text:
    UNITED STATES of America ex rel. Walter BIBBS, Petitioner-Appellant, v. John J. TWOMEY, Warden, etc., Respondent-Appellee.
    No. 73-1683.
    United States Court of Appeals, Seventh Circuit.
    Submitted March 29, 1974.
    Decided Dec. 9, 1974.

      Francis X. Beytagh, Professor, Notre Dame, Ind., for petitioner-appellant.
    William J. Scott, Atty. Gen., James B. Zagel, Asst. Atty. Gen., Chicago, 111., for respondent-appellee.
    Before SWYGERT, Chief Judge, and FAIRCHILD and SPRECHER, Circuit Judges.
   PER CURIAM.

This matter comes before the court on the filing of a brief by appointed counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), an appellee’s brief, and simultaneous memorandums of law in response to this court’s order of March 4, 1974. The court has considered this appeal on the record and said briefs, and memorandums alone, without oral argument, under the provisions of Rule 2, Federal Rules of Appellate Procedure.

Petitioner, Walter Bibbs, is a prisoner in the Illinois State Penitentiary— Stateville. In 1967 he was convicted of robbei'y by a jury in an Illinois state court and was sentenced to 15-20 years in prison. The Illinois Court of Appeals affirmed his conviction in People v. Bibbs, 115 Ill.App.2d 200, 253 N.E.2d 179 (1969). On April 20, 1973 he filed a petition for writ of habeas corpus in the district court alleging unlawful custody for reason that: (1) he was denied due process of law in the trial court’s allowing him to be impeached by his previous convictions; (2) the prosecutor’s reading into the record of court documents containing four previous convictions deprived him his right to a 'fair and impartial trial; (3) the harmless error ruling by the Illinois Appellate Cousrt as to the trial court’s refusal to allow rehabilitation of an impeached defense witness was not in conformity with recent Supreme 'Court decisions; and (4) that the sentence imposed was illegal and constituted cruel and unusual punishment in violation of the Eighth Amendment. The district court denied his petition. We reverse and remand.

Petitioner’s appointed counsel has raised two issues on appeal. He first contends that the Illinois trial court abused its discretion in permitting the defendant to be impeached by prior convictions. We disagree. The law is well settled that the government in a criminal prosecution may properly introduce evidence of previous convictions for purposes of impeachment. United States v. Morefield, 411 F.2d 1186 (7th Cir. 1969), cert. denied, 396 U.S. 916, 90 S.Ct. 238, 24 L.Ed.2d 194; People v. Cuttley, 82 Ill.App.2d 321, 226 N.E.2d 479 (1967); See Chapter 61, Section 1 and Chapter 38, Section 155-1, Ill.Rev.Stat.1967. Thus, we find no merit in this first contention.

Secondly, petitioner contends that he was denied a fair trial by the fact and manner of the introduction into evidence of four prior convictions for robbery through the reading of court documents amounting to ten pages of testimony. The state counters this argument by contending that the abuse of discretion in evidentiary matters by a state judge in a state trial does not present a federal claim; and that petitioner has waived his right to complain of the alleged error because he failed to object to the admission of the evidence at trial.

Generally, evidence of prior criminal acts of a defendant which are not charged in the indictment is inadmissible. United States ex rel. Harris v. State of Illinois, 457 F.2d 191, 198 (7th Cir. 1972). However, such evidence is clearly admissible if it is relevant unless its probative value is outweighed by its prejudicial effect. United States ex rel. Durso v. Pate, 426 F.2d 1083 (7th Cir. 1970). Generally, however, the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved. Grundler v. State of North Carolina, 283 F.2d 798, 802 (4th Cir. 1960). The test for determining whether a defendant’s constitutional right to a fundamentally fair trial has been violated by the admission of evidence of other crimes is the same as would be applied by a reviewing court on direct appeal in determining whether the admission of such evidence was within the permissible exercise of discretion of the trial court. Harris, supra, 457 F.2d at 198. “When it must be said that the probative value of such evidence, though relevant, is greatly outweighed by the prejudice to the accused from its admission, then the use of such evidence by a state may rise to the posture of fundamental fairness and due process of law.” Durso, supra, 426 F.2d at 1086. The general rule, however, remains intact that evidentiary questions are not subject to review by a federal court in a habeas corpus proceeding by a state prisoner unless there is an error of such magnitude as to deny fundamental fairness. Harris, supra, 457 F.2d at 198. In this area, federal courts must proceed with caution, Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). To hold otherwise would put the federal courts in the role of reviewing courts over the courts of states even when no constitutional errors have been made. Harris, supra, 457 F.2d at 198. We thus conclude that if there was prejudice to the petitioner by the method and manner of the introduction of the four previous convictions of such a magnitude as to amount to a denial of fundamental- fairness and due process of law, then there has been constitutional harm for which petitioner can rightfully seek relief here under 28 U.S.C. § 2254.

In United States v. Dow, 457 F.2d 246 (7th Cir. 1972), we held that where, in cross-examination of a defendant, there was excessive concentration on prior criminal acts of a defendant, to destroy his character and not merely to impeach him as a witness, error was so prejudicial as to amount to plain error “affecting substantial rights,” requiring reversal. There we said:

[Although a defendant who takes the stand may be crossexamined as to his prior convictions to affect his credibility as a witness, the examination should not be conducted in such a fashion as to prejudice the defendant before the jury. . . . The examination must be limited to whether the defendant had previously been convicted of a felony, to what that felony was and to when the conviction was obtained. (457 F.2d at 250, citations omitted).

In the instant case, while the impeaching evidence was limited to the fact of previous convictions, and the nature and time of the offenses, we think that the reading of the four court documents into the record amounted to undue repetition, excessive concentration, and over-dramatization of the petitioner’s previous convictions. We recognize that the Illinois courts have approved the practice of introducing evidence of prior convictions by reading therefrom by the keeper of such records. People v. Smith, 63 Ill.App.2d 369, 211 N.E.2d 456 (1965); People v. Smith, 90 Ill.App.2d 310, 234 N.E.2d 31 (1967). We are not thereby compelled to hold that the practice is unprejudicial. Depending on the number of previous convictions, the practice could be highly prejudicial.

Here, the prejudice caused to petitioner, while substantial, does not in itself, without considering the total circumstances of the case in context, amount to a deprivation of fundamental fairness and due process under the Durso test. We think, however, that the probative and impeachment value visá-vis prejudicial effect of the method and manner of introducing the evidence of previous convictions in this case is in delicate balance.

Unfortunately, there are defects in the appellate record that prevent us from being able to come to a final conclusion on the question of whether Bibbs was denied due process of law. There is a possibility that this issue might have been waived since there was no objection at trial. Also, at this point the question of the fundamental fairness of the petitioner’s trial is dependent upon the cumulative effect of the error we have suggested and other error identified by the state courts, but found to be harmless. However, we do not have before us the transcript of the state trial and thus cannot reach a conclusion on these questions.

Accordingly, under Circuit Rule 23 this matter is remanded to the district court with directions that counsel be appointed for petitioner, the state trial transcript and record be made a part of this proceeding and a hearing, in accordance with this opinion, be held as soon as possible on the final disposition of this petition.

      . One of the documents is reproduced below. Three almost identical documents were read —word for word — into the record:
      i, Joseph j. McDonough, cierk of the Circuit Court of Cook County, Illinois, in said County and State and Keeper of the Records and Seal thereof, do hereby certify that the records of the Circuit Court of Cook County, Illinois, County Department — Criminal Division, show that a Grand Jury was impanelled in and for the Criminal Court of Cook County, State of Illinois, for the February Term, A.D. 1958, that the said Grand Jury returned into open court an indictment. Number 58-542 charging WALTER BIBBS with the crime of ROBBERY, ETC. that on February 18th, A.D. 1958, the defendant, WALTER BIBBS was duly arraigned before the Honorable Harold P. O’Connell, Judge of the Circuit Court and Chief Justice of the Criminal Court of Cook County, Illinois, and for his PLEA thereto the said WALTER BIBBS pleaded to said indictment that he was NOT GUILTY in manner and form as charged.
      That on March 27th, A.D. 1958, the defendant WALTER BIBBS, before the Honorable Thomas C. Donovan, Judge of the Circuit Court and Ex-Officio Judge of the Criminal Court of Cook County, Illinois, WITHDRAW his PLEA of NOT GUILTY heretofore entered herein and entered a PLEA OF GUILTY in manner and form as charged in the indictment.
      That the Court having before the entry of said PLEA OF GUILTY fully explained to the defendant the consequences of entering such PLEA OF GUILTY, and the said Defendant WALTER BIBBS still persisted in his PLEA OF GUILTY in manner and form as charged in the indictment and the said PLEA OF GUILTY was thereupon ordered to be received and entered of record in this court.
      On March 27th, A.D. 1958, JUDGMENT OF THE COURT was entered adjudging the said Defendant, WALTER BIBBS GUILTY of the said crime of Armed Robbery, to-wit: a Knife in manner and form as charged in the indictment.
      On March 27th, A.D. 1958, upon the said PLEA and JUDGMENT entered of record the Honorable Thomas C. Donovan sentenced the said Defendant WALTER BIBBS to imprisonment in the Illinois State Penitentiary at Joliet, Illinois.

      . See note 1, supra.

      . We do not, by our decision today, hold that the Illinois practice is unconstitutional per se. We do think that it is potentially prejudicial; however, the quality of the prejudice must be considered in the totality of all the circumstances of the case and in the context of all the evidence. Moreover, a situation of this kind must be weighed on a case by case basis.


source: Caselaw Access Project

author: JAMES M. CARTER, Circuit Judge.

license: Public Domain

text:
    Juan Jorge Garcia CARDENAS, Petitioner-Appellant, v. Peter PITCHESS, Sheriff of Los Angeles County, and California Department of Corrections, Chino, California, Respondents-Appellees.
    No. 73-2361.
    United States Court of Appeals, Ninth Circuit.
    Nov. 26, 1974.

      Edward I. Gritz, Los Angeles, Cal., for petitioner-appellant.
    Kent L. Richland, Deputy Atty. Gen., Los Angeles, Cal., for respondents-appellees.
   OPINION

Before CARTER, TRASK and GOODWIN, Circuit Judges.

JAMES M. CARTER, Circuit Judge.

This is an appeal from the dismissal of petitioner-appellant Juan Jorge Garcia Cardenas’ petition for a writ of habeas corpus. He contends that the California District Court of Appeal was correct in holding that certain evidence introduced against him at his state court trial was illegaly obtained, but that the court was incorrect in holding that the admission into evidence was harmless error. The State (California) contends that the evidence was not illegally seized under federal standards, but even if illegally obtained, its admission was harmless beyond a reasonable doubt. We affirm.

Petitioner was found guilty on June 25, 1969, after trial by jury, of five counts of possession of destructive devices and five counts of unlawful discharge of explosives at five offices in the Los Angeles area, in violation of §§ 1230 and 375(4) of the California Penal Code. The California District Court of Appeal affirmed the judgment of conviction on July 28, 1971. Petitions for hearing in the California Supreme Court and for writ of certiorari in the United States Supreme Court were denied. The District Court for the Central District of California dismissed the petition for writ of habeas corpus, accepting the California Court of Appeal holding that the admission of the evidence was harmless beyond a reasonable doubt.

Because we conclude that the searches and seizures were legal under federal law applicable in considering this habeas petition, we do not reach the question of whether the convictions could be upheld had the evidence been illegally obtained under federal as well as state law.

The searches in question were both conducted following petitioner’s arrest on two separate occasions. On April 15, 1968, petitioner and his co-defendant were placed under arrest for disturbing the peace (shouting at and grabbing police officers) in Miami, Florida. Because the suspects were reputed to be members of a Cuban Power group and because a gun and shells were observed in petitioner’s car, in accordance with standard procedure the car was impounded and inventoried at police headquarters. The inventory produced a number of Cuban Power pamphlets, “Poder Cubano” stickers, an automatic pistol, and various shells, both live and spent. Almost all of the pamphlets and stickers were subsequently returned to Cardenas, but some were retained. Althpugh there was a dispute as to whether or not petitioner requested the return of those pamphlets, the state trial court evidently believed the tesimony of the police officers that no such request had been made.

The California Court of Appeal held the arrest to be valid, but the inventory invalid under a California case, Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971). Although “States are still entirely free to effectuate under their own law stricter standards than those [federal courts] have laid down and to apply those standards in a broader range of cases”, Johnson v. New Jersey, 384 U.S. 719, 733, 86 S.Ct. 1772, 1781, 16 L.Ed.2d 882 (1966), the issue in a federal court with respect to a habeas proceeding brought by a state prisoner “remains whether judged by federal standards a petitioner was accorded the minimum guarantees afforded by the United States Constitution.” Frias v. Wilson, 373 F.2d 61 (9 Cir. 1967) (emphasis added).

The rule in this Circuit is not as strict as that in California, and would permit admission of the evidence in this case as having been obtained incident to an inventory search of the petitioner’s car. Cotton v. United States, 371 F.2d 385, 392 (9 Cir. 1967). See also United States v. Edwards, 441 F.2d 749, 754 (5 Cir. 1971). In the present case, the car contained an automatic pistol in plain view, and the suspects were known to be affiliated with Cuban Power groups suspected of a number of bombings in the Miami area. Protection of the public justified the impoundment, and protection of both petitioner’s property and the safety of the police officers justified the inventory.

On October 28, 1968, pursuant to a federal warrant for petitioner’s arrest for interstate flight to avoid prosecution, petitioner and his apartment in Miami, Florida, were searched by special agents of tthe FBI. Although he was told that he was under arrest at the door of his apartment, because he reached his arm into the apartment, had a reputation for violence, and called to several persons inside, he was handcuffed in the apartment and a search was conducted for other persons, weapons, or “evidence of interstate flight.”

The California Court of Appeal, relying on a California case, People v. Baca, 254 Cal.App.2d 428, 62 Cal.Rptr. 182 (1967), held that the “search went beyond the scope of the arrest.” In Baca, the defendant was arrested pursuant to a bench warrant when she failed to appear in court. The court held that the heroin seized after her arrest and as a result of a search of her apartment was inadmissible because the search could not possibly have revealed evidence of the crime for which she was arrested —failure to appear in court.

In the present case, however, the police officers testified that they were looking for “airplane tickets, train tickets . . [pjossibly gasoline credit card receipts,” properly seizable as instrumentalities and means by which the crime of interstate flight was committed. The scope of the search was therefore not unrelated to the arrest.

Further, the search was justified as incident to petitioner’s arrest. Because the arrest occurred prior to the decision in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), pr e-Chimel standards determined the validity of the search. See Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971) (Chimel not retroactive). The search in Williams, supra, upheld under pr e-Chimel standards, was far more extensive than that conducted in the present case. Id. at 650, n. 2, 91 S.Ct. 1148. Therefore, the evidence (primarily Cuban Power pamphlets and stickers) obtained during the search of petitioner’s apartment was properly admitted under the applicable federal rule. His conviction based on that evidence cannot be said to be fundamentally unfair or otherwise unconstitutional.

We have reviewed petitioner’s other claims of error and find them to be without merit.

Judgment affirmed.


author: PER CURIAM:

text:
    James M. SHEA, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-2115.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 6, 1974.
    Decided Nov. 26, 1974.

      Richard E. Crouch (Philip J. Hirschkop, Alexandria, Va., on brief), for appellant.
    Mark S. Geraghty, Arlington, Va., Sp. Asst. U. S. Atty. (David H. Hopkins, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges.
   PER CURIAM:

James Shea was convicted of willfully supplying his employer with false or fraudulent information about his income tax withholding, in violation of 26 U.S.C. § 7205 (1970). This court affirmed his conviction. Shea v. United States, No. 15,313 (4th Cir. April 6, 1971).

Shea’s conviction arose from his attempt to protest the Government’s policies in Viet Nam. On February 20, 1970 Shea filed a W-4 Form with his employer showing that he had 20 dependents, a substantial increase from his previous claim of six dependents. In response to his employer’s query about the change, Shea wrote: “I changed my number of dependents as indicated on the enclosed W-4 Form after considering carefully the Internal Revenue’s regulations, statutes covering income tax, and the advice of my lawyer. My explanation of the change is that the number of my dependents has increased.” Earlier, on January 23, 1970, when filing an income tax return, Shea had enclosed a letter protesting government policies. In that letter he proclaimed a general intent to seek ways to resist the payment of taxes. He did not, however, repeat his protest in a letter attached to the W-4 Form or refer to it in any way when asked for an explanation of the increase in the number of his dependents.

After the decision in United States v. Snider, 502 F.2d 645 (4th Cir. 1974), Shea filed a motion for relief under 28 U.S.C. § 2255, which the district court denied. Like Shea, Snider was convicted of violating § 7205 for making an inaccurate statement on his withholding form. Snider had filed a W-4 Form, claiming three billion dependents, which represented all the human beings in the world, as he explained in a cover letter. Reversing the conviction, this court held that the information was not “(1) supplied with an intent to deceive, or (2) false in the sense of deceptive — of such a nature that it would reasonably affect withholding to the detriment of the government.” 502 F.2d at 655. Since the claim of three billion dependents could deceive no one, this court found that dismissal of the indictment was appropriate.

Shea’s case is distinguishable from Snider’s. On its face, the claim of 20 dependents is not completely implausible. Unlike Snider, Shea enclosed no letter with his W-4 to explain his actions. The letter of January 23 does not bring this case within Snider’s holding since Shea did not sufficiently alert the Government that he planned to claim enough dependents to wipe out his tax liability. Accordingly, we do not find that dismissal of the indictment would be appropriate.

Shea siso claims that the district court applied an incorrect legal standard in his trial without a jury. The record on appeal, however, does not disclose an error warranting post-conviction relief. Accordingly, we affirm the district court’s denial of the motion to vacate the sentence.

Affirmed.


author: FEINBERG, Circuit Judge:

text:
    UNITED STATES of America ex rel. Larry David HAYDEN, Petitioner-Appellant, v. John R. ZELKER, Warden of Green Haven State Correctional Facility, Stormville, New York, Respondent-Appellee.
    No. 146, Docket 74-1485.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 16, 1974.
    Decided Nov. 14, 1974.
    Michael H. Rauch, New York City (Melvin Weinberg; Fried, Frank, Harris, Shriver & Jacobson, New York City, on the brief), for petitioner-appellant.
    Margery Evans Reifler, Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen.; Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellee.
    Before DANAHER, FEINBERG and MULLIGAN, Circuit Judges.

       Of the United States Court of Appeals for the District of Columbia Circuit, sitting by designation.

   FEINBERG, Circuit Judge:

Larry David Hayden appeals from denial of his application for a writ of habeas corpus by Judge Mark A. Costantino of the United States District Court for the Eastern District of New York. Hayden’s application in the district court alleged that a sentence imposed upon him by a state court denied him the equal protection of the laws. We affirm the judgment of the district court.

Hayden was convicted in 1964 by a jury in Suffolk County of carnal abuse of a child. In lieu of the maximum prison term of ten years then otherwise applicable, the state judge sentenced Hayden as a sex offender to an indeterminate term of one day to life. In 1968, petitioner was resentenced nunc pro tunc to the same term after his earlier sentence had been vacated in a cor-am nobis proceeding following People v. Bailey, 21 N.Y.2d 588, 289 N.Y.S.2d 943, 237 N.E.2d 205 (1968), which declared the old sentencing procedure unconstitutional. A second coram nobis petition in the state courts presented essentially the same equal protection claim pressed here.

In 1967, before Hayden was resentenced, New York revised its penal law, eliminating the one-day-to-life sentencing option and reducing the maximum sentence for the crime analogous to carnal abuse from ten to seven years. N.Y. Penal Law §§ 70.00(2)(c), 130.65 (McKinney 1967). Hayden claims this, shows that the legislature “rejected” “whatever policy reasons may once have been thought to justify imposing indefinite criminal sentences upon a certain class of people. . . . ” With the justification for indeterminate life sentences gone, Hayden argues that continuing to apply the sentencing scheme to him “solely because of the time when he committed his crime” is unconstitutional, since it allows incarceration for many years after expiration of the maximum prison term possible under the new law.

This result, however, is what the New York legislature intended. The 1967 Penal Law contains a savings clause, clearly applicable here, which provides that:

[A]ny offense committed prior to [September 1, 1967] . . . must be punished according to the provisions of law existing at the time of the commission thereof in the same manner as if [the new law] had not been enacted.

N.Y.Penal Law § 5.05(3) (McKinney 1967). See United States ex rel. Cooper v. Zelker, 339 F.Supp. 410, 413 (S.D.N.Y.1972); People v. Smith, 33 A.D.2d 590, 304 N.Y.S.2d 308, 310 (3d Dep’t 1969). As appellant suggests, this statute does discriminate between persons committing similar offenses before and after September 1, 1967. But such discrimination is not unconstitutional. Warden v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383, 393 (1974); United States v. Fiore, 467 F.2d 86, 88 (2d Cir. 1972), cert. denied, 410 U.S. 984, 93 S.Ct. 1510, 36 L.Ed.2d 181 (1973), and authorities cited therein. The only cases which arguably support Hayden’s position appear to have been effectively overruled by Marrero.

In an effort to bolster his equal protection claim, Hayden cites recent Supreme Court decisions that strictly scrutinized procedural requirements for compulsory commitments, growing out of involvement in crimes, that might last indefinitely. See Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966). But in relying on these cases, Hayden is pressing a different equal protection argument, quite independent of his claim based upon the 1967 change in New York law. Under this second theory, Hayden compares himself not to persons who committed the same offense after 1967, but rather to persons involuntarily committed to mental institutions in civil proceedings. In Humphrey v. Cady, supra, the Court characterized as “substantial” petitioner’s claim that a state which granted a jury trial to persons civilly committed was required to afford the same protection to a convict recommitted under a sex offender provision after the initial maximum term for the underlying offense expired. A person civilly committed in New York has the right to a jury trial on the question of his competency. N.Y.Mental Hygiene Law § 31.35 (McKinney’s Consol. Laws, c. 27, Supp.1974). But Hayden is denied this right, since decisions on whether to release him or to continue his incarceration are made by the parole board. In addition, proceedings before the board may lack procedural protections afforded in a court, and factors other than appellant’s sanity and potential danger to the community may be controlling in reaching what might be characterized as a recommitment decision. Cf. Jackson v. Indiana, supra, 406 U.S. at 729-730, 92 S.Ct. 1845.

Thus, the second equal protection theory may raise substantial constitutional problems. We do not deal with these issues on the merits, however, because Hayden’s petitions in the state courts and in the district court raised only the time-based equal protection claim. Since state remedies have not been exhausted on any other claims, we cannot now pass upon them. 28 U.S.C. § 2254(b), (c).

The judgment of the district court is affirmed. We commend appointed counsel for dedicated representation of appellant.

      . N.Y.Penal Law of 1909, McKinney’s Consol.Laws, c. 40, § 483-a (McKinney Supp. 1966), Laws of 1950, ch. 525, § 11 (defining crime, setting definite 10-year sentence and alternative indefinite life term); N.Y.Penal Law of 1909 § 2189-a (McKinney Supp. 1966), Laws of 1951, ch. 166 (prescribing procedure for imposing indefinite life term).

      . People v. Bailey applied Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), to the New York sex offender sentencing procedure and required an evidentiary hearing on whether the defendant “is a danger to society or is capable of being benefited by special treatment” before imposition of a one-day-to-life sentence. Appellant’s resentencing was affirmed without opinion, People v. Hayden, 306 N.Y.S.2d 402 (2d Dep’t 1969), leave to appeal denied.

      . See People v. Hayden, 68 Misc.2d 1022, 328 N.Y.S.2d 988 (Suffolk Co.Ct.1972), leave to appeal denied.

      . Appellant’s brief at 8.

      . Id. at 9.

      . The Attorney General’s office informed the court by letter that the Department of Correctional Services reports there are 32 persons still imprisoned under indeterminate life sentences and 58 others on parole, who presumably had served time under such sentences. In 1968, 155 persons were incarcerated under the sex offender statute. See People v. Bailey, supra, 21 N.Y.2d at 597 n. *, 289 N.Y.S.2d at 949, 237 N.E.2d at 209.

      . See, e. g., Alvarado v. McLaughlin, 486 F.2d 541 (4th Cir. 1973), vacated and remanded for further consideration in light of Warden v. Marrero, supra, sub nom. McLaughlin v. Prieto, 418 U.S. 903, 94 S.Ct. 3192, 41 L.Ed.2d 1151 (1974).

      . We note also that § 2189-a of the Penal Law of 1909 requires “a thorough psychiatric examination once every two years,” People v. Bailey, supra, 21 N.Y.2d at 597, 289 N.Y.S.2d at 949, 237 N.E.2d at 209. And appellant might be entitled to treatment if he is dangerous but can be cured or to release if he is no longer a danger to society. Cf. People v. Jackson, 20 A.D.2d 170, 245 N.Y.S.2d 534 (3d Dep’t 1963) (Bergan, J.). See also People v. Hutchings, 74 Misc.2d 15, 16, 343 N.Y.S.2d 845, 847, 74 Misc.2d 914, 347 N.Y.S.2d 268 (Cortland Co.Ct.1973).


author: FIELD, Circuit Judge:

text:
    Nettie S. CROWE, a member of the Eastern Band of Cherokee Indians, Appellee, v. EASTERN BAND OF CHEROKEE INDIANS, INC., and Eastern Cherokee Tribe of Indians, Defendants, United States of America, Appellant. Nettie S. CROWE, a member of the Easttern Band of Cherokee Indians, Appellee, v. EASTERN BAND OF CHEROKEE INDIANS, INC., Appellant. Eastern Cherokee Tribe of Indians, and United States of America, Defendants. Nettie S. CROWE, a member of the Eastern Bank of Cherokee Indians, Appellee, v. EASTERN BAND OF CHEROKEE INDIANS, INC., et al., Defendants, v. Living HEIRS OF William T. SAUNOOKE, Deceased, Intervenors, Appellants.
    Nos. 74-1428, 74-1429 and 74-1432.
    United States Court of Appeals, Fourth Circuit.
    Argued June 6, 1974.
    Decided Nov. 13, 1974.

      Ben Oshel Bridgers, Sylva, N. C. (Holt & Haire, Sylva, N. C., on brief), for appellants, Eastern Band of Cherokee Indians, Inc., in Nos. 74-1428 and 74-1429.
    Charles A. Hobbs, Washington, D. C. (Wilkinson, Cragun & Barker, Washington, D. C., and Orville D. Coward, Sylva, N. C., on brief), for appellant Living Heirs of William T. Saunooke in No. 74-1432.
    Herbert L. Hyde and Albert L. Sneed, Jr., Asheville, N. C., for appellee in Nos. 74-1428, 74-1429 and 74-1432.
    Before HAYNSWORTH, Chief Judge, and BUTZNER and FIELD, Circuit Judges.
   FIELD, Circuit Judge:

This action was instituted by Nettie S. Crowe against the Eastern Band of Cherokee Indians, Inc., an Indian Tribe, and the United States of America, alleging that her rights of equal protection and due process under the Indian Civil Rights Act of 1968, 25 U.S.C.A. § 1301 et seq., (hereinafter “Act”), were violated by the Tribe in assigning part of her lands to another. The questions raised on this appeal are (1) whether the district court properly entertained jurisdiction of the complaint, and (2) whether the court erred in finding that the plaintiff had a vested right in the tract of land claimed by her, and in setting aside the assignment by the Tribe of a portion thereof to another.

The plaintiff is one of eight surviving children of William T. Saunooke, deceased, who at the time of his death occupied a tract of land of some 59.60 acres on the Cherokee Reservation as a possessory holding pursuant to the consent of the Tribal Council. All of the lands comprising the Cherokee Reservation were conveyed to the United States of America in trust for the Eastern Band of Cherokee Indians, Inc., by deed dated July 21, 1925, and the legal title to the land, including the tract here in question, is held by the United States as such trustee. On March 14, 1960, the heirs of William T. Saunooke signed a “Land Division Agreement” under which Nettie S. Crowe was assigned the possessory interest in the eleven acre tract of land here in dispute. At the time the Land Division Agreement was executed by Saunooke’s heirs, they also executed a lease to one H. R. Mitchell conveying the entire 59.60 acres upon which the lessee proposed to construct and operate “Cherokee Wonderland.” This lease agreement, which contained a description of the eleven acre tract of land and referred to it as the possessory holding of Nettie S. Crowe, was approved by the Tribal Council on March 17, 1960, as well as by the Secretary of the Interior. Thereafter, a controversy developed between the Saunooke heirs and the lessee which was resolved by a consent judgment entered in the federal court for the Western District of North Carolina on May 14, 1962, in an action brought by Cherokee Wonderland, Inc., against the Saunooke heirs and the Cherokee Tribe. The settlement and consent order which were approved by the Tribal Council again referred to the lease and the possessory rights of Nettie S. Crowe in the tract of eleven acres. In 1970 one of the heirs of William T. Saunooke, formally requested the Tribe to divide Saunooke’s land holdings and, acting upon this request, the Tribal Council instructed the Lands Committee to make an equitable division among the Saunooke heirs. The Lands Committee made a division and drafted a plat showing the respective portions assigned to each heir. The action of the Lands Committee was upheld by the Tribal Council in June of 1971. Under the division made by the Lands Committee the plaintiff was awarded 4.48 acres exclusively, plus a joint undivided interest in certain mountainside land, instead of the 11 acres claimed by her.

In her complaint, the plaintiff charged that this action on the part of the Tribal Council denied her the equal protection of its laws and deprived her of her property without due process of law in violation of 25 U.S.C.A. § 1302(8). The district court entertained the action, and upon the trial of the merits entered a judgment setting aside' the assignment made by the Tribal Council in June, 1971, and restoring to the plaintiff her possessory holding in the eleven acres as set forth in the Land Division Agreement dated March 14, 1960, between the heirs of William T. Saunooke.

-I-

As to the jurisdictional issue, we held in United States v. Wright, 53 F.2d 300 (4 Cir. 1931), that the Eastern Band of Cherokee Indians is an Indian Tribe within the meaning of the Constitution and Laws of the United States, and accordingly, absent jurisdiction under the Indian Civil Rights Act, jurisdiction of this controversy would be precluded by the well established rule “that a tribe of Indians under the tutelage of the United States is not subject to suit without the consent of Congress * * * Haile v. Saunooke, 246 F.2d 293 (4 Cir. 1957); see United States v. United States Fidelity Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940). It is equally well established that a federal court has no jurisdiction over an intratribal controversy. Motah v. United States, 402 F.2d 1 (10 Cir. 1968); Pinnow v. Shoshone Tribal Council, D.C., 314 F.Supp. 1157, aff’d, 453 F.2d 278 (10 Cir. 1971). While the district judge recognized this quasi-immunity of an Indian tribe, he held that since the plaintiff was asserting rights guaranteed to her by Title II of the Civil Rights Act of 1968, jurisdiction was conferred under 28 U.S.C.A. § 1343(4). In reaching this conclusion he rejected the contention of the defendant that the Act was nothing more than a declaration of rights, stating that such an argument was at variance with the rationale of the Supreme Court’s opinion in Jones v. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). We agree with this jurisdictional conclusion of the court below since section 1343(4) provides a logical and specific basis of jurisdiction and to hold otherwise would render the provisions of the Act unenforceable and an exercise in Congressional futility. See Johnson v. Lower Elwha Tribal Community, etc., Wash., 484 F.2d 200 (9 Cir. 1973). This conclusion is buttressed by the fact that it accords with the decisions of a majority of the courts who have had occasion to consider this question. Solomon v. LaRose, 335 F.Supp. 715 (D.C.Neb.1971); Spotted Eagle v. Blackfeet Tribe of Blackfeet Indian Res., 301 F.Supp. 85 (D.C.Mont.1969); Dodge v. Nakai, 298 F.Supp. 17 (D.C.Ariz. 1968).

-II-

The finding of the district court that the Tribal Council had assigned a part of the plaintiff’s eleven acre tract to Bertha Saunooke and her children without giving the plaintiff any notice thereof or conducting any hearing upon the proposed division, clearly required that the defendant’s action be set aside as violative of the plaintiff’s due process rights under the Act. However, in going further and ordering that the plaintiff be restored to her possessory holding under the Land Division Agreement between the Saunooke heirs, it appears that the district court ignored the established doctrine of Indian sovereignty as well as the correlative concept of tribal property law.

The sovereignty of Indian tribes as “distinct, independent, political communities” qualified to exercise the powers of self-government was first definitively recognized in the landmark case of Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832). What has been described as “perhaps the most basic principle of all Indian law” is that the powers vested in an Indian tribe are not powers granted by express Acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. The scope and stature of this sovereignty was avouched by Chief Justice Marshall in Worcester, supra, at 556.

“From the commencement of our government, congress has passed acts to regulate trade and intercourse with the Indians, which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate.”

We will not attempt a collation of the many cases which have applied the doctrine of Indian Sovereignty which was articulated in Worcester, but with few minor exceptions, it has remained viable down to the present time. In Williams v. Lee, 358 U.S. 217, 221, 223, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959), the Court, in construing a Navajo treaty, recognized the integrity of Indian tribal sovereignty, saying:

“Implicit in these treaty terms, as it was in the treaties with the Cher'okees involved in Worcester v. Georgia, was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed. * * * The cases in this Court have consistently guarded the authority of Indian governments over their reservations.”

And as recently as 1973 in McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 172-173, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129, Mr. Justice Marshall had occasion to comment upon the doctrine of Indian sovereignty:

“It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government. ******* They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided.’ United States v. Kagama, 118 U.S. at 381-382, 6 S.Ct. 1109, at 1112, 30 L.Ed. 228.”

This doctrine of Indian sovereignty is relevant not only “because it provides a backdrop against which the [Indian Civil Rights Act] must be read,” but also because it plays an integral role in the concept of tribal property law. “The powers of an Indian tribe with respect to property derives from two sources. In the first place, the tribe has, with respect to tribal property certain rights and powers commonly incident to property ownership. In the second place the Indian tribe has, among its powers of sovereignty, the power to regulate the use and disposition of individual property among its members.”

Under the Indian concept of tribal property the ownership and use of the land is communal. The power of absolute ownership is lodged in the tribe and the interests of the individual members of the tribe are “limited to a mere occupancy of the tracts set apart for homes with the right to free use in common of the unoccupied portion of the reserve * * *» Cherokee Nation v. Journeycake, 155 U.S. 196, 215, 15 S.Ct. 55, 39 L.Ed. 120 (1894). There can be no individual ownership of tribal land and the individual’s right of use depends upon tribal law or custom.

We recognize, of course, that the once imprecise and nebulous customs and traditions of a tribe may have been refined or formalized to some degree either by the adoption of a constitution under the Indian Reorganization Act, incorporation or other tribal action. In the present case the record shows that the Eastern Band of Cherokees was given a corporate charter by the Legislature of North Carolina in 1889. This charter was amended in 1897 to confer upon the tribe the power to manage and control all tribal property either real or personal. By a Resolution dated February 11, 1931, the Tribal Council took cognizance of the numerous disputes with respect to its land, and designated the Business Committee of the Council as a court of equity to settle all disputes of land lines and to approve all sales of improvements or other changes affecting ownership or occupancy of any of the tribal lands. This Resolution further provided that in the future no trade involving the sale or lease of communal lands should be made without first obtaining the approval of the Business Committee and filing in the office of the Superintendent of the Agency a .complete record of the transaction. Any trade made without such an approval and record should be considered illegal.

On October 14, 1960, the Tribal Council adopted another Resolution which recited that the records relative to possessory holdings of tribal lands were incomplete and had resulted in “much misunderstanding among the individual members of the tribe as to their rights and the rights of their heirs in and to the tribal lands.” Under this Resolution the tribe adopted a form for a “Certificate of Possessory Holding” which sets forth:

“(1) The authority of the Council to manage and control all property belonging to the Tribe, (2) the rights in the lands reserved by the Tribe when they recognize possessory holdings now in effect or make assignments of ‘Possessory Holdings’ to members of the Tribe and (3) the rights in the land assigned to individual members when assignments of ‘Possessory Holdings’ are made to such member.”

The certificate adopted by the Council reflects, among other things, that legal title to the land is vested in the Tribe and that the power and responsibility to control the lease, transfer, inheritance or devise of the possessory holdings is retained by the Tribe.

The transfer of the eleven, acres claimed by the plaintiff was never submitted for approval to the Tribal Council or any of its committees, nor was any Certificate of Possessory Holding issued to her. Despite this fact, however, the district court held that the action of the Tribal Council in approving the Cherokee Wonderland lease as well as the consent judgment in the ensuing litigation constituted approval of the Land Division Agreement between the Saunooke heirs, and that “the assignment of the possessory rights in the eleven acre tract met the requirements of the Council and vested such rights in the plaintiff.” In the course of his opinion the district judge stated “that the possessory holding which the plaintiff inherited from her father * * * and which was partitioned and assigned to her in severalty by the written agreement between her and the other tenants in common was a vested right sufficient to invoke due process and equal protection.” From this it would appear that the court was applying Anglo-American principles of real property law, and in so doing adopted an approach that was incompatible with the established principle that lands belong to the Indian tribe as a community and not to the members severally or as tenants in common. Sizemore v. Brady, 235 U.S. 441, 446, 35 S.Ct. 135, 59 L.Ed. 308 (1914). Such a controversy involving tribal lands should not be resblved by the application of technical rul'eá of common law, but in the light ofj the traditions and customs of the Indian people.

We find nothing in the statutory language or the legislative history to indicate that the Congress, in enacting the Indian Civil Rights Act, proposed to sweep aside the doctrines of Indian sovereignty and property law which have been recognized in countless treaties and scrupulously guarded by the courts for some 150 years. Such a reading of the Act would be in direct conflict with the policy which has been followed by the Government since the Indian Reorganization Act designed to put a halt to the dissipation of tribal assets and to revitalize tribal government “with power to conduct the business and economic affairs of the tribe.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151, 93 S.Ct. 1267, 1272, 36 L.Ed.2d 114 (1973). While the object of the Civil Rights Act was to protect the individual members from arbitrary tribal action, it was not intended that the historic sovereignty of a tribe be abolished.

Under the Indian Civil Rights Act the plaintiff was entitled to the right of procedural due process incident to the division of her father’s possessory holdings, as well as the even-handed application of the tribal customs, traditions and any formalized rules relative to tribal land. Upon her challenge of the tribal conduct in these respects, review by the district court was appropriate, and finding comportment with the Act to be lacking, the tribal action was properly set aside. The Act, however, did not empower the court to go futher and substitute its judgment on the merits for that of the Tribe.

Accordingly, while we affirm the district court in setting aside the Council’s action, we reverse the judgment below insofar as it restored to the plaintiff the possessory holding in the eleven acres of land claimed by her under the Land Division Agreement between the heirs of W. T. Saunooke. Upon remand the court should direct the defendant Indian Tribe to reconsider the division of Saunooke’s possessory holdings in a proceeding which will accord to the plaintiff and the other interested parties the rights of procedural due process and equal protection of the tribal laws to which they are entitled under the Indian Civil Rights Act.

Reversed in part and remanded.

      . It was stipulated that Nettie S. Crowe is a Cherokee Indian and an enrolled member of the Eastern Band of Cherokee Indians.

      . The United States was named as a party-defendant because it holds the legal title to these lands in trust for the Tribe. These lands were conveyed by the Tribe to the United States pursuant to the provisions of the Act of June 4, 1924, 43 Stat. 376, 25 U.S.C.A. § 331 note. An interesting and informative history of the Eastern Band of Cherokees and their lands may be found in Judge Parker’s opinion in United States v. Wright, 53 F.2d 300 (4 Cir. 1931), as well as United States v. Colvard, 89 F.2d 312 (4 Cir. 1937) and United States v. Parton, 46 F.Supp. 843 (W.D.N.C. 1942), rev’d, 332 F.2d 886 (4 Cir. 1943).

      . “§ 1302. Constitutional rights

      No Indian tribe in exercising powers of self-government shall—
      * * * * *
      (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law

      . “§ 1343. Civil Rights and elective franchise

      The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any persons :
      * * * * *
      (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.”

      . For an interesting discussion of the scope and background of Indian sovereignty, see Felix S. Cohen’s Handbook of Federal Indian Law, University of New Mexico Press, p. 122, et seq. Cohen’s treatise, first published in 1942 while he was associated with the Department of the Interior, is out of print and a revision published by the Department of the Interior in 1958 entitled Federal Indian Law has been the subject of some criticism. The University of New Mexico edition represents a reprint of Cohen’s work as originally edited and published by him.

      . McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973).

      . Cohen’s Handbook of Federal Indian Law, supra, note 5, at 143.

      . Prairie Band of Potawatomi Indians v. United States, 165 F.Supp. 139, 143 Ct.Cl. 131 (1958).

      . 25 U.S.C. § 476.

      . Ch. 211, Private Laws of North Carolina, 1889.

      . Ch. 207, Private Laws of North Carolina, 1897.

      . The malapropos nature of such an approach was stated in Ex parte Tiger, 2 Ind. T. 41, 47 S.W. 304, 305 (Ind.Terr.C.A.1898).
      “If the Creek Nation derived its system of jurisprudence through the common law, there would be much plausability in this reasoning. But they are strangers to the common law. They derive their jurisprudence from an entirely different source, and they are as unfamiliar with common-law terms and definitions as they are with Sanskrit or Hebrew.”

      . An ill-fated program to divide tribal lands among individual tribal members was initiated under the General Allotment Act of 1887, 24 Stat. 388, as amended, which authorized the President to parcel tribal lands in severalty to the individual members of the tribe and the ultimate issuance of a fee patent to the land to the allottee or his heirs. “By all accounts, the allotment policy was a disaster. Destruction of the land base had the immediate effect of reducing tribal control of internal affairs to almost a nullity.” Comment, Tribal Self-Government and the Indian Reorganization Act of 1934, 70 Mich.L.Rev. 955, 959 (1972). Under the Reorganization Act the allotment of tribal lands is prohibited. 25 U.S.C. § 461.

      . The proceedings of the Council need not, of course, be conducted with all of the trappings of a court of law since the formality and procedural requisites are to be determined by the circumstances of any particular case. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). The proceedings must, however, be addressed to the issues involved in a meaningful fashion and pursuant to adequate notice. Cf. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).

      . The court has received word that during tlie i>endency of this appeal the defendant Tribe has conducted a new hearing, after proper notice, and has redetermined the possessory allotments of the Saunooke heirs. If, in fact, such a hearing has been conducted with full regard for the rights of the interested parties under the Indian Civil Rights Act as herein delineated, it would be unnecessary to repeat it. We, of course, are in no position to pass upon the regularity of this subsequent proceeding and express no opinion thereon.


author: PER CURIAM.

text:
    Michael SPARKS et al., Petitioners-Appellants, v. Ronald FULLER, etc., Respondent-Appellee. Ashley A. FLAGG, Petitioner-Appellant, v. Joseph C. VITEK, etc., RespondentAppellee. Michael J. CRONIN, Petitioner-Appellant, v. Ronald FULLER, etc., Respondent-Appellee.
    Nos. 74-1290, 74-1213, 74-1267.
    United States Court of Appeals, First Circuit.
    Submitted Oct. 9, 1974.
    Decided Nov. 21, 1974.
    Michael Sparks, Lawrence D. Conklin and Ashley A. Flagg, on brief pro se.
    Warren B. Rudman, Atty. Gen., David W. Hess, Asst. Atty. Gen. and Gregory H. Smith, Concord, N. H., on brief for respondents-appellees.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

The court takes the occasion of these three appeals from dismissal of prisoner complaints to indicate the kind of frivolous claim which, to the extent that it occupies the time of courts, can only impede the consideration of substantial claims. It is clear that the district court in each of these cases was correct in its treatment of the pro se claim.

We are cognizant of the importance of smaller liberties in the prison context, Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir.), vacated and remanded on other grounds, 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974), and have frequently indicated strict adherence to the requirement that pro se complaints be treated in accord with the dictates of Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) and Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1971), which require liberal construction and exploration of disputed issues of fact central to constitutionally recognized claims by way of affidavit or, if necessary, evidentiary hearing.

But there are limits to what complaints will be recognized in any context and in a prison setting “there must be [a] mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). The complaints at issue here do a disservice to the prisoners’ own cause. Assuming all the allegations to be true, they fail to -describe conditions approaching what we or other courts have as yet treated as cruel or unusual punishment. They list extremely minor inconveniences without any allegations of purposeful discrimination, malicious intent or denial of process seriously believed to be due. They do not even allege the imposition of the described conditions or deprivations as punishment. See O’Brien v. Moriarty, 489 F.2d 941 (1st Cir. 1974).

Our hope is that by setting forth what we regard as examples of complaints that must be resolved within the prison system, we will discourage similar suits and enable the courts to focus on serious and important claims of prisoners. The first claim, presented in Sparks v. Fuller, seeks an “injunction restraining [the Warden] from evicting ‘Sneakers,’ ‘Rastus,’ ‘Socrates’ . . . from the New Hampshire State prison without procedural due process in the form of adequate hearing.” The named evictees are cats and the prisoners claim to have a right under § 1983 to prevent the warden from permitting certain animals to remain as pets while requiring others to be removed. To recite the claim is to refute it. No prisoner right is remotely affected; the cats were first obtained without consent; and both sanitary requirements and prison order are implicated. This is a clear example of a condition that comes within the category of the general management of the prison and must remain within the warden’s discretion. Palmigiano v. Baxter, supra, 487 F.2d at 1283.

The complaint in Cronin v. Fuller alleges : “If it were not for [petitioner’s] personal clothing he would be forced to go naked or wear only the one suit of clothes that the administration has provided and be forced to wash them out at night in his cell so that they would be clean in the morning.” The petitioner apparently feels that the prison authorities have an obligation to issue him certain kinds and quantities of clothing. Absent an allegation that the prisoner was in any way seriously affected by this failure — here the harm alleged is totally speculative — the claim cannot be recognized in the federal courts. This is again a matter that falls within the discretion of the prison authorities.

In Flagg v. Vitek the prisoner brought suit to require prison authorities to repair a toilet which was out of order for three days in April. The suit was heard in June. There were no allegations of intent, purposeful discrimination or extreme neglect. The relief sought, repair of the malfunction, had already been provided. A deprivation of sanitary necessities may give rise to a claim of cruel and unusual punishment. See, e. g., O’Brien v. Moriarty, supra. But prevention or instantaneous repair may be impossible. In this case, there was nothing that the court could provide the prisoner. His need to voice his claim could appropriately be satisfied within the prison system.

Affirmed.


author: STEPHENSON, Circuit Judge.

text:
    Robert Eugene WHITED, Appellant, v. Charles L. WOLFF, Jr., Appellee.
    No. 74-1318.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1974.
    Decided Nov. 22, 1974.

      William J. Riley, Omaha, Neb., for appellant.
    Harold Mosher, Asst. Atty. Gen., Lincoln, Neb., for appellee.
    Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

Appellant seeks habeas relief under 28 U.S.C. § 2254 (1970) from his imprisonment by the State of Nebraska after a burglary conviction. The district court, after an evidentiary hearing and submission of written arguments, found that appellant’s claims of due process deprivation were without merit and dismissed the petition. We affirm.

After exhausting his state remedies, appellant contended to the district court that he had been denied assistance of counsel at a critical stage of the proceedings against him. In addition, he alleged that the flagrant use of hearsay evidence by the prosecution and the breaks in the chain of possession of physical evidence used against him deprived him of a fair trial. Finally, appellant argued that he was denied due process when the trial court repeatedly permitted leading and suggestive questioning of prosecution witnesses. The district court in its unpublished memorandum and order made specific factual and legal determinations that are dispositive of each of these allegations. In the following discussion we have summarized the district court’s findings and set out only those facts which are necessary to explain our affirmance as to each issue.

The major portion of the district court’s memorandum was directed at appellant’s contention that he was denied due process by the state’s failure to appoint counsel for him until three weeks after the preliminary “bind over” arraignment in municipal court. In this initial appearance, appellant entered a perfunctory plea of not guilty and then waived his right to a preliminary hearing to determine probable cause.

Whited now contends that this uncounseled waiver deprived him of the opportunity to establish and preserve his alibi defense while witnesses still had fresh and accurate recollections of relevant events and times. He claims that any competent lawyer would have requested a preliminary hearing in order to record the testimony of these alibi witnesses. In his view, this loss of an effective alibi defense made this initial appearance in the municipal court a critical stage in the proceedings requiring appointment of counsel under the rationale in Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), and subsequent cases.

The right to counsel at a preliminary hearing was not recognized by the Supreme Court until 1970 in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), and was subsequently held to be non-retroactive in Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972). However, appellant argues that comments in Justice Brennan’s opinion in Adams make Coleman retroactive if actual prejudice constituting a denial of due process is shown to have taken place at the preliminary hearing. 405 U.S. at 285, 92 S.Ct. 916. Whited asserts that the waiver coupled with the three-week delay resulted in immeasurable yet substantial actual prejudice.

In response, the district court noted that at the time of Whited’s initial appearance in municipal court which resulted in the waiver, a preliminary hearing in Nebraska was not a critical stage of the criminal proceedings requiring counsel as long as no testimony was taken, no admissions were made, and no guilty plea entered. Burnside v. Nebraska, 346 F.2d 88, 90-91 (8th Cir. 1965). However, the district court carefully considered appellant’s “actual prejudice” argument from Adams and concluded that a three-week delay did not result in actual prejudice per se. Cf. United States v. White, 488 F.2d 660, 663 (8th Cir. 1973); United States v. Atkins, 487 F.2d 257, 259 (8th Cir. 1973).

The court further found that an examination of the trial testimony of the alibi witness for indications of actual prejudice revealed none. We agree with the court’s conclusion that the witness’s testimony does not indicate that the passage of time impaired his recollection. Since no actual prejudice was shown, the district court properly rejected this argument.

With respect to appellant’s other three claims, the district court found “no errors which rise to the level of a deprivation of due process.” We agree.

Having carefully reviewed the facts and the record of this case in light of appellant’s contentions, we affirm on the basis of Judge Denney’s well-reasoned opinion.

Affirmed.

      . The Honorable Robert V. Denney, United States District Court for the District of Nebraska.

      . We have hesitated to use the term “arraignment” with reference to the proceeding at which appellant waived his right to a preliminary hearing in the instant case. We note from the transcript of the § 2254 hearing that a former public defender stated that the primary function of this appearance was to determine whether a preliminary hearing needed to be held prior to binding over the defendant to district court. In fact, this was in no way a true arraignment since the municipal court, according to this witness, did not have the power to accept a guilty plea. For purposes of analysis, we have treated this proceeding as an element of the preliminary hearing.

      . In support of this finding the district court’s memorandum noted one particular exchange in the transcript which indicated that the alibi witness never could have provided appellant with any assistance. The following question was asked of and answered by the bartender who allegedly could have established appellant’s whereabouts at the time the crime was committed :
      Q. Do you know what time of evening you asked him [appellant] to leave?
      A. No, I didn’t, sir, I don’t pay — The only time I pay attention to the clock is when it starts getting late.


author: HAYNSWORTH, Chief Judge:

text:
    FIDELITY BANKERS LIFE INSURANCE COMPANY, Appellant, v. Gray WILLIAMS, Trustee in Bankruptcy for O’Neill Enterprises, Inc., Appellee. In the Matter of O’NEILL ENTERPRISES, INC., Bankrupt.
    No. 74-1269.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 2, 1974.
    Decided Nov. 6, 1974.
    Edward S. Hirschler, and Miles Cary, Jr., Richmond, Va. (Hirschler & Fleischer, Richmond, Va., on brief) for appellant.
    T. Munford Boyd, Charlottesville, Va. (Paxson, Smith, Boyd, Gilliam & Gould-man, Inc., Charlottesville, Va., on brief) for appellee.
    Before HAYNSWORTH, Chief Judge, and RUSSELL, and FIELD, Circuit Juges.
   HAYNSWORTH, Chief Judge:

In 1966 O’Neill Enterprises mortgaged a building in Virginia to Fidelity Bankers Life Insurance Company, agreeing that on default the mortgagee had the right to take possession and collect all rents. That mortgage provision gave Fidelity a security interest in the rents, and O’Neill also signed a supplemental agreement that directly assigned all rents to Fidelity on a default. On January 7, 1972, O’Neill was adjudicated bankrupt, and, later, a trustee took control of its holdings. Without delay, Fidelity petitioned the bankruptcy court to abandon the property, claiming that its mortgage plus three other subordinate mortgages exceeded the building’s value. Although Fidelity filed the petition on February 7, the bankruptcy court did not act on it until September 14. During this seven-month period, Fidelity did not petition the court to sequester the rents from the building, but it frequently inquired about the status of its abandonment petition. Shortly after the court finally ordered abandonment, the trustee under Fidelity's deed of trust sold the property in a foreclosure sale. The trustee complied with the state laws concerning publication of the sale, and the purchaser was completely unrelated to Fidelity. The sale, however, produced only slightly more money than Fidelity’s unpaid principal balance, even though several appraisers had valued the building at much higher prices.

Fidelity petitioned the bankruptcy court for an accounting and payment of the net rentals accrued between the adjudication of bankruptcy and the foreclosure sale. During that period, the trustee had paid the building’s operating expenses, but had accrued a net surplus of $20,482 from the rental income. Fidelity claimed that the proceeds of the foreclosure sale did not cover a $19,956 loss, which consisted of unpaid interest during the bankruptcy administration and the expenses of the sale. The bankruptcy judge, however, denied Fidelity’s claim, and the district court affirmed that decision.

Other courts of appeals have disagreed about whether a lien creditor is entitled to the income from property during bankruptcy administration. 4A Collier, Bankruptcy § 70.16, at 167-68 (14th ed. 1971). Some courts, notably the Third and Seventh Circuits, hold that a secured creditor may recover the rental income. See, e.g., In re Pittsburgh-Duquesne Development Co., 482 F.2d 243, 246 (3d Cir. 1973); Central Hanover Bank & Trust Co. v. Philadelphia & Reading Coal & Iron Co., 99 F.2d 642 (3d Cir. 1938); In re Wakey, 50 F.2d 869 (7th Cir. 1921). Those courts view the issue as a contest between the secured creditors and the unsecured ones for whom the bankruptcy court operates the estate. Since the rental income is additional security for the mortgage loan, the Third and Seventh Circuits equitably shift the income from the unsecured to the secured creditors.

Other courts of appeals, including the Eighth and Ninth Circuits, reject this approach. E.g., Tower Grove Bank & Trust Co. v. Weinstein, 119 F.2d 120 (8th Cir. 1941); In re Hotel Saint James Co., 65 F.2d 82 (9th Cir. 1933); see In re Humeston, 83 F.2d 187 (2d Cir. 1936). Those authorities have found that the mortgagee has no right to the rents because, under the mortgage terms, state courts require the mortgagee to take possession in order to fix his right to the rents. A mortgagee, however, cannot take possession and collect rents once the bankruptcy court has assumed control of the property. Accordingly, those courts substitute other actions to secure rights in the rental income for the contractual entry of possession and collection of rents. If the mortgagee has petitioned the bankruptcy court for a sequestration order, obtained the appointment of a receiver to collect the rents, or secured the court’s consent to foreclose, the Eighth and Ninth Circuits allow him to recover the rental income during the bankruptcy administration. See, e.g., Pollack v. Sampsell, 174 F.2d 415 (9th Cir. 1949); Mortgage Loan Co. v. Livingston, 45 F.2d 28 (8th Cir. 1930); 4A Collier, supra § 70.16, at 161-63.

Although Fidelity pursued its abandonment petition, it did not take the steps required by the Eighth and Ninth Circuits to fix its right to the rental income. Its failure to take action, however, has not caused difficulty in ascertaining the amount of the net rental income from operating the property. Nonetheless, the supplemental agreement between Fidelity and O'Neill removes this case from the primary area of dispute between the other courts of appeals. That agreement assigned the income to Fidelity without requiring it to take possession of the building. The Ninth Circuit has recently considered a mortgage clause similar to the supplemental agreement. In re Ventura-Louise Properties, 490 F.2d 1141 (9th Cir. 1974). Since the California courts had held the clause valid, the Ninth Circuit did not rely on its earlier decisions. Instead, it decided that a mortgagee need not request sequestration or take other steps to protect its rights if the mortgage contains an assignment of rents upon default, instead of a conditional security interest in the rents. Although the courts of Virginia have not expressly approved the provisions of the supplemental agreement, we perceive no reason why they would not enforce them. Accordingly, since Fidelity had a right to the rents upon O’Neill’s default, we hold that it is entitled to recover them from the bankruptcy estate.

Reversed.


text:
    Robert Dale BERNATH, Petitioner-Appellant, v. Walter E. CRAVEN, Warden, Folsom State Prison, Respondent-Appellee.
    No. 73-3553.
    United States Court of Appeals, Ninth Circuit.
    Nov. 19, 1974.
    J. Frank McCabe, of McCabe & Wilhelm (argued), San Francisco, Cal., for petitioner-appellant.
    Roy C. Preminger, Deputy Atty. Gen. (argued), Los Angeles, Cal., for respondent-appellee.

      Honorable Joe McDonald Ingraham, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.

   OPINION

Before DUNIWAY, INGRAHAM and WALLACE, Circuit Judges.

PER CURIAM:

This appeal from the district court’s refusal to grant petitioner’s writ of habeas corpus presents the issue whether our decision in Wright v. Craven, 461 F.2d 1109 (9th Cir. 1972), should be applied retroactively. In Wright, this court held that where a defendant’s admission of a prior felony conviction can be used to enhance his sentence, the admission is the functional equivalent of a plea of guilty, and is valid only if the defendant is aware of the consequences of his admission. Concluding that the rule enunciated in Wright should be given prospective application only, we affirm.

While out on parole for a conviction for voluntary manslaughter, petitioner Robert Dale Bernath was apprehended and charged for the unlawful possession of marijuana. Bernath decided to enter a plea of guilty to the charge alleging the illegal possession of marijuana, but when he entered his plea, he admitted committing the prior offense of voluntary manslaughter. There is no évidence that Bernath recognized that his admission to the prior conviction could be used to increase the period of incarceration for the marijuana offense. He now argues that the prior offense was used by the trial court to increase his sentence from one to two years, and that at the time of the admission he was unaware of this possible consequence. Although it is not entirely clear from the record that the trial court did enhance appellant’s sentence, our decision that Wright is not retroactive makes it unnecessary to pass on this issue.

The Supreme Court has imposed specific, precautionary requirements on federal and state trial courts to insure protection of an accused’s rights. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Boykin v. Alabama, 395 U.S. 238 (1969); see Heiden v. United States, 353 F.2d 53 (9th Cir. 1965) (in banc). Because of the important constitutional rights that are relinquished by a defendant who enters a guilty plea, the Court has required strict adherence to a procedural litany between the court and the acceptance of an admission similar to accused to be sure that the defendant is aware of the impact of what he is doing. In order for the defendant to validly waive these constitutional protections, he must recognize the consequences that a guilty plea might have on him. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Like the entering of a guilty plea, an admission to a prior offense is also a waiver of fundamental constitutional rights, privileges and immunities. Because of this similarity between a guilty plea and an admission to a prior offense with regard to the waiving of constitutional rights, this court has termed the admission to a prior offense as the functional equivalent of a guilty plea and has imposed protective measures on the those imposed on the acceptance of a guilty plea. Wright v. Craven, supra; see United States v. Ingram, 477 F.2d 236 (7th Cir. 1973); Cancino v. Craven, 467 F.2d 1243 (9th Cir. 1972). In re Yurko, 10 Cal.3d 857, 519 P.2d 561, 112 Cal.Rptr. 513 (1974). Among these measures is the requirement that the accused must be aware of the consequences of his admission, such as the possible enhancement of punishment imposed for a separate criminal offense.

In view of the similarity between entering a guilty plea and an admission to a prior offense, and the similarities between the precautions taken to protect the rights of the accused in both instances, we find equally analogous those cases that hold the precautionary guilty plea procedures to be applied prospectively only. For the same reasons that the courts have concluded to give these protective measures prospective application only, our decision in Wright v. Craven, supra, will be given only prospective effect. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969); Dominguez v. Henderson, 447 F.2d 207 (5th Cir. 1971); Smith v. Cox, 435 F.2d 453 (4th Cir. 1970); United States ex rel. Rogers v. Adams, 435 F.2d 1372 (2nd Cir. 1970); Miller v. Missouri, 431 F.2d 120 (8th Cir. 1970); Perry v. Crouse, 429 F.2d 1083 (10th Cir. 1970); Moss v. Craven, 427 F.2d 139 (9th Cir. 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3rd Cir. 1970). Since petitioner admitted to the voluntary manslaughter offense on August 10, 1971, and our decision in Wright was rendered on June 19, 1972, the principle enunciated there is of no assistance to him.

Affirmed.

      . It might be argued that our decision in Cancino gave retroactive application to the rule set forth in 'Wright. In Cancino a panel of this court held that an evidentiary hearing must be conducted to determine, among other issues, whether the defendant was aware of the consequences of an admission to a prior offense entered in 1962. But since the Cancino court did not specifically discuss the issue of retroactivity, we feel that a decision on that issue, which is resolved today, was still open.

      . With regard to petitioner’s other contentions, the district court properly held that Bernath has failed to exhaust his state remedies because these contentions were not raised in the California courts. Guillory v. Wilson, 402 F.2d 34 (9th Cir. 1968). Petitioner points out that the government cannot raise the defense of failure to exhaust state remedies for the first time on appeal. Parker v. Comstock, 404 F.2d 746 (9th Cir. 1968). But the way in which petitioner has articulated his claim in the state courts, and then rearticulated that claim in this court, was sufficient to in effect change the substance of his argument. For example, petitioner originally argued in the federal district court that he was denied effective assistance of counsel based on allegations of a failure to challenge an illegal search, the admission of certain evidentiary testimony of his parole officer, and the alleged absence of a ruling on his motion to suppress the evidence in state court. The question of competency of counsel was never raised in state courts, and the district court properly declined to consider the issue. On appeal, however, he states each of these contentions as a separate legal argument. Because petitioner has so substantially restated his contentions as to effectively press a different argument, the respondent’s initial raising of the defense of failure to exhaust state remedies is a sufficient reply to petitioner’s arguments in this court.


text:
    Max ROBB, as Trustee of the Estate of Botany Industries, Inc., Bankrupt, Plaintiff-Appellee, v. NEW YORK JOINT BOARD, AMALGAMATED CLOTHING WORKERS OF AMERICA, Defendant-Appellant.
    Cal. No. 295, Docket 74-1688.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 22, 1974.
    Decided Dec. 3, 1974.
    Irving J. Alter, New York City (Szold, Brandwen, Meyers & Altman, Jacob Sheinkman, Arthur M. Goldberg, New York City, of counsel), for defendant-appellant.
    Alan B. Miller, New York City (Weil, Gotshal & Manges, Mark A. Jacoby, Robert A. Weiner, New York City, of counsel), for plaintiff-appellee.

      Before MOORE, OAKES and TIMBERS, Circuit Judges.
   PER CURIAM:

This case is presently before the court on the motion of the appellee Trustee to dismiss the appeal as moot. A brief summary of the facts is in order.

In 1966, the appellant New York Joint Board, Amalgamated Clothing Workers of America (“Joint Board”), entered into a collective bargaining agreement with Levinsohn Bros. & Co., Inc. (“Levinsohn”), a wholly-owned subsidiary of Botany Industries, Inc. (“Botany”). Based upon a report that Botany was intending to close down Levinsohn, in December 1970 the Joint Board sought arbitration and eventually received a favorable award in the nature of a declaratory judgment which detailed the parties’ rights and obligations under the terms of the collective bargaining agreement. Thereafter, Botany brought an action in the district court to vacate the arbitration award, and the Joint Board cross-moved for enforcement. The case was pending before the district court for nearly three years, and during this period Botany, together with its subsidiaries, filed a petition for an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq. (1970). On April 12, 1974 the district court rendered its decision, holding that the collective bargaining agreement was a “hot cargo” agreement in violation of section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e) (1970), and therefore vacating the arbitrator’s award. Botany Industries, Inc. v. New York Joint Board, 375 F.Supp. 485 (S.D. N.Y.1974). The Joint Board subsequently brought the appeal which is the subject of this motion.

The parties concede that the bankruptcy of Botany and the proceedings before the bankruptcy court in the Eastern District of Pennsylvania have made the arbitrator’s award unenforceable, both legally and practically. Nevertheless, the Joint Board insists that the appeal is not moot because the Joint Board has filed proof of claim for damages with the Trustee, alleging breach of the collective bargaining agreement. The decision of the district court, if allowed to stand unreviewed, will, in the view of the Joint Board, be given res judicata effect before the bankruptcy court, thereby foreclosing the claim for damages. In essence, the argument is that we must hear this appeal in order to avoid prejudicing the Joint Board in the bankruptcy proceedings.

The contention of the Joint Board does not rescue this case from mootness. The arbitration award can no longer be enforced. The sole remaining controversy between the parties is a claim for damages which was not before the district court. Given the course of developments with respect to Botany and Levinsohn, the damage claim is now a matter for the consideration by the bankruptcy court. We agree with the Joint Board, however, that the unreviewed decision of the district court should not have a binding effect before the bankruptcy court. This result can be avoided by vacation of the judgment of the district court. See United States v. Munsingwear, 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Wirtz v. Local 410, 366 F.2d 438, 442 (2d Cir. 1966).

Accordingly, the judgment of the district court is vacated and the ease remanded with instructions to dismiss it as moot.

      . We consider it neither necessary nor desirable to direct the district court to vacate the arbitration award. The arbitrator apparently did not consider the issue of the illegality of the collective bargaining contract as a “hot cargo” agreement. See 375 F.Supp. at 488 n. 3. Thus, vacating the decision of the district court will not have the effect of reinstating a directly contrary decision of the arbitrator. And since arbitration was the dispute-settling mechanism agreed upon by the parties, the decision of the arbitrator, insofar as it interprets the contract and details the rights and obligations of the parties, seems entitled to some consideration. In adjudicating the validity of the Joint Board’s claim for damages, therefore, the bankruptcy court should give the arbitration award such weight as may be appropriate under the circumstances.


author: PECK, Circuit Judge.

text:
    Frank Luther EVANS, Petitioner-Appellant, v. Henry E. COWAN, Warden, Kentucky State Prison, Respondent-Appellee.
    No. 74-1520.
    United States Court oí Appeals, Sixth Circuit.
    Dec. 5, 1974.
    Frank Luther Evans, pro se.
    Anthony M. Wilhoit, Public Defender, David E. Murrell, Deputy Public Defender, Frankfort, Ky., for petitioner-appellant.
    Ed W. Hancock, Atty. Gen. of Kentucky, Frankfort, Ky., Thomas E. Emerson, Asst. Atty. Gen., for respondentappellee.
    Before CELEBREZZE, PECK and MILLER, Circuit Judges.
   PECK, Circuit Judge.

Petitioner-appellant perfected this appeal from the denial of his petition for a writ of habeas corpus directed to his conviction at jury trial under a two-count indictment charging him with armed robbery and with being a habitual criminal. For the reasons hereinafter appearing, the judgment of the district court is reversed.

Appellant was indicted under Kentucky law for armed robbery and for being a habitual criminal because of four prior felony convictions (consisting of nine separate counts). Prior to trial, appellant moved that there be a bifurcated trial with the habitual criminal charge being tried separately from the charge of armed robbery. He also moved that no evidence of the prior convictions be admitted during the trial on the principal offense. The trial court denied both motions. Appellant then notified the court that he wished to make “a continuing objection to all evidence of his previous criminal record during the Commonwealth’s Proof in Chief.” During the course of the trial the state introduced evidence of appellant’s prior felony convictions. Appellant failed to request and the court did not of its own volition give an instruction admonishing the jury not to consider the evidence of prior convictions in determining guilt or innocence on the primary charge. Appellant did not take the stand.

Appellant challenges the constitutionality of the admission of evidence of prior felony convictions during the trial on the principal charge of armed robbery. He argues that he was prejudiced by the introduction of four previous convictions when the statute requires proof of no more than two. He further complains that no limiting instruction was given to the jury in connection with this evidence.

The Supreme Court of the United States has said that the constitutionality of the practice of inflicting more severe criminal penalties upon habitual offenders is no longer open to serious challenge. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). The Kentucky Court of Appeals has upheld the statute in question under various constitutional attacks. Wilson v. Commonwealth, 403 S.W.2d 705 (Ky.1966); Jones v. Commonwealth, 401 S.W.2d 68 (Ky.1966); Adamson v. Hoblitzell, 279 S.W.2d 759 (Ky.1955); Lovan v. Commonwealth, 261 Ky. 198, 87 S.W.2d 381 (1935). Furthermore, the habitual criminal issue may be combined with the trial of the felony charge even though it is a separate and distinct issue. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Stewart v. Commonwealth, 479 S.W.2d 23 (Ky. 1972). There is also authority for the proposition that any number of prior convictions may be admitted into evidence. United States ex rel. Bolish v. Maroney, 409 F.2d 1404, 1405 (3rd Cir.), cert. denied, 396 U.S. 893, 90 S.Ct. 187, 24 L.Ed.2d 168 (1969); McGill v. Commonwealth, 365 S.W.2d 470 (Ky. 1969).

In Spencer v. Texas, supra, the Supreme Court closely examined the Texas practice of informing the jury of the prior convictions before the determination of the primary charges and found that it necessarily resulted in prejudice to the defendant. However, the prejudicial effect was held to be “justified on the grounds that . . . the jury is expected to follow instructions in limiting this evidence to its proper function . . . 385 U.S. at 562, 87 S.Ct. at 653. Said instruction contemplates an admonition not to consider the previous convictions as evidence of guilt on the primary charge. This safeguard instruction doctrine is not a stranger to Kentucky law. Lynch v. Commonwealth, 472 S.W.2d 263, 266 (Ky.1971).

In the instant case the jury was not instructed on the permissible uses of the evidence of previous convictions. The state suggests that appellant’s failure to request a limiting instruction precludes him from raising this point on appeal. We do not agree. First, during pretrial proceedings appellant moved for a bifurcated trial to prevent the jury’s being prejudiced by evidence of his prior convictions, thus apprising the court of his contention. Secondly, appellant made a continuing objection to the admission of any such evidence during the trial. Finally, we are convinced that the possibility of egregious unfairness was so great in the absence of a limiting instruction that the failure to give one constituted clear error.

The Supreme Court made it clear in Spencer that the obvious .prejudice to defendant could be tolerated only where the jury was admonished by the trial court not to use the evidence of previous convictions in determining guilt or innocence on the primary charge. Further, in the circumstances presented by the record before us we hold that the trial court had the duty to give a limiting instruction even if the defendant had not requested one.

Appellant complains about certain statements made by the prosecuting attorney during final argument. In view of our decision on his first contention, however, we need not deal with the issues raised by this assignment of error.

In accordance with the foregoing, the judgment of the district court is reversed and the cause is remanded to the district court for remand to the Jefferson Circuit Court with instructions that petitioner-appellant be retried within sixty days from the date of such remand or released from custody.

      . Ky.Rev.Stat. 433.140 Armed robbery or burglary.
      “Any person who commits robbery or burglary or any act penalized by KRS 433.130, and in committing the act uses or displays any pistol, gun or other firearm or deadly weapon shall be punished by confinement in the penitentiary for not less than ten (10) years or for life, or by death.”

      . Ky.Rev.Stat. 431.190 Conviction of felony; punishment on second and third offenses.
      “Any person convicted a second time of felony shall be confined in the penitentiary not less than double the time of the sentence under the first conviction; if convicted a third time of felony, he shall be confined in the penitentiary during his life. Judgment in such cases shall not be given for the increased penalty unless the jury finds, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.”


text:
    Joseph Orby SMITH, Jr., Appellant, v. SECRETARY OF the NAVY, Appellee.
    No. 74-1386.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 14, 1974.
    Decided Nov. 20, 1974.
    Thomas M. Bradshaw, Asst. Federal Public Defender, Kansas City, Mo., for appellant.
    Frederick Griffin, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired, and WEBSTER, Circuit Judge.

       Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation.

   PER CURIAM.

Upon a careful consideration of the record and of the briefs and arguments of the parties, the Court has concluded that the judgment appealed from should be affirmed for the reasons stated in Judge Oliver’s well-reasoned memorandum opinion.

Although it is clear that Smith’s 1942 court martial conviction was for non-service connected offenses, under the reasoning of O’Callaghan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), retroactive relief upon this basis is not available. Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973). We are also of the opinion that the District Court correctly concluded that Smith must exhaust his administrative remedies under 10 U.S.C. § 869 before applying to the courts for relief on his claim of the lack of a knowing and intelligent waiver of counsel.

The judgment of the District Court dismissing the petition is hereby affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellant, v. Carl R. CARTER et al., Defendants-Appellees.
    No. 74-1150.
    United States Court of Appeals, Sixth Circuit.
    Nov. 21, 1974.
    Thomas F. Turley, Jr., U. S. Atty., Larry E. Parrish, Memphis, Tenn., for plaintiff-appellant.
    Edward G. Grogan, Frierson Graves, Jr., Michael F. Pleasants, John M. Heiskell, Wm. D. Evans, Jr., Memphis, Tenn., Lester Slott, Chicago, 111., for defendants-appellees.
    Before PECK and LIVELY, Circuit Judges, and CECIL, Senior Circuit Judge.
   PER CURIAM.

The government perfected this appeal from an order entered by the district court dismissing an indictment. Defendants-appellees were charged, on November 16, 1972, with the transportation of obscene movies in interstate commerce by means of a common carrier in violation of 18 U.S.C. § 1462 and with transportation of obscene movies in interstate commerce for the purpose of distribution in violation of 18 U.S.C. § 1465 and with conspiracy to violate the aforesaid statutes in violation of 18 U.S.C. § 371. The indictment contained eighty-seven substantive counts and one conspiracy count.

The district court dismissed the indictment- on the motion of defendants-appellees on the grounds that “the decisions of the Supreme Court of June, 1973, may not be ‘applied retroactively’ to conduct which occurred prior to those decisions,” and because the statutes under which the indictment was drawn required the application of the rejected “national standard” to the obscenity question.

The Supreme Court dismissed similar arguments in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), and this Court finds the positions advocated by defendants-appellees meritless. See Smith v. United States, 505 F.2d 824 (6th Cir., 1974).

The judgment of the district court is reversed and the cause is remanded for further proceedings consistent herewith.

      . Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973).