Pressley v. Swain, No. 73-1975

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY; TAMM; ROBB
• Citation: 515 F.2d 1290,169 U.S.App.D.C. 319
• Decision Date: 09 July 1975
• Docket Number: No. 73-1975
• Parties: Jasper C. PRESSLEY, Appellant, v. C. L. SWAIN.

Page 1290

515 F.2d 1290 169 U.S.App.D.C. 319 Jasper C. PRESSLEY, Appellant,
v.
C. L. SWAIN. No. 73-1975. United States Court of Appeals,
District of Columbia Circuit. Argued April 24, 1975.
Decided July 9, 1975.

Mark W. Foster, Washington, D. C. (appointed by this Court), for appellant in No. 73-1975. Robert M. Weinberg, Washington, D. C. (appointed by this Court), entered an appearance for appellant in No. 73-1975.

Albert H. Turkus, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Warren R. King, Craig M. Bradley, and Tobey W. Kaczensky, Asst. U. S. Attys., were on the brief for appellee.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.

Opinion for the Court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

Along with Palmore v. Superior Court, --- U.S.App.D.C. ---, 515 F.2d 1294, this case considers whether 23 D.C.Code § 110(g) (1973) eliminates the habeas corpus jurisdiction of the United States District Court for the District of Columbia for prisoners convicted in Superior Court. Finding that 23 D.C.Code § 110(g) does not divest jurisdiction and that appellant has exhausted his remedies, we reverse the judgment of dismissal by the district court and remand for consideration on the merits.

Appellant was convicted in April, 1971 of grand larceny and larceny from the Government and sentenced to concurrent prison terms of twenty-two to ninety-six months and twenty months to five years respectively. His conviction was affirmed by the District of Columbia Court of Appeals. Pressley v. United States, No. 6063 (D.C.Ct.App., decided May 22, 1972).

On June 5, 1972, appellant, pro se, filed a motion for a new trial, claiming, inter alia, ineffective assistance of counsel; the motion was denied without a

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hearing, and Pressley appealed. Counsel was appointed, and after full briefing and argument, the District of Columbia Court of Appeals again affirmed. Pressley v. United States, No. 6631 (D.C.Ct.App., decided March 2, 1973).

In July, 1972, during the pendency of his second appeal, Pressley filed another pro se motion to compel production of the grand jury voting record in his case. The trial judge dismissed the motion for want of jurisdiction. Again after full briefing and argument by appointed counsel, the District of Columbia Court of Appeals affirmed, not on the jurisdictional ground, but on the merits. Pressley v. United States, No. 6803 (D.C.Ct.App., decided July 6, 1973).

On May 23, 1973, appellant filed a pro se petition for a writ of habeas corpus in the United States District Court for the District of Columbia, alleging that his custody violated his constitutional rights to due process and effective assistance of counsel. On July 18, 1973, the district court dismissed the petition, stating that "this Court does not have jurisdiction over this matter, by virtue of 23 D.C.Code § 110(g)." Pressley v. Swain, Habeas Corpus No. 30-73 (D.D.C., filed July 18, 1973).

Pressley appealed to this court, which on October 30, 1974, sua sponte remanded the record to the district court for clarification of its order. Specifically, we instructed that

(t)he District Court should indicate whether, in ruling that he was without jurisdiction to entertain the petition for a writ of habeas corpus under 23 D.C.Code § 110(g), he considered the applicant as one who had exhausted his...