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decided: May 16, 1960.



Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan, Whittaker, Stewart

Author: Per Curiam

[ 362 U.S. Page 574]

 This is an application for a writ of habeas corpus brought in the United States District Court for the Southern District of Texas alleging unlawful detention under a sentence of imprisonment following a trial in the state court in which petitioner was, according to his claim, denied due process of law as guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. After hearing, the District Court dismissed the petition. The Court of Appeals for the Fifth Circuit, with one judge dissenting, affirmed the order of dismissal, 258 F.2d 937, to which opinion reference is made for the facts. A petition for certiorari to

[ 362 U.S. Page 575]

     review this judgment presented so impressive a showing for the exercise of this Court's discretionary jurisdiction that the case was brought here with leave to the petitioner to proceed in forma pauperis, 359 U.S. 924, and his motion for the assignment of counsel was duly granted. 359 U.S. 951.

Before the case could come to be heard here, the petitioner was released from the state prison after having served his sentence with time off for good behavior. The case has thus become moot, and the Court is without jurisdiction to deal with the merits of petitioner's claim. "The purpose of the proceeding defined by the statute [authorizing the writ of habeas corpus to be issued] was to inquire into the legality of the detention, and the only judicial relief authorized was the discharge of the prisoner or his admission to bail." McNally v. Hill, 293 U.S. 131, 136. "Without restraint of liberty, the writ will not issue." Id., 138. See also Johnson v. Hoy, 227 U.S. 245.*fn* "It is well settled that this court will not proceed to adjudication where there is no subject-matter on which the judgment of the court can operate." Ex parte Baez, 177 U.S. 378, 390. We have applied these principles to deny the writ of certiorari for mootness on the express ground that petitioner was no longer in respondent's custody in at least three cases not relevantly different from the present one. Weber v. Squier, 315 U.S. 810; Tornello v. Hudspeth, 318 U.S. 792; Zimmerman v. Walker,

[ 362 U.S. Page 576319]

     U.S. 744. In all these cases there was custody as the basis for habeas corpus jurisdiction until the cases reached here. In Weber, the respondent's custody ceased because the petitioner had received the benefits of the United States Parole Act. In Tornello the petitioner had been pardoned, and was no longer in the custody of anyone. In Zimmerman petitioner had been unconditionally released and was also no longer in the custody of anyone. These cases demonstrate that it is a condition upon this Court's jurisdiction to adjudicate an application for habeas corpus that the petitioner be in custody when that jurisdiction can become effective. It is precisely because a denial of a petition for certiorari without more has no significance as a ruling that an explicit statement of the reason for a denial means what it says. Accordingly, the writ of certiorari is dismissed for want of jurisdiction.

Since the case has become moot before the error complained of in the judgment below could be adjudicated, the case is remanded to the Court of Appeals to vacate its judgment and to direct the District Court to vacate its order and dismiss the application.

MR. JUSTICE HARLAN, joined by MR. JUSTICE CLARK, also considers this case moot on a further ground. It appears that petitioner has outstanding against him felony convictions in a number of other States. Under Texas law any one of those convictions would carry the same consequences with respect to petitioner's exercise of civil rights in Texas (Election Code Art. 5.01) as his conviction in this case. See Harwell v. Morris, 143 S. W. 2d 809, 812-813. This Court is as much bound by constitutional restrictions on its jurisdiction as it is by other constitutional requirements. The "moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review." St. Pierre v. United States, 319 U.S. 41, 43.

[ 362 U.S. Page 577]


If the Court is right in holding that George Parker's five-year quest for justice must end ignominiously in the limbo of mootness, surely something is badly askew in our system of criminal justice. I am convinced the Court is wrong. Even assuming arguendo that we could not enter a nunc pro tunc order, I believe that we still would be able to grant relief.

We have here the case of a man who was convicted of a felony in flagrant disregard of his constitutional right to assistance of counsel. Since the Court terms his claim an "impressive" one, lengthy discussion of its merits is unnecessary. Still, it is not amiss briefly to describe what it is the Court here declines to decide.

In 1954, petitioner was tried in the District Court of Moore County, Texas, on a charge of forging a check. He was then 67 years of age and, respondent concedes, in "failing health." The judge refused to appoint counsel to represent him.*fn1 He was convicted and received a sentence

[ 362 U.S. Page 578]

     of seven years. To any lawyer's eye -- and it is not at all clear that the restriction to lawyers is warranted -- his trial was a sham. Although the testimony directly bearing on the issue of forgery was not strong,*fn2 petitioner's conviction is hardly surprising, for the prosecution's case consisted in large part of a potent melange of assorted types of inadmissible evidence -- introduced without objection by petitioner.*fn3 But petitioner suffered as much from errors of omission as he did from errors of commission. Petitioner now alleges -- and respondent does not deny -- that the victim of the alleged forgery was

[ 362 U.S. Page 579]

     petitioner's mother-in-law and that the principal prosecution witness was his brother-in-law, a "bitter enemy";*fn4 but petitioner introduced no evidence to this effect at the trial.*fn5 Nor is this strange, for petitioner's halting attempts to defend himself disclose his utter ineptness in the courtroom. After the prosecution had examined its witnesses -- unhampered by searching cross-examination -- petitioner conducted what respondent terms "a premeditated type of defense which might have been successful on another jury."


"Direct examination by Mr. PARKER:

"Q. Ted, you go ahead and tell the court about my condition and how you have known me -- tell the jury?

"A. Well, do I understand it right?

"Q. Huh?

"A. You mean your physical condition, so forth and so on?

"Q. Yes. Just go ahead and tell the jury about what you know?

"A. Well, his physical condition, according to everything, is bad or, at least, the doctors say so, you know. I couldn't -- as far as the checks, I don't

[ 362 U.S. Page 580]

     know; but, I do know that he needs medical care. Is that what you meant, George?

"Q. Yes, I guess so; just go ahead and tell them what you know about me. That is all -- only -- that is all I want to ask -- I am just leaving mine up to them, you know?

"The COURT. Do you know what he is driving at -- ...

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