author:
HASTIE, Circuit Judge.
      ADAMS, Circuit Judge

text:
    UNITED STATES of America ex rel. Sidney J. CLARK, Appellant, v. Raymond W. ANDERSON.
    No. 73-1327.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 11, 1973.
    Decided June 13, 1974.
    Adams, Circuit Judge, dissented and filed opinion.
    Paul P. Welsh, Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for appellant.
    Francis A. Reardon, Deputy Atty. Gen., Dept, of Justice, Wilmington, Del., for appellee.
    Before HASTIE, Van DUSEN and ADAMS, Circuit Judges.
   OPINION OF THE COURT

HASTIE, Circuit Judge.

Sidney Clark, a state prisoner, has taken this appeal from the district court’s denial of his petition for habeas corpus under 28 U.S.C. § 2254, following exhaustion of state remedies, to vacate two state convictions. Clark was sentenced to five years imprisonment on each conviction. Apparently, the sentences are running concurrently.

Two constitutional questions are presented: (1) Whether Delaware denied the accused constitutionally adequate notice that his conduct violated a criminal statute and (2) whether pretrial publicity precluded a fair trial. Satisfied that the record justifies the district court’s decision on the pre-trial publicity issue, we confine our discussion to the constitutional requirement of notice.

A grand jury indicted Sidney Clark in two bills which charged violations of 50 Del.Laws Ch. 299, 11 Del.C. § 635 (1955), an embezzlement statute. The legislature had enacted that section in 1955 to replace former 11 Del.C. §§ 635, 637-639, 641-643. In order to effect that desired substitution, the legislature repealed §§ 637-639, 641-643, and “amended” § 635 by striking all of its former language and inserting the newly desired language as a new § 635.

That new section provided as follows: “Whoever embezzles money or other property which may be the subject of larceny, to the value of [One Hundred Dollars] $100.00 or more ... is guilty of a felony . . . .” Clark, a lawyer, was charged with misappropriating funds of a client that had been entrusted to him.

Clark moved to dismiss the indictment, contending that new § 635 was unconstitutionally vague for failure to define the term “embezzles” and that there was no common law definition for this purely statutory crime. The Delaware trial court agreed that new § 635 was void for vagueness, but did not dismiss the indictments. Instead, the judge held that, under established state law, where a subsequent statute “amends” former statutory language, but in an unconstitutional fashion, then the earlier statute is revived if such a revival is consistent with the legislative purpose. Then, because he thought that the Delaware legislature surely intended to prohibit and punish the misappropriation of a client’s funds, he deemed it more consistent with that intent to revive the old § 635 and to require, as he did, that prosecution proceed under it.

The state sought to appeal this interlocutory order, but the Delaware Supreme Court held itself without jurisdiction to decide the point at that stage. State v. Clark, Del.1970, 270 A.2d 371. The Court suggested that the state appeal the questioned ruling, if necessary, when the proceedings below were final.

Following Clark’s trials and convictions the Delaware Supreme Court affirmed, Clark v. State, Del.1972, 287 A.2d 660, and the United States Supreme Court denied certiorari, 409 U.S. 812, 93 S.Ct. 139, 34 L.Ed.2d 67. The Delaware Court rejected Clark’s contention that trial and conviction under a conceptually revived statute after a preliminary ruling invalidating the predecessor statute under which the accused had been indicted, denied due process under the doctrine of Bouie v. City of Columbia, 1964, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894. The court held that the revival doctrine served adequate notice that if new § 635 were ruled unconstitutional old § 635 would be effective. The state had not cross-appealed from the determination that new § 635 was unconstitutional.

It is in this context that we consider the narrow question whether the notice requirement of the due process clause permits a state, after ruling one of its criminal statutes overly vague, to apply that statute’s superseded predecessor to the defendant in the very case which ruled the successor statute unconstitutional. We hold that this was not constitutionally permissible. Our analysis follows.

The alleged offense occurred and the accused was indicted at a time when, pursuant to legislative enactment, the State of Delaware had published and was holding out the new § 635 as its only proscription of such misconduct as the indictment charged. Delaware long ago recognized that embezzlement is not a crime at common law. State v. Brewington, 1910, 25 Del. 71, 78 A. 402. By force of the unreversed holding of the trial court, it is the rule of Clark’s prosecution that new § 635 is void for vagueness. And by definition, an unconstitutionally vague statute is one that fails to give fair notice that particular conduct is proscribed by the state. See United States v. Harriss, 1954, 347 U.S. 612, 617; 74 S.Ct. 808, 98 L.Ed. 989; Connally v. General Construction Co., 1926, 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322. Thus, Delaware’s own interpretation of new § 635 and its rejection of that section as a statutory basis for Clark’s prosecution cause us to hold that new § 635 did not provide constitutionally adequate notice. Cf. Bouie v. City of Columbia, supra.

It follows that this conviction can be upheld only if the old § 635, the super-cession of which had been legislatively declared and publicly announced, could continue to serve as notice of the criminality of Clark’s conduct. To reach that conclusion, one would have to reason, first, that the new § 635 on its face gave adequate public notice of its own invalidity and, second, that the public, thus informed, was then put on further notice that the officially announced statutory repeal or supercession of old § 635 was legally ineffective.

In our view such reasoning is too tortured and too far removed from reality to satisfy the due process requirement that, at the time of an alleged offense, the accused shall have been on notice that his conduct was proscribed by the state’s criminal law. Indeed, we are unable to surmount the first hurdle: that the new § 635 could serve as notice of its own invalidity. And without that notice there could be no occasion to consider old § 635 as possibly relevant.

The Supreme Court of Delaware was confronted with an analogous problem in State v. Dickerson, Del.1972, 298 A.2d 761. The controversy in that case arose as a result of Furman v. Georgia, 1972, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, which restricted the procedures which a state might use to impose the death sentence. Delaware’s first-degree murder statute provided for only the death penalty, but a separate act, called the Mercy Statute, allowed a judge, at the discretionary recommendation of the jury, to impose life imprisonment. While Dickerson was awaiting trial, the trial judge certified to the Delaware Supreme Court the question of Furman’s effect on Delaware’s sentencing scheme. That court held that Furman had made the Mercy Statute unconstitutional, leaving the Delaware penalty for murder at mandatory execution. However, in the court’s view, application of the mandatory execution provision could not be made to Dickerson himself, for at the time of his illegal conduct the Delaware community was not on notice that, for a first-degree conviction, capital punishment was mandatory.

Had the Court adopted in Dickerson’s case the analysis which is now used to sustain the present conviction, it would have reasoned that Dickerson was on notice at the time of the homicide that the Mercy Statute might be found unconstitutional and, in that event, he would risk a mandatory death sentence under the separate first degree statute. Indeed, in one respect, that analysis would have been easier there than here because it would not have required reviving any superceded legislation. We think that Delaware’s refusal to find fair notice of the mandatory death penalty in Dickerson was correct and that it points to a similar result as to notice of the revival of old § 635 here.

In addition, in this ease the State of Delaware is in no position to argue that new § 635 gave adequate notice of its own invalidity. For the state strongly urged in opposition to the motion to quash the indictment that the new statute was valid. Indeed, it took the above mentioned abortive interlocutory appeal from the ruling of invalidity, although on Clark’s appeal from his conviction the state did not see fit to present this issue. An even more striking indication that new § 635 gives no notice of its own invalidity is the fact that at least one judge of the Delaware Superior Court has held, after and contrary to the ruling at Clark’s trial, that the new section is valid.

The dissenting opinion eschews this analysis. However, because it approaches our problem in a different way, it is difficult to bring our disagreement into sharp focus. It seems to place reliance upon the general Delaware doctrine concerning possible “revival” of an antecedent statute as principal justification for the conclusion that Delaware gave the public adequate notice that old § 635 retained vitality. We have pointed out that one can reach this conclusion only by positing adequate public notice, contrary to the state’s own representation, of the infirmity of new § 635. But beyond that, the Delaware revival concept does not mandate automatic revival of the antecedent statute, as the dissent seems to assume. Rather, the Delaware revival doctrine is that, after finding an invoked statute invalid, a Delaware .court is empowered to decide as a separate and additional question whether or not the statute’s predecessor should be revived. Under the prior Delaware cases, which the Delaware court followed here, the judge is required to decide for or against revival by exercising his judgment as to which course the legislature would prefer.

Thus, in our view, the position of the dissenting opinion can be maintained only if the public had adequate notice both that new § 635 was likely to be invalidated and that a judge would then choose to disinter old § 635 rather than letting it rest in peace. Such speculative anticipation of a series of future judicial rulings is not the stuff out of which adequate notice can be fashioned.

The foregoing reasoning also suggests that the reliance of the dissent upon such cases as Chaplinsky v. New Hampshire, 1942, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, is misplaced. In Chaplin-sky, restrictive reading of a prohibitory statute was necessary to prevent it from infringing First Amendment rights. The highest court of the state had given the statute restrictive interpretation before Chaplinsky’s alleged violation. And the statute, as theretofore authoritatively construed, clearly prohibited Chaplin-sky’s conduct. As concerns fair notice, the Chaplinsky decision shows, at most, that the public may reasonably be charged with notice not only of the language of a statute but also of prior judicial determination of its meaning. In contrast, at the time of Clark’s misconduct the Delaware courts had not even intimated that new § 635 was invalid, much less decided whether in that event, they would choose to revive old § 635.

We recognize that the invalidation of this conviction will cause the release of a prisoner who must have been aware that the use of his client’s funds for his own purposes — though he may have intended to restore what he took — was morally wrong and professionally reprehensible. But the state’s decision in this case that new § 635 is too vague to inform the public what it prohibits, has created a situation in which we cannot square this conviction with an essential procedural requirement of due process of law. Moreover, this is not a case in which a wrongdoer escapes severe punishment. The appellant has been disbarred, disgraced and imprisoned for more than a year, and his release will not change that.

The judgment will be reversed and the district court directed to grant a writ of habeas corpus.

ADAMS, Circuit Judge

(dissenting):

I join that portion of the majority’s opinion affirming the district court’s rejection of Clark’s contention relating to allegedly prejudicial pretrial publicity, but respectfully dissent from that aspect sustaining Clark's due process objections to the Delaware practice of reinstating an “amended” statute once a successor statute has been declared invalid.

The factual and legal situation giving rise to this appeal is not complicated. Clark was indicted for alleged violations of 50 Del.Laws Ch. 299, 11 Del.C. § 635 (1955), which in essence made it unlawful “[to embezzle] money or other property.” Clark, an attorney and one-time municipal court judge, was accused of misappropriating funds belonging to clients for whom he had secured substantial recoveries for personal injuries. On Clark's motion to dismiss the indictments, the Delaware trial court agreed with Clark’s contention that the term “embezzles,” by itself, in section 635 of the 1955 Act was an unconstitutionally vague definition of the substantive offense. Instead of dismissing the indictments, however, the trial court followed established Delaware law and considered as “revived” the statute that section 635 “amended,” or, in effect, replaced. The constitutionality of the revived statute has not been previously questioned and is not questioned here. Rather, only its applicability to Clark is here in issue.

Clark asserted that the Delaware practice of reviving statutes which, although styled “amended,” have in effect been interred, or at least held in abeyance, by subsequent legislation deprived him of fair warning of the conduct proscribed by the legislature. Clark’s contention was rejected by the state courts, and also was spurned by the district court when it dismissed Clark’s petition for habeas corpus.

The majority, however, reverses the judgment of the district court, and in so doing also repudiates the conclusion of the state courts. While expressly disavowing any implication that Clark was unaware that his activities were wrongful when he made off with the clients’ funds, the majority, nevertheless, holds that “the notice requirement of the due process clause [does not permit] a state, after ruling one of its criminal statutes overly vague, to apply that statute’s superseded predecessor to the defendant in the very case which ruled that successor statute unconstitutional.” The majority appears to adopt the position that the proper approach to the fair warning element of the doctrine known by the alternative rubrics of void for vagueness and unconstitutional indefiniteness is to track the steps by which the public determines the nature and scope of the particular statutory restriction at issue. Then if, in a court’s judgment, those steps appear unduly circuitous, it must strike down as unconstitutional the specific rule that requires those steps to be taken to determine the criminal provision governing the conduct.

Accordingly, the majority concludes that to sustain the constitutionality of the Delaware practice, it would be necessary “to reason, first, that the new § 635 on its face gave adequate public notice of its own invalidity and, second, that the public, thus informed, was then put on further notice that the officially announced statutory repeal or supercession of old § 635 was legally ineffective.” This, according to the majority, “is too tortured and too far removed from reality to satisfy” the due process clause.

My disagreement with the majority is twofold. First, assuming, but not conceding, that the majority’s analytical approach is valid, it is difficult to reconcile its determination that Delaware’s reviving practice is constitutionally deficient with repeated declarations by the Supreme Court that judicial narrowing of broad or vague statutory language may save a statute that on its face appears unconstitutional. Second, and perhaps more fundamental, the fair warning element of the doctrine of unconstitutional indefiniteness is not, in my judgment, so divorced from reality as to be devoid of subjective content. Admittedly, when other diverse interests promoted by the doctrine of constitutional indefiniteness are implicated, it may be appropriate, in some cases, to overlook that a particular defendant expected to be criminally prosecuted if his alleged wrongdoing happened to be detected. But in my view, none of these other interests operate in this case.

The first area of my difference with the majority centers upon the similarity between the Delaware judicial practice of reviving statutes and the not uncommon judicial practice of narrowing statutes when a literal reading of their terms suggests that they are unconstitutional because of vagueness or over-breadth.

In Chaplinsky v. New Hampshire, the Supreme Court was presented with a state statute arguably vague as well as overbroad in the sense that, because of the broad sweep or uncertainty of its language, it trenched upon or “chilled” First Amendment freedoms. The statute, however, came to the Supreme Court “authoritatively construed by the highest court of New Hampshire” in that very case as well as in earlier cases. The Supreme Court, in refusing to overturn Chaplinsky’s conviction under the statute, stated:

We are unable to say that the limited scope of the statute as thus construed contravenes the constitutional right of free expression. This conclusion necessarily disposes of appellant’s contention that the statute is so vague and indefinite as to render a conviction thereunder a violation of due process. A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law.

In effect, the Supreme Court was saying that absent the narrowing construction of the New Hampshire court, Chap-linsky could not have been convicted under the statute, but that in light of the narrowing construction placed on the statute, the conviction could stand.

Thus, the Supreme Court in Chaplin-sky did not suggest that the procedure of judicial construction of ambiguous statutory language is a process that because of its likely unfamiliarity to the nonlawyer, in and of itself, creates vagueness problems. Nor has the Supreme Court so indicated since Chaplin-sky was decided.

Although the Delaware reviving practice appears somewhat unusual, and not one that I would especially espouse, it would seem no more vulnerable to vagueness objections than the practice of judicial construction of terms in a statute that are uncertain. The majority’s implicit assertion that it is fanciful to expect that a person can recognize that a statute is constitutionally suspect on its face applies with equal force to the practice of judicial construction and the reviving practice.

Hence, if the majority’s position is correct, the judicial narrowing of the statute, in Chaplinsky itself as well as earlier state court cases, should not have saved Chaplinsky’s conviction. This is so because Chaplinsky, like Clark, would have had to recognize the surface unconstitutionality of the statute in order to be on notice that judicial constructions may achieve or may have achieved a constitutionally acceptable narrowing. But no such conclusion was reached by the Supreme Court in Cha/plinsky. To permit Clark to rely on the apparent improbability of such recognition would, therefore, seem to conflict with the philosophy inherent in the Supreme Court’s disposition of Chaplinsky’s claim.

The majority, in pursuing its analysis, attempts to distinguish the present case from the typical ease involving judicial narrowing by asserting that the new section 635, although unconstitutionally vague for the purposes of this case, is not so vague as to put Clark on notice of its invalidity. Delaware’s attempt to avert successful constitutional challenge to the statute, according to the majority, amount to concessions that the statute was not vague, and thus does not give notice of its own invalidity.

I have substantial difficulty grasping the exact nature of the majority’s approach in this respect for two related reasons. . First, vagueness objections generally focus on the imprecise language of the statute. It would appear, therefore, untenable to contend that the language of a statute is unconstitutionally vague, as Clark did in the trial court, and yet not so vague as to leave Clark confused as to the scope of its proscriptions. Second, assuming that the majority does not mean that a statute may be both unconstitutionally indefinite and still fail to give notice of its invalidity, this portion of its opinion, Majority Opinion at 1082, seems implicitly to reject the determination of the Delaware trial court, which is the law for the purposes of this case, that new section 635 is, in fact, unconstitutionally vague.

Moreover, it is certainly not surprising that Delaware has claimed that section 635 is not unconstitutional. Indeed, it is, no doubt, the duty of the state officials to do so. The majority, however, seems to posit, on the basis of the state’s position with respect to new section 635, the novel and puzzling proposition that a statute can be unconstitutionally vague and, at the same time, fail to give notice of its invalidity because of vagueness.

In addition, according to the majority’s reasoning, to sustain the constitutionality of the judicial construction procedure, it would be necessary to assume that the public is, at least, on notice that an earlier judicial construction may have saved an otherwise unconstitutional statute. It would seem no less realistic to suppose that the public is on notice that the apparent surface unconstitutionality of a statute claimed to be vague or over-broad requires recourse to the predecessor statute for enlightenment as to the precise nature of the legislation that is, in fact, operative. Thus, if the majority’s approach is the proper one to apply when a defendant challenges a juridical practice, the Supreme Court’s approval of judicial narrowing might well be seriously undermined.

The majority does suggest that the existence of a prior judicial construetion, alone, constitutes notice to a person that he must look further than the bare words of the statute. However, if a statute is not vague on its face, a person would be unlikely to search for judicial interpretations. It is difficult, therefore, to understand how a prior judicial construction itself can be deemed an essential part of the fair warning principle.

Further, if a prior judicial construction were an aspect of the fair warning element, as the majority contends, one would expect the Supreme Court expressly to disapprove applying a judicial narrowing of a statute in other than a prospective manner. Yet, despite some language suggesting the contrary, the Supreme Court “has invariably allowed [penal statutes] the benefit of whatever clarifying gloss state courts may have added in the course of the litigation] of the very case at bar.”

P a íes, Indeed, Bouie v. City of Columbia, case upon which Clark heavily re does not support the majority’s result. In dealing with a novel interpretation by the appellate court of South Carolina that broadened the scope of an otherwise precisely drawn statute, the Supreme Court pointed out that the statute in question would not have prohibited the defendants’ conduct in view of the statute’s clear and unambiguous language. If, prior to acting, the defendants in Bouie had read the statute at issue, they would have concluded, according to the Supreme Court, that there was no occasion to look to judicial interpretations to determine whether their contemplated conduct was proscribed. The limitations on conduct embodied in the South Carolina statute were clear from its terms. The Supreme Court in Bouie, therefore, did not undercut the accepted axiom, implicit in Chaplinsky and subsequent cases, that judicial construction may save a statute sufficiently uncertain on its face so as to raise substantial doubts regarding its constitutionality. Instead, the Supreme Court, in Bouie, prevented the state court from making conduct — innocent when performed — criminal by way of the device of subsequent and unexpected judicial expansion of statutory language.

The doctrine of unconstitutional indefiniteness serves as a bulwark against the destruction of saliem, constitutional and societal values. In Grayned v. City of Rockford, Justice Marshall offered the following succinct formulation of the concerns underpinning the doctrine of unconstitutional indefiniteness:

First, because we assume that a man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit,the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone’ than if the boundaries of the forbidden areas were clearly marked.”

Thus, under the teachings of Grayned, it would appear necessary to inquire (1) whether a defendant, such as Clark, had fair warning of the criminal nature of his conduct, (2) whether the statute at issue lends itself to discriminatory and arbitrary enforcement, and (3) whether the exercise of First Amendment rights may be stultified.

1. Fair Warning

The seeming variance between the majority’s position in this case and the Supreme Court’s refusal in eases like Chaplinsky• to declare the practice of judicial narrowing improper derives from the majority’s perhaps too subtle approach to the fair warning element of the doctrine of constitutional indefiniteness. It is unrealistic to assume that an individual usually surveys the applicable criminal code to determine whether contemplated conduct is, in fact, prohibited. The Supreme Court has not yet squarely held that the fair warning element possesses subjective content, but the language of the Supreme Court suggests that the test of fair warning is, at least to some extent, subjective.

In United States v. Harriss, the Court was presented with a vagueness challenge to the Federal Regulation of Lobbying Act. In upholding the statute, the Court stated:

The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.

The Harriss language would seem to impart the notion that an individual who understood that his conduct, if detected, might subject him to criminal prosecution could not invoke the absence of fair notice to avoid conviction. The Court, in United States v. National Dairy Corporation, lent credence to this construction of its language in Harriss when it stated that “[i]n determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged.”

Apart from exposure to the language of criminal statutes, an individual acquires an understanding of the wrongfulness of classes of conduct in a variety of recondite ways. In fact, it is by informal enculturation that the typical member of society generally acquires knowledge of the standards of conduct to which he is expected to conform. It is implausible to suggest that significant numbers of those accused of criminal conduct have ever read the statutes pursuant to which they are charged. And in Connally v. General Construction Company, the Supreme Court indicated an awareness of the complexity of the process when it stated:

[I]t will be enough for present purposes to say generally that the decisions of the court, upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them, or a well-settled common-law meaning, notwithstanding an element of degree in the definition as to which estimates might differ, or, as broadly stated by Mr. Chief Justice White ‘that, for reasons found to result either from the test of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded.’

The majority concedes that Clark was, no doubt, aware of the nefarious nature of his conduct. Nevertheless, it seems to find some solace in the fact that embezzlement as such did not constitute a crime at common law. Embezzlement, however, has been a statutory crime in Delaware since 1879. Considering the type of activity — purloining for personal purposes funds belonging to clients — and its well established criminal character, it is not possible to conclude that Clark, a lawyer, was somehow unaware of the wrongfulness of his actions.

2. Discriminatory and Arbitrary Enforcement

Although Clark certainly expected that his conduct, if detected, would lead to criminal prosecution, we may still be required to strike down the Delaware practice if it implicates some of the other interests protected by the doctrine of constitutional indefiniteness. “Although a statute may be neither vague, over-broad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional over-breadth as applied to others.” When the uncertain language of a statute promotes discriminatory and arbitrary enforcement, a person clearly within the statute’s bounds may be permitted to challenge its constitutionality.

In the present ease, there is no representation, affirmatively or by implication, that the Delaware practice of reviving is employed on an arbitrary and discriminatory basis. Neither is it alleged that permitting a revived statute to operate in the very case in which its successor was held invalid was done in an arbitrary and discriminatory manner.

The majority, however, devotes considerable discussion to the Delaware Supreme Court’s decision in State v. Dickerson. Although the reasons for the majority’s attention to the Dickerson case are not specifically explained, the majority may be suggesting that the reviving procedure is not consistently invoked by the Delaware courts.

In Dickerson, the court refused to impose a mandatory death sentence even though it held that the provision allowing for discretionary imposition of a sentence other than death was unconstitutional. To order the death penalty in these circumstances, according to the Delaware court, would amount to the imposition of an increased penalty ex post facto as to Dickerson. But the majority here admits that the Delaware court in Dickerson did not regard the invalidation of the mercy provision and the concomitant establishment of the mandatory death sentence as an example of the reviving practice. Indeed, in a supplemental opinion in the Dickerson case itself, the Delaware court expressly used the reviving principal to confer on the Superior Court the power to require the mandatory life sentence and, in the process, cited the earlier state court de-cisión in the case with which we are now concerned.

Thus, if my understanding of Dickerson is correct, it does not stand for the proposition that the conditions under which the reviving practice comes into play are so vague that the practice is susceptible to employment in an arbitrary and discriminatory manner.

Neither can I regard the fact that the reviving practice is not automatically invoked once a statute is declared unconstitutional as a strong indication of discriminatory and arbitrary or even haphazard employment of the practice. The majority recognizes that a Delaware judge is directed to determine the intent of the legislature before deciding whether to revive the amended predecessor of a constitutionally infirm statute. Accordingly, a Delaware judge is not vested with absolute discretion, but must make a principled decision whether to revive or not to revive a statute.

Keeping in mind it is the Delaware reviving practice, not the statute so revived, that the majority finds objectionable, the practice is not equivalent to the shirking by the legislature of the responsibility of writing reasonably precise criminal statutes, an important ingredient of the vagueness doctrine. Rather, the reviving practice is of judicial origin, and it necessarily results in giving effect to a statute that is drawn precisely enough to obviate constitutional objections.

3. The Exercise of First Amendment Rights

It cannot be suggested that the reviving practice has, by its own force, an inhibitory effect on the exercise of First Amendment rights. Since the reviving practice itself contains no proscriptions affecting First Amendment rights, it is only when the statute declared unconstitutional touches upon First Amendment rights or when an overbroad statute is revived pursuant to such practice that freedom of speech may be implicated. In that event, it would not be the reviving practice that would be subject to constitutional objection but, instead, the overbroad statute.

Conclusion

The foregoing analysis leads, it would seem, to the following conclusions. First, the majority's approach to the Delaware reviving practice suggests, when applied to the judicial narrowing of uncertain statutory terms, a conclusion at odds with that embodied in several Supreme Court decisions in the void for vagueness area. Second, the fair warning aspect of the doctrine of unconstitutional indefiniteness is not completely devoid of subjective content, and Clark’s awareness of the wrongfulness of his conduct precludes his successful assertion of the absence of fair warning to void his conviction. Third, the reviving practice does not raise the specter of arbitrary and discriminatory enforcement nor does it, eo sponte, fetter the exercise of First Amendment rights— evils that prompt the invocation of the doctrine of unconstitutional indefiniteness.

Because the considerations giving rise to the doctrine of unconstitutional indefiniteness do not, in my judgment, operate in this case and because Clark has been convicted of conduct which he necessarily knew to be illegal, I would affirm the judgment of the district court.

      . Abrahams v. Superior Court, Del.1957, 131 A.2d 662; State ex rel. James v. Schorr, Del.1949, 6 Terry 18, 65 A.2d 810, 822; Wilmington Trust Co. v. Highfield, Del. 1931, 4 AV.AV.Harr. 394, 153 A. 864. All were civil cases.

      . Former number 635, reads: “Whoever, being a bailee of money or other property which may be the subject of larceny, to the value of $100 or more, embezzles or fraudulently converts the same to his own use, shall be fined ... or imprisoned . ” The court apparently reasoned that the words “fraudulently converts”, coupled with the particularity of their application to a “bailee of money” saved the old statute from the vagueness of the new.

      . State v. Paine, 1440 Cr. Action, 1972, unreported letter opinion. The current Delaware Code contains entirely different provisions concerning embezzlement. 58 Del.Daws Ch. 497, 11 Del.C. § 848. Thus, the riddle of “old” § 635 and “new” § 635 is no longer of general importance.

      . See n. 1, supra.

      . In support of a contrary result where there has been no prior interpretation of a criminal statute to indicate that it would cover defendant’s conduct before he allegedly violated it, see Bouie v. City of Columbia, 1964, 378 U.S. 347, 352-353, 84 S.Ct. 1697, 12 L.Ed.2d 894; Freund, The Supreme Court and Civil Rights, 4 VandX.Rev. 533, 541.

      . Majority opinion at 1082.

      . Id. at 1081. Since Clark seeks a writ of ha-beas corpus pursuant to 28 U.S.C. § 2254, this Court’s review is limited to the constitutional claims raised by Clark and we may reverse the district court’s denial of the writ only if any of Clark’s constitutional claims lias merit.

      . See Amsterdam, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L. Rev. 67 (1960).

      . See id. at 91-92.

      . 315 Ü.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

      . Id. at 572, 62 S.Ct. at 769.

      . Id. at 573-574, 62 S.Ct. at 770.

      . See, e. g., Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).

      . See p. 1088 infra.

      . The trial court held new section 635 unconstitutional and then revived old section 635. Of course, had the trial court upheld the validity of new section 635, the main elements of the analysis contained in both the majority and dissenting opinions would be unnecessary.

      . Bouie v. City of Columbia, 378 U.S. 347, 352-353, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

      . Amsterdam, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 73 (1960); see, e. g. Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953); Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1949).
      The majority seems to suggest that any subsequent convictions under “revived” section 635 could stand despite vagueness objections like those raised in this, apparently the first case in which such an objection has been raised.

      . 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

      . The statute at issue in Bouie provided in relevant part that “[e]very entry upon the lands of another . . . after notice from the owner or tenant prohibiting such entry, shall be a misdemeanor. . . .” The defendants in Bouie, two black college students, entered, seated themselves, and waited service in the restaurant section of a drug store. Thereafter, a store employee placed a “no trespassing” sign at the section and secured a chain that apparently separated the restaurant section from the remainder of the store. The store manager and then a police officer asked the defendants to leave, but they refused. The South Carolina Supreme Court affirmed defendants’ convictions under the statute, construing it to reach a refusal to leave when requested, although neither the language of the statute nor judicial precedent suggested such a construction.

      . 408 U.S. 104. 92 S.Ct. 2294. 33 L.Ed.2d 222 (1972).

      . Id. at 108-109 (1972) (citations omitted); see Karlan v. City of Cincinnati, 416 U.S. 924, 94 S.Ct. 1922, 40 L.Ed.2d 280 (1974) (Douglas, dissenting); Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Amsterdam, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. Pa.L.Rev. 67, 80 (1960).

      . 347 U.S. 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954).

      . Id. at 617 (footnote omitted).

      . 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 961 (1963).

      . Id. at 33.

      . 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

      . Id. at 391-392 (citations omitted).

      . State v. Brewington, 25 Del. 71, 78 A. 402, 404 (1910).

      . Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972), quoting Coates v. City of Cincinnati, 402 U. S. 611, 619-620, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) (White, J., dissenting).

      . 298 A.2d 761 (1972).

      . See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

      . Clark v. State, 287 A.2d 660 (Del.), cert. denied, 409 U.S. 812, 93 S.Ct. 139, 34 L.Ed.2d 67 (1972).

      . Cf. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).


source: Caselaw Access Project

author: DUNIWAY, Circuit Judge: HUFSTEDLER, Circuit Judge

license: Public Domain

text:
    Petition of Edmond K. PALATIAN, Petitioner-Appellee, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant.
    No. 73-2846.
    United States Court of Appeals, Ninth Circuit.
    Aug. 30, 1974.
    Hufstedler, Circuit Judge, dissented and filed opinion.
    Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief, Civil Div., Los Angeles, Cal., for respondent-appellant.
    Edmond K. Palatian, in pro per.
    Before DUNIWAY, HUFSTEDLER and GOODWIN, Circuit Judges.
   OPINION

DUNIWAY, Circuit Judge:

The Immigration and Naturalization Service appeals from an order which granted Palatian’s petition for a writ of habeas corpus. We reverse.

The undisputed facts as found by the district court are as follows:

“Petitioner is a twenty-two year old Armenian who was born in Sofia, Bul-' garia. At the age of sixteen, he entered the United States at New York City with his father, mother and brother after traveling first to Istam-bul and then to Beirut. He became a ‘conditional entrant’, and, on February 23, 1970, he was awarded ‘permanent resident’ status. He remains unmarried, with no dependents, and resides within the Central District of California.
On or about December 11, 1970, at the age of nineteen, he traveled to Tijuana, Mexico, where he stayed for two and one-half days. Upon his return at the port of entry, he was found to be in the possession of twenty-eight bricks of marijuana weighing approximately fifty-five pounds. He was arrested, and convicted of failure to register and pay the tax on the narcotic under 26 U.S.C. § 4755(a)(1). He was sentenced to two-years’ imprisonment. Petitioner never appealed this conviction in the Southern District of California.
On May 22, 1972, the Service brought exclusion proceedings, and the Special Inquiry Officer found him excludable under 8 U.S.C. 1182(a) (23). The appellate board upheld that decision. His administrative remedies are exhausted under 8 U.S.C. 1105(a) [1105a] (c).”

The decision of the district court turns on its view that, when Palatian returned to this country, he did not make an “entry” as that term is defined in 8 U.S.C. § 1101(a) (13) and so is not ex-cludable under 8 U.S.C. § 1182(a). Here are the district court’s findings and conclusions on this point:

“The Court concludes that petitioner’s intention at his departure from the United States on or about December 11, 1970 was not so disposed as to regard it to be meaningfully interrup-tive of his permanent residence status within this country. Rosenberg v. Fleuti, 374 U.S. 449 [83 S.Ct. 1804, 10 L.Ed.2d 1000] (1963). In arriving at this conclusion, the Court takes into consideration the length of his absence being only two and one-half days; the absence of any demonstration of criminal intent being formed prior to or during his departure from this country; and the failure to make arrangements for a stay of significant duration in a foreign state. The Court also takes into account the additional factors of his youth, of the absence of a former criminal record, and of the absence of prior departures from this country, Rosenberg, supra, 374 U.S. at 462 [83 S.Ct. 1804].”

The district court rejected Palatian’s claim that it was improper to order him sent to Bulgaria as the place “from whence he came.” From this decision Palatian has not appealed. Nevertheless, in reaching its decision as to “entry,” the district court appears to have relied upon the same facts, feeling that it would be an undue hardship to send Palatian back to Bulgaria, which he left more than six years ago, and where he would be subjected to the Bulgarian communist regime and thus deprived of the civil liberties which he has enjoyed in this country.

We do not read Rosenberg v. Fleuti, supra, as the district court reads it. There, the court held that “an innocent, casual, and brief excursion by a resident alien outside this country’s borders may not have been ‘intended’ as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an ‘entry’ into the country on his return.” Rosenberg v. Fleuti, supra, 374 U.S. at 462, 83 S.Ct. at 1812. The Court also held that “it effectuates congressional purpose to construe the intent exception to § 101(a) (13) as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” Id. One of the factors that the Court determined to be relevant to the inquiry as to whether a departure was a “meaningful” interruption was “the purpose of the visit, for if the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful.” Id. The Court also noted that “the operation of these and other possibly relevant factors remains to be developed ‘by the gradual process of judicial inclusion and exclusion.’ Davidson v. New Orleans, 96 U.S. 97, 104 [24 L.Ed. 616].” Id.

We hold that the interruption of Palatian’s residence that occurred was “meaningful” within the principles of the Fleuti case. What Palatian did when he attempted to come back to this country from Mexico was an “[attempt] to accomplish some object which is itself contrary to some policy reflected in our immigration laws.” Those laws provide for the exclusion or deportation of an alien who has been convicted of smuggling marijuana. 8 U.S.C. § 1182(a) (23), 8 U.S.C. § 1251(a) (11). This is a clear indication that the immigration laws reflect a general concern over the problem of drug control. See generally, Garcia Gonzales v. I.&N.S., 9 Cir., 1965, 344 F.2d 804. Palatian’s smuggling of marijuana was not a mere technical or insignificant violation; he was caught attempting to smuggle fifty-five pounds of marijuana into this country. Thus, Palatian’s acts were contrary to both the letter of the immigration laws and to a policy expressed in those laws.

We cannot agree that the fact that Palatian did not decide to smuggle the marijuana until after he was in Mexico is controlling. The “purpose of the visit” referred to in Fleuti, supra, may have been innocent when it began, but it was not innocent when Palatian sought to re-enter this country. In short, we do not think that the language in Fleuti, supra, which refers to “an intent to depart” is or should be controlling. We cannot see any good reason why the time when the intent “to accomplish some purpose which is itself contrary to some policy reflected in our immigration laws” was. first formed should be controlling. The purpose, to smuggle marijuana into this country, is just as “meaningful’ if formed first in Mexico as it would be if first formed before going to Mexico.

The district court relied upon Vargas-Banuelos v. I.&N.S., 5 Cir., 1972, 466 F.2d 1371; and Yanez-Jacquez v. I.&N.S., 5 Cir., 1971, 440 F.2d 701.

In Yanez-Jacquez, a resident alien went to Mexico for the purpose of attacking an enemy with an icepick. However, he could not find his intended victim and returned to this country. Obviously, he committed no offense at all, much less one that is contrary to a policy reflected in our immigration laws. The case is not in point.

Vargas-Banuelos is different. There, the resident alien went to Mexico and aided and abetted four Mexican aliens in entering this country illegally. The court held that, because the intent to do what the alien did was not formed until after he was in Mexico, there was not a meaningful interruption of his residency in this country. For reasons previously stated, we decline to follow this decision.

No other court has come to the same conclusion as the Fifth Circuit did in Vargas-Banuelos. We have not done so. In de Bilbao-Bastida v. I.&N.S., 9 Cir., 1969, 409 F.2d 820, 823, we did not inquire into the time when an alien, who went to Mexico and then to Cuba, decided to go to Cuba. We held that his going to Cuba in July 1961 was contrary to a policy then reflected in our immigration laws.

In Gamero v. I.&N.S., 9 Cir., 1966, 367 F.2d 123, 126-127, we held that an alien who had departed this country with the express intent to return within a few months had not “temporarily visited” Mexico within the meaning of 8 U.S.C. § 1181(b) when he returned seventeen years later. We held that the alien’s intent upon departure was not dis-positive of the question of whether or not he departed “temporarily.”

Other circuits have not adopted the Vargas-Banuelos rationale. In Bufalino v. I.&N.S., 3 Cir., 1973, 473 F.2d 728, 731, the Third Circuit held that an alien had meaningfully interrupted his residence when he knowingly made a false claim of United States citizenship upon his return to this country following trips to Bimini and Cuba. The court did not inquire into the time when the alien had formed the intent to contravene this immigration policy. The standards announced in Fleuti have been applied on numerous occasions by the Service and by the courts, yet in no case, except Vargas-Banuelos, has the decision been governed by the time when the alien formed the intent to accomplish an objective that was contrary to a policy reflected in the immigration laws.

To require that the intent be formed before or at the time of departure could, we think, produce anomalous and indeed irrational results. Thus if resident alien A left the country for the purpose of acquiring fifty-five pounds of marijuana and was caught with it in his possession upon his return, he would presumably be excludable, while Palatian, who went to Mexico for an innocent purpose but while there decided to import fifty-five pounds of marijuana into this country and was caught in the act at the border, would not be excludable. To us, at least, this is an irrational result.

Nor is the fact that Palatian may be sent back to Bulgaria a basis for a finding that he did not “enter” this country when he returned from Mexico. However much we may sympathize with his plight, the fact is that he foolishly brought it upon himself. “Although we sympathize with petitioner’s unfortunate position, we are compelled to-uphold the decision of the [Service]. Unfortunately for petitioner, we do not act as a court of equity.” Barragan-Sanchez v. Rosenberg, 9 Cir., 1972, 471 F.2d 758, 760.

The order appealed from is reversed.

HUFSTEDLER, Circuit Judge

(dissenting) :

I adopt the following portion of Judge Lucas’ memorandum opinion as my own: “[Petitioner’s intention at his departure from the United States on or about December 11, 1970, was not so disposed as to regard it to be meaningfully inter-ruptive of his permanent residence status within this country. Rosenberg v. Fleuti, 374 U.S. 449 [83 S.Ct. 1804, 10 L.Ed.2d 1000] (1963). In arriving at this conclusion, [I] take into consideration the length of his absence being only two and one-half days; the absence of any demonstration of criminal intent being formed prior to or during his departure from this country; and the failure to make arrangements for a stay of significant duration in a foreign state. [I] also take into account the additional factors of his youth, of the absence of a former criminal record, and of the absence of prior departures from this country. Rosenberg, supra, 374 U.S. at 462 [83 S.Ct. 1804].

“Furthermore, [I] find persuasive supplementary authority for [the] decision in the Fifth Circuit. Petitioner’s position is at least as viable as the petitioner’s in Yanez-Jacquez v. Immigration and Naturalization Service, 440 F.2d 701 (5th Cir. 1971). In that case, the Fifth Circuit recognized the clear formation of a criminal intent prior to the departure in question. And yet it did not deem that to be the controlling factor. Yanez-Jacquez, supra, 440 F.2d at 704. There simply was no indication that Yanez intended his trip to be an interruption of his status as a permanent resident alien of the United States. A fortiori, petitioner similarly demonstrated no indication of an intention to renounce the privileges of his permanent alien resident status in the United States. The Fifth Circuit extended Yanez-Jacquez in Vargas-Banuelos v. Immigration & Naturalization Service, 466 F.2d 1371 (5th Cir. 1972). The formation of the criminal intent on the part of the petitioner (a forty-one year old man) also took place while abroad in Mexico; however, the total circumstances for granting the petition in that case seemed far less compelling than in the instant case. The point was made by the Fifth Circuit in that case that the petitioner had been duly tried, convicted, and punished by a federal court for his misdeeds, and the further sanction of deportation with its attendant hardships, personal and familial, should be deemed to be excessive unless clearly authorized by statute. Vargas-Banuelos, supra, 466 F.2d at 1374. It is certainly not insignificant in this case that the additional sanction of deportation here would result not only in the deprivation of familial residence in the United States, but also in the deprivation of individual liberties in a democratic society. Petitioner’s home of deportation would be communist Bulgaria. Such a harsh sanction delivered to one initially wedded to this country by the democratic ideal should not be so summarily accomplished in the absence of a clear congressional mandate, or, in the very least, in the absence of more precise and flexible guidelines which may be administratively tailored to the individual peculiarities of each case. Insofar as the Service failed to consider all of the above factors, or considering them, dismissed their weight summarily, it is deemed to be contrary to the implied instruction of Congress to treat the acceptance and exclusion of aliens under circumstances attentive to the individual characteristics of each case, and not in a fashion merely consequential to the application of a broad statutory standard. Viewed under the total circumstances available for consideration, and mindful of the principles developed by the Supreme Court and the Fifth Circuit, [I am] not willing to lend that ‘hard and fast’ construction to or application of the statute’s prima facie language to the facts such that in this case it can be deemed that petitioner’s departure from this country was a meaningful one under the statute. See generally Wadman v. Immigration and Naturalization Service, 329 F.2d 812, 816 (9th Cir. 1964). The mere interruption of petitioner’s permanent residence, however the Service may have construed it, is simply not in balance with the consequences which will be levied upon him as a result. Accordingly, [I] can only conclude that Congress did not intend those consequences to be within the purpose of the Act under the circumstances of this particular case.”

I would affirm.

      . 8 U.S.C. § 1101(a) (13) reads :
      “(13) The term ‘entry’ means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.”

      . See Matter of Valdovinos, ID 2228, BIA, September 11, 1973: Matter of Janati-Ataie, II) 2170, AG, October 26, 1972; Gordon & Rosenfield, Immigration Law and Procedure, . § 4.6c at 4-31-4-34.

      . See, e. g., Martin-Mendoza v. I.&N.S., 9 Cir., 1974, 499 F.2d 918. 921 (finding an entry where the alien departed for the purpose of arranging to facilitate the illegal entry of aliens into the United States); Barragan-Sanohez v. Rosenberg, 9 Cir., 1972, 471 F.2d 758, 759 (finding that residence was not “continuous” under 8 U.S.C. § 1254(a)(1) when the alien was forced to depart under threat of deportation); Toon-Ming Wong v. I.&N.S., 9 Cir., 1966, 363 F.2d 234, 236 (holding that the issue of continuous presence under Fleuti and 8 U.S.C. § 1254(a) (1) was not determined solely by looking at the length of visit); Git Foo Wong v. I.&N.S., 9 Cir., 1966, 358 F.2d 151, 153 (holding that an innocent visit to Mexico for two hours should not he regarded as meaningfully interruptive of continuous presence in the United States under 8 U.S.C. § 1254(a) (1)); Wadman v. I.&N.S., 9 Cir., 1964, 329 F.2d 812 (holding that the Fleuti standard applied to 8 U.S.C. § 1254(a)(1) and remanding for a determination of whether a five-day vacation meaningfully interrupted continuous presence); Itzcovitz v. Selective Service Local Board No. 6 N.Y., N.Y., 2 Cir., 1971, 447 F.2d 888, 893-894 (holding that- a three-week trip to attend a training course, required by an employer is not a meaningful interruption under Fleuti and would not result in an entry under 8 U.S.C. § 1101(a) (13)); Zimmerman v. Lehmann, 7 Cir., 1965, 339 F.2d 943, 949 (holding no entry within 8 U.S.C. § 1101(a) (13) after either of two short trips to Canada).


author: PER CURIAM.

text:
    Sammie Preston IRBY, Petitioner-Appellant, v. STATE OF MISSOURI, Respondent-Appellee.
    No. 73-1495.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 14, 1973.
    Decided March 25, 1974.
    On Reconsideration En Banc Sept. 23, 1974.
    On consideration en banc, Gibson, Chief Judge, would dismiss the appeal on basis of trial judge’s opinion.
    Francis M. Gaffney, St. Louis, Mo., for petitioner-appellant.
    John C. Danforth, Atty. Gen., and Stephen D. Hoyne, K. Preston Dean, Asst. Attys. Gen., Jefferson City, Mo., for respondent-appellee.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       WILLIAM C. STUART, District Judge, Southern District of Iowa, sitting by designation.

   PER CURIAM.

Sammie Preston Irby has applied for relief from a 40-year prison sentence imposed upon him by the State of Missouri for a , 1963 robbery conviction. The state sentencing court applied the Missouri second-offender statute, Mo. Ann.Stat. § 556.280. He attacks the constitutional validity of his sentence, alleging that the state sentencing judge considered an uncounselled 1956 felony conviction for auto theft from Mississippi County, Missouri, in assessing his punishment.

The federal district court, in an unreported opinion, refused to consider the merits of this petition on the grounds that the Missouri Supreme Court had never been presented with the question of whether Irby’s sentence was enhanced by this allegedly illegal prior conviction. Accordingly, it dismissed the action because of the petitioner’s failure to exhaust state remedies. We disagree with the district court on the question of exhaustion.

In an earlier case before this court, Garrett v. Swenson, 459 F.2d 464 (8th Cir.1972), Billy Joe Garrett, appellantIrby’s codefendant in the original state prosecution and a copetitioner in initially seeking post-conviction relief from the Missouri state courts, presented similar contentions to us in seeking habeas corpus relief. We considered the merits of Garrett’s case without specifically discussing the exhaustion doctrine. Both parties, Garrett and Irby, relied on parts of the same record made in the state court proceedings. Our examination of that record satisfies us that Irby, like Garrett, is entitled to present the merits of his case to a federal court; that Irby has exhausted his remedies under state law.

Irby raised the precise legal contention now before us in a state post-conviction proceeding held in the Circuit Court of New Madrid County, Missouri, specifically claiming that an invalid prior 1956 conviction “was used to enhance a punishment of 40 years imprisonment in the present case.” That court denied this claim on the merits and made the following finding as to the validity of the 1956 felony conviction here in question:

The record [of the 1956' conviction] discloses that he [Irby] entered his plea of guilty after having been given [reasonable] time to consult with a friend and an attorney and after being informed of his right to counsel and having had explained to him wherein the exercise of said right of counsel might be of benefit to him. The [record] further [discloses] that [the 1956 court found] “defendant was mentally able and sufficiently informed to decide his need for counsel, and the Court having offered to appoint counsel for defendant to conduct his 'defense, but defendant having waived such right to counsel.”

On direct appeal to the Missouri Supreme Court, Irby specifically raised the same issue, stating in his brief:

With regard to Sam Irby, the Court found that on a prior conviction shown against Sam Irby on September 18, 1956, following a plea of guilty in Mississippi County, Missouri, that he did not have counsel but that he waived his right to counsel (Tr. 61), and November 12, 1957, that Sam Irby had another prior conviction wherein he pleaded guilty to statutory rape without the advice of counsel and that there he again waived counsel (Tr. 61). Sam Irby testified that he did not have a lawyer in 1956 and that he didn’t waive his right to a lawyer (Tr. 39); he testified that he was in court but there was no lawyer with him (Tr. 40); and the Court did not ask him if he wanted a lawyer (Tr. 40). When a 27.26 petitioner testifies that he did not have a lawyer and didn’t waive a lawyer, and the only evidence is a court record showing that he did not have a lawyer, then the State has the burden of proof of showing that he intelligently waived his right to a lawyer, and in this matter the State does not have any evidence showing that Sam Irby intelligently waived his right to counsel. On this basis, prior convictions shown against Sam Irby were illegal and his judgment and sentence should be vacated.

The Supreme Court skirted that issue, holding that the sentencing under the second-offender procedure was valid because Irby had at least two other convictions — one in Florida and one in California — which he did not challenge. The Missouri Supreme Court said:

In their allegations and throughout the hearing of this proceeding, as indicated, Billy Joe Garrett and Sam Irby attack only their Mississippi County convictions in 1952 and 1956, claiming that in those cases they were not represented by counsel and that under Burgett v. Texas they are entitled to have the robbery convictions set aside and a new trial by a jury. The insuperable difficulty with the claims of Billy Joe and Sam is that in the robbery case the state alleged numerous other felony convictions and these convictions with counsel were proved and found in the principal trial by the judge as well as upon this 27.-26 proceeding and they are not challenged here. [Garrett v. State, 459 S.W.2d 378, 380 (Mo.1970).]

Here the record makes eminently clear that appellant in the Missouri state courts specifically contested the validity of his 40-year sentence on the ground that his sentence had been enhanced by the sentencing court’s reliance upon at least one uncounselled conviction. The state courts denied his claim — the lower court specifically rejecting petitioner’s allegation upon a factual basis, the Supreme Court rejecting this allegation upon a legal basis. Thus, the record establishes that petitioner' has already presented his contention to the Missouri courts that this 1956 conviction for stealing an automobile was invalid because the state did not furnish him counsel.

The exhaustion doctrine is not intended to give the state more than one full chance to pass upon the issues. Once a prisoner has brought an issue to the highest state court, he is not barred from seeking relief in federal court, notwithstanding the fact that he may have additional state collateral relief procedures open to him. Brown v. Allen, 344 U.S. 443, 448 n.3, 73 S.Ct. 397, 97 L.Ed. 469 (1953). As the Supreme Court said in Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971):

Section 2254 does not erect insuperable or successive barriers to the invocation of federal habeas corpus. The exhaustion requirement is merely an accommodation of our federal system designed to give the State an initial “opportunity to pass upon and correct” alleged violations of its prisoners’ federal rights. Fay v. Noia, 372 U.S. 391, 438 [83 S.Ct. 822, 848, 9 L.Ed.2d 837] (1963). Petitioners are not required to file “repetitious applications” in the state courts. Brown v. Allen, 344 U.S. 443, 449 n. 3 [73 S.Ct. 397, 403, 97 L.Ed. 469] (1953). Nor does the mere possibility of success in additional proceedings bar federal relief. Roberts v. LaVallee, 389 U.S. 40, 42-43 [88 S.Ct. 194, 196-197, 19 L.Ed. 2d 41] (1967); Coleman v. Maxwell, 351 F.2d 285, 286 (CA 6 1965).

Consequently, on the record before us, the exhaustion doctrine has no application to the allegations in petitioner’s ha-beas corpus claim relating to the 1956 conviction.

The federal district court noted, ho_wever, that for the first time Irby now contends that two other convictions used by the Missouri court to enhance his sentence were also uncounselled — one in April 1959 for auto theft in Florida, and a second in October 1957 in Mississippi County, Missouri, for statutory rape. The appellant’s contention concerning the validity of these convictions has not been presented to the Missouri courts and the exhaustion doctrine applies to these two claims. Irby is nevertheless entitled to a consideration of his other claim relating to the invalidity of the 1956 conviction which has already been before the state courts.

We have held that where petitioner has exhausted his state remedy upon one of several claims for habeas corpus he may, under appropriate circumstances, proceed in federal court. Tyler v. Swenson, 483 F.2d 611 (8th Cir.1973). Exhaustion of all similar state claims need not be pursued where petitioner can show that his sentence may have been enhanced by the consideration of an invalid prior conviction. See Tucker v. United States, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). We think this rule proper to apply here for two reasons. First, although the Tucker Court dealt with two prior allegedly uncounselled convictions relied on by the sentencing court, we do not read Tucker as limited only to multiple uncounselled prior convictions. Second, if we correctly reason that one invalid, uncounselled conviction requires invocation of the Tucker rule and consequent resentencing taking into account only valid prior convictions, a sentencing court may additionally reject consideration of any other prior conviction proven void for want of counsel. See Lipscomb v. Clark, 468 F.2d 1321 (5th Cir.1972); Davis v. Wainwright, 462 F.2d 1354 (5th Cir.1972). Thus, although under the exhaustion doctrine the federal court is now precluded from considering the invalidity of the 1959 auto theft conviction and the 1957 rape conviction, that doctrine will not prevent consideration of the claim that the 1956 felony conviction was uncounselled and invalid.

In remanding this ease to the district court for further consideration on the merits, we think it well to note factual differences between Irby’s record and that of Billy Joe Garrett. As considered by us in Garrett v. Swenson, supra, neither the Missouri circuit court nor the Supreme Court made any findings that Billy Joe Garrett was represented by counsel on his prior conviction there in question, but both courts merely assumed that because petitioner Garrett had suffered two other unchallenged convictions he was not entitled to any relief. 459 F.2d at 465. Thus, we directed an evidentiary hearing on the claim but noted the existence of a further pending state proceeding which could produce an adequate record on which the federal district court might rely. 459 F.2d at 466 n.4.

In Irby’s case, as we have already noted, the Missouri circuit court made a specific finding concerning the challenged 1956 sentence for auto theft based upon the September 18, 1956, entry in the circuit court record book of Mississippi County, Missouri. This state court hearing does not meet federal standards, because the “state factual determination is not fairly supported by the record as a whole.” Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963).

The parties do not dispute that Irby did not have counsel at the 1956 auto theft conviction. Although the record on this appeal does not show whether or not Irby was indigent in 1956, Irby testified at the state hearing that he was not informed of his right to counsel, that the sentencing judge did not ask him if he wanted a lawyer, and that he pleaded guilty because the sheriff asked him to do so. The State of Missouri presented only the Mississippi County record entry , which recited that counsel, though absent, had been waived. No verbatim transcript of the circuit court proceedings in Mississippi County was filed and the record does not clearly indicate that any further written documentation exists regarding the guilty plea conviction and sentence.

The state carries the burden of proving that petitioner made an intelligent and competent waiver of his right to counsel. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Mitchell v. United States, 482 F.2d 289 (5th Cir.1973); Schramm v. Cupp, 436 F.2d 692 (9th Cir.1970); Losieau v. Sigler, 406 F.2d 795 (8th Cir.), cert. denied, 396 U.S. 988, 90 S.Ct. 475, 24 L.Ed.2d 452 (1969). The state does not sustain that burden on the record before us, containing only a docket entry reciting waiver without more. In Craig v. Beto, 458 F.2d 1131, 1135 (5th Cir.1972), under analogous circumstances, the court said:

Despite the fact that the docket sheet entries state that * * * [he] was “advised of [his] right to counsel,” such recitation is not a sufficient manifestation of an understanding and intelligent waiver of counsel.

See Mitchell, supra; Schramm, supra; Losieau, supra.

Accordingly, we vacate the order of the district court and remand the cause to the district court to hold a hearing for a full development of the facts as to whether Irby effectively waived his right to counsel in the 1956 Missouri proceedings. If the district court finds that the 1956 conviction is valid, the petition should be dismissed. If the court finds the 1956 conviction invalid, it should direct the Missouri courts to institute resentencing procedures within a time certain, in which the 1956 conviction, and any other convictions which the resentencing court may find invalid, should not be considered. See Craig v. Beto, 458 F.2d at 1136.

Remanded.

Before GIBSON,, Chief Judge, and LAY, HEANEY, BRIGHT, ROSS, and STEPHENSON, Circuit Judges, en banc.

ON RECONSIDERATION EN BANC

This appeal has been reconsidered by the court en banc. After review, the court adopts th.e opinion of the panel, consisting of Circuit Judges Bright and Stephenson and District Judge Stuart, filed March 25, 1974. For the reasons set forth therein, the order of the district court is vacated and the cause is remanded to the district court for further proceedings as more fully set forth in the panel’s decision of March 25, 1974.

Chief Judge Gibson would dismiss the appeal on the basis that the issue of enhancement of the sentence as opposed to the propriety of the use of the Habitual Criminal Statute was not fully and squarely presented to the Missouri Supreme Court and thus would dismiss the appeal on the basis of Judge Webster’s memorandum opinion filed in the district court.

      . Irby’s petition in state court did not contain these allegations, but the Missouri state court conducting the post-conviction hearing heard testimony concerning these two other convictions and concluded, without making a specific finding as to their validity, that since the record disclosed one prior conviction in which counsel represented him, that the 40-year sentence imposed upon him as a second offender must stand. We do not read the record as demonstrating that Irby squarely presented to the state court the claim that his sentence under attack had been enhanced by the sentencing court’s consideration of the allegedly invalid 1959 auto theft conviction and the 1957 statutory rape conviction.
      As we have already observed in the text, the Missouri Supreme Court considered only Irby’s attack on his 1956 conviction as before it. Garrett v. State, 459 S.W.2d 378, 380 (Mo.1970).

      . We do not construe the opinion of the district court as rejecting Irby’s petition because of the allegation that several convictions, not just the 1956 conviction, were invalid for want of counsel. Rather, although Irby specifically had raised the question of the validity of his 1956 felony conviction before the Missouri courts, the district court indicated that he had done so only in a limited way by attacking the propriety -of the Missouri second-offender statute, not in claiming that his punishment was enhanced by reason of consideration of that prior conviction.

      . The decision of the Circuit Court of New Madrid County, Missouri, on Irby’s application for j)ost-conviction relief recites the following concerning want of counsel relating to the 1956 felony conviction :
      The record discloses that he entered his idea of guilty after having been given time to consult with a friend and an attorney and after being informed of his right to counsel and having had explained to him wherein the exercise of said right of counsel might be of benefit to him. The Court further found that “defendant was mentally able and sufficiently informed to decide his need for counsel, and the Court having offered to appoint counsel for defendant to conduct his defense, but defendant having waived such right to counsel.”


author: PER CURIAM:

text:
    Robert B. CRUZ, Jr., Plaintiff-Appellant, v. William H. SKELTON, Chairman, Texas Board of Pardons and Paroles, et al., Defendants-Appellees.
    No. 74-1513
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 14, 1974.
    Rehearing and Rehearing En Banc Denied Dec. 16, 1974.
    Robert B. Cruz, pro se.
    John L. Hill, Atty. Gen., Austin, Tex., Calvin Botley, Houston, Tex., for defendants-appellees.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 E.2d 409, Part I.

   PER CURIAM:

Robert B. Cruz, Jr., a prisoner of the State of Texas, sued the three members of the Texas Board of Pardons and Paroles under the Civil Rights Act. Cruz prayed for compensatory and punitive damages for their refusal to grant him parole; a declaratory judgment that he is entitled to be paroled; and an injunction against the board members’ denial of his parole rights. The district court dismissed the complaint sua sponte for failure to state a claim. We affirm.

The appellant’s claim for monetary damages arose from the board members’ failure to grant him parole. The district court held that the board members are immune from suit for damages under the Civil Rights Act, citing as authority Silver v. Dickson, 9 Cir., 1968, 403 F.2d 642, cert. denied, 394 U. S. 990, 89 S.Ct. 1477, 22 L.Ed.2d 765 (1969). The Ninth Circuit stated its holding in Silver as follows:

“In our opinion the members of the California Adult Authority and other state officials are, while employed in the processing of applications for parole, performing quasi-judicial functions. They therefore have immunity from suits for damages under the Civil Rights Act, just as do other public employees engaged in the performance of quasi-judicial duties. * * *” 403 F.2d at 643.

We are in full agreement with the Ninth Circuit’s decision, and accordingly with the ruling below based on it. See, also, Keeton v. Procunier, 9 Cir., 1972, 468 F.2d 810, cert. denied, 411 U.S. 987, 93 S.Ct. 2276, 36 L.Ed.2d 965.

The district court denied appellant Cruz’s claims for declaratory and injunctive relief on authority of Preiser v. Rodriquez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439. The court below held that since the relief sought by Cruz was release from confinement, his proper federal remedy would be habeas corpus after exhaustion of his available state remedies. We agree. 28 U.S.C. § 2254(b); Keeton v. Procunier, supra.

The judgment of the district court dismissing appellant’s complaint is due to be, and is hereby,

Affirmed.

      . 42 U.S.C., § 1981 et seq.


text:
    UNITED STATES of America, Appellee, v. DeLancy SCOTT, Appellant.
    No. 74-1338.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1974.
    Decided Sept. 16, 1974.
    Stuart Cofman, St. Louis, Mo., for appellant.
    Donald J. Stohr, U. S. Atty., Frederick J. Dana, Dist. Counsel, Drug Enforcement Administration, U. S. Dept, of Justice, and Richard K. Coffin, Sp. Atty., U. S. Dept, of Justice, St. Louis, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   PER CURIAM.

Appellant, DeLancy Scott, was convicted by a jury for the distribution of heroin. 21 U.S.C. § 841(a)(1). That conviction was affirmed by this court in an unpublished opinion filed September 25, 1973.

The trial court’s oral sentence given in open court was six years’ imprisonment. The written “Judgment and Commitment” was for six years’ imprisonment to be followed by the mandatory special parole required by 21 TJ.S.C. § 841(b)(1)(A).

On February'7, 1974 appellant filed a Fed.R.Crim.P. 35 motion for correction of sentence seeking resolution of the discrepancy between the oral and written sentences.

The trial court and the government agreed with appellant that the sentence was erroneous and therefore illegal because it was in violation of the applicable statute. We agree that the sentence as given in defendant’s presence was erroneous since it omitted a term required to be imposed by law. Bozza v. United States, 330 U.S. 160, 166, 67 S. Ct. 645, 91 L.Ed. 818 (1947).

The original sentence was set aside and appellant was brought before the court and resentenced to six years’ imprisonment and three years’ special parole in accordance with 21 U.S.C. § 841(b)(1)(A). Credit was given for the time already served and any accumulated good time.

In this appeal appellant contends that the imposition of the increased sentence constituted double jeopardy and that the six year sentence should have been reduced.

This court has recently faced an identical problem and resolved the issue contrary to appellant’s position. In United States v. Richardson, 498 F.2d 9 (8th Cir. 1974), this court relied on Bozza v. United States, 330 U.S. 160, 165-167, 67 S.Ct. 645, 91 L.Ed. 818 (1947), and said:

Where the original sentence is invalid, vacation of that sentence and imposition of another sentence, even though more severe, does not constitute double jeopardy.

Accord Orrie v. United States, 302 F.2d 695 (8th Cir. 1962); United States v. Mack, 494 F.2d 1204 (9th Cir. 1974); Caille v. United States, 487 F.2d 614 (5th Cir. 1973).

The Bozza opinion is controlling in this instance as well.

Affirmed.


author: MERRILL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Isaiah Eric MANDLEY aka “Cap” Canell, Defendant-Appellant.
    No. 74-1728.
    United States Court of Appeals, Ninth Circuit.
    Sept. 5, 1974.

      Dennis E. Stenzel (argued), Portland, Or., for defendant-appellant.
    D. Richard Hammersley, Asst. U. S. Atty. (argued), Portland, Or., for plaintiff-appellee.
    Before MERRILL and GOODWIN, Circuit Judges, and WOLLENBERG, District Judge.

       Honorable Albert O. Wollenberg, United States District Judge for the Northern District of California, sitting by designation.

   OPINION

MERRILL, Circuit Judge:

Defendant appeals from a conviction following a jury trial based on a two-count indictment which charged him with bank robbery and using a firearm to commit a felony. The bank robbery took place on September 21, 1973. On October 10, 1973, a federal John Doe indictment was issued. On December 26, 1973, defendant was arrested by state officials on a parole violation charge. After the defendant was in custody, state officials learned he was also wanted by the FBI and later a detainer was placed on him by the U. S. marshal. On December 28, 1973, defendant appeared with his state appointed counsel on the state parole violation charge. That hearing was reset to January 7, 1974, at which time disposition of the state charge was ordered suspended until after disposition of the federal charge.

On January 10, 1974, federal agents interviewed defendant after reading him his Miranda rights, which he waived by signed waiver. Defendant signed a confession following the two-hour interview. Defendant was brought before a magistrate on January 14, 1974, nineteen days after his initial arrest by state officers and seven days after his state hearing was suspended.

Prior to trial appellant moved to suppress the confession which had been obtained while he was incarcerated. Three grounds were asserted for suppression: (1) that the Miranda waiver signed by him was invalid; (2) that in violation of the spirit of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the confession was obtained in the absence of the attorney appointed for him by state court; (3) that the confession was obtained in the course of an undue delay in taking appellant before a magistrate. The motion to suppress was denied and that order is assigned as error on this appeal.

1. With reference to the first ground of the motion to suppress, the district court found that “defendant was fully and fairly advised of his [Miranda] rights and he knowingly understood and voluntarily waived them; that the statement [confession] was not produced by threat or coercion * * There was ample evidence to support this finding in the proceedings on motion to suppress and we find no error in the district court’s rejection of this ground for the motion.

2. The district court rejected extension of Massiah to cover the situation where counsel is state appointed respecting a state offense and where Miranda warnings have acquainted the defendant with his- right to the presence of counsel and where defendant voluntarily consents to proceed in the absence of counsel-. We agree.

3. The district court rejected delay in bringing an arrested person before a magistrate as a ground for suppression in reliance on this court’s decisions in United States v. Woods, 468 F.2d 1024 (9th Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 496 (1972), United States v. Lopez, 450 F.2d 169 (9th Cir. 1971), cert. denied, 405 U.S. 931, 92 S.Ct. 985, 30 L.Ed.2d 805 (1972), and United States v. Halbert, 436 F.2d 1226 (9th Cir. 1970). We agree.

Prior to enactment of 18 U.S.C. § 3501 appellant’s contentions could well have had merit under Rule 5, Federal Rules of Criminal Procedure, and the Supreme Court decisions in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 37 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). Section 3501 has, however, substantially changed the law. That section was discussed by this court in United States v. Halbert, supra, 436 F.2d at 1237. There we stated:

“We conclude that confessions given more than six hours after arrest during a delay in arraignment are admissible if voluntary, although the trial judge under subsection 3501(b) may take into account delay in arraignment in his determination of voluntariness. The district court here found Halbert’s confession voluntary under subsection 3501(b). This conclusion of the district court was correct. The confession was given two days after Halbert’s arrest and he was, as discussed above, given the Miranda warnings. There was no evidence that he was subjected to oppressive police practices prior to his confession or that the delay between arrest and confession contributed in any way to the confession.”

In Pettyjohn v. United States, 136 U.S.App.D.C. 69, 419 F.2d 651, 656 (1969), cert. denied, 397 U.S. 1058, 90 S.Ct. 1383, 25 L.Ed.2d 676 (1970), it was stated:

“We find that appellant, by validly waiving his Miranda right to silence and an attorney, and by agreeing to speak with the police, has thereby also waived any Mallory right to be brought before a magistrate ‘as quickly as possible.’ Mallory, supra, at 454, 77 S.Ct. 1356. Indeed, we had occasion recently to articulate this limitation that Miranda has effected upon the earlier Mallory decision. In short, we held that ‘[a] valid Miranda waiver is necessarily * * * also a waiver of an immediate judicial warning of constitutional rights’ * * *.
Thus, in this case, we hold that appellant waived any Mallory claim to immediate arraignment by voluntarily agreeing to speak with the police. Accordingly appellant’s statements, given during this period, were properly admitted into evidence.”

In United States v. Lopez, supra, we approved Pettyjohn, and in United States v. Woods, supra, we followed Lopez. Judgment affirmed.


text:
    Marie ROEBUCK et al., Plaintiffs-Appellants, v. FLORIDA DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, INC., et al., Defendants-Appellees.
    No. 74-2360
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 11, 1974.
    Rehearing Denied Nov. 6, 1974.

      Kent Spriggs, Tallahassee, Fla., Robert P. Roberts, Nat. Employment Law Project, Dennis R. Yeager, New York City, for plaintiffs-appellants.
    James G. Mahorner, Gen. Counsel, Mary E. Clark, Gen. Counsel, Tallahassee, Fla., for defendants-appellees.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

Plaintiffs bring this suit as a class action seeking redress for alleged violations of the Fourteenth Amendment to the United States Constitution and the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The defendants are state institutions and officials. The theory of the action is that plaintiffs have been wrongfully classified as “handicapped trainees” and as a result of such classification have been paid subminimum wages by the state. By means of in-junctive relief, the plaintiffs seek to require the state defendants to comply with the certification and pay requirements of the Fair Labor Standards Act, 29 U.S.C.A. § 214(c) (June 1974 Supp.), formerly 29 U.S.C.A. § 214(d) (1974 Supp.). In addition, the plaintiffs seek back wages, attorney’s fees, and other appropriate relief.

On the defendants’ motion, the District Judge dismissed the action with prejudice against all state defendants on the authority of Employees, etc. v. Missouri Public Health Department, 411 U. S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973).

The appellees concede that Employees does not preclude a proceeding for injunctive relief. We have repeatedly held that a motion to dismiss a complaint cannot be properly granted if it alleges facts which would entitle plaintiffs to any relief. Cook & Nichol, Inc. v. Plimsoll Club, 451 F.2d 505 (5th Cir. 1971) and numerous other cases cited therein.

The appellees argue that the dismissal can be sustained on several other grounds: lack of standing of plaintiffs to bring the action, mootness, restrictions in the Fair Labor Standards Act against the injunctive relief sought by plaintiffs, and non-joinder of indispensable parties. Although some of these contentions may have been addressed to the District Court, it is apparent some were not. In any event, they have not been ruled upon and we decline to consider arguments not first decided by the District Court.

It being clear that the complaint should not have been dismissed on the authority of Employees, we vacate the order of dismissal and remand the cause to the District Court for further proceedings. This order relates only to the two plaintiffs who appealed to this Court and to the defendants named in the notice of appeal.

Vacated and remanded.