact, the Court in McNally reasoned that '(t)o ascertain its meaning and the appropriate use of the writ in the federal courts, recourse must be had to the common law * * * and to the decisions of this Court interpreting and applying the common-law principles * * *.' McNally v. Hill, 293 U.S., at 136, 55 S.Ct. at 26. We need not look very far to discover three principal characteristics of the writ as it had developed in the federal courts even before the decision in McNally. First, though the writ in England had been utilized largely to secure the admission to bail and discharge of prisoners,¹² its major office in the federal courts since the Civil War has been to provide post-conviction relief.¹³ Second, the partial codifications of the common-law writ in England and more recent legislation in this country have contained specific and detailed provisions requiring prompt adjudication of the validity of the challenged restraint. See and compare Habeas Corpus Act of 1679, 31 Car. 2, c. 2; Act of February 5, 1867, c. 28, 14 Stat. 385; and 28 U.S.C. § 2243. Third, at least tentatively in Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915), and more clearly in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct.265, 65 L.Ed. 543 (1923), this Court had recognized that a district court was authorized to look behind the bare record of a trial proceeding and conduct a factual hearing to determine the merits of alleged deprivations of constitutional rights¹⁴—a procedure that reached full flowering in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Thus, by the time McNally was decided, the federal writ of habeas corpus was substantially a post-conviction device which could afford prompt adjudication of factual as well as legal issues. Keeping these purposes of the writ in mind, we turn to consideration of the McNally holding and the reasons which compel us to overrule it.

A federal jury had found McNally guilty of three counts of an indictment charging offenses under the Motor Vehicle Theft Act (now 18 U.S.C. §§ 2312—2313).¹⁵ He had been sentenced to two years on the first count and four years each on the second and third counts, the sentences on the first and second counts to run con- currently and the sentence on the third consecutively. In his application in a district court for a writ of habeas corpus, McNally claimed that the indictment failed to state an offense as to the third count. He did not attack the convictions under the first and second counts. When he filed his petition he was serving under the second count. The lower courts denied relief on the merits. But this Court affirmed on a jurisdictional ground, holding that because McNally had not begun to serve the sentence on the third count—and therefore was not 'in custody' under that sentence—his petition for relief was premature:

'(W)ithout restraint which is unlawful, the writ may not be used. A sentence which the prisoner has not begun to serve cannot be the cause of restraint which the statute makes the subject of inquiry.' 293 U.S., at 138, 55 S.Ct. at 27.

The effect of this disposition was ameliorated somewhat by the Court's suggestion that McNally might seek relief by another route. Id., at 140, 55 S.Ct. at 131. See also Holiday v. Johnston, 313 U.S. 342, 349, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941). But cf. Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Moreover, McNally's challenge was directed at the face of the indictment. Therefore, postponement of adjudication of his claims probably would not have resulted in the loss of crucial evidence. But the harshness of a rule which may delay determination of federal claims for decades becomes obvious when applied to the cases of Rowe and Thacker. Their cases also exemplify the manner in which the decision in McNally cuts against the prior and subsequent development of the writ in the federal courts.

Both Rowe and Thacker allege that they were so inadequately represented at trial that they were denied the assistance of counsel in violation of the Sixth and Fourteenth Amendments. Petitioner concedes that, but for McNally, respondents' allegations would entitle them to plenary hearings in the District Courts. Brief for Petitioner 6. Yet, under the current schedules of confinement, it is argued, neither Rowe nor Thacker may obtain adjudication of his claims until after 1990. By that time, dimmed...