Price v. Johnston

• Decision Date: 08 January 1947
• Docket Number: No. 11334.,11334.
• Citation: 159 F.2d 234
• Parties: PRICE v. JOHNSTON.
• Court: U.S. Court of Appeals — Ninth Circuit

159 F.2d 234 (1947)

PRICE v. JOHNSTON.

No. 11334.

Circuit Court of Appeals, Ninth Circuit.

January 8, 1947.

Homer C. Price, in pro. per.

Frank J. Hennessy, U. S. Atty., and Joseph Karesh, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before GARRECHT, DENMAN, MATHEWS, STEPHENS, HEALY, BONE, and ORR, Circuit Judges.

HEALY, Circuit Judge.

Appellant Price, who is an inmate of Alcatraz prison, sought release on habeas corpus and his petition was dismissed by the district court. He is not represented by counsel. As is usual in this type of case he has perfected his own appeal, and presumably with the aid of fellow inmates who have become proficient in such matters has supplied us with an elaborate typewritten brief and argument covering his points. He now moves for an order of the court commanding the warden to produce him on the date set for the hearing so that he may orally argue his appeal.

While not so denominated, the motion is nothing other than an application for a writ of habeas corpus. True, the purpose for which the writ is here sought is not one of the several purposes for which such writs might issue at common law, but nonetheless the end to be served is the same, namely, to have the body of the prisoner brought before the court. Because on several occasions in the past panels of this court, improvidently, we think, have issued like commands for the purpose specified in the motion, and more particularly because it has become common practice of prison inmates in the circuit to move for a like order on appeal of their causes, we have thought it best to announce our views on the subject in a formal opinion.

At common law several varieties of the writ of habeas corpus were recognized, each serving a specific purpose. The most common and important was the great writ referred to in Art. 1, § 9, of the Constitution of the United States, the purpose of which is to inquire into the cause of the imprisonment of one claiming to be unlawfully restrained of his liberty.¹ As indicated in the footnote and in the authorities there cited, the several varieties of the writ were distinguished one from the other by the specific terms declaring the purpose to be served by each. Enough to say here that no species of the writ of habeas corpus known to the law was issuable for the purpose for which the writ is sought in this instance, namely, to enable a prisoner to argue his case in person.

As the basis of his application Price cites a federal statute (28 U.S.C.A. § 394) which provides: "In all courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law as, by the rules of the said courts, respectively, are permitted to manage and conduct causes therein."² This statute goes no farther than to affirm the ordinary right of a party to a cause, whether civil or criminal, to conduct his own case without intervention of counsel. It does not, as seems to be the argument, confer any power on the court, or imply in the court any duty other than that of permitting the party to do what the statute says he may do. Nor does it insure the party against external happenings which may circumscribe the right or interfere with its exercise. Where one is imprisoned for felony he is by the very terms of his commitment required to be confined in prison for the period of his sentence. Of necessity he is disabled for the time being from exercising a myriad of rights, many of them of infinitely greater value than that of personally conducting a civil action to which he is or becomes a party. These deprivations are an inevitable and intended consequence of conviction for crime.

It has been suggested, though not by Price, that our Rule 22(1), providing that in this court the appellant "shall be entitled to open and conclude the argument of the case," affords grounds for the motion. The rule has no bearing on the point. It prescribes merely the order of argument. Even though we were in position to lift ourselves by our own bootstraps by the adoption of a rule, this one does not purport to add to our powers.

The thought is advanced, also, that authority for our issuance of the writ applied for is to be found in § 262 of the Judicial Code, 28 U.S.C.A. § 377, providing that "The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law." Unless the statutory phrase "necessary for the exercise of their respective jurisdictions" is to be stripped of all meaning, the prescribed condition can not be said to be met. The case is already before us for final disposition, and no impediment of any sort confronts us. Oral argument is not thought prerequisite to decision, in fact is often dispensed with. Certainly oral argument by a party in the situation of appellant, as distinguished from argument by counsel who might be designated to represent him, can not "fairly be said to be reasonably necessary" to the exercise of our appellate jurisdiction. Adams v. United States ex rel. McCann, 317 U.S. 269, 274, 63 S.Ct. 236, 239, 87 L.Ed. 268, 143 A.L.R. 435. Cf., also, Whitney v. Dick, 202 U.S. 132, 26 S.Ct. 584, 50 L.Ed. 963. In short, unless we substitute whim for necessity, and are further prepared to invent for the occasion a species of the writ unknown to the "usages and principles of law," we are obliged to hold that this statute affords no ground for the motion. To grant it on the basis of the statute would constitute a palpable abuse or misuse of power.

The motion, indeed, proceeds on an assumption quite different from that supplied by § 262 of the Judicial Code. The thought appears to be, not that the court needs the party's help, but that the statutory right of the party to conduct his own case implies a corresponding duty on the part of the court to compel his production; otherwise due process of law is not afforded. We have already discussed this doctrine.³

Questions of authority aside, it is but just to observe that despite his detention Price has been able substantially to take advantage of the statute he invokes, that is to say, he has in fact managed and conducted his own appeal in all essential particulars, including the argument of it, albeit the argument is in writing. We may add that in exceptional cases of this type, where questions of complexity are raised and it is believed that counsel would be helpful, we have followed the policy of appointing counsel to represent the petitioner; and the same policy is pursued in the district courts.⁴ Not a few cases of this exceptional character have been presented by court-appointed counsel throughout. Whether this case is of that exceptional character it is for immediate purposes unnecessary to inquire.

Nor should we overlook the consequences of an easy assumption of the power to order the wardens to bring prisoners into court for the mere purpose of oral argument. There are in the Ninth Circuit, besides the two federal prisons, the penitentiaries of the seven states and two territories comprising the circuit. The inmates of all these far-flung institutions, state and federal, may and do resort to the federal courts for inquiry into the legality of their detention. In recent years the dockets of the courts in several of the districts, and our own calendar, have become crowded with these cases, all of which receive earnest attention. The practice of the district courts of issuing an order to show cause upon the filing of a petition for the writ has been productive of a much needed saving of time and effort on the part of courts and prison officials, for in many if not most of the cases it turns out that no disputed issue of fact, but only issues of law, emerge. If the legal questions are decided adversely to the petitioner, the writ does not issue at any stage of the proceeding. Cf. Walker v. Johnston, 312 U. S. 275, 61 S.Ct. 574, 85 L.Ed. 830. But if the present motion were to be held well grounded, not only this court but the district courts would virtually be compelled to order the prisoner brought in in every instance merely that he may conduct his case in person. They could not in fairness make fish of one applicant and fowl of the other. Thus this spurious variant in the field of habeas corpus would outrank in urgency the great constitutional writ itself. One need not be a prophet to foresee the widespread abuse of the writ that would ensue, not to mention the items of fruitless burden and expense. To the legitimate hope of release by legal means would be added inducements not so legitimate; for temporary relief from prison confinement is always an alluring prospect, and to the hardened criminal the possibility of escape lurks in every excursion beyond prison walls.

The motion is denied.

STEPHENS, Circuit Judge (concurring in the result).

I am of the opinion that this court possesses the power to aid its appellate duty by exercising its discretion in granting or denying the motion. In the exercise of that power I vote to deny the motion.

DENMAN, Circuit Judge (dissenting).

This circuit court of appeals has rendered a decision on a federal question in conflict with the applicable decisions of the Supreme Court in Adams v. United States, ex rel McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435, and in Whitney v. Dick, 202 U.S. 132, 136, 137, 26 S.Ct. 584, 50 L.Ed. 963, discussed infra. They hold contra to the court's opinion that in "special circumstances" the circuit court of appeals has the power to require the warden to bring the body of his opposing litigant before that court to have him there present "in the interest of justice." Cf. Supreme Court Rule 38, 28 U.S.C.A. following section 354.

This dissent is to the denial of the existence of any pow...