author: CRAVEN, Circuit Judge: WIDENER, Circuit Judge

text:
    Grosvenor BURNETT et al., Appellants, v. Lt. General John J. TOLSON, Commanding General of Fort Bragg, North Carolina, and Stanley R. Resor, as Secretary of the Army, Appellees.
    No. 72-1545.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 2, 1972.
    Decided Feb. 21, 1973.

      Widener, Circuit Judge, dissented and filed opinion.
    Prof. Walter E. Dellinger, III, Durham, N. C. (Charles F. Lambeth, Jr., Thomasville, N. C., on brief), for appellants.
    F. Stuart Clarke, Asst. U. S. Atty. (Warren H. Coolidge, U. S. Atty., on brief), for appellees.
    Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.
   CRAVEN, Circuit Judge:

Appellant Burnett and other members of an antiwar organization brought a class action in district court to enjoin the Commanding General of Fort Bragg Military Reservation from prohibiting distribution of certain leaflets on the base. Jurisdiction was alleged under 28 U.S.C. §§ 1331 and 1361. The district court dismissed the suit for lack of jurisdiction, holding that Burnett et al could not establish the $10,000 jurisdictional minimum required by § 1331 and that this was not an appropriate case for mandamus under § 1361. We reverse.

Burnett and other leaders of the United Citizens for Peace, a group seeking to bring about an end to the conflict in Vietnam, had previously sought permission from officials at Fort Bragg, North Carolina, to distribute various handbills in the public areas of the base. Burnett submitted two written requests for permission, together with sample leaflets, to the office of the Provost Marshal. These requests were denied after a determination by Lieutenant General John J. Tolson, pursuant to Fort Bragg Regulations Nos. 210-23 and 210-10, that distribution of the leaflets would constitute a “clear danger to the military loyalty, discipline, and morale of military personnel at Fort Bragg.”

The Complaint is grounded upon the first amendment and alleges an arbitrary denial of the fundamental first amendment right of speech and expression. It is urged upon us that we should ignore the $10,000 requirement contained in 28 U.S.C. § 1331 or judicially notice that freedom of speech is of great price and value sufficient to come within the pecuniary limitations of the statute. Much has been written on the subject, including, notably, Judge Medina’s expression of regret at what he considered to be an unfortunate gap in federal jurisdiction, Wolff v. Selective Service System, 372 F.2d 817, 826 (2d Cir. 1967), and Chief Judge Lumbard’s forecast that if the “case of a poor man who stands to lose nothing but his most precious personal liberties [by the] unconstitutional actions of the federal government” should ever come before the federal courts, the “old rule requiring the claimed deprivation be capable of monetary valuation would [not] long endure.” Fein v. Selective Service System, 430 F.2d 376, 385 (2d Cir. 1970) (Lumbard, C. J., dissenting).

Since we are persuaded that there is jurisdiction in the district court under 28 U.S.C. § 1361, we need not decide these questions, but we note that the last mention of the subject by the Supreme Court in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 ,L.Ed.2d 424, 432 (1972), is not favorable to Burnett’s contentions.

28 U.S.C. § 1361

Burnett places his alternative jurisdictional argument upon the federal mandamus provision, 28 U.S.C. § 1361, which provides:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

Mandamus is an ancient remedy, said to lie only to compel the fulfillment of a duty which is ministerial, plainly and positively ascertained, and free of doubt. Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364, 367 (10th Cir. 1966). These traditional requirements for invoking federal mandamus were concisely stated by the Fifth Circuit in Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969), at 773:

Generally speaking, before the writ of mandamus may properly issue three elements must coexist: (1) a clear right in the plaintiff to the relief sought; (2) a clear duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available.

Whether the purview of the common law writ of mandamus was broadened by the inclusion of the words “in the nature of” before the word “mandamus” in § 1361, or whether Congress meant only to make the writ available as at common law, we need not decide. For we think that however narrowly viewed mandamus may be, the allegations of the Complaint are sufficient to confer jurisdiction upon the district court.

Where military reservations are open to the public it is now clear that civilians have an unqualified right to enter such public areas and to exercise their constitutionally protected freedom of expression in these areas. Flower v. United States, 407 U.S. 197, 198-199, 92 5. Ct. 1842, 32 L.Ed.2d 653 (1972). In areas of a base open to the public,

the military has abandoned any claim that it has special interests in who walks, talks, or leaflets on the avenue. The base commandant can no more order petitioner off of this public street because he was distributing leaflets than could the city police order any leafleteer off of any public street. “[Sjtreets are natural and proper places for the dissemination of information and opinion.” “[0]ne who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion.” [citations omitted].

Id.

The Third Circuit recently characterized the Flower decision in Spock v. David, 469 F.2d 1047 (3d Cir. 1972).

[T]he [Supreme] Court made clear that the power of military authorities to restrict general access to a military-facility ... did not apply to those parts of the facility to which the public has been freely admitted.
The Federal Government exercises jurisdiction over the entire reservation [Fort Dix]. Its military policemen enforce traffic regulations and the criminal laws applicable to offenses on federal military reservations. But the fact of the exercise of such jurisdiction does not imply the power to selectively exclude persons solely on the ground of exercise of rights protected by the first amendment. If the reservation is open to all the rest of the public, there is no basis for holding that it may be closed, selectively, to political candidates or to distributors of unapproved literature.

Taking the allegations of the Complaint to be true, as we must on appeal from the granting of a motion to dismiss, it appears that Burnett and his class sought only to distribute handbills at places on the military reservation open to the public. It further appears that members of the civilian public are allowed to frequent certain areas of Fort Bragg without any restriction, and that these areas include the shopping center, the post exchange, the post office, and the motion picture theater. Indeed, we have previously had occasion to note that there are areas of Fort Bragg “completely open and unrestricted.” United States v. Bradley, 418 F.2d 688, 689 (4th Cir. 1969); Yahr v. Resor, 431 F.2d 690 (4th Cir. 1970). The allegations of the Complaint, therefore, establish a clear right in Burnett and his class to enter the public areas of Fort Bragg as leafleteers.

Plaintiffs have not sought access to restricted areas nor have they threatened to enter them without permission. There has not been interference with the use of “public” streets or sidewalks, and none is intended by Burnett and his class. Despite assurances by Burnett that distribution in public areas will be accomplished in such a manner as not to interfere with or disrupt military functions and activities, and that a distributing group of persons will not exceed five in number, the base commander, according to the Complaint, refused permission to distribute leaflets while arbitrarily and discriminatingly permitting others to make like distributions.

The government urges that mandamus will not lie here since the duty Burnett seeks to have fulfilled is not “ministerial.” It is argued that Regulation No. 210-10 vests the Commanding General with “discretion” — i.e., whether to allow Burnett and his class to enter the public areas of the base and distribute leaflets, it is asserted, is within the sound discretion of the commander. We disagree, and on the authority of Flower, supra, we hold that General Tolson is under a duty to allow the orderly expression of views in areas of Fort Bragg generally open to the public.

While we think the ministerial-discretionary dichotomy is not very helpful in analysis of the limitations on statutory mandamus, we are not presently confronted with a situation in which discretion is even involved. No officer of the United States, not even a base commander, may exercise his “discretion” to prevent leafletting in areas generally open to the public, Flower, supra, 407 U.S. at 198, 92 S.Ct. 1842, and certainly he may not pick and choose expressions of viewpoints that may be disseminated in such areas. United States v. Crowthers, 456 F.2d 1074, 1078 (4th Cir. 1972). Where the area of the base involved is one open to the public, the base commander has no discretion, but instead a ministerial duty to allow peaceful leaf-letting regardless of the views sought to be expressed.

The base commander may, of course, prohibit all distribution of handbills, leaflets, and fliers within areas of a military base that are not open to the general public. Also, he may enforce cosmetic regulations, even in places open to the public, so as to prohibit broadcasting or throwing away handbills and to require that discarded material be placed in receptacles. In short, the government may enforce reasonable regulations to prevent littering. What it may not do is to “favor one pamphlet and reject another because the latter displeases the official in charge” in areas that are open to the public. Crowthers, supra, at 1081.

Because we think there is (1) a clear right in the plaintiff to the relief sought, and (2) a clear duty on the part of the defendant to permit the activity sought, we now consider whether the third requirement of traditional mandamus is present: that there is no other adequate remedy available. See Carter, supra, 411 F.2d at 773.

We have previously expressed our doubt that there is jurisdiction under 28 U.S.C. § 1331 because of the difficulty with jurisdictional amount. We are unaware of any other statutory authority for supporting jurisdiction in the district court, and none has been suggested to us. That there might possibly be a “back door” entry into the federal court is not, we think, an available adequate remedy. In Spock, supra, 469 F.2d at 1051 it was suggested that the commander of the Fort Dix Military Reservation

. could have been sued in the state courts of New Jersey. He would undoubtedly have removed to the federal courts pursuant to 28 U.S.C. § 1442(a)(1), since the suit is for acts which were done under color of his federal office. In the removed action the jurisdictional amount requirement would have been inapplicable because § 1442 is a separate jurisdictional grant without regard to amount in controversy ....

We think it clear that assuming such a route to the federal court is available, it is not an adequate remedy within the meaning of the mandamus rule, for it rests not- upon the volition of the plaintiffs but upon the decision of the government to seek removal.

We hold that on the allegations of the Complaint in this case there is jurisdiction in the District Court under 28 U.S.C. § 1361 to try the case and to thereupon consider whether or not the plaintiffs may be entitled to a Writ of Mandamus, or an injunction, or a declaratory judgment, establishing their right to their freedom of expression in areas of Fort Bragg that are open to the general public. If the district court should determine that plaintiffs are entitled to relief it may, of course, confine relief to the allowing of leafletting at appropriate times -and places so as to assure that the activity will be peaceful and will not disrupt the organization and operation of the military establishment.

Reversed.

WIDENER, Circuit Judge

(dissenting) :

I must respectfully dissent.

On December 5, 1969 and December 18, 1969, plaintiffs, The Fort Bragg Leafletting Committee of the United Citizens for Peace, submitted identical requests to the Provost Marshal’s Office of Fort Bragg requesting permission “to distribute the attached leaflet” respectively on December 13, 1969 and January 30 or 31, 1970. The request stated “Distribution will be in public areas on a postwide basis, and will be accomplished in such a manner as not to interfere with or disrupt military functions and activities.” Plaintiffs stated in their application they would accomplish “proper police and cleanliness.” The leaflet contained remarks which, at least, must be considered uncomplimentary to the Army command and could not have helped troop morale. Among other things, the Commanding General was “of the opinion that each of the two proffered publications had as their only possible goals the undermining of military loyalty, discipline, and morale at Fort Bragg.”

In this setting, the Provost Marshal denied the requests on December 10 and December 23, 1969.

On January 2, 1970, plaintiffs sued the Commanding General and the Secretary of the Army, claiming jurisdiction under 28 U.S.C. §§ 1341, 1343, 1346 and 1361, and 42 U.S.C. § 1983, and the First and Fifth Amendments to the Constitution. The matter in controversy, exclusive of interest, was alleged to exceed the value of $10,000. The complaint stated the action is .brought “For a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2203, and for a preliminary and permanent injunction.” The prayer of the complaint prayed for a declaratory judgment pursuant to 28 U.S.C. § 2201, declaring the Fort Bragg regulations concerning distribution of literature to be unconstitutional; for an order declaring the plaintiffs to be constitutionally entitled to distribute leaflets “On those areas of Fort Bragg open to the public in the manner specified in the written requests;” and for a preliminary and permanent injunction enjoining the defendants from prohibiting the plaintiffs “from a peaceful distribution of leaflets to willing takers on those areas of Fort Bragg open to the public.” It is quite noteworthy that nowhere did the plaintiffs pray that the refused permit issue.

The defendants filed an answer which included motions to dismiss for lack of jurisdiction and failure to state a claim. They also filed an affidavit of the Commanding General at Fort Bragg explaining in some detail his reasons for refusing to issue the permit, the conclusions of which have been copied above.

The situation stood here when the district court granted the motion to dismiss on March 9, 1972 because it lacked jurisdiction over the subject matter under 28 U.S.C. §§ 1331 and 1361. The plaintiffs appealed.

28 U.S.C. § 1331(a), provides:

“The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.”

28 U.S.C. § 1361, provides:

“The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”

JURISDICTION UNDER § 1331(a)

The holding of the majority is that “We hold that on the allegations of the Complaint in this case there is jurisdiction in the District Court under 28 U.S. C. § 1361 to try the case and to thereupon consider whether or not the plaintiffs may be entitled to a Writ of Mandamus, or an injunction, or a declaratory judgment.” A footnote indicates that mandamus jurisdiction permits a flexibility in remedy.

Insofar as injunctive or declaratory relief is concerned, the most recent expression of the Supreme Court is that in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), where the court said:

“. . .in suits against federal officials for alleged deprivation of constitutional rights, it is necessary to satisfy the amount in controversy requirement for federal jurisdiction.” 405 U.S. 538, 547, 92 S.Ct. 1113, 1119.

Although the majority opinion here notes that Lynch is “not favorable to [plaintiffs’] contentions,” the holding is in direct contradiction to the expressed command of Lynch insofar as injunctive and declaratory relief is concerned. The majority opinion here overlooks the fact that conflicts between the various circuits have been settled by Lynch, as it does a very recent decision of this court, McGaw v. Farrow, 472 F.2d 952 (4th Cir. 1973), in which we held in a remarkably similar fact situation (a chapel) arising at Fort Eustis:

“There seems little doubt that this conclusion denying jurisdiction under Section 1331 was sound. Though a few decisions have held contrariwise, a like conclusion has been reached in a majority of decisions of Circuit Courts of Appeals. Whatever differences there may have previously been in these decisions would appear, however, to have been set at rest by the recent decision in Lynch. . . .” Id., at 954.

The opinion further holds that claims, such as the ones in McGaw and in the instant case, . . not measurable in ‘dollars and cents’ fail[s] to meet the jurisdictional test of amount-in controversy.” Id., at 954.

By refusing to use the measuring stick of Lynch, as construed by McGaw in this circuit less than a month ago, the majority, by invoking jurisdiction under 28 U.S.C. § 1361, actually will have the district court consider whether to give injunctive or declaratory relief under § 1331(a), which is expressly prohibited by Lynch and McGaw unless the amount in controversy test may be met.

JURISDICTION UNDER 28 U.S.C. § 1361

If my premise is correct that the district court was without jurisdiction under § 1331(a), the only avenue for relief for plaintiffs is by way of action “in the nature of mandamus” under § 1361.

The panel properly sets out three elements which must be met before mandamus may issue:

1. A clear right in the plaintiff to the relief sought.
2. A clear duty on the part of the defendant to do the act in question.
3. No other adequate remedy available.

These three elements must coexist. The existence of one is not sufficient, as the majority notes.

My principal objection to the reversal of the district court on this ground is that neither is there a clear right in the plaintiffs to the relief sought, nor is there a clear duty on the part of the defendants to do the act in question. The act in question, of course, is to issue the permit to distribute the leaflets, although such was not prayed for in the complaint.

When plaintiffs filed their suit, they modified the request which had been made to the Provost Marshal. The request which had been made to the Provost Marshal was to distribute the leaflets “in public areas on a postwide basis.” The complaint, in paragraph 5, mentions distribution of the leaflets “on the public areas of Fort Bragg.” It later, in paragraph 8, states that plaintiffs intend to confine their activities to “these public areas, which include the shopping center, the post exchange, the post office, and the motion picture thea-tre,” and that “members of the Civilian Public circulate in these areas of Fort Bragg without restrictions and of course are free to converse with off-duty servicemen.”

It thus appears that the permission sought in the request and the permission sought in the complaint are somewhat different. The generally accepted definition of public places, which I equate with public areas, is a place at which people assemble or to which they commonly resort for the purpose of business, amusement, recreation, or other lawful purpose. See 35 Words and Phrases, p. 433, et seq., and cases there cited. Of course, this would include banks, stores, theatres, dispensaries, hospitals, apartment and housing complexes, athletic fields, and all the thousand and one areas in which servicemen and their families live in which the Commanding General had allowed civilians to circulate in an effort to make military life somewhat less onerous for the numbers of servicemen stationed at Fort Bragg. We have here a case of all “public areas” in Fort Bragg, not only streets, sidewalks, and parks which have been historically associated with First Amendment rights. See Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972).

At the time the request was refused by the Provost Marshal, the applicable law with relation to the Post Commander’s obligation was stated in Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) as follows :

“It is well settled that a Post Commander can, under the authority conferred on him by statutes and regulations, in his discretion, exclude private persons and property therefrom, or admit them under such restrictions as he may prescribe in the interest of good order and military discipline.” [Emphasis added] 367 U.S. 886, 893, 81 S.Ct. 1743, 1748.

At the point, then, when the Provost Marshal denied the requests, in view of the affidavit submitted by the Commanding General, it was in his discretion whether or not to exclude the leaf-leteers from the base, it being obvious from the affidavit that in the opinion of the Commanding General such exclusion was necessary in the interest of good order and military discipline. The same state of law appertained at the time the district court dismissed the complaint March 9, 1972.

On June 12, 1972, the Supreme Court decided Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653. Flower decided that a street on Fort Sam Houston was a place upon which a base Commander could not prohibit distribution of literature without a permit. The court said:

“The base commandant can no more order petitioner off of this public street because he was distributing leaflets than could the city police order any leafleteer off of any public street. . . . ‘[S]treets are natural and proper places for the dissemination of information and opinion.’ . ‘[0]ne who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion.’” 407 U.S. 197, 198, 92 S.Ct. 1842, 1843.

The rationale of thus excluding streets from the rule of Cafeteria Workers v. McElroy was:

“Under such circumstances the military has abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue.” 407 U.S. 197, 198, 92 S.Ct. 1842, 1843.

The court did not exempt from the operation of the rule in Cafeteria Workers v. McElroy all places on a military base where civilians may circulate without restriction but only those places to which “the military has abandoned any claim that it has special interests in. . . .” 407 U.S. 197, 198, 92 S.Ct. 1842, 1843. The mere fact that the civilian public may circulate freely in some areas of Fort Bragg without restriction is no indication that the military has abandoned any claim to a special interest in such areas. The requests made and turned down by the Provost Marshal were much broader than the streets of Fort Bragg, or the areas of Fort Bragg in which the military had abandoned any special interest, as indeed was the complaint filed. Under such circumstances, at the time the request was made and at the time of the dismissal by the district court, the Commanding General was acting well within his discretionary authority in declining to issue the permit. Even under Flower, the request and the complaint seek permission to distribute leaflets in a much broader area than the narrow exception annunciated by Flower. In such a case, the discretion which should be exercised in the first instance should be that of the Commanding General and not that of the district court.

In United States v. Wilbur, 283 U.S. 414, 51 S.Ct. 502, 75 L.Ed. 1148 (1931), the court stated that mandamus will issue “. . . only where the duty to be performed is ministerial and the obligation to act peremptory and plainly defined. The law must not only authorize the demanded action, but require it; the duty must be clear and indisputable.” 283 U.S. 414, 420, 51 S.Ct. 502, 504.

In discussing what acts are ministerial and therefore subject to mandamus, the court said in Wilbur v. United States, 281 U.S. 206, 218, 50 S.Ct. 320, 324, 74 L.Ed. 809 (1930):

“Where the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command it is regarded as being so far ministerial that its performance may be compelled by mandamus, unless there be provision or implication to the contrary. But where the duty is not thus plainly prescribed, but depends upon a statute or statutes the construction or application of which is not free from doubt, it is regarded as involving the character of judgment or discretion which cannot be controlled by mandamus.” [Footnotes omitted] 281 U.S. at 218, 50 S.Ct. at 324.

Neither the request, then, nor the complaint states a case in the light of Cafeteria Workers v. McElroy as modified by Flower. The duty of the Commanding General to issue the permit is neither clear nor indisputable. Indeed, considering the broad scope of the application, declining to issue the permit was well within his discretionary authority.

Should plaintiffs’ application have been framed so as to place it within the narrow confines of Flower, perhaps we should have had another case, but there is no non-discretionary obligation on the part of the Commanding General to issue a permit when the permission sought is broader than that required by Flower, as was the case here. Neither was there any obligation on the part of the district court to fashion equitable relief upon an application for mandamus; indeed, it had no jurisdiction to so act in the premises. Mandamus commands a public official to perform his ministerial, non-discretionary duty. If the permit sought were within the duty prescribed, the Commanding General might have had an obligation to issue it. Since the permit sought was broader than the Commanding General’s non-discretionary obligation, the district court may not substitute its discretion for the Commanding General’s and assume equitable or declaratory jurisdiction of the matter contrary to the express commands of Lynch and McGaw.

Had this case been treated as a simple remand reciting the fact that Flower was not available to the district judge at the time of his decision, and requiring him to reconsider in the light of Flower should plaintiffs wish to amend their request, many of my reservations might be removed. I doubt we would hear of the matter again. The broad overtones of the majority opinion, however, and, indeed, its express command, as it directs consideration of injunctive and declaratory relief, in the face of, and contrary to, Lynch and McGaw, under the guise of mandamus jurisdiction, make if necessary that I express my views.

This is a clear case of federal courts extending the jurisdiction conferred on them by Congress. See McGaw, 472 F.2d at 954-957, for an excellent analysis of the question.

      . Fort Bragg Regulation No. 210-23 provides as follows:
      1. Purpose. The purpose of this directive is to establish policies for the control of the distribution of publications on this post.
      2. General Policy.

      a. The distribution of publications, including pamphlets, newspajters, magazines, handbills, flyers and other printed material on the Fort Bragg Military Reservation will not be made except through regularly established distribution outlets, under appropriate contractual agreements, or as required by law or regulation.
      b. The Installation Commander may grant exceptions to the policy contained in this paragraph. Applications for exceptions shall be submitted in writing to the Provost Marshal, this headquarters, at least seven days prior to the date of the proposed distribution describing the method of distribution proposed and including a copy of the publication or publications involved.
      3. Reference: AR 210-10.

      . Fort Bragg Regulation No. 210-10, K 5-5, f c provides as follows:
      If it appears that the dissemination of a publication presents a clear danger to the loyalty, discipline, or morale of troops at this installation, the installation commander may without prior approval of higher headquarters, delay the distribution of any publication which he considers undesirable, on property subject to his control.

      . See Cortright v. Resor, 325 F.Supp. 797, 809 (E.D.N.Y.1971), for a good collection of this literature. E. g., Note, Judicial Review of Military Surveillance of Civilians: Big Brother Wears Modern Army Green, 72 Colum.L.Rev. 1009, 1014-1018 (1972). We note that an act is now before Congress to abolish the $10,000 requirement in actions based upon a federally created right. Hearings on S. 1876 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm, on the Judiciary, 92d Cong., 1st Soss., pt. 1, at 1 (1971).

      . But see Spock v. David, 469 F.2d 1047 (3d Cir. 1972). Recent decisions on this subject conflict. For cases denying jurisdiction under § 1331 see, e. g., Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir. 1970); Giancana v. Johnson, 335 F.2d 366 (7th Cir. 1964). For cases upholding jurisdiction see, e. g., Fifth Ave. Peace Parade Comm. v. Hoover, 327 F.Supp. 238 (S.D.N.Y.1971); Cortright v. Rosor, 325 F.Supp. 797 (E.D.N.Y.1971); Murray v. Vaughn, 300 F.Supp. 688 (D.R.I.1969). See Note, Judicial Review of Military Surveillance of Civilians: Big Brother Wears Modern Army Green, 72 Colum.L.Rev. 1009, 1019-1022, 1051-1054 (1972).

      . E. g., Carey v. Local Board No. 2, Hartford, Conn., 297 F.Supp. 252, n. 3 (D.Conn.), aff’d, 412 F.2d 71 (2d Cir. 1969). See generally 3 K. Davis, Administrative Law Treaties § 23.09 (Supp. 1965). When Congress was considering the enactment of 28 U.S.C. § 1361, it was the recommendation of the Department of Justice that the statute include the word “ministerial” before the word duty. The suggestion was not accepted by Congress. The omission may be significant.

      . E. g., Massachusetts v. Connor, 248 F.Supp. 656, 659 (D.Mass.), aff’d, 366 F.2d 778 (1st Cir. 1966).

      . On remand it -will be for the district court, of course, to determine what areas of Fort Bragg are open to the public in the Blower sense. Our recitation of the allegations of the complaint is that only.

      . To accept the government’s contention that General Tolson’s duty here was “discretionary” rather than “ministerial” does not necessarily resolve the question of the availability of mandamus. It is not easy to tell what the cases mean. For example, in Cortright v. Resor, 325 F.Supp. 797 (E.D.N.Y.1971), the government did not even challenge the district judge’s holding that there was mandamus jurisdiction under 28 U.S.C. § 1361 to review the order of the commanding general transferring soldiers to different stations — certainly a matter ordinarily within his discretion. Again, the Second Circuit, in United States ex rel Sehon-brun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968), recognized that although mandamus jurisdiction was not available to direct the exercise of discretion, “official conduct may have gone so far beyond any rational exercise of discretion as to call for mandamus even when the action is within the letter of the authority granted.” In Feliciano v. Laird, 426 F.2d 424 (2d Cir. 1970), it was held that the failure of the Army to follow its own regulations was enough to support the writ of mandamus and that the disapproval of an application for a hardship discharge was arbitrary and irrational rather than within the discretion of the military authority. In Nixon v. Secretary of Navy, 422 F.2d 934, 939 (2d Cir. 1970), it was said as to the military, “there are certain limitations to this ‘hands-off’ policy, and official military conduct may go so far beyond the limits of what may be considered a rational exercise of discretion as to call for mandamus.”
      Long before the enactment of the present statute, Chief Justice Taft spoke to the ministerial-discretionary dichotomy:
      Mandamus issues to compel an officer to perform a purely ministerial duty. It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He cannot transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. The power of the court to intervene, if at all, thus depends upon what statutory discretion he lias.
      Work v. United States ex rel. Rives, 207 U.S. 175, 177, 45 S.Ct. 252, 09 L.Ed. 561 (1925).
      Compare the excerpt from Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narc., 409 F.2d 718, 723, (2d Cir. 1969), rev’d on other grounds, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) :
      Few more unseemly sights for a democratic: country operating under a system of limited governmental power can be imagined than the specter of its courts standing powerless to prevent a clear transgression by the government of a constitutional right of a person with standing to assert it.

        See also: Dash v. Commanding General, 307 F.Supp. 849 (D.S.C.1969), aff’d, 429 F.2d 427 (4th Cir. 1970) (mandamus jurisdiction apparently assumed); Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970) (mandamus available against a district judge to prevent prior restraint of first amendment freedom of speech); Yahr v. Resor, 431 F.2d 690 (4th Cir. 1970) (mandamus jurisdiction apparently assumed); Murray v. Vaughn, 300 F.Supp. 688 (D.R.I.1969).

      . It is far from certain that such a suit could be maintained in a state court. See e. g., Alabama v. Rogers, 187 F.Supp. 848 (M.D.Ala.), aff’d mem., 285 F.2d 430 (5th Cir. 1961). See also Arnold, The Power of State Courts to Enjoin Federal Officers, 73 Yale L.J. 1385 (1964); Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345 (1930).

      . Mandamus jurisdiction under 28 U.S.C. § 1361 permits flexibility in remedy. Davis, supra note 5.


source: Caselaw Access Project

author: WIDENER, Circuit Judge:

license: Public Domain

text:
    Ernest Carl WALKER, Appellant, v. Ira M. COINER, Warden, West Virginia State Penitentiary, Appellee.
    No. 14759.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 31, 1972.
    Decided Feb. 21, 1973.
    Certiorari Dismissed June 25, 1973.
    See 93 S.Ct. 3072.

      James H. McCauley (Court-appointed counsel), Belpre, Ohio, for appellant.
    Richard E. Hardison, Asst. Atty. Gen. (Chauncey H. Browning, Jr., Atty. Gen., Willard A. Sullivan, Asst. Atty. Gen., on brief), for appellee.
    Before WINTER, RUSSELL and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

The facts in this case are not in dispute. Appellant, Ernest Carl Walker, was indicted for armed robbery of the Public Finance Company in Charleston, West Virginia. On January 9, 1969, appellant was returned from the State of Florida to West Virginia for trial. Upon execution of a pauper’s affidavit, counsel was appointed to represent him.

On June 9, 1969, appellant appeared with his counsel, asked the trial court’s leave to file, and subsequently did file, a verified motion to quash the indictment and moved the court for an order authorizing the taking of the deposition of S. Dow Walker of Florida and authorizing reasonable expenses for such deposition. Appellant stated by affidavit that the Florida witness was necessary to corroborate his alibi defense. By order dated August 19, 1969, the trial court overruled the motion to quash and the motion to depose, at state’s expense, the Florida witness.

Following a not guilty plea, appellant was found guilty in a trial by jury and sentenced to a term of forty years in the West Virginia State Penitentiary.

This appeal presents the following questions:

I. Was appellant denied effective assistance of counsel by the absence of his court appointed attorney at a hearing on the motion to quash the indictment?

II. Was appellant denied effective assistance of counsel by the trial court’s refusal to provide funds for court-appointed counsel’s use in interviewing and deposing appellant’s non-resident alibi witness?

III. Was appellant denied due process by the prosecution’s closing argument remark that the court could put appellant on probation ?

I.

Appellant’s first contention is without merit for the simple reason that the record shows that there was no hearing upon his motion to quash the indictment. In his brief, counsel for appellant states the following:

“ . . . the record indicates that Appellant and his counsel jointly appeared before the trial court on June 9, 1969 and tendered and filed a verified motion to quash the indictment, and that the State was granted a period of time within which to reply thereto. It further appears that the State’s reply was filed June 23, 1969. An August 19, 1969 court order overruled the motion to quash. Apparently, no formal hearing was conducted by the Court, but it appears that the trial court considered and disposed of the motion to quash after both Counsel for Appellant and the State were given an opportunity to present their views on the motion.” [Emphasis added.]

Since there was no hearing, there was no place for appellant’s attorney to be present. There is no constitutional requirement that a court have a formal hearing to announce a ruling on a written motion. We note that appellant’s attorney presented this question on appeal pursuant to appellant’s direction.

II.

Appellant’s second point, that he was denied effective assistance of counsel because the trial court would not order the taking, at state’s expense, of the deposition of a non-resident witness, presents the most serious part of this appeal. Counsel’s argument of the issue is somewhat novel in that he raises the question as one of effective assistance of counsel as well as equal protection of the law. However, for reasons which follow, we find it unnecessary to reach the issue in either form.

Appellant attacks the validity of § 62-3-1 of the West Virginia Code, which provides, in pertinent part, as follows:

“If any witness for the accused be a nonresident of the State, or absent therefrom in any service or employment, so that service of a subpoena cannot be had upon him in this State . . . the accused may present to the court ... an affidavit showing such facts, and stating therein what he expects to prove by any such witness, his name, residence, or place of service or employment; and if such court or judge be of the opinion that the evidence of any such witness ... is necessary and material to the defense of the accused on his trial, an order may be made by such court or judge for the taking of the deposition of any such witness upon such notice to the prosecuting attorney . . . and in such order the court or judge may authorize the employment of counsel, practicing at or near the place where the deposition is to be taken, to cross-examine the witness on behalf of the State, the reasonable expense whereof shall be paid out of the treasury of the State.”

The Supreme Court of Appeals of West Virginia has construed this statute so as not to authorize or require payment of public funds upon the motion of an accused to take the deposition of a nonresident witness. State v. Davis, 153 W.Va. 742, 172 S.E.2d 569 (1970). Appellant contends that because the statute would allow a defendant who could afford it an out of state deposition for his defense, yet deny the same to an indigent defendant, it is unconstitutional. It is, however, unnecessary to reach this question, because an alternative means of securing the attendance of appellant’s alibi witness was readily available.

Prior to 1931, there existed no means by which a state court could compel the attendance of a witness from outside the state. Cf. Minder v. Georgia, 183 U.S. 559, 22 S.Ct. 224, 46 L.Ed. 328 (1901); Annot., 44 A.L.R.2d 732; Comment, 29 Wash. & Lee L.Rev. 383 (1972). To remedy this situation, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Cases. (Amended in 1936 as “Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings.”) At least forty-five states have adopted the act, including the jurisdictions involved in this case. Fla. Stat.Ann. § 942.01; West Va.Code Ann. § 62-6A-1; Vol. 9, Uniform Laws Ann.; 29 Wash. & L.Rev. 383.

The act applies in each of two states which have adopted it such as Florida and West Virginia. To utilize the statute, an application is made to the judge of the court in which the prosecution is pending. If the judge finds that the requested witness is material, he issues a certificate so stating. The certificate is then presented to a judge of a court of record in the county in which the witness is found. That judge then issues a summons for the witness to appear and holds a hearing to determine if the witness is material and necessary. If he so finds, he issues an order directing the witness to attend and testify in the court where the prosecution is pending. The witness then must attend after being tendered the specified statutory fee or else be subject to punishment as if he had violated a summons to appear before a court of record in his own state. Concerning payment, the uniform act expressly provides:

“If the witness is summoned to attend and testify in this State he shall be tendered the sum of ten cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and five dollars for each day that he is required to travel and attend as a witness.”

The statute is silent as to when the payment must be made or who must make it. The act contains another payment provision which is worded slightly differently. “If the witness, who is summoned as above provided, after being paid or tendered by some properly authorized person the sum of ten cents a mile, etc., . . . fails to attend he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.” It is apparent that someone in the requesting state must furnish funds to tender the witness the statutory fee. The tender is obviously made through the authorities in the state where the witness is found. In any event, before the witness can be compelled to attend, the statutory fee must be tendered. The statutory question of the source of the money for the fee has not been judicially commented upon in West Virginia. There are several cases as collected in the note in 44 A.L.R.2d 732 arising from other jurisdictions which have decided that the act does not require the state to pay the expenses. See State v. Hemmenway, 80 S.D. 153, 120 N.W.2d 561; State v. Blount, 200 Or. 35, 264 P.2d 419 (1953); State v. Swenson, 243 Minn. 24, 66 N.W.2d 1 (1954); Vore v. State, 158 Neb. 222, 63 N.W.2d 141 (1954); State v. Fouquette, 67 Nev. 505, 221 P.2d 404, cert. den. 341 U.S. 932, 71 S.Ct. 799, 95 L.Ed. 1361 (1950). But see Preston v. Blackledge, 332 F.Supp. 681 (E.D.N.C.1971). However, we are advised in a supplemental memorandum by the Attorney General that it is the custom and practice in West Virginia, in the case of an indigent defendant who desires to secure a non-resident witness, for the County Court of the particular county in which the defendant is to be tried to tender the money to the witness. The County Court is then reimbursed by the State Auditor out of what is known as the Criminal Charges Fund. A readily available method existed whereby appellant could have secured his witness which was not more onerous than the basis for invoking the statute to take the deposition of the absent witness. Accordingly, we see no need to unnecessarily question the validity of the West Virginia statute authorizing depositions from non-resident witnesses and are of opinion there is no merit to appellant’s second contention in the posture presented to us in this appeal.

III.

Appellant’s third contention, that he was denied due process of law because of a remark made by the prosecutor, arises from the following facts: During closing argument to the jury, defense counsel stated that appellant had already spent ten or eleven months in jail. In rebuttal, the prosecution stated by way of explanation that there had been a lot of continuances for which the defendant was responsible and that sentencing was for the court anyway. The exact language was:

“And it is not up to you all to determine the amount of punishment if this man is found guilty. That is up to the Court, he can put him on probation if he wants, or send him to the penitentiary; but that is the court’s job.”

No objection was made by defense counsel and there was no request for a curative instruction. Defense counsel invited the remarks in his closing argument, and the objection now comes rather late to warrant serious consideration. In any event, we agree with the district court’s determination that, while the statement may have been an inaccurate portrayal of state law, the remark had the effect of reminding the jury that sentencing is for the judge, not the jury. The error, if it be such at all, was purely one of state law not rising to constitutional dimensions cognizable at this stage of review. Grundler v. North Carolina, 283 F.2d 798 (4th Cir. 1960).

For the foregoing reasons, the opinion of the district court is Affirmed.


author: BIGGS, Circuit Judge.

text:
    Lawrence ROTHBLUM et al. v. BOARD OF TRUSTEES OF the COLLEGE OF MEDICINE & DENTISTRY OF NEW JERSEY et al. Appeal of Lawrence Rothblum et al.
    No. 71-2049.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 30, 1972.
    Decided Feb. 22, 1973.
    As Amended March 13, 1973.

      Jerry N. Friedland, Barr, Kaplus & Friedland, East Orange, N. J., for appellants.
    George F. Kugler, Jr., John P. Sheridan, Deputy Atty. Gen., Trenton, N. J., for appellees.
    Before BIGGS, KALODNER and ADAMS, Circuit Judges.
   OPINION OF THE COURT

BIGGS, Circuit Judge.

Rothblum and Gilbard and “John Doe”, plaintiffs-appellants, allegedly citizens of New York and of the United States and federal taxpayers, filed an amended complaint (complaint) requesting the convening of a three-judge district court pursuant to 28 U.S.C. § 2281 et seq., and seeking to have certain alleged discriminatory admission practices of the New Jersey College of Medicine and Dentistry (College) declared to be unconstitutional. They seek their admission to the College and allege they were denied admittance to the College solely because of their foreign citizenship in violation of Article IV, Section 2(1), Article I, Section 8(1), and the Equal Protection Clause. The amendment to the complaint was for the purpose of creating a class action. On June 18, 1971 a rule to show cause was issued by a single district judge as to why the relief sought should not be granted to the plaintiffs. On June 25, June 30, and July 6, 1971, hearings were had before the district court. These hearings seem to have been devoted to the issues of whether or not a preliminary injunction should issue and whether or not a three judge district court should be convened pursuant to 28 U.S.C. §§ 2281 and 2284.

The essential allegations of the complaint which are supported by proof are as follows: “3. The Defendant Board of Trustees of the College of Medicine & Dentistry of New Jersey is the governing body of the Defendant College of Medicine of Dentistry of New Jersey and pursuant to N.J.S.A. 18A:64G — 3 and 4 is vested with the government control, conduct, management and administration of Defendant College.

“Defendant Dr. Stanley S. Bergen, Jr., is the President of Defendant College and pursuant to N.J.S.A. 18A:64G-11 is responsible to the Defendant Board of Trustees and has the power of executive management and conduct of the Defendant College in all departments, branches and divisions, and for the execution and enforcement of the bylaws, rules, regulations and orders governing the management, conduct and administration of the Defendant College; This Defendant is sued in his official capacity.

“Defendant College of Medicine & Dentistry of New Jersey is an establishment in the Department of Higher Education of the State of New Jersey for the operation of a program of medical and dental education, created under N. J.S.A. 18A:64G-1 to 3, and is hereinafter referred to as ‘The Medical School’.

“Defendant Dr. Arthur J. Kahn is Dean of Admissions of the College of Medicine of New Jersey, and has general supervisory authority over admissions to the Defendant medical school, and is sued in his official capacity.

“4. The Court has jurisdiction over the parties hereto and of the subject matter of the Complaint, and as will fully appear from the facts hereinafter set forth, a justiciable issue is raised which entitles the Plaintiffs, inter alia, to a declaratory judgment under United States Code, Title 28, Section 2201 as to the validity of the State policy hereinafter put in issue.

* * * * * *

“6. Defendant ‘medical school’ is and has been the recipient of vast sums I® of federal funds collected by the Government of the United States under its taxing power (Article I, Section 8(1)) and disbursed by the Government of the United States pursuant to legislation (42 U.S.C. 290, et seq.) passed under the authority to expend money for the general welfare (Article I, Section 8(1)) and to promote the Progress of Science (Article I, Section 8(8)). Upon information and belief, without the said federal funds, it would have been and would presently be economically impossible for the Defendant ‘medical school’ to perform its statutory functions under N.J. S.A. 18A:64G.

“7. Federal support of state and private health programs and functions issue from a comprehensive federal funding and health promotion plan outlined and authorized by 42 U.S.C., Section 290 et seq. Educational fund allocation provisions and fund use regulations and conditions comprising a massive health spending program are contained in 42 U.S.C., Section 292 — -Section 298c-8. This Congressional undertaking clearly reflects a federal recognition of the national character of problems like public health, health care, and medical education.

“8. The Defendants enumerated hereinabove have established and have implemented a policy of admission to the Defendant ‘medical school’ whereby applicants who are citizens of the State of New Jersey are given preference to equally qualified or more qualified applicants who are citizens of other States.”

The amended complaint prays for in-junctive relief against the College authorities’ preferential admission policy and seeks to have the plaintiffs admitted to the College.

Rothblum and Gilbard applied for entrance into the freshman class of the College and sought to commence their studies on or about September 1971. Doe sought admission to the College with the class entering in September 1972. As we have said, all allege they were denied admission solely because they were not citizens of the State of New Jersey. At the hearings on the substantiality of the federal question involved, evidence was given by Dr. Arthur Kahn that the plaintiffs were refused admission because their marks were of such poor quality as not to warrant their entrance into the freshman class. It is interesting to note that at no time did Dr. Kahn categorically deny that New Jersey citizens seeking admission to the College were given preference. In fact, counsel for the College made such a concession.

The District Judge held in his letter memorandum of September 9, 1971 to counsel as follows:

“The only witness to testify at the hearing was Dr. Arthur Kahn, Dean of Student Affairs and Admissions. He stated that the admissions procedures of the College were established by an admissions committee composed of faculty members and students. Applicants to the College for the scholastic year commencing in 1971 were required to furnish the committee with a transcript of their undergraduate grades, two references and the scores of their Medical College Admissions Tests. Those applicants with high undergraduate cumulative averages (A, A— B + ) were given personal interviews. Those applicants with favorable interviews were accepted into the College. Then, applicants with lower undergraduate cumulative averages (B, B —) were interviewed and either accepted or rejected.
“As a result of this procedure approximately 300-350 interviews were conducted and 225 acceptances were awarded for 110 places in the freshman class. Twenty seven non-New Jersey citizens received acceptances.
“Dr. Kahn admitted that as a result of oral communications from Chancellor of Education and the President and Dean of the College, New Jersey citizens were given preference over foreign citizens with the same cumulative averages. But he also testified that no applicant with a B— or C+ average was awarded an acceptance, and that applicants with averages of C+ or lower were not even afforded an interview.
“Both plaintiffs had cumulative averages of no better than C+ and consequently were not interviewed by the committee. Thus, defendants contend that (1) the College’s preference for New Jersey citizens played no part in plaintiffs’ rejection by the committee; (2) had plaintiffs been citizens of New Jersey they would have been similarly rejected and, therefore, (3) plaintiffs lack standing to challenge the alleged discriminatory procedures.”

This is the basis of the district court decision and none other is asserted. Plaintiffs contend that a three-judge district court was required under 28 U. S.C. § 2281, and therefore the single district judge did not have authority to dismiss for lack of standing or go beyond the allegations of the complaint to decide this question. Secondly they argue that even if the district court did not exceed its authority, the court erred in its determination that the plaintiffs lacked standing. For reasons discussed hereinafter, we find both these contentions to be without merit.

Section 2281 is of deceptively simple nature. It has been said that the rules of review of whether a three-judge court is needed “are so complicated as to be virtually beyond belief.” Wright, Law of Federal Courts, Hornbook Series, 2d ed., Ch. 8, Section 50, and Sardino v. Federal Reserve Bank of New York, 361 F.2d 106, 114 (2 Cir. 1966), cert. denied, 385 U.S. 898, 87 S.Ct. 203, 17 L.Ed.2d 130 (1966). The characterization of the statute just quoted is a large understatement. It appears to be the law that a three-judge court must be constituted if a substantial constitutional question is presented by the complaint. Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933): “The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint.” Poresky also teaches us that the claim is insubstantial if “it is obviously without merit” or its unsoundness is disclosed by previous decisions, probably of the Supreme Court. See Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 716, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Gong v. Kirk, 375 F.2d 728, 729 (5 Cir. 1967); Cf. Oldroyd v. Kugler, 461 F.2d 535, 540 (3 Cir. 1972). Cf. Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36. From the face of the amended complaint it would appear that, however casual the language, there is a policy in effect in the College granting preferential admissions to citizens of New Jersey. A substantial constitutional issue, therefore, was before the district court, accepting literally the plaintiffs’ allegations.

There are, however, other important considerations. A three-judge court “is required where the challenged statute or regulation, albeit created or authorized by a state legislature, has statewide application or effectuates a statewide policy. But a single judge, not a three-judge court, must hear the case where the statute or regulation is of only local import. Moody v. Flowers, 387 U.S. 97 [87 S.Ct. 1544, 18 L.Ed.2d 643] (1967); Rorick v. Board of Commissioners, 307 U.S. 208 [59 S.Ct. 808, 83 L.Ed. 1242] (1939); Ex Parte Public National Bank, 278 U.S. 101 [49 S.Ct. 43, 73 L.Ed. 202] (1928); Ex Parte Collins, 277 U.S. 565 [48 S.Ct. 585, 72 L.Ed. 990] (1928). This rule achieved the congressional purpose of saving statewide regulatory legislation from invalidation through ordinary federal court equity suits, minimized the burden which the three-judge court places upon the federal judiciary and avoided unduly expanding the [Supreme] Court’s carefully limited appellate jurisdiction. Phillips v. United States, 312 U.S. 246, 250 [61 S.Ct. 480, 85 L.Ed. 800] (1941).” Board of Regents of University of Texas System v. New Left Education Project, 404 U.S. 541, 542-543, 92 S.Ct. 652, 653, 30 L. Ed.2d 697 (1972).

In Regents, swpra, it was held that a suit to enjoin the enforcement of rules governing the distribution of certain kinds of literature, promulgated by the Board of Regents of the University of Texas System, was not one which required a three-judge district court since the rules applied to “but three of the 23 four-year state colleges and universities listed in the Higher Education Coordinating Act of 1965 [Texas Civ.Stat. Ann.], Art. 291(e)-2, § 2 (Supp.1970). In addition . . ., Texas ha[d] at least 31 public junior colleges which [were] not within the University of Texas system. ... It [was] therefore apparent that the Regents’ rulemaking power and the rules at issue in this litigation extend [ed] to but a fraction of the campuses in the Texas System of higher public education.” 404 U.S. at 543-544, 92 S.Ct. at 654. The Supreme Court therefore dismissed the appeal as one over which it had no jurisdiction. See 28 U.S.C. § 1253. Mr. Justice White stated: “These [Regents’] rules can scarcely be described as matters of statewide concern or expressions of a statewide policy when a large percentage of Texas colleges and universities are unaffected by them and could not be affected by any pronouncement that a federal court might make on their constitutionality. There is no suggestion or indication of any kind that the Regent’s rules are similar to those for other schools or are required by or express statewide policy.” See, Regents, at 544, 92 S.Ct. at 654, and n. 2 cited to the text.

In the case at bar a somewhat similar educational situation exists, albeit on a lesser scale than that of Texas. Rutgers University is the hub of New Jersey higher education. See N.J.S.A. 18A:65-3, providing for a state college for the benefit of agriculture and mechanic arts, The College of Arts and Sciences, the School of Business Administration, Douglass College, Paterson College, the Graduate School of Social Work, and the School of Law. It is provided that the Board of Governors shall have general supervision over and be vested with the conduct of the university and shall have the authority and responsibility, inter alia, to determine policies for the organization, administration and development of the university. N.J.S.A. 18A:65-25. See also, N.J.S.A. 18A:65-26. The specific statute creating the College of Medicine and Dentistry is set out below. It will be observed that the College has a separate Board of Trustees, N.J.S. 18A:64G-4, unrelated to the other separate institutions of higher learning governed by Title 18A such as the School of Law or the College of Arts and Sciences. There is no suggestion or indication in the complaint or in the record that the policy challenged here exists at the other state schools or represents general state policy. The complaint does not even allege a rule-making power vested in the Trustees. The allegation is simply that the defendants have implemented a policy of admission for this one college preferring citizens of New Jersey tó non-citizens. During the course of the hearings before the district court, counsel for the defendants stated that there was preferential treatment and that there was “some statement in one of the Board of Trustees’ minutes” that deals with the problem of preferential admissions.

We have stated that whether a three-judge court should be appointed pursuant to § 2281 depended upon the allegations of the complaint and if a substantial constitutional issue was presented, a three-judge court should be appointed. The law as laid down by the Supreme Court in the Regents case is binding upon us and, of course, upon the court below, and the allegations of the complaint must be viewed in the light of this law. The various provisions of Title 18A of the New Jersey statutes to which we have referred are also to be considered as part of the law of the case and were before the district court and must be deemed also to be completely relevant to the complaint. If the law of Regents be applicable here to render the “policy” of the Trustees of the College a local concern, then it was for the single judge to hear the case.

We are mindful of the fact that the College is the only medical and dental school in New Jersey created by New Jersey statute. But we think that Regents indicates that we should consider this one institution as only a small part of the entire New Jersey scheme of higher public education for purposes of determining whether the policy in question is “statewide.” In Regents, it is apparent that medical and other specialized schools were so regarded. Therefore, as was the case in Regents, the policy here may not be said to be a matter of statewide concern or statewide policy when a large percentage of New Jersey’s public institutions of higher education are unaffected by it and could not be affected by any pronouncement which a federal court might make on its constitutionality. In short, this policy, “applying only to some of the higher educational institutions of the State, [is] of limited significance and [does] not partake of the quality and dignity of those state statutes or policies that three-judge, courts were designed to consider.” 404 U.S. at 545, 92 S.Ct. at 655. There can be no “improvident state-wide doom by a federal court” of a state’s policy in the case at bar. Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941) (Emphasis added).

Since we hold that this was not a proper case for the convening of a three-judge district court, we need not reach the issue of whether in a ease requiring three judges a single judge can consider matters outside the allegations of the complaint in deciding a plaintiff’s standing. We therefore proceed to the plaintiffs’ final contention, that the court below erred in its determination that the plaintiffs lacked standing.

The district court determined that the plaintiffs lacked standing to challenge the alleged discriminatory policy on the basis of uncontroverted evidence that such policy played no part in the rejection of their applications for admission. We agree. “[A] person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation,” as the Supreme Court stated in Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1953). See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). It is the fact of injury to the complainants, not to others, which justifies judicial intervention. See McCabe v. Atchison, Topeka and Santa Fe Railway Company, 235 U.S. 151, 162-164, 35 S.Ct. 69, 59 L.Ed. 169 (1914).

In addition, the plaintiffs’ assertion of standing as federal taxpayers under Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), is inapposite. Plaintiffs have not alleged the unconstitutionality of an exercise of congressional power under the taxing and spending clause of Art. I., § 8 of the Constitution, as was the case in Flast. The challenge here is to the policy of a recipient of federal tax dollars and not the federal funding plan itself, 42 U.S.C. § 290 et seq. Thus there is lacking the “logical link between that status [as taxpayers] and the type of legislative enactment attacked.” Flast v. Cohen, supra, at 102, 88 S.Ct. at 1954.

Nor can the present suit continue as a class action. Since Rothblum and Gilbard lack standing to sue on their own behalf, “[t]hey cannot represent a class of whom they are not a part.” Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 550, 7 L.Ed.2d 512 (1962). See also Thaxton v. Vaughan, 321 F.2d 474 (4 Cir. 1963); DiJulio v. Digicon, Inc., 339 F.Supp. 1284 (D.Md. 1972).

The judgment of the district court will be affirmed.

      . Article IV, Section 2(1) provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

      . Article I, Section 8(1) provides in pertinent part: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the Common Defence and general Welfare of the U.S.....”

      . Amendment XIV, Section 1, provides in pertinent part: “Xo state shall . deny to any person within its jurisdiction the equal protection of the laws.”

      . Judge Whipple’s original order is not clear. It states: “ [T] he court having considered the verified complaint and application for temporary relief and memorandum and argument in support of this order to show cause, and the court having determined that immediate and irreparable injury will result to plaintiffs if the relief requested in the complaint is not granted, said relief including the admittance of jjlaintiffs to the freshman class. . . . ” (Emphasis added.) The balance of the order, however, in pertinent part treats the finding of the first paragraph quoted as subject to the rule to show cause.

      . 28 U.S.C. § 2281 reads as follows: “An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.”

      . Local U. #300, Amalgamated Meat Cutters and Butcher Workmen of North America v. McCullough, 428 F.2d 396 (5 Cir. 1970).

      . N.J.S.A. 18A :64G-1 to 4 provides:
      “18A:64G-1. Short title. This act shall be known and cited as the ‘Medical and Dental Education Act of 1970.’
      “ISA :64-G-2. Findings and declaration. The Legislature and Governor of the State of New Jersey hereby find that the establishment and operation of a program of medical and dental education is in the best interest of the State to provide greater numbers of trained medical personnel to assist in the staffing of the hospitals and public institutions and .agencies of the State and to prepare greater numbers of students for the general practice of medicine and dentistry, and find, declare and affirm, as a matter of public policy of the State, that it is the responsibility of the State to provide funds necessary to establish and operate such programs of education, in the most economical and efficient manner, and that, in furtherance of such policy, the school of medicine heretofore established by Rutgers, The State University (hereinafter called the ‘Rutgers Medical School’) and the New Jersey College of Medicine, and Dentistry shall be combined into a single entity to bo known as the College of Medicine and Dentistry of New Jersey.
      “18A :G4G-3. Establishment of College of Medicine and Dentistry. There is hereby established in the Department of Higher Education the ‘College of Medicine and Dentistry of New Jersey.’ The exercise by the college of the powers conferred by this act in the presentation and operation of a program of medical and dental education shall be deemed to be public and essential governmental functions necessary for the welfare of the State and the people of New Jersey.
      “18A :64G-4. Board of Trustees, a. The government, control, conduct, management and administration of the college shall be vested in the board of trustees of the college. The membership of the board of trustees shall consist of the Chancellor of the Department of Higher Education and the Commissioner of Health, who shall serve ex officio, without vote, and 11 voting members, each of whom shall be appointed by the Governor, with the advice and consent of the Senate, for a term of 3 years and shall serve until his successor is appointed and has qualified; except that, of the first appointments hereunder, four shall be for terms expiring Juno 30, 1971, four for terms expiring June 30, 1972, and three for terms expiring June 30, 1973. The term of each of the first appointees hereunder shall be designated by the Governor. Any vacancies in the voting membership o£ the board occurring- other than by expiration of term shall be filled in the same manner as the original appointment but for the unexpired term only. Each voting member of the board of trustees before entering upon his duties shall take and subscribe an oath to perform the duties of his office faithfully, impartially and justly to the best of his ability. A record of such oath shall be filed in the office of the Secretary of State. Each voting member of the board may be removed from office by the Governor, for cause, after a public hearing.
      “b. The members of the board of trustees shall meet at the call of the Governor for purposes of organizing. The board shall thereafter meet at such times and places as it shall designate.
      “c. The Governor shall designate one of the voting members as chairman of the board. The board shall select such other officers from among its members as shall be deemed necessary.
      “d. The board shall have the power to appoint and regulate the duties, functions, powers and procedures of committees, standing or special, from its members and such advisory committees or bodies, as it may deem necessary or conducive to the efficient management and operation of the college, consistent with this act and other applicable statutes.”

      . See Minutes, Board of Trustees, College of Medicine and Dentistry of New Jersey, Jan. 7, 1971, p. 5: “Tuition and out of state students: It was agreed that the Board would not recommend any change in the current tuition and fees charged students of the college. Following discussion of the current situation, it was also agreed that no rigid limitation should be established on the proportion of out-of-state students admitted to the College, but that informal guidelines should be established by the admission officers at each center on this matter.”
      It should be made clear that the College of Medicine and Dentistry of New Jersey is an autonomous institution run by its own trustees.
      It is also interesting to note that the College includes four schools: The Graduate School of Biomedical Sciences, Newark; New Jersey Dental School, Jersey City; New Jersey Medical School, Newark, and Rutgers Medical School, Pis-cataway.

      . The Regents case was not decided at the time Judge Whipple entered the judgment appealed from here.

      . See Regents, 404 U.S. at 543, 92 S.Ct. at 654, as follows: “It is true that the Board of Regents governs numerous medical and other specialized schools and branches, [Texas Civ.Stat.Ann.] Arts. 2603 e-i, 2606 b-d, but these are only-some of the specialized institutions which Texas denominates as agencies of higher education.”

      . The record is clear that both Rothblum and Gilbnrd were rejected solely for their C-plus averages and significantly poor records in science courses. Transcript of Hearings on June 30, 1971 and July 6, 1971, pp. 33-39. The policy of preference was only relevant as to residents and nonresidents witli approximately equal academic records.
      We have received an affidavit with accompanying letters (the latter being largely illegible) relating to the out-of-state student who was accepted desjnte his inferior academic records and standing. We conclude that, assuming the contents of the affidavit contained in Supplemental Record No. 2 are true and correct, nonetheless we do not deem this to be sufficient to set aside the judgment of the trial court on what is an obvious issue of fact.

      . The addition of “John Doe” as a party-plaintiff does not aid Rothblum and Gil-bard. “John Doe” came first into English law as the fictitious plaintiff in the action of ejectment. See Bouvier’s Law Dictionary, Rawle’s 3rd Revision. We cannot deem the name “John Doe” to be a pseudonym in the instant case. Cf. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). We deem “John Doe” in the instant case to be a fictitious person and conclude therefore that there can be no justiciable controversy between him and the appellees under the circumstances at bar.

      . Simple inquiry would have informed counsel for the plaintiffs that the New Jersey College of Medicine was the recipient of a federal grant of $23,494,170.-00 for a new facility. Construction Grants Administered by the Division of Physician & Health Professions Education (U.S. Dept, of Health, Education & Welfare, 1971).


author: INGRAHAM, Circuit Judge:

text:
    Rogelio GUTIERREZ, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellant.
    No. 72-3570
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 1, 1973.
    Rehearing Denied May 10, 1973.

      Crawford Martin, Atty. Gen., Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.
    Rogelio Gutierrez, Servanndo Gonzalez, McAllen, Tex. (Court-Appointed), for petitioner-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   INGRAHAM, Circuit Judge:

Rogelio Gutierrez is a prisoner of the State of Texas, having been convicted of assault with intent to murder without malice. Upon proof of two prior felony convictions, his sentence was enhanced to life imprisonment under Art. 63 of the Texas Penal Code. Asserting that the prior convictions were constitutionally infirm under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and thus inadmissible for enhancement, Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), Gutierrez has sought relief in the state, Gutierrez v. State, 456 S.W.2d 84 (Tex.Cr.App.1970), and federal courts.

On direct appeal of the assault case, Gutierrez v. State, supra, the Texas Court of Criminal Appeals held Gutierrez bound by the record entries of the prior convictions — that he had appeared in person and by counsel. In state ha-beas corpus proceedings, Gutierrez was unable to secure a hearing, the last •being denied by the Texas Court of Criminal Appeals without written order. Having exhausted available state remedies, Gutierrez petitioned the Federal district court for habeas corpus relief.

The district court, faced with allegations of a state’s use of assertedly unconstitutional convictions for the enhancement of a conviction and without the benefit of an adequate state court hearing, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), properly put the state to its burden of defending the prior enhancing convictions. Craig v. Beto, 458 F.2d 1131 (5th Cir., 1972); Reed v. Henderson, 463 F.2d 485, 487, at note 2 (5th Cir., 1972). A minute entry alone is insufficient to prove previous representation by counsel or the waiver thereof. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); Dulin v. Henderson, 448 F.2d 1238 (5th Cir., 1971).

An evidentiary hearing was held which produced testimony that Gutierrez’s pri- or convictions had both resulted from his counseled pleas of guilty. Counsel appointed for the habeas corpus hearing, however, developed a constitutional infirmity in the prior convictions. The testimony and record entries of the two pri- or convictions do not disclose an appearance by counsel at sentencing, nor were either of his two attorneys able after so many years to recall whether they had in fact been present at the imposition of the respective sentences. Gutierrez, however, testified, with familial corroboration, that he had stood sentencing unrepresented.

Despite the probabilities against Gutierrez’s having twice been unrepresented at separate sentencings, the district court held the ambiguous record sufficient to establish that Gutierrez had in fact been unrepresented at the allocution of sentence. Relying on Burgett, supra; Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1947), the district court reasoned that a lack of counsel at sentencing (whose presence is required by Mempa, supra) invalidated a record of conviction such that it could not be used for enhancement. Accordingly, it held the enhanced sentence invalid and on the authority of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), ordered Gutierrez resenteneed without recourse to the two prior felony convictions. The State of Texas appeals.

On appeal the state argues that the use of prior convictions does not taint the jury’s imposition of life imprisonment because the prior sentences at issue were the result of plea bargains. A plea bargain, the state asserts, removes from the state sentencing judge any discretion, thereby rendering the imposition of sentence a ministerial act at which counsel is not required. Williams v. Beto, 354 F.2d 698 (5th Cir., 1965); Fairris v. Beto, 446 F.2d 1290 (5th Cir., 1971). The district court correctly replied to this argument:

“Although recognizing that sentencing is a critical .stage of all criminal proceedings, the Fifth Circuit Court of Appeals has held that if the sentencing of a defendant is a mere ministerial act, that the absence of counsel at the sentencing does not require reversal of the conviction. Williams v. Beto, 354 F.2d 698 (CA5, 1965). The Honorable Judge Carl 0. Bue, Jr. of this District, in an opinion that was affirmed and adopted by the Court of Appeals, held that the Mempa decision was not controlling in a case in which a jury had set the term to be served and the defendant was not represented by counsel at sentencing. Fairris v. Beto, 446 F.2d 1290 (CA5, 1971). The sentencing being one of a merely mechanical nature, the Court stated that the petitioner had failed to show how he was prejudiced by the lack of counsel. It is to be noted that Judge Bue specifically refrained from deciding the issue of whether counsel was required at sentencing, due to the mechanical nature of the sentencing in the particular case.
“It would appear that this case is of a different nature as regards sentencing. Certainly the sentencing process in the burglary and robbery causes herein may not be characterized as ministerial. The Judge was endowed with ample leeway in assessing the sentences, regardless of any bargain between the defendant’s attorney and the prosecutor. Tex.Pen.Code Ann.,

Arts. 1397, 1408 (1953); Tex.Code Crim.P.Ann., Art. 42.12 (1966).”

We need only add the sad commentary based on the number of appeals to this court which assert that plea bargains have not been kept; e. g., Hilliard v. Beto, 465 F.2d 829 (5th Cir., 1972), rehearing en banc granted December 1, 1972; Gallegos v. United States, 466 F.2d 740 (5th Cir., 1972), rehearing en banc granted December 1, 1972. Experience has demonstratéd that a plea bargain does not render imposition of sentence into a ministerial act for application of the Williams or Fairris cases. The state’s argument also fails to discern the distinction between cases directly reviewing sentences obtained •without counsel at sentencing and cases challenging the use of those convictions for enhancement. See text and note 2, infra.

Given the ambiguous record of representation presented the district court, it properly found that the sentences imposed in the two enhancing convictions were invalid. Burgett v. Texas, supra; Mempa v. Rhay, supra; Townsend v. Burke, supra. The court then, however, took a quantum leap by holding the sentencing deficiencies invalidated the. record of the underlying convictions when used for enhancement. The leap was unwarranted and we reverse.

Sentencing, like other pretrial and trial proceedings, is a critical stage in the criminal process at which counsel is required, Mempa v. Rhay, supra; Townsend v. Burke, supra, but the defect is not one which goes to the validity of a judgment of conviction. Rather it is one which goes to the sentence imposed. United States v. Tucker, supra. A reading of the Supreme Court’s opinions on the Sixth Amendment right to counsel, culminating in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), makes it clear that the integrity of the fact finding determination of guilt is at issue. Thus, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Court rejected the notion that counsel was not required in a capital case and said:

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.” 287 U.S. at 68-69, 53 S.Ct. at 64.

Then in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the Court declared:

“[The Sixth Amendment] embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is [re] presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer — to the untrained layman — may appear intricate, complex and mysterious.” 304 U.S. at 462-463, 58 S.Ct. at 1022.

Expanding the right of counsel to indigent state defendants, the Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), proclaimed :

“[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” 372 U.S., at 344, 83 S.Ct. at 796.

Applying the right to counsel to a juvenile proceeding in which incarceration was a possibility, the Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1966), stated:

“ * * * A proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’” 387 U.S. at 36, 87 S.Ct. at 1448.

Affording another form of retroactivity to Gideon by proscribing the use of invalid convictions for enhancement, the Court in Burgett held:

“Still another is illustrated by Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. In that case we held that a transcript of a preliminary hearing had to be excluded from a state criminal trial because the defendant had no lawyer at that hearing, and did not, therefore, have the opportunity to cross-examine the principal witness against him who since that time had left the State. The exclusionary rule that we fashioned was designed to protect the privilege of confrontation guaranteed by the Sixth Amendment and made applicable to the States by the Fourteenth.
“The same result must follow here. Gideon v. Wainwright established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. And that ruling was not limited to prospective applications. See Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41. In this case the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.” 389 U.S. at 114-115, 88 S.Ct. at 262.

See also, Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); and Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955).

The underlying principle of the need for counsel carries through the time of sentencing as is shown by the Supreme Court’s decision in United States v. Tucker, supra:

“In Burgett we said that ‘[t]o permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case.” 404 U.S. at 449, 92 S.Ct. at 593.

The Court’s subsequent holding in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), makes it even more evident that it is the reliability of the counsel-less guilt determination and not the length of sentence which is the significant factor to the resolution of our case.

“The Tucker case involved only that aspect of Burgett that prohibits the use of invalid prior convictions to ‘enhance punishment.’ The case now before us involves the use of such convictions ‘to support guilt.’ For the issue of innocence or guilt in this case turned entirely on whether the jury would believe the testimony of an 8-year-old girl or that of Loper. And the sole purpose for which the prior convictions were permitted to be used was to destroy the credibility of Lo-per’s testimony in the eyes of the jury.
“Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant’s credibility deprives him of due process of law. We can put the matter no better than in the words of the Court of Appeals for the First Circuit:
“ ‘We conclude that the Burgett rule against use of uncounseled convictions “to prove guilt” was intended to prohibit their use “to impeach credibility,” for the obvious purpose and likely effect of impeaching the defendant’s credibility is to imply, if not prove, guilt. Even if such prohibition was not originally contemplated, we fail to discern any distinction which would allow such invalid convictions to be used to impeach credibility. The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt.’ Gilday v. Scafati, 428 F.2d 1027, 1029.” 405 U.S. at 482-483, 92 S.Ct. at 1018-1019.

Compare Worts v. Dutton, 395 F.2d 341, 344-345 (5th Cir., 1968), and Martin v. United States, 182 F.2d 225 (5th Cir., 1950).

Mempa v. Rhay, supra, and Townsend v. Burke, supra, upon which the district court relied, while together requiring the presence of counsel at sentencing, do so to protect rights significant to that phase of the proceeding and not to the previous determination of guilt. Mempa v. Rhay, supra, 389 U.S. at 135, 88 S.Ct. 254; Worts v. Dutton, supra; Martin v. United States, supra. Nor does McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968) require a different result.

While the district court noted that on rare occasion information obtained after conviction but before sentencing, when presented at sentencing, has induced a trial court to vacate an adjudication of guilt or impose a lenient sentence, those considerations support the conclusion that counsel at sentencing is fundamental and do not necessitate striking every record of conviction when used for enhancement in which sentencing occurred without counsel.

Unlike Burgett or Tucker the guilt of Gutierrez in the enhancing convictions was determined in proceedings which were not constitutionally infirm; nor is it asserted that the conviction for assault is constitutionally infirm. The imposition of sentence in the two enhancing proceedings has been found to have been infirm for lack of counsel, but those sentences are not themselves before us. Any attack on the enhancing convictions must be collateral. Craig v. Beto, supra. Thus, we look not at the length of the sentences imposed in the prior convictions, but to the fact of the convictions and their constitutional validity. We hold that prior felony sentences which could be subject to attack for failure of counsel to appear at sentencing do not nullify the fact of the underlying conviction when used for enhancement. United States v. Tucker, supra. Indeed, the language of Texas’s habitual criminal statute, Art. 63, Texas Penal Code, looks only to the fact of prior convictions:

“Whoever shall have been three times convicted of a felony less than capital shall on the third conviction be imprisoned for life in the penitentiary.”

See Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).

The judgment of the district court ordering that Gutierrez be resentenced without regard to the enhancing convictions is vacated and the cause remanded for further proceedings not inconsistent herewith.

Vacated and remanded

      . “Finally, in each of the three areas in which we have applied our rule retrospectively so the principle that we applied
      “20. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, supra, the appeal which was denied because of lack of funds was ‘an integral part of the [State’s] trial system for finally adjudicating the guilt or innocence of a defendant.’ [1 At IS.] At 18 of 351 U.S., 76 S.Ct. at 590. Precluding an appeal because of inability to pay was analogized to denying the poor a fair trial. In Gideon v. Wainwright, supra, we recognized a fundamental fact that a layman, no matter how intelligent, could not possibly further his claims of innocence and violation of previously declared rights adequately. Because of this the judgment lacked reliability. In Jackson v. Denno, supra, the holding went to the basis of fair hearing and trial because the procedural apparatus never assured the defendant a fair determination of voluntariness. In addition, Mr. Justice White expressed grave doubts regarding the ability of the jury to disregard a confession found to be involuntary if the question of guilt was uncertain.”
      went to the fairness of the trial — the very integrity of the fact-finding process.” 381 U.S. at 639, 85 S.Ct. at 1743.

      . We must be careful to distinguish Gutierrez, a situation where lack of counsel at prior sentencings infect a proceeding in which they are used for enhancement of a present sentence, from cases which directly review an infirm sentence, Martin v. United States, 182 F.2d 225 (5th Cir., 1950); Ex parte Vestal, 468 S.W.2d 372 (Tex.Cr.App., 1971), or in which a prisoner is prejudiced by the imposition of sentence under a statute other than the one defining the offense. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).


author: PER CURIAM:

text:
    Bobby Jerl GARZA, Petitioner-Appellant, v. STATE OF TEXAS, Respondent-Appellee.
    No. 72-3169.
    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1973.
    Joy Vandervort, Houston, Tex. (Court Appointed), for petitioner-appellant.
    Crawford Martin, Atty. Gen., Austin, Tex., for respondent-appellee.
    Before BELL, DYER and CLARK, Circuit Judges.
   ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The opinion of this court dated January 12, 1973 is withdrawn and the following opinion is adopted as the opinion of the court.

Bóbby Jerl Garza appeals from the denial of habeas corpus relief by the district court of the Southern District of Texas. After holding an evidentiary hearing, the district court concluded that (1) Garza’s contention that he was illegally arrested and searched was without merit, (2) Garza voluntarily and intelligently consented to the search of a particular apartment, and (3) the state court’s charge to the jury on the definition of “possess” presented no grounds for federal habeas relief. We affirm the decision of the trial court on these points.

Garza additionally argues that he is entitled to credit toward the service of his sentence for the time he spent in actual custody prior to the imposition of his sentence, a period of some eight months. At the evidentiary hearing below he testified that the state trial judge allowed him credit for the time spent in presen-tence custody under the Texas statute vesting such discretion in the sentencing judge, but that he was not aware of anything on the record to verify this fact. Finally, Garza alleges that there was an error in the calculation of his jail time pending appeal of approximately three months.

Garza’s contentions as to pre and postsentence jail time credit are both presently based on the assertion of constitutional issues. Nevertheless, under the circumstances present here each of them must be presented to the Texas courts before the federal judiciary may intervene. Petitioner argues that recourse to the Texas courts will be futile as to his constitutional claim for presentence jail time credit, but we do not reach this issue because he must exhaust his claim that the state trial judge actually gave him credit for his preconviction jail time and that it has been denied to him due to clerical error, a contention which could wholly obviate the need for a constitutional decision. Likewise, the fact that Garza has not sought available relief in the appropriate state forum for correction of the alleged error in the calculation of his postsentencing jail time credit bars the federal habeas forum from reaching that issue. The trial judge was correct in concluding that Garza was required to exhaust his state remedies on both contentions.

The order appealed from is in all respects

Affirmed.

      . Vernon’s Ann.Tex.Code Crim.Pro. art. 42.03 (Supp.1972).