Smartt v. Avery
Citation | 370 F.2d 788 |
Decision Date | 06 January 1967 |
Docket Number | No. 16654.,16654. |
Parties | Roy Lee SMARTT, Petitioner-Appellee, v. Harry S. AVERY, Commissioner of Correction, State of Tennessee, Respondent-Appellant. |
Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Henry C. Foutch, Asst. Atty. Gen. State of Tennessee, Nashville, Tenn., George F. McCanless, Atty. Gen., and Reporter State of Tenn., of counsel, for appellant.
Luke E. Harvey, Nashville, Tenn., for appellee.
Before EDWARDS, CELEBREZZE and PECK, Circuit Judges.
Appellant in this case appeals from an order of United States District Judge William E. Miller which held unconstitutional an amendment to the Rules and Regulations of the Tennessee Pardon, Parole and Probation Board, dated February 23, 1965. Judge Miller also enjoined enforcement of this rule. The amendment follows:
/s/ "BOARD OF PARDONS, PAROLES AND PROBATION"
Appellant is the Commissioner of Correction for the State of Tennessee. Appellee is an inmate in the Tennessee State Penitentiary at Nashville, serving 15 years upon a conviction for the offense of armed robbery. As to this sentence appellee has previously been denied habeas corps relief by this court in Smartt v. Bomar, 340 F.2d 593 (C.A.6, 1965). It is conceded that appellee will not be eligible for parole until 1969.
This case originated as another petition for writ of habeas corpus brought by Smartt before the United States District Court for the Middle District of Tennessee. Judge Miller construed the petition as a request for injunctive relief under 17 Stat. 13 (1871), 42 U.S.C. § 1983 (1964), the Civil Rights Act of 1871.
After hearing, Judge Miller entered an order, the pertinent portions of which follow:
Appellant appeals, contending that the regulation is within the discretionary powers of the Parole Board and not a deprivation of any of appellee's constitutional rights, that appellee did not have standing to initiate this action, and that the District Judge should not have enjoined the Parole Board from enforcing the regulation.
It appears clear to this court on the face of the resolution that it assesses an additional year of incarceration prior to consideration for parole upon any state prisoner who files a petition for writ of habeas corpus and has same denied. The right of a state prisoner to petition for a writ of habeas corpus in the federal courts on a claim that he is in custody in violation of the Constitution or laws of the United States is squarely authorized by federal law. 28 U.S.C. §§ 2241, 2254 (1964). The exercise of this right may not be denied by state law. 17 Stat. 13 (1871), 42 U.S.C. § 1983 (1964). No more may its exercise be discouraged by the withholding of a privilege (which would otherwise be accorded) by state law or regulation. In Brotherhood of Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964), the Supreme Court of the United States said:
Brotherhood of Railroad Trainmen v. Virginia Bar, supra 377 U.S. at 7, 84 S.Ct. at 1117. (Emphasis supplied.)
See also N. A. A. C. P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
Over and above the federal statutory authorization for the right to petition for a writ of habeas corpus, the right to petition the courts of the United States is a constitutional right. There is a federal constitutional prohibition squarely prohibiting suspending "the privilege of the writ of habeas corpus." U.S.Const. art. I, § 9, cl. 2. See also art. III and U.S.Const. Amend. I and XIV. Constitutional rights may not be diminished or restrained by the denial of a privilege granted by law or regulation. Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L.Ed.2d 965 (1963); Torasco v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961).
We recognize appellant's argument that appellee...
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...was held to be a denial of constitutional rights, and the parole board was enjoined from enforcing this regulation. Smartt v. Avery, 370 F. 2d 788 (Sixth Circuit, 1967). It is impermissible for prison officials and regulations to deny a prisoner access to the courts unless that prisoner has......
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