Pino v. Nicolls

• Decision Date: 11 March 1954
• Citation: 211 F.2d 393
• Parties: PINO v. NICOLLS.
• Court: U.S. Court of Appeals — First Circuit

211 F.2d 393 (1954)

PINO v. NICOLLS.

United States Court of Appeals, First Circuit.

March 11, 1954.

Jerome Medalie, Asst. U. S. Atty., Boston, Mass. (Anthony Julian, U. S. Atty., Boston, Mass., on the brief), for appellee.

Manuel Katz, Boston, Mass. (Paul T. Smith, Boston, Mass., on the brief), for appellant.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

This court heard oral argument on an interlocutory motion by appellant Anthony Pino asking us to enlarge him on bail pending appeal in a habeas corpus case.

Proceedings for the deportation of appellant, an alien, were commenced on January 10, 1953. On the same day, Pino was released on bail in the sum of $1,000. On March 23, 1953, a Special Inquiry Officer of the Immigration and Naturalization Service issued an order of deportation, based upon the ground that since the entry of the alien into the United States he had been "convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial." See § 241(a) (4) of the Immigration and Nationality Act, 66 Stat. 204, 8 U.S.C.A. § 1251(a) (4). The order of deportation was affirmed by the Board of Immigration Appeals on August 11, 1953. Pino surrendered himself to the District Director, Immigration and Naturalization Service, on December 18, 1953, pursuant to a notice to report for deportation. On the same day he filed in the court below a petition for a writ of habeas corpus, challenging the validity of the said deportation order.

The district court issued the writ, and on February 1, 1954, 119 F.Supp. 122, entered an order discharging the writ and dismissing the petition, after a hearing turning on a question of law whether the state of a record in the Third District Court of Eastern Middlesex, Commonwealth of Massachusetts, sustained a finding and conclusion that Pino had been "convicted" of the crime of larceny within the meaning of § 241 (a) (4) of the Immigration and Nationality Act.

Pino immediately filed a notice of appeal from this order on February 1, 1954.

On February 2, 1954, Pino filed in the district court a motion to be enlarged on bail pending appeal. Indicating his view that he had no power to grant this motion, the district judge on the same day denied it. Pino has also filed a notice of appeal from this order of denial.

Rule 45 of the Revised Rules of the Supreme Court of the United States, 306 U.S. 724, 28 U.S.C.A., reads as follows:

"1. Pending review of a decision refusing a writ of habeas corpus, the custody of the prisoner shall not be disturbed.

"2. Pending review of a decision discharging a writ of habeas corpus after it has been issued, the prisoner may be remanded to the custody from which he was taken by the writ, or detained in other appropriate custody, or enlarged upon recognizance with surety, as to the court or judge rendering the decision may appear fitting in the circumstances of the particular case.

"3. Pending review of a decision discharging a prisoner on habeas corpus, he shall be enlarged upon recognizance, with surety, for his appearance to answer and abide by the judgment in the appellate proceeding; and if in the opinion of the court or judge rendering the decision surety ought not to be required the personal recognizance of the prisoner shall suffice.

"4. The initial order respecting the custody or enlargement of the prisoner pending review, as also any recognizance taken, shall be deemed to cover not only the review in the intermediate appellate court but also the further possible review in this court; and only where special reasons therefor are shown to this court will it disturb that order, or make any independent order in that regard."¹

It seems clear enough from paragraph 2 of Rule 45 that, pending review of a petition discharging a writ of habeas corpus after it has been issued, the power to remand the prisoner to the custody of the respondent or to enlarge him upon bail is vested in "the court or judge rendering the decision". And paragraph 4 of Rule 45 prescribes that whatever order the district court may enter respecting custody or enlargement of the prisoner pending review "shall be deemed to cover not only the review in the intermediate appellate court i. e., the court of appeals but also the further possible review in this court" i. e., in the Supreme Court. Paragraph 4 goes on to say that "only where special reasons therefor are shown to this court i. e., the Supreme Court will it disturb that order, or make any independent order in that regard." Rule 45 would therefore seem to preclude the court of appeals from making an independent order admitting the prisoner to bail pending appeal, where the district court has entered an order, as it did here, denying enlargement on bail after discharging a writ of habeas corpus.

As a matter of convenience, this court has incorporated the Supreme Court's Rule 45 in our own Rule 38 as follows:

"(1) If Writ Refused. Pending review of a decision refusing a writ of habeas corpus, the custody of the prisoner shall not be disturbed.

"(2) If Writ Discharged. Pending review of a decision discharging a writ of habeas corpus after it has been issued, the prisoner may be remanded to the custody from which he was taken by the writ, or detained in other appropriate custody, or enlarged upon recognizance with surety, as to the court or judge rendering the decision may appear fitting in the circumstances of the particular case.

"(3) If Prisoner Discharged. Pending review of a decision discharging a prisoner on habeas corpus, he shall be enlarged upon recognizance, with surety, for his appearance to answer and abide by the judgment in the appellate proceedings; and if in the opinion of the court or judge rendering the decision surety ought not to be required the personal recognizance of the prisoner shall suffice.

"(4) Upon Review in Supreme Court. The initial order respecting the custody or enlargement of the prisoner pending review, as also any recognizance taken, shall be deemed to cover not only the review in this court but also the further possible review in the Supreme Court; and only where special reasons therefor are shown to this court will it disturb that order, or make any independent order in that regard. * * *"

Of course this court, as a court of appeals, has no power to prescribe the procedure in the district court with reference to admitting to bail after the district court has discharged the writ of habeas corpus. Paragraph (2) of the above, if controlling in the district court, is therefore...