Opinion for the Court filed by Circuit Judge TAMM.
Dissenting opinion filed by Circuit Judge ROBB.
TAMM, Circuit Judge:
This case and its companion, Pressley v. Swain, No. 73-1975, also decided today, present the important question whether Congress, by enacting 23 D.C. Code § 110(g) (1973), as part of the District of Columbia Court Reform and Criminal Procedure Act of 1970, eliminated the jurisdiction of the United States District Court for the District of Columbia to entertain post-conviction petitions for writs of habeas corpus brought by individuals convicted in the Superior Court. Answering that question negatively, we reverse the district court's dismissal of such a petition for lack of jurisdiction and remand for consideration on the merits.
On February 23, 1971, appellant Palmore was indicted in the Superior Court of the District of Columbia for carrying a pistol without a license in violation of 22 D.C.Code § 3204 (1973). Prior to trial, he unsuccessfully moved to suppress evidence on fourth amendment grounds, and thereafter, was convicted in a nonjury trial and sentenced. A. 12-44.
Appellant makes two arguments in support of jurisdiction—one statutory, the other constitutional.
The Government, in opposition to each contention advanced by appellant, initially argues that the statute is clear on its face, and the only possible construction of it precludes post-conviction relief in the United States District Court for the District of Columbia for an individual convicted in Superior Court. Further, the Government contends that section 110(g), so construed, is a proper exercise of Congress' power to define and limit the jurisdiction of federal courts, is not a suspension of the writ of habeas corpus, and does not create an irrational classification in violation of the equal protection guarantee of the due process clause.
As discussed in detail below, we conclude that section 110(g) does not so restrict the jurisdiction of the district court, but is merely an exhaustion of remedies requirement. Acceptance of the Government's construction would result in significant changes in habeas corpus jurisdiction traditionally exercised by the federal courts, and force us directly to confront serious and significant constitutional questions; the Government would have us take this route into previously uncharted constitutional waters without a scintilla of Congressional intent to endorse it. Instead, we conclude that Congress never intended to affect the federal courts' habeas jurisdiction by enacting section 110(g). In so doing, we reaffirm the concept that statutes should be interpreted to avoid difficult constitutional questions, questions which necessitate in this case inquiry beyond the face of the statute to its legislative history. This inquiry leads us to a result consistent with that legislative history and the primary purposes behind the Court Reform Act itself.
In 1970, Congress passed the District of Columbia Court Reform and Criminal
23 D.C.Code § 110 (1973)
The district court held that this section divested it of jurisdiction to entertain appellant's post-conviction petition for a writ of habeas corpus. A. 8-9.
Appellant asserts that the district court erred in this regard. Contrariwise,
As to the proper methodology to apply when a statute is facially clear and unambiguous, the Government advances the rule of Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917) (citations omitted):
The Government contends that appellant's argument that the district court's interpretation of the statute receives no support in its legislative history
Gov't. Br. at 22-23, quoting United States v. Missouri Pacific R.R. Co., 278 U.S. 269, 278, 49 S.Ct. 133, 73 L.Ed. 322 (1929) (citations omitted).
However, recognizing that statutory construction is, at best, an imperfect science, see Schiaffo v. Helstoski, 492 F.2d 413 (3rd Cir. 1974), the Supreme Court has cautioned that "[g]eneralities about statutory construction help us little. They are not rules of law but merely axioms of experience. They do not solve the special difficulties in construing a particular statute. The variables render every problem of statutory construction unique." United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952) (emphasis added, citations omitted). The variables in this case include the recognition that section 110(g), passed in an Act creating an independent local court system,
Under the Government's clear meaning construction, the inferior article III courts would not be the only courts affected, since the operative language of section 110(g) bars entertainment of petitions for writs of habeas corpus by "any Federal or State Court", ostensibly including the Supreme Court of the United States. See 11 D.C.Code § 101(1)(A) (1973). This reading of section 110(g) would divest the Supreme Court of jurisdiction to entertain motions for "original" writs of habeas corpus
Not surprisingly, a statute with such significant jurisdictional effects raises difficult constitutional questions. These constitutional issues — whether section 110(g) constitutes an improper suspension of the Great Writ and whether by singling out those convicted of local District of Columbia crimes for eliminating access to the article III courts Congress has violated the concept of equal protection of law — form the backdrop for our consideration of Congress' intent in enacting section 110(g). While we need not resolve these difficult questions now, a brief overview of these unique and perplexing problems is important to an understanding of our approach to construing the statute.
1. The Suspension Clause
Appellant's constitutional argument concerning the suspension clause, article I, section 9, clause 2, is that it acts as a restraint upon Congress' control over the jurisdiction of the inferior article III courts, and that once Congress created those courts and vested them with habeas jurisdiction, it may only substitute a remedy "exactly commensurate" with the Great Writ. Section 110, appellant reasons, is not a commensurate remedy, and thus an unconstitutional suspension because the article III salary and tenure protections were not extended to Superior Court judges. To resolve these contentions would require us to pass directly upon fundamental and extremely prickly questions concerning the nature of the judicial system.
Habeas corpus holds a unique position in our constitutional scheme. It is nowhere directly constitutionally endowed, but the Constitution, through the suspension clause, protects against its interference.
This must be contrasted with Congress' authority to control the jurisdiction of the inferior article III courts. See, e. g., Palmore v. United States, supra, 411 U.S. at 400-02, 93 S.Ct. 1670; Cary v. Curtis, 44 U.S. (3 How. 236, 244-45, 11 L.Ed. 576 (1845). Thus, Chief Justice Marshall could note on the one hand in Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93, 2 L.Ed. 554 (1807), "the power to award the writ by any of the courts of the United States, must be given by written law," and on the other state:
Id. at 95, 2 L.Ed. 554 (emphasis added). Hence, while it seems well-established that Congress, despite the suspension clause, possesses some control over habeas jurisdiction, see, e. g., Craig v. Hecht, 263 U.S. 255, 271-73, 44 S.Ct. 103, 68 L.Ed. 293 (1923); Whitney v. Dick, 202 U.S. 132, 137, 26 S.Ct. 584, 50 L.Ed. 963 (1906), the question of whether Congress would violate the suspension clause by failing to grant power to issue the writ at all has been avoided.
This brings us to the crux of appellant's suspension clause argument — once the privilege to issue the writ in the inferior article III courts has been granted, Congress may not, consistent with the suspension clause, dilute or remove it. Appellant's Br. at 42; see Respondent's Br. at 29, United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952) (Professor Freund). While conceding that the Supreme Court has not specifically endorsed this view, see Fay v. Noia, 372 U.S. 391, 406 n.15, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); United States v. Hayman, supra, 342 U.S. at 223, 72 S.Ct. 263, appellant contends that the Court has tacitly accepted it by requiring and then interpreting any attempted substitute to be "exactly commensurate" with the Great Writ.
The primary example is the Court's treatment of 28 U.S.C. § 2255 (1970), enacted in 1948 as a substitute for habeas corpus, and the statute upon which section 110 is based.
Palmore concludes that section 110 is not exactly commensurate to habeas corpus both because it is inadequate to protect
The Government responds by emphasizing Congress' authority to control the jurisdiction of the federal courts and defends section 110 as a constitutional exercise of that congressional authority. It contests the assertion that Congress, once having vested the inferior article III courts with habeas jurisdiction, may not reduce it. Moreover, the Government contends that the principle to be derived from Brown v. Allen, supra, is a need for federal review of constitutional claims and that section 110, creating a remedy in what the Government repeatedly characterizes as a "federal court," meets that need; it rejects the suggestion that the Brown Court attached importance to the institutional protections accorded article III judges by referring to commentators who have judged that factor to be of only "limited" significance. Gov't. Br. at 31, incorporating Gov't. Pressley Br. at 31; see Developments in the Law — Habeas Corpus, 83 Harv.L.Rev. 1038, 1060 (1970).
What emerges from these conflicting positions is the absence of a clear or simple resolution. We are not as confident as the Government of the controlling nature of the Supreme Court's Palmore decision. While the Court rejected the salary and tenure argument in upholding trial of District of Columbia Code offenses in Superior Court, it noted that "Palmore was no more disadvantaged and no more entitled to an Art. III judge than any other citizen of any of the 50 States who is tried for a strictly local crime," and explicitly stated "[w]e do not discount the importance attached to the tenure and salary provisions of Art. III . . . ." 411 U.S. at 410, 93 S.Ct. at 1682. Because of procedural and institutional limitations, reliance upon Supreme Court discretionary review as the sole protection of important interests may be both inadequate and impracticable. See Brown v. Allen, supra, 344 U.S. at 489-97, 73 S.Ct. 397;
However, adoption of appellant's argument would require recognition as constitutionally overriding of factors, the importance of which have only been hinted at previously. It would also demand delineating for the first time the boundaries of congressional control over federal jurisdiction vis-a-vis the suspension clause. Both parties recognize the unresolved nature of this question. Palmore concedes "the full meaning of the constitutional guarantee against the writ's suspension has never been fully explored," Appellant's Br. at 40; the Government "acknowledge[s] that this question is one of the first impression." Gov't. Pressley Br. at 30. In fact, one commentator has noted: "The suspension clause, so simple in appearance, is fraught with confusion. Those few cases which have dealt with it provide little interpretative guidance." Developements, supra, 83 Harv.L.Rev. at 1263.
This difficult question, along with the equal protection problem to which we now turn, is a significant "variable" which compels us to reject the Government's "clear meaning" approach to the statute. See United States v. Universal C.I.T. Credit Corp., supra.
2. Equal Protection
Palmore's equal protection argument is straightforward. Since 28 U.S.C. §§ 2241 et seq. apply to every person in custody either by authority of the United States or in violation of the Constitution, laws, or treaties of the United States, then, if the district court's interpretation of section 110(g) is upheld, the statute would deny prisoners convicted in the Superior Court equal protection as guaranteed by the due process clause of the fifth amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Appellant places significant reliance upon our decision in United States v. Thompson, supra, 452 F.2d at 1338-41, where we found that 23 D.C.Code § 1325, if construed to be applicable to individuals convicted of federal crimes in district court, would deny them equal protection by treating prisoners in the District differently than those in every other district court whose motions for release pending appeal would be judged under the more lenient standards of the Bail Reform Act, 18 U.S.C. § 3148 (1970). See also United States v. Hairston, 161 U.S.App.D.C. 466, 495 F.2d 1046 (1974); United States v. Henson, 159 U.S.App.D.C. 32, 486 F.2d 1292 (1973) (en banc); United States v. Brown, 157 U.S.App.D.C. 311, 483 F.2d 1314 (1973).
In response, the Government again points to Congress' broad power to legislate for the District of Columbia under article I, section 8, clause 17 and to the unique position of the District in our federal system. It also challenges the "fundamentalness" of the right appellant advances — collateral review in an article III court. It notes that Congress may draw distinctions among citizens so long as there is sufficient justification for the distinction and argues that the justification "virtually cries out from the legislative history of the Court Reorganization Act," the criminal backlog in the district court and the "`crisis' of crime `gripping' the city."
The difficulty with Palmore's argument is to ascertain exactly what right the classification affects and what interest the Government must advance to justify the distinction. We have recognized "[t]he rights of a criminal defendant are in some sense the most basic of all, since what is at stake is no less than the freedom to be free." United States v. Thompson, supra, 452 F.2d at 1340. However, the alleged right that appellant is attempting to protect may be precisely defined as the guarantee to have his claim heard in an article III court. As noted supra, the existence and extent of this right have never been fully delineated. Also unresolved is the question whether the Government must only demonstrate a rational basis for the classification, see Dandrige v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Lindsley v. National Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911), or if the right be deemed fundamental, a compelling interest. See Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); United States v. Thompson, supra.
Despite these difficulties, we do not believe that appellant's argument can be disposed of as neatly as the Government purports. We are certainly aware of the sui generis position of the District of Columbia, see, e. g., District of Columbia v. Carter, 409 U.S. 418, 432, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), and of Congress' extensive power to legislate for the District
Moreover, while the overriding legislative purpose of the Court Reform Act seems clear — the reorganization of the administration of criminal justice in the District to help alleviate "soaring" crime rates — it is not so clear that section 110(g) is a means sufficiently related to the achievement of that legislative end to be constitutional. If the court
Even if we accepted the classification of treating District prisoners differently as related to a legitimate legislative goal, there is a similar second classification involving prisoners within the District which poses equal protection problems. Section 110(g), under the Government's theory, only divests the district court of jurisdiction to hear post-conviction writs; pre-trial petitions remain unaffected. Clearly the legislative end of prompt criminal disposition cannot justify this distinction.
Thus, what emerges from this discussion is that the district court's interpretation of section 110(g) raises serious questions about the statute's constitutionality. We have noted that "the presumption of the constitutional validity of legislation enacted by Congress raises a corollary presumption that constructions calling statutes into serious constitutional question are erroneous and, in any event, are to be avoided whenever possible." United States v. Hairston, supra, 495 F.2d at 1052; see note 8 supra. Of course, if Congress clearly intended the construction which raises these questions of first impression, they may not be avoided. See United States v. Thompson, supra. However, to ascertain that congressional intent, we cannot don the interpretive "blinders" the Government offers, but must construe the statute only after reference to the legislative history behind it and behind the entire Act. We now turn to that inquiry.
The legislative history concerning section 110 is sparse. The Senate Committee Report stated:
S.Rep.No.91-405, 91st Cong., 1st Sess. 38 (1969); see H.R.Rep.No.91-907, 91st Cong., 2d Sess. 117 (1970). Nowhere in the committee reports, nor in the congressional floor debates is there an explicit reference or even a suggestion that section 110 was to have the jurisdictional impact that the district court accorded it. In contrast, the existing brief legislative history indicates a different, but clear and logical, legislative purpose behind section 110.
Section 110 is "modeled upon 28 U.S.C. section 2255," which was enacted in 1948 for reasons that have been fully explored in previous court opinions, e. g., Hill v. United States, supra, 368 U.S. at 427-28, 82 S.Ct. at 471-72; United States v. Hayman, supra, 342 U.S. at 210-224, 72 S.Ct. 263, and need only be summarized here. Before 1948 post-conviction petitions for habeas corpus were
In 1949, section 2255 was amended to apply to any "court established by Act of Congress," 63 Stat. 105 (1949), primarily to include within its scope the federal territorial courts. See United States ex rel. Leguillou v. Davis, 212 F.2d 681 (3rd Cir. 1954). However, while the local District of Columbia courts were generically courts created by "Act of Congress," the Municipal Court of Appeals held in Burke v. United States, 103 A.2d 347 (D.C.Mun.App.1954) and Ingols v. District of Columbia, 103 A.2d 879 (D.C. Mun.App.1954) that they did not fall within the statute. Notably, Burke and Ingols did provide a collateral remedy by holding that the local courts had inherent common law power to entertain a motion to vacate a sentence. Id. at 880; 103 A.2d at 350-51.
From this discussion and the fact that the Senate Report tracks the language of the Burke and Ingols opinions, the one explicit legislative intent behind section 110 becomes clear; rather than leaving the new local courts to rely once again upon their inherent authority, Congress provided a detailed statutory remedy. Quite naturally, as a model, Congress drew upon the statutory remedy previously created for the federal courts to alleviate a different problem.
In sum, the district court construed a statute which created a statutory remedy for post-conviction relief in the new court system as eliminating by implication a remedy which the inferior article III courts and the Supreme Court have exercised for two hundred years. Of course, repeals by implication, especially of jurisdictional statutes, are disfavored. See, e. g., Lynch v. Household Finance Corp., 405 U.S. 538, 549, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). As the Court recently stated, "this canon of construction applies with particular force when the asserted repealer would remove a remedy otherwise available." Schlesinger v. Councilman, ___ U.S. ___, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). Nevertheless, the Government argues the intent to repeal jurisdiction is evidenced by the "only necessary technical changes" language in the committee reports: "[t]he `necessary technical changes' referred to in the legislative history were those changes `necessary' to insure that a collateral attack on a conviction in the Superior Court could be entertained only in that court. . ."
Several other indicia of congressional intent add credence to appellant's contention that Congress did not intend section 110(g) to affect the jurisdiction of the article III courts. First, as part of the reorganization generated by the Court Reform Act, Congress amended title 28 of the United States Code to bring that title, Judiciary and Judicial Procedure, into conformity with the new court system. Congress added 28 U.S.C. § 292(c) to provide for temporary assignment of district court judges to serve as judges of the Superior Court; amended 28 U.S.C. § 1257 to include the District of Columbia Court of Appeals within the term "highest court of a State" for purposes of rules of review to the Supreme Court by appeal or certiorari; and amended 28 U.S.C. § 1869(b) to include the Superior Court within the scope of the term "district court" for purposes of parts of the Federal Jury Act.
Perhaps a more significant indicium is the obvious relationship between section 110 and a strong legislative purpose of the Court Reform Act, apparent from both the face of the Act and its legislative history — the establishment of a dual court system analogous to the relationship between the federal and state courts. This reorganization goal is abundantly clear in the legislative history.
S.Rep.No.91-405, supra, at 5. The House Report similarly notes:
H.R.Rep.No.91-907, supra, at 34-35.
In cases dealing with the Court Reform Act and the District, the courts have recognized this legislative purpose. The Supreme Court has repeatedly invoked the federal-state analogy, see Pernell v. Southall Realty, supra, 416 U.S. at 367, 94 S.Ct. 1723; Palmore v. United States, supra, 411 U.S. at 408-09, 93 S.Ct. at 1681-82, and this court has noted that the "overriding purpose which emerges from the Act is to put the District's judicial system on a par with those of the states." United States v. Thompson, supra, 452 F.2d at 1342.
The interpretation of section 110 most harmonious with this federal-state analogy is clearly appellant's, which would allow the district court to entertain petitions for collateral review in the same manner as district courts do for the fifty states. In fact, it would not be inaccurate to state that the district court's holding is flatly inconsistent with this congressional purpose. Nowhere is there any indication that the federal-state analogy was subject to certain jurisdictional exceptions or that the district court here would possess less jurisdiction than in other districts.
To blunt this conclusion, the Government maintains that section 110(g) effectuates another, even more overriding, function of court reform, the elimination of jurisdiction over local matters in order to help alleviate the soaring District crime rate through swifter justice. In this regard, section 110 implements this purpose by "eliminat[ing] from the caseload of the District Court the large number of habeas corpus petitions that could potentially be brought by those convicted in the Superior Court and provid[ing] an alternative forum for the resolution of these claims." Gov't. Br. at 29. We disagree; these congressional purposes do not dictate the result the Government suggests, nor do we believe that to construe the statute as not affecting federal jurisdiction is inconsistent with these purposes.
411 U.S. at 408-09, 93 S.Ct. at 1682.
We think that this Congressional purpose has been fully carried out by the transfer of jurisdiction over local crimes to Superior Court. See, e. g., Washington Post, Apr. 20, § B, p. 1, col. 7. The transfer of trial jurisdiction effectuates the goal of swift justice; the question of post-collateral relief does not affect that process at all.
We find one final indicium of legislative intent. As we have seen, the legislative history contains no debate or discussion of section 110's considerable jurisdictional impact or its possible unconstitutionality. In contrast, proposals in recent years which would affect the habeas jurisdiction of the federal courts have sparked considerable debate and controversy concerning both their desirability and constitutionality.
In 1968, Congress had before it, as part of a crime control act, a proposed statute, the intended effect of which was to eliminate post-conviction federal habeas relief for state prisoners.
We find the congressional silence, when contrasted with the extended constitutional debates over other proposals, both "curious"
We have failed to discern even a glimmer of legislative history to support the view that Congress intended to effectuate a substantial reduction in jurisdiction and to take us to the constitutional frontiers which have heretofore remained, perhaps deliberately, undefined. In Brown v. Allen, supra, the Supreme Court rejected a contention that Congress intended 28 U.S.C. § 2254 to eliminate the right of a state prisoner to apply for habeas relief in the lower federal courts, stating: "We are unwilling to conclude without a definite congressional direction that so radical a change was intended." 344 U.S. at 450, 73 S.Ct. at 404. As the Court said in another situation:
Ozawa v. United States, 260 U.S. 178, 194, 43 S.Ct. 65, 68, 67 L.Ed. 199 (1922). We endorse those sentiments here.
There is one remaining indication that we are on firm ground in our approach to the statute: the Supreme Court's treatment of cases which raised the spectre that recourse through habeas corpus to the article III courts to test the legality of detention would not be available. In each case, the Court has rejected such a construction of the relevant statute. We have already noted the Court's refusal to accept an interpretation of 28 U.S.C. § 2254 which would have permanently consigned constitutional claims of state prisoners to the state courts, see Brown v. Allen, supra and its avoidance of the problem for 28 U.S.C. § 2255 by holding that section to be exactly commensurate to habeas corpus. See Sanders v. United States, supra; United States v. Hayman, supra. Another example of the Court's approach is its treatment of the immigration laws. Time and again, the Court faced statutes which made executive determinations final, did not provide for judicial review, and could be construed to repeal the federal court's habeas jurisdiction.
Perhaps the most relevant analogy involves the military justice system, created, like the local District of Columbia courts, pursuant to Congress' article I powers. The inferior article III courts traditionally have had habeas jurisdiction over persons detained by authority of the military justice system. See, e. g., Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538 (1879). In 1948, Congress enacted a collateral attack remedy within the military justice system itself. 62 Stat. 639 (1948). The statute stated that these collateral attack proceedings were "final and conclusive" and "binding upon all departments, courts, agencies, and officers of
340 U.S. 128, 132-33, 71 S.Ct. 149, 152, 95 L.Ed. 146 (1950) (footnote omitted). This language is equally applicable here.
In light of our analysis in this part of the opinion, we reject the district court's and the Government's construction of section 110 as unsupported by the specific legislative intent behind the section and the general purposes behind the Court Reform Act. Recognizing that courts should interpret statutes to avoid difficult constitutional questions and that the constitutional questions raised are both novel and difficult, and that the Supreme Court has repeatedly avoided this problem by construing statutes not to affect jurisdiction, we find that Congress never intended to, nor does section 110 actually, affect the district court's jurisdiction to entertain post-conviction habeas petitions from local prisoners. Instead, we hold that section 110(g) is an exhaustion of remedies statute, requiring initial submission of claims to the local courts and marking, as did the statute in Gusik, the terminal point for proceedings in the local court system. This construction is consistent with the statute, the state court analogy for the Superior Court, see 28 U.S.C. § 2254(b), (c) (1970); Fay v. Noia, supra, 372 U.S. at 418-20, 83 S.Ct. 822, and federal habeas review of custody imposed by article I courts. See Noyd v. Bond, 395 U.S. 683, 693-94, 89 S.Ct. 1876, 23 L.Ed.2d 631 (1969); Gusik v. Schilder, supra, 340 U.S. at 131-32, 71 S.Ct. 149.
Having determined that the district court may entertain petitions brought by prisoners convicted in Superior Court, the question still remains whether appellant properly may maintain his petition at this time. We hold that Palmore properly invoked jurisdiction under 28 U.S.C. § 2241(c)(3) and has sufficiently exhausted his local remedies to maintain his petition.
28 U.S.C. § 2241(c) reads in part:
Palmore is released on bail, see note 3 supra, which constitutes custody within the meaning of section 2241. See Hensley v. Municipal Court, 411 U.S. 345, 348-53, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); United States ex rel. Russo v. Superior Court, 483 F.2d 7, 12 (3d Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). His application for the writ alleged, inter alia, that he is in custody in violation of the fourth amendment of the Constitution, a recognized basis for collateral relief. 28 U.S.C. § 2241(c) (1970); Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).
The final issue is whether appellant has exhausted his local remedies as required by section 110(g). Toward
In conclusion, we emphasize what we do and do not hold today. We hold that section 110(g) does not affect article III habeas jurisdiction. We do so after concluding that Congress never intended that result; if our interpretation is erroneous, Congress stands available to enlarge upon or clarify the statute. See Border Pipe Line Co. v. FPC, 84 U.S. App.D.C. 142, 171 F.2d 149 (1948). We reach no decision on the constitutional issues raised here; while their substantiality affected our consideration of the statute, demarcation of the extent of the constitutional restraints that the equal protection guarantee and the suspension clause impose upon Congress' power to allocate jurisdiction must await the day Congress more explicitly asserts that power.
Lastly, we do not believe that our decision thrusts the federal courts into a supervisory role over the local courts of the District of Columbia, nor does it upset the reorganization Congress established in the Court Reform Act. All claims must be presented in the first instance to the local courts. Those judges, who also swear to uphold the Constitution, undoubtedly can and will vindicate the rights of the District's citizens. We merely reaffirm that if the local courts withhold effective remedy, the federal courts have the power and the duty to provide it.
The judgment of the district court is reversed and the case remanded for consideration on the merits.
ROBB, Circuit Judge (dissenting):
The majority concludes that 23 D.C. Code § 110(g) (1973) is merely an exhaustion of remedies requirement and was not intended by Congress to affect the habeas corpus jurisdiction of the federal courts. I am unable to accept this conclusion. Subsection (g) of section 110 provides that "[a]n application for a writ of habeas corpus . . . shall not be entertained . . . by any Federal . . . court if it appears that the applicant has failed to make a motion for relief under this section or that the Superior Court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to
Since I reject the premise upon which the majority avoids what it considers to be difficult constitutional questions I turn briefly to those questions.
The majority suggests that there may be merit in the argument "that section 110 is not exactly commensurate to habeas corpus both because it is inadequate to protect the interests which mandate ultimate article III review of questions involving constitutional liberty and because it entrusts that task to judges who do not possess the tenure and salary protections which lie at the heart of the independence of the federal judiciary." I note that the relief available in the Superior Court under 23 D.C.Code § 110 (1973) is the equivalent of that available in a federal court under 28 U.S.C. § 2255; and the Supreme Court has held that the scope of 28 U.S.C. § 2255 is "exactly commensurate" with the scope of federal habeas corpus. Sanders v. United States, 373 U.S. 1, 13-14, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Hill v. United States, 368 U.S. 424, 427, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). See United States v. Hayman, 342 U.S. 205, 209, 72 S.Ct. 263, 96 L.Ed. 232 (1952). The relief defined in section 110, therefore, is the equivalent of federal habeas corpus relief. Consequently, the basis for the argument that "section 110 is not exactly commensurate to habeas corpus" is reduced to the difference in the tenure and salary protections accorded District Court and Superior Court judges.
I think the argument suggested by the majority is answered in principle by Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). In that case the Supreme Court held that a defendant charged with a felony under the District of Columbia Code may be tried by a judge who does not have tenure and salary protection under Article III of the Constitution; that "under its Art. I, § 8, cl. 17, power to legislate for the District of Columbia, Congress may provide for trying local criminal cases before judges who, in accordance with the District of Columbia Code, are not accorded life tenure and protection against reduction in salary." 411 U.S. at 390, 93 S.Ct. at 1672. If without the dilution of his constitutional rights a man may be tried and sentenced to the penitentiary by an Article I judge of the Superior Court, I see no reason why he may not be limited to that same court when applying for collateral post-conviction relief. A prisoner's constitutional rights are no more diluted and he is no more disadvantaged in the one case than in the other. In both cases review may be had in the United States Supreme Court. The Article I courts held competent to administer the District of Columbia's criminal justice system exclusive of Article III courts are perforce competent to dispense collateral post-conviction relief exclusive of the habeas corpus jurisdiction of Article III courts.
The majority also suggests that section 110(g), as construed by the government, may deny a prisoner convicted in the District of Columbia court equal protection of the law by prohibiting collateral review in an Article III court, a remedy available to all prisoners convicted in state courts. Once more I think Palmore v. United States, 411 U.S. at 410, 93 S.Ct. 1670, answers the argument. As the Palmore decision establishes, there is no invidious discrimination when a person in the District of Columbia is tried in an Article I court for a violation of an act of Congress, applicable only within the District, although elsewhere in the United States he would be tried in an Article III court for any violation of a general federal statute. I think it follows that it is not a denial of equal protection when that person is required to present his application for collateral relief to an Article I District of Columbia court. Again, equal protection is denied no more in the one case than in the other. United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333 (1971), cert. denied, 405 U.S. 998, 92 S.Ct. 1251,
Palmore had been freed on bail pending direct review of his conviction. The district judge first continued bail pending his disposition of Palmore's petition and has now continued bail pending this appeal. A. 7, 11.
(a) A prisoner in custody under sentence of the Superior Court claiming the right to be released upon the ground that (1) the sentence was imposed in violation of the Constitution of the United States or the laws of the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, (4) the sentence is otherwise subject to collateral attack, may move the court to vacate, set aside, or correct the sentence.
(b) A motion for such relief may be made at any time.
(c) Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting authority, grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto. If the court finds that (1) the judgment was rendered without jurisdiction, (2) the sentence imposed was not authorized by law or is otherwise open to collateral attack, (3) there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner, resentence him, grant a new trial, or correct the sentence, as may appear appropriate.
(d) A court may entertain and determine the motion without requiring the production of the prisoner at the hearing.
(e) The court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.
(f) An appeal may be taken to the District of Columbia Court of Appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
(g) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section shall not be entertained by the Superior Court or by any Federal or State Court if it appears that the applicant has failed to make a motion for relief under this section or that the Superior Court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
In this century, the Court apparently has granted an original writ only three times. Hart & Wechsler's The Federal Courts and The Federal System 1431 (2d ed. 1973); see Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed. 527 (1925); Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656 (1919); Matter of Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848 (1905). Nevertheless, motions for leave to file original writs of habeas corpus still are filed, especially by prisoners, and its continued existence may be symbolic of the Supreme Court's role as the ultimate dispenser of justice in the federal system; between 1929 and 1961, 2,000 such motions were filed. Oaks, supra note 15, at 209-11. During the late 1950's and 1960's, the Court began treating the motion as a writ of certiorari. Id. at 201-06; see, e. g., Carnley v. Cochran, 366 U.S. 958, 81 S.Ct. 1927, 6 L.Ed.2d 1253 (1961); Cheeks v. Maryland, 355 U.S. 929, 78 S.Ct. 415, 2 L.Ed.2d 413 (1958). The present Court apparently treats the motions as miscellaneous orders and denies them explicitly as motions for leave to file petitions for writs of habeas corpus. See note 18 infra.
The exercise of original habeas corpus jurisdiction is extremely discretionary. See, e. g., Ex parte Abernathy, 320 U.S. 219, 64 S.Ct. 13, 88 L.Ed. 3 (1943). 28 U.S.C. § 2241(b) empowers the Court to transfer the application to a district court with jurisdiction. The practice for the writ is governed by Supreme Court Rules 30 and 31.
Another question is whether the suspension clause, coupled with the fact that the Supreme Court is explicitly established by the Constitution, dictates a conclusion that Congress must endow the Court with some sort of habeas corpus or, despite the suggestion in Bollman, that the Court possesses nonstatutory authority to issue the writ. See Appellant's Br. at 42 n.34; Respondent's Memorandum of Law at 10 n.8 ("Jurisdiction of federal courts (except the Supreme Court) to issue writs of habeas corpus is surely statutory"). Thus, the plain meaning interpretation of the statute divesting the Supreme Court for the first time in our history of some of its "original" habeas jurisdiction would force us to enter into treacherous constitutional territory indeed.
As the Government has noted, Congress had before it extensive jurisprudence concerning section 2255 and thus knew it was using as a model an effective, "exactly commensurate" remedy.
We also note that the commentators have split on the question before us. Compare Rauh & Silbert, Criminal Law and Procedure: D.C. Court Reform and Criminal Procedure Act of 1970, 20 Am.U.L.Rev. 252 (1971) and Williams, District of Columbia Court Reorganization, 1970, 59 Geo.L.J. 477 (1971) with Smalls, Habeas Corpus in the District of Columbia, 24 Cath. U.L.Rev. 75 (1974).
Second, the Government asserts that when Congress amended 16 D.C.Code § 1901, it did not amend 28 U.S.C. § 2241 despite the fact "[t]here is no question that [section 1901] also acted to restrict the normal habeas corpus jurisdiction of the District Court." Id. at 15. Contrary to the Government's opinion, we have held that section 1901 does not affect the normal jurisdiction of the district court here. McCall v. Swain, 166 U.S.App.D.C. 214, 510 F.2d 167, 177 (1975).
In sum, we do not find that either of the Government's arguments undercut the point advanced above, which in conjunction with the other legislative history we discuss, dictate the result we reach.
Statement, supra note 29, at 5.
Id. at 11189.
Id. at 14183.
It is noteworthy that Senator Tydings, a leading constitutional opponent of the proposed 1968 changes, was a prime advocate for the Court Reform Act, serving as Chairman of the Senate Committee on the District of Columbia and presiding at hearings which eventually lead to the Act. Hearings on § 1066 Before the Senate Comm. on the District of Columbia and the Senate Subcomm. of the Comm. on the Judiciary, 91st Cong., 1st Sess., pt. 3 at ii, 467 (1969).
A. Doyle, Silver Blaze, The Complete Sherlock Holmes, 347 (1930).
(emphasis added); 28 Stat. 390 (1894):