author: HAYNSWORTH, Chief Judge:

text:
    Claude Franklin MOFFITT, Appellant, v. Major Fred R. ROSS and State of North Carolina, Appellees. Claude F. MOFFITT, Appellant, v. Major Fred R. ROSS and State of North Carolina, Appellees.
    Nos. 72-1720, 72-2480.
    United States Court of Appeals, Fourth Circuit.
    Argued May 8, 1973.
    Decided Aug. 29, 1973.
    Certiorari Granted Jan. 7, 1974.
    See 94 S.Ct. 864.
    Thomas B. Anderson, Jr., Durham, N. C. [Court-appointed counsel] (Loflin, Anderson, Loflin & Goldsmith, Durham, N. C., on brief), for appellant Claude F. Moffitt.
    Jacob L. Safron, Asst. Atty. Gen. (Robert Morgan, Atty. Gen., Richard N. League, Asst. Atty. Gen., on brief), for appellees Major Fred R. Ross and State of North Carolina.
    Before HAYNSWORTH, Chief Judge and CRAVEN and BUTZNER, Circuit Judges.
   HAYNSWORTH, Chief Judge:

We are met with the questions reserved by the Court in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L. Ed.2d 811.

In Douglas, the Supreme Court held that an indigent, convicted of a felony, was entitled to the assistance of assigned counsel in presenting his appeal to the state’s intermediate appellate court. It reserved the question of entitlement to assigned counsel in subsequent permissive review proceedings and limited its holding to counsel in “the one and only appeal an indigent has as of right” [emphasis -in original]. These cases present the questions whether, after affirmance of a felony conviction by a state’s intermediate appellate court, an indigent defendant is entitled to the assistance of assigned counsel- in seeking further permissive review (1) in the state’s highest court, and (2) in the Supreme Court of the United States. We conclude that he is, for, in this context, we find no basis for differentiation between appeals as of right and permissive appeals or between first appeals and second or third stage review.

No. 72-2480

The first of Moffitt’s two convictions of forgery and uttering forged instruments was had in Mecklenburg County, North Carolina. With the assistance of appointed counsel, he took an appeal to the North Carolina Court of Appeals, which affirmed the conviction. North Carolina v. Moffitt, 9 N.C.App. 694, 177 S.E.2d 324. His lawyer then informed Moffitt that the court would not appoint him to prepare and file a petition for a writ of certiorari in the North Carolina Supreme Court. In his letter to Moffitt, he stated that he had sought such an appointment from the Superior Court, but that it had been refused on the ground that assignment of counsel was not required to handle an application to the North Carolina Supreme Court for permissive review.

Moffitt alleges he then sought to prepare and file such an application himself, but it was denied because of tardiness.

After an aborted federal petition, Moffitt exhausted his state postconviction remedies and then sought a writ of habeas corpus in the District Court for the Western District of North Carolina on the ground, among others, that refusal to provide assigned counsel to prepare and file an application for a writ of cer-tiorari in the North Carolina Supreme Court was a denial of a federal constitutional right to counsel.

No. 72-1720

Moffitt’s second conviction was in Guilford County, North Carolina, where he was represented by a lawyer in the office of the Greensboro Public Defender. With the assistance of that lawyer, he took an appeal to tbe North Carolina Court of Appeals, which affirmed the conviction. North Carolina v. Moffitt, 11 N.C.App. 337, 181 S.E.2d 184. In this case the Public Defender was authorized to prepare and file an application for a writ of certiorari in the Supreme Court of North Carolina. He did so, and the Attorney General countered with a motion to dismiss on the ground that no substantial constitutional question was presented. The motion was granted on that ground. North Carolina v. Moffitt, 279 N.C. 396, 183 S.E.2d 247.

Moffitt unsuccessfully petitioned the Superior Court and the North Carolina Court of Appeals for the provision of le-gál assistance in preparing and filing a petition for a writ of certiorari in the Supreme Court of the United States. Denied that assistance, he then sought habeas relief in the District Court for the Middle District of North Carolina. Denied relief there, his appeal presents the question of his constitutional right to the assistance of counsel in seeking a writ of certiorari from the Supreme Court of the United States to the Supreme Court of North Carolina.

I

In North Carolina, there is an appeal as of right from the Superior Court to the North Carolina Supreme Court in criminal cases, if the sentence is death or life imprisonment. N.C.G.S. § 7A-27(a). In all other criminal cases such as thése, there is an appeal as of right from the Superior Court to the North Carolina Court of Appeals. N.C.G.S. § 7A-27(b). There is an appeal of right from the Court of Appeals to the Supreme Court of North Carolina only if the case involves a substantial question arising under the Constitution of the United States or under the Constitution of North Carolina, and in other cases if one of the judges of the Court of Appeals has dissented. N.C.G.S. § 7A-30.-In all other cases, such as these, there is only a discretionary right of review by the Supreme Court of North Carolina of judgments of the North Carolina Court of Appeals. N.C.G.S. § 7A-31.

By statute, North Carolina has provided for the assignment of a lawyer to represent an indigent on “[djirect review of any judgment or decree, including review by the United States Supreme Court of final judgments or decrees rendered by the highest court of North Carolina in which decision may be had.” N.C.G.S. § 7A-451(b) (6).

To us, the reasonable interpretation of that statute would provide a statutory right of counsel to Moffitt in each instance in which it was denied. We would read “direct review” of a criminal conviction as including permissive review proceedings in the North Carolina Supreme Court and in the Supreme Court of the United States, but North Carolina, seemingly, and her Attorney General, expressly, interprets the statute as excluding not only collateral civil proceedings but permissive appellate procedures in direct review as well. As construed by the state, “direct review” includes only such appellate procedures as may be taken as a matter of right. Under the state’s construction, the statutory obligation was fully performed when Moffitt was provided with legal assistance in taking his two appeals to the North Carolina Court of Appeals.

In our habeas jurisdiction, we review only federal constitutional questions. We have no jurisdiction to enforce state statutory rights. For the purposes of these appeals, therefore, we need not pause to determine whether the Attorney General’s assertion about the prevailing state construction of the statute is authoritatively supported. Ultimately, of course, whatever our inclination, the authoritative construction of the North Carolina statute would be for the North Carolina courts, but since in this case we have no jurisdiction to enforce statutory rights, we simply lay aside the statute upon the Attorney General’s assertion of the prevailing construction in practice without further inquiry as to whether thQt practice has the authoritative sanction of North Carolina’s appellate courts.

Against the background of the statute, however, it is relevant to note that, despite the state’s claim that it is not required to provide counsel for permissive appellate procedures, it does so with great frequency. This fact was established by the Assistant Director of North Carolina’s Administrative Office of the Courts. It was admitted by counsel for North Carolina during oral argument of these cases. In the Guilford County ease, Moffitt, himself, was provided with legal assistance by North Carolina as he sought certiorari in the North'' Carolina Supreme Court. Counsel for North Carolina could suggest no reason why legal assistance was provided Moffitt in seeking certiorari in the North Carolina Supreme Court in the one case, but not in the other. Inquiry was made of the Assistant Attorney General as to the existence of any guidelines to be followed by state judges in deciding whether or not assigned counsel should be provided to assist indigents in seeking permissive review. He responded that he knew of none.

This record provides an insufficient basis for a finding or a conclusion that North Carolina’s administration of her statute works a denial of equal protection of the laws to some indigent appellants. It may not be amiss, however, to note that such a problem may be lurking in this case, for, if judges of courts whose judgments are sought to be reviewed are deciding whether or not to assign counsel to prepare and file an application for permissive review, and there are no standards or guidelines to govern their determination, it may well be that some indigents are denied the assistance of counsel in situations entirely comparable to those in which other indigents are furnished the assistance of counsel.

II

At the outset we have observed that the Supreme Court in Douglas v. California confined its holding that an indigent had a constitutional right to the assistance of counsel in appellate procedures to appeals which were taken by right. It disclaimed consideration of subsequent permissive appellate procedures. Indeed, no such question was presented in Douglas, and it was natural for the Court to limit its holding to the particular question before it.

On principle, however, we can find no logical basis for differentiation between appeals of right and permissive review procedures in the context of the Constitution and the right to counsel.

Discretionary and permissive procedures by which a high appellate court is given the means of control of its own docket have largely been born of necessity in order to permit the highest appellate court to perform its primary and important functions. The certiorari practice in the Supreme Court sprang from such a need. When intermediate courts of appeals have been set up in the more populous states, they have come to relieve the state’s highest court of a recognized overburden. The underlying purpose would be thwarted if every losing litigant in the intermediate appellate court had an unconditional right of appeal to the state’s highest court. The purpose can be accomplished only if, within statutory limitations, the state’s highest court is given the right of selectively choosing to hear only those cases which seem to it to come within its primary purposes and functions.

A conversion by a state from a single tier appellate system to a double tier system, however, does not alter the fact that the state’s highest court remains the ultimate arbiter of the rights of its citizens. While the right to appeal to such a court may be qualified and subject to that court’s grant of a preliminary petition, the right to apply for such a review may be of great importance to the litigant. Indeed, in the context of constitutional questions arising in criminal prosecutions, permissive review in the state’s highest court may be predictably the most meaningful review the conviction will receive.

If, as Douglas holds, deprivation of counsel to an indigent appellant seeking to appeal a felony conviction to an intermediate court of appeals so dilutes the quality of justice that it amounts to a deprivation of due process or equal protection, denial of counsel as he seeks access to the state’s highest court would seem a similar and comparable deprivation. A defendant with adequate resources to engage counsel has a meaningful right to seek access to the state’s highest court. An indigent should be afforded counsel to give him a comparably meaningful right. Deprived of it, it is of little comfort to him that he was afforded legal guidance in an appeal to a subordinate court. Denied the assistance of a competent lawyer, the quality of justice for the indigent has been substantially impaired in comparison with the quality of justice afforded his more affluent brothers.

An indigent defendant is as much in need of the assistance of a lawyer in preparing and filing a petition for cer-tiorari as he is in the handling of an appeal as of right. In many appeals, an articulate defendant could file an effective brief by telling his story in simple language without legalisms, but the technical requirements for applications for writs of certiorari are hazards which one untrained in the law could hardly be expected to negotiate.

“Certiorari proceedings constitute a highly specialized aspect of appellate work. The factors which [a court] deems important in connection with deciding whether to grant certiorari are certainly not within the normal knowledge of an indigent appellant. Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn.L.Rev. 783, 797 (1961) (footnote omitted).”

It is not only in multi-tiered appellate systems that a state’s highest court is given discretionary control of its docket. In Virginia, for instance, review of felony convictions in the Virginia Supreme Court is by a writ of error to the trial Court. Code of Virginia § 19.1-282. Under the Virginia practice, a convicted criminal defendant may file with the Virginia Supreme Court a petition for a writ of error. As petitions for writs of certiorari to other courts, that court may grant or deny the petition. The cases are not fully briefed or argued, unless the petition for a writ of error is first granted, for the writ is the means by which the case is brought into the Supreme Court of Virginia.

Though Virginia’s appellate procedures for the review of felony convictions are equally as permissive as is the review by the Supreme Court of North Carolina of decisions of the North Carolina Court of Appeals, it seems clear to us that a Virginia defendant is as much in need of counsel in seeking access to the Supreme Court of Virginia as is a defendant in another state in which the first and only appeal is one of right. The Virginia Supreme Court does take a substantial number of criminal cases. It takes enough to keep Virginia law current, and quick glances through the books indicate reversals in a substantial number of the cases it takes.

The Virginia Supreme Court, itself, has held that an indigent criminal defendant has a constitutional right to the assistance of assigned counsel as he seeks access to that court. Cabaniss v. Cunningham, 206 Va. 330, 143 S.E.2d 911. We agree that, in an appellate system like Virginia’s, the Constitution mandates the assignment of counsel for the assistance of indigents no less than in another state in which the appellate court has no discretionary means of controlling its docket.

For such reasons, we conclude that the differences between appeals as of right and discretionary appeals do not warrant differentiation in constitutional doctrine. Whether, in order to provide it with means of controlling its docket, review in a particular court has been made permissive or whether initial access to the court is as of right, the convicted felon is equally in need of the aid of counsel. Nor do we think that the fact that Moffitt in these cases, as Douglas in Douglas v. California, had been furnished counsel in an appeal to an intermediate court permits a deprivation of assigned counsel in further proceedings to obtain review in a higher state appellate court. As long as .the state provides such procedures and allows other convicted felons to seek access to the higher court with the help of retained counsel, there is a marked absence of fairness in denying an indigent the assistance of counsel as he seeks access to the same court. As Mr. Justice Harlan observed, “Surely, it cannot be contended that the requirements of fair procedure are exhausted once an indigent has been given one appellate review.” Douglas v. California, 372 U.S. 353, 366, 83 S.Ct. 814, 821, 9 L.Ed.2d 811 (dissenting opinion).

Three Courts of Appeals have held that the questions reserved in Douglas should be answered in the negative. In Pennington v. Pate, 7 Cir., 409 F.2d 757, it was held that Illinois fully discharged its constitutional obligations by providing assigned counsel for an indigent’s appeal to an intermediate appellate court and it was not required to provide counsel to assist the indigent as he sought access to the Supreme Court of Illinois. In Peters v. Cox, 10 Cir., 341 F.2d 575, it was held that New Mexico had no obligation to provide an indigent with the assistance of counsel to prepare and file in the Supreme Court of the United States a petition for certiorari to the Supreme Court of New Mexico. See also United States ex rel. Coleman v. Denno, 313 F.2d 457 (2nd Cir., 1963).

We need not quarrel with those eases. What is requisite today may not have been constitutionally requisite ten years ago, or even a few years ago. As our legal resources grow, there is a correlative growth in our ability to implement basic notions of fairness. New of the concepts of due process entertained today were born full blown. They grew. The transition from Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, to Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.Ed.2d 799, to Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, is an example. The Bar is large enough and strong enough now to meet the requirements of Gideon and Argersinger-, it well may not have been even a few years ago.

Yet it is a relatively minor burden we would impose on the Bar by this decision. Once a lawyer has handled one appeal, and is thoroughly familiar with the case, the issues, and the authorities, it is a relatively simple and easy task for him to prepare and file a petition for further discretionary review in a higher appellate court. That is all that is involved in these cases, for the prevailing practice of second tier appellate courts, having a discretionary jurisdiction, has been to appoint counsel for indigents once certiorari has been granted.

If, however, in deference to our brothers of the Courts of Appeals of the Second, Seventh and Tenth Circuits, we notice the possible impact of changing times, the Supreme Court’s rationale in Douglas plainly seems to require* the result we reach. The majority opinion talks in terms of equality. If the holding be grounded on the equal protection clause, inequality in the circumstances of these cases is as obvious as it was in the circumstances of Douglas If the holding in Douglas were grounded on the due process clause, and Mr. Justice Harlan in dissent thought the discourse should have been in those terms, due process encompasses elements of equality. There simply cannot be due process of the law to a litigant deprived of all professional assistance when other litigants, similarly situated, are able to obtain professional assistance and to be benefited by it. The same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals.

Ill

What we have said about the Mecklen-burg case and Moffitt’s right to counsel while seeking access to the Supreme Court of North Carolina also applies to the Guilford case and his right to assistance of counsel in seeking access to the Supreme Court of the United States, provided he raised a federal question appropriate for review in the Supreme Court of the United States. We have had no opportunity to examine the papers filed in the North Carolina Supreme Court in that case, so the Guil-ford County case will be remanded to the District Court with instructions to examine the papers in the state Supreme Court to determine if a federal question was presented to that court which appropriately might have been reviewed by the Supreme Court of the United States.

Ordinarily, an inferior court should not withhold counsel because it thinks a particular question reviewable by a higher appellate court lacks substantiality. In the circumstances of this case, however, where the only remedy available to the District Court would be the prisoner’s release on a writ of habeas corpus, we think it appropriate that on remand, if the District Court finds that one or more questions in the North Carolina Supreme Court was couched in federal terms, it may appraise the substantiality of the federal claim, and, if it appears patently frivolous, it may deny the writ.

IV

Of course, we do not presume to influence the practice in the Supreme Court of the United States or in the Supreme Court of North Carolina with respect to the assignment of counsel in cases involving indigents after grants of writs of certiorari. The Supreme Court of the United States traditionally assigns a member of its Bar to represent indigents in such cases. We are concerned only with the preparation and filing of a petition for a writ of certiorari, a step which takes place before the litigant can reach the threshold of the Supreme Court. Our holding is only that the indigent litigant with a federal claim must be provided with the legal assistance at that stage, so that the litigant may have the benefit of professional counsel and the Supreme Court the assistance which inevitably flows from the preparation of petitions for certiorari by professionals instead of by untutored criminal defendants.

Finally, we may emphasize that we are dealing with the rights of defendants in criminal eases. Nothing which we have said should be taken as having any application in any collateral, civil proceeding, though it may call into question the validity of a previous criminal conviction.

V

In addition to his right to counsel claims, Moffitt complains that he was not furnished with a transcript of the Guilford County trial. The Public Defender was furnished with such a transcript, but' Moffitt claims to have had no access to it. The District Cour'i denied this claim on the ground that Moffitt had shown no particularized need for it. We now affirm as to that. In further proceedings, his lawyer may have need for that transcript, but Moffitt has shown nothing to warrant a conclusion that he personally needs one.

VI

For these reasons, the Mecklenburg County case will be remanded to the United States District’ Court for the Western District of North Carolina, with instructions to issue the writ, unless, within a reasonable time, North Carolina shall provide Moffitt with the assistance of a lawyer for the purpose of preparing and filing a petition for a writ of certiorari in the Supreme Court of North Carolina, and provided that Court shall receive the petition and not dismiss it as being untimely. The Guil-ford County case is remanded to the United States District Court for the Middle District of North Carolina, with directions to examine the contentions made by Moffitt in the Supreme Court of North Carolina and to grant the writ of habeas corpus, if, in the Supreme Court of North Carolina, Moffitt asserted a substantial federal claim reviewable by the Supreme Court of the United States on a writ of certiorari.

Affirmed in part; reversed in part, and remanded.

      . By court rule, the Virginia Supreme Court allows limited argument on a petition for a writ of error by the appellant, but not by the appellee. This hearing is before a single Justice, Rules 5:24 and 5 :28, or before a panel of three Justices, upon which retired Justices may serve, and frequently do.
      In the opinions of the Virginia Supreme Court in criminal cases, there is usually a routine recital of the grant of a writ of error. See, e. g., Delawder v. Virginia, 214 Va. 55, 196 S.E.2d 913; Hewitt v. Virginia, 213 Va. 605, 194 S.E.2d 893; Howell v. Virginia, 213 Va. 590, 194 S.E.2d 758; Huff v. Virginia, 213 Va. 710, 194 S.E.2d 690.

      . See Day, Coming: The Right to Have Assistance of Counsel at All Appellate Stages, 52 A.B.A.J. 135.


source: Caselaw Access Project

author: ROSENN, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America ex rel. Benigno MARRERO, Appellant, v. WARDEN, LEWISBURG PENITENTIARY.
    No. 72-1842.
    United States Court of Appeals, Third Circuit.
    Submitted May 14, 1973.
    Decided Aug. 27, 1973.
    Certiorari Granted Jam. 7, 1974.
    See 94 S.Ct. 865.

      Harry C. Batchelder, Jr., Brooklyn, N. Y., John J. Witmeyer, III, John B. Sherman, New York City, Stewart Dalzell, Drinker, Biddle & Reath, Philadelphia, Pa., for appellant.
    S. John Cottone, U. S. Atty., Harry A. Nagle, Lewisburg, Pa., for appellee.
    Before GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

The major question raised by this appeal is whether a prisoner, ineligible for parole at the time he was sentenced under the provisions of the penal statute for which he was convicted, became eligible for parole when the penal statute was subsequently repealed' by the. Comprehensive Drug Abuse Prevention and Control Act of 1970. Resolution of the question requires analysis of: (1) the proper forum in which to make such a claim of parole eligibility, (2) the nature of parole and its relation to sentencing, and (3) two congressional “saving provisions” for repealed criminal statutes.

Benigno Marrero was tried to a jury and convicted on May 27, 1970, in the United States District Court for the Southern District of New York, of possessing and selling heroin in violation of 21 U.S.C. §§ 173 and 174 and 26 U.S.C. §§ 4701, 4703, 4704(a), 4771(b), and 7237(a). As a second offender, he was sentenced to mandatory minimum terms of ten years on each of two counts, the sentences to run concurrently. His conviction was affirmed by the Second Circuit. 450 F.2d 373 (2d Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 991, 30 L.Ed.2d 808 (1972). He now appeals the denial on July 26, 1972, by the United States District Court for the Middle District of Pennsylvania, of his petition for writ of habeas corpus.

In his habeas petition, appellant alleged that he was being unlawfully detained because 26 U.S.C. § 7237(d), which was in effect at the time of his sentencing and precluded his parole eligibility, had been repealed effective May 1, 1971, by § 1101(b)(4)(A) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1292. He alleged that repeal of § 7237(d) made him eligible for parole in September 1973 under 18 U.S. C. § 4202. He did not allege that the United States Board of Parole or any other authority had decided that § 4202 would not be applied to him or that he would not be eligible for parole in September 1973, but he contended that ha-beas corpus is nonetheless an appropriate remedy at this time to determine his status vis-a-vis parole. We think habeas relief is merited and therefore reverse the district court’s denial of relief.

I

The first question that we must address is the applicability of the exhaustion of administrative remedies doctrine. That doctrine deserves comment because appellant did not seek any relief from the Board of Parole before instituting this action.

The basic premises underlying the exhaustion requirement are that (1) judicial review may be facilitated by allowing the appropriate agency to develop a factual record and apply its expertise, (2) judicial time may be conserved because the agency might grant the relief sought, and (3) administrative autonomy requires that an agency be given an opportunity to correct its own errors. Waddell v. Alldredge, 480 F.2d 1078 (3d Cir., 1973); McKart v. United States, 395 U.S. 185, 194-195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969).

We find none of the basic goals of the administrative exhaustion doctrine would be served in the present case were we to direct the appellant to seek relief from the Board of Parole before judicial action. The issue here of the availability of parole under § 4202 involves only statutory construction. No administrative record or expertise is therefore required. The second and third premises above are also inapplicable because the Board of Parole has taken a firm position that § 4202 is unavailable to prisoners in appellant’s situation.

Whether to require exhaustion is discretionary. If pursuing an administrative remedy would be futile, the requirement may be waived. City Bank Farmers Trust Co. v. Schnader, 291 U.S. 24, 34, 54 S.Ct. 259, 78 L.Ed. 628 (1934); see 3 Davis, Administrative Law Treatise, § 20.07, at 99 (1958). We are especially reluctant to require exhaustion when, as here, both parties agree administrative proceedings would be futile. Moreover, as appellant points out, this habeas petition was filed in January 1972, and more than 19 months have already elapsed. Subjecting him to any further unnecessary delay would be unconscionable. The unfairness in such unnecessary protraction of litigation partially underlay the Supreme Court’s decision in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), that a prisoner serving consecutive sentences can challenge his later sentences before beginning to serve them. 391 U. S. at 64, 88 S.Ct. 1549. We therefore decline to invoke the exhaustion doctrine here.

We also reject the Government’s contention that because parole eligibility does not automatically entitle a prisoner to parole, “the proper remedy would not be habeas corpus but rather a petition for writ of mandamus to compel the Parole Board to consider appellant for parole.” Immediate and unconditional release is not the only remedy available in a habeas corpus proceeding. Peyton v. Rowe, 391 U.S. at 66-67, 88 S.Ct. 1549. An improper denial of parole eligibility is a sufficient restraint to justify habeas corpus relief. Williams v. Peyton, 372 F.2d 216 (4th Cir. 1967); Martin v. Commonwealth of Virginia, 349 F.2d 781 (4th Cir. 1965); see also Halprin v. United States, 295 F.2d 458 (9th Cir. 1961)

II

The district court denied appellant’s habeas petition on two grounds: (1) it lacked jurisdiction since a remedy in the sentencing court is provided by 28 U.S.C. § 2255; and (2) the repeal of § 7237(d) did not affect appellant’s eligibility for parole because he was convicted and sentenced prior to the effective date of the repeal. We think the court erred on both grounds.

Section 2255 provides:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

Relief is available under § 2255 for a prisoner who claims he has been sentenced illegally. The statute requires him to “move the court which imposed sentence to vacate, set aside or correct the sentence.” [Emphasis added.]

In the present case, however, appellant has not requested vacation or correction of his sentence. His petition, although not very specific, in essence requests a determination of the applicability of a statute, the operation of which is automatic and beyond the control of the sentencing court. We note that the judgment of conviction mentions neither § 7237(d) nor appellant’s eligibility for parole. Section 2255 therefore does not require that appellant return to the Southern District of New York, his sentencing court, to seek the relief he now asks. Soyka v. Alldredge, 481 F.2d 303 (3d Cir. 1973); Halprin v. United States, 295 F.2d 458, 459 (9th Cir. 1961).

Our conclusion that relief need not be sought from the sentencing court is supported by the nature of the parole decision and its clear differences from sentencing. Parole is vested, subject to statutory limitations, in an administrative parole board which, in the federal system, is appointed by the President. 18 U.S.C. § 4201. The parole mechanism provides the prisoner with an administrative release prior to the completion of his judicially prescribed sentence. It is aimed at rehabilitating the parolee and facilitating his reintegration into society by the time his sentence expires. Its importance lies in offering prisoners an opportunity for release from penal institutions before the expiration of their maximum term and, hopefully, for their successful reintegration into society as useful, productive persons. It also serves to relieve society from the heavy burden of keeping persons in prison. See Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Comment, The Parole System, 120 U.Pa.L.Rev. 282, 284 (1971). Parole has become an integral and vigorous part of our modern penological system. “Rather than being an ad hoc exercise of clemency, parole is an established variation on impriosnment of convicted criminals.” 408 U.S. at 477, 92 S.Ct. at 2598. Parole thus involves implementing a prisoner’s sentence in the manner deemed best suited to attain the primary goals of criminal punishment, rehabilitation of the prisoner and protection of society from future deviant behavior. It does not involve modification of the sentence imposed.

The parolee is not granted the unconditional freedom of the ordinary citizen. The prisoner, upon parole release, agrees to abide by certain rules during the balance of his sentence. The rules are designed to accomplish the parole purposes of rehabilitation of the prisoner and protection of society. The parolee is usually required to report regularly to a parole officer and sometimes to make written reports of his activities. His travel is ordinarily limited. He is forbidden from associating with other parolees or convicted criminals. In addition, permission is often required before changing employment or marrying. See 408 U.S. at 478, 92 S.Ct. 2593; 120 U.Pa.L.Rev. at 308.

For these reasons, we have concluded that the requested relief in this ease is not authorized under § 2255 and that a habeas corpus petition presented to a district court judge in the district in which the prisoner is incarcerated is therefore proper.

Ill

We thus meet the basic issue: is the prisoner eligible for the benefits of § 4202? It is first necessary to understand the statutes involved. 18 U.S.C. § 4202 authorizes the release on parole of a federal prisoner after serving one-third of his sentence. 26 U.S.C. § 7237(d) prohibited parole under § 4202 for prisoners convicted of certain narcotics offenses, including Marrero’s crimes. Section 7237(d), however, was repealed effective May 1, 1971, by the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, § 1101(b)(4)(A), 84 Stat. 1292. The question is whether that repeal is effective as to Marrero, who was convicted and sentenced on May 27, 1970. The answer depends on the interpretation of the savings provision of the 1970 Act, § 1103(a), 84 Stat. 1294, and the general statutory savings provision, 1 U.S.C. § 109.

Section 1103(a) of the Comprehensive Drug Abuse Prevention and Control Act provides:

Prosecution for any violation of law occurring prior to the effective date of section 1101 [(May 1, 1971)] shall not be affected by the repeals or amendments made by such section or section 1102, or abated by reason thereof.

The effect of § 1103(a) on parole eligibility under § 4202 has not been decided by the Supreme Court. Its decision in Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), on a related matter, however, is instructive. Bradley involved parole eligibility under 18 U.S.C. § 4208(a), which authorizes the court imposing sentence to designate in the sentence early parole eligibility. Congress had specifically provided that § 4208(a) does not apply to any offense carrying a mandatory penalty. Pub.L. 85-752, § 7, 72 Stat. 847 (1958). The Comprehensive Drug Abuse Prevention and Control Act of 1970 repealed the mandatory sentence for the crime Bradley committed. Bradley committed the crime before the effective date but was sentenced after it. The Court held that the repeal did not render Bradley eligible for parole under § 4208(a) because of the savings clause in § 1103(a). It reasoned that the word “prosecution” in § 1103 included sentencing and that sentencing constituted the judgment in a criminal ease. Because the “decision to make early parole available under § 4208(a) must be made ‘[u]pon entering a judgment of conviction’ ” and therefore prior to the termination of the prosecution, it concluded that § 1103(a) barred parole under § 4208(a). The Court noted that the availability of parole under § 4202 “is a rather different matter, on which we express no opinion.” 410 U.S. at 612, 93 S.Ct. at 1156. Justices Brennan and White concurred in the decision but indicated without discussion their belief that parole under § 4202 was similarly unavailable.

Although Bradley did not decide the § 4202 question, it made clear that the decision to grant parole under § 4202 occurs “long after sentence has been entered and the prosecution has terminated.” In light of that statement and our previous analysis of the nature of parole, we hold that “prosecution” under § 1103(a) does not include the § 4202 parole eligibility decision, and therefore, does not bar Marrero from parole eligibility. A granting of parole does not affect the mandatory minimum sentence, only how it is executed.

United States v. Caldwell, 463 F.2d 590 (3d Cir. 1972), United States v. Fiotto, 454 F.2d 252 (2d Cir. 1972), and United States v. Stephens, 449 F.2d 103 (9th Cir. 1971), are inapposite here because they did not involve the effect of § 1103(a) on § 4202, the general parole statute; they involved, as did Bradley, decisions pertaining to sentencing.

The only remaining issue is the effect of 1 U.S.C. § 109, which provides in relevant part:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

This general savings statute was intended to obviate the common law’s technical abatement of a prosecution by the repeal of the statute under which it proceeded. Hamm v. Rock Hill, 379 U.S. 306, 314, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964). Therefore, the statute’s purpose would not be furthered by applying it to preclude Marrero’s parole eligibility under § 4202. His conviction and sentence will remain intact even if he is paroled. We therefore hold that permanent parole ineligibility is not a “penalty” incurred under § 7237(d). We read § 7237(d)’s preclusion of parole as a dated legislative judgment as to the manner by which the actual penalty, i. e., the prison sentence, should be effectuated. To read it otherwise would preclude carrying out the apparent congressional judgment, in repealing the parole ban, that the rehabilitative goals of the criminal justice system will be furthered by parole. Moreover, we can find no rational basis that would justify barring parole for persons convicted of crimes committed before the Act’s effective date, yet granting it to persons convicted of subsequent crimes. To the extent parole aids prisoner rehabilitation and consequently strengthens the tensile fabric of society, it is important that we avoid technical, purposeless construction which runs counter to the congressional plan to encourage prison rehabilitation.

The judgment of the district court will be reversed and the case remanded for the entry of judgment granting the writ of habeas corpus with the direction that Marrero be released if he is not considered for parole within 60 days.

      . 26 U.S.C. § 7237(d) provided:
      Upon conviction' — •
      (1) of any offense the penalty for which is provided in subsection (b) of this section, subsection (c), (h), or (i) of section 2 of the Narcotic Drugs Import and Export Act, as amended, or such Act of July 11, 1941, as amended, or
      (2) of any offense the penalty for which is provided in subsection (a) of this section, if it is the offender’s second or subsequent offense,
      the imposition or execution of sentence shall not be suspended, probation shall not be granted and in the case of a violation of a law relating to narcotic drugs, section 4202 of title 18, United States Code, and the Act of July 15, 1932 (47 Stat. 696; D.C.Code 24-201 and following), as amended, shall not apply.

      . In Soyka v. Alldredge, 481 F.2d 303 (3d Cir., 1973), we held that a habeas corpus petition seeking credit for time spent in custody prior to sentencing was premature pending exhaustion of administrative remedies. The petitioner claimed that he was legally entitled to credit under 18 U.S.C. § 3568. We dismissed the petition because he did not show that “the Attorney General or the Director of the Bureau of Prisons has refused to afford him credit to which he is legally entitled.” We reasoned:
      There are no circumstances present which suggest that the Attorney General will fail to perform his duty and grant credit where it is warranted. Soyka should therefore exhaust the administrative means at his disposal before judicial review will be appropriate.
      (481 F.2d at page 306).
      Nonetheless, Soyha is inapposite here because both parties acknowledge that the official position of the United States Board of Parole is that parole under § 4202 was made unavailable by 26 U.S.C. § 7237 (d) for persons convicted of an offense committed before Máy 1, 1971, the effective date of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

      . Peyton v. Rowe, overruling McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), and thereby upholding habeas corpus jurisdiction to challenge an illegal sentence which a prisoner had not yet begun serving, does not necessarily dictate our conclusion in this case, because an illegal sentence to be served in the future would definitely deprive the prisoner of his freedom at some later date. Marrero would not definitely be deprived of freedom by the failure to hold a parole hearing because the parole board, in its discretion, could deny parole. Nonetheless, we think Peyton’s liberal view of the breadth of the writ indicates the propriety of habeas corpus jurisdiction here.
      Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), also suggests this conclusion. In Jones, the Court, found habeas jurisdiction to challenge a sentence on which the prisoner had been paroled and, thus, released from prison. It held that the restraints imposed on a parolee’s freedom were sufficient to invoke the “great Writ.” It noted:
      [The writ] is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.
      371 U.S. at 243, 83 S.Ct. at 377.
      Reviewing Peyton and Jones, the Fourth Circuit reached exactly the same conclusion as we have, in Martin v. Commonwealth of Virginia, 349 F.2d 781, 784 (4th Cir. 1965) :
      We therefore hold, in keeping with the spirit of these developments, that because Martin’s escape and larceny convictions bar his eligibility for parole, he is “in custody” within the meaning of 28 U.S.C. A. § 2241.
      The district court in the instant case did not discuss the question of the ripeness of the issues for adjudication. At the time Marrero’s habeas petition was filed, he was unquestionably ineligible for parole under 18 U.S.C. § 4202, because one-third of his sentence had not expired. According to a letter dated July 18, 1973, submitted to this court by the United States Attorney, however, Marrero’s parole eligibility date under § 4202 would be June 20, 1973, not September 1973 as appellant alleged. There is, therefore, no problem of ripeness at this time, and we need not decide whether Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), would justify habeas corpus relief prior to the eligibility date.

      . See United States v. Bradley, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973) :
      The decision to grant parole under § 4202 lies with the Board of Parole, not with the District Judge, and must be made long after sentence has been entered and the prosecution terminated.

      . 18 U.S.C. § 4208(a) reads:
      Upon entering a judgment of conviction, the court having jurisdiction to impose sentence, when in its opinion the ends of justice and best interests of the public require that the defendant be sentenced to imprisonment for a term exceeding one year, may (1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which may be less than, but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the' court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine.

      . The Supreme Court has, in another context, specifically held that the “criminal prosecution” does not include the parole decision. In Morrissey v. Brewer, 408 U.S. at 480, 92 S.Ct. at 2600, the Court held that the rights guaranteed by the sixth amendment in “criminal prosecutions” do not apply in a parole revocation proceeding. It noted that, “Parole arises after the end of the criminal prosecution, including imposition of sentence.”

      . Although we stated in Caldwell that 1 U.S.C. § 109 preserves the “penalties” prescribed by § 7237(d), 463 F.2d at 594, we did not decide that the bar to parole under § 4202 was a “penalty.”


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Stephen SAWYER, Defendant-Appellant.
    No. 73-1209
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 30, 1973.
    Rehearing Denied Oct. 1, 1973.

      Paul R. Lawrence, Houston, Tex. (Court Appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

      . 18 U.S.C. § 4253(b) (1970) :
      If, following the examination provided for in section 4252, the court determines that an eligible offender is not an addict, or is an addict not likely to be rehabilitated through treatment, it shall impose such other sentence as may be authorized or required by law.

   PER CURIAM:

On September 25, 1972, appellant Charles Sawyer, pleaded guilty to a charge of unlawfully importing heroin in violation of 21 U.S.C. § 952(a) (1970). Pursuant to the sentencing procedures set forth in the Narcotics Addict Rehabilitation Act (NARA), 18 U.S.C. § 4252 (1970), he was committed to an institution in Milan, Michigan for observation in order to ascertain first, whether he was an addict and second, if so, whether he was likely to be rehabilitated through treatment. C. J. Hughes, warden of the Milan Institution, subsequently reported to the trial judge that although Sawyer was an addict, it was unlikely that he would be rehabilitated by the NARA drug abuse program and that his presence might be detrimental to others in the program.

After receiving the Warden’s letter, the trial judge ordered Sawyer to appear in court on January 15, 1973 and advised him that resentencing was set for January 17, 1973. On this latter date, Sawyer was resentenced to five years imprisonment with a special parole term of three years following the imprisonment pursuant to 21 U.S.C. § 960 (1970). On appeal, Sawyer raises three contentions, each of which we deem to be without merit.

Sawyer’s first contention is that 21 U.S.C. § 960 (1970), which provides for a 15 year maximum sentence, is arbitrarily and unreasonably discriminatory against him and others similarly situated. Premising his argument on the characterization of his importation as merely incidental to possession, he claims that discrimination inheres in the fact that addicts residing close to the border are more likely to be involved in importation for personal use and hence subject to stiffen penalties under 21 U. S.C. § 960 (1970) than addicts residing in the interior of the United States whose unlawful possession brings merely a one year sentence. ,While his factual observation may be irrefutable, his legal conclusion is not, and hence we reject it.

Sawyer’s second and equally unavailing contention is that the imposition of a sanction against him for importation violates the prohibition against cruel and unusual punishment' in that it punishes him for a status, that of being a narcotics addict. A similar argument was offered and rejected in United States v. Drotar, 416 F.2d 914, 916-917 (5th Cir. 1969). We find no compelling reason to repudiate that eon-elusion in the instant case.

Sawyer’s final contention is that he was denied due process at the sentencing phase of the trial. The thrust of this argument is that because the factual determination of guilt required to be made under 21 U.S.C. § 952(a) (1970) and the attendant sentencing under 21 U.S.C. § 960 (1970) presented issues distinct from those arising under 18 U.S.C. § 4252 (1970), he should have been accorded a full panoply of due process rights at the resentencing hearing, including confrontation of witnesses, reasonable notice and compulsory process under the Supreme Court’s ruling in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).

Admittedly, the factual determination required to be made under the former statutes — whether the accused unlawfully imported heroin — does not coincide with the determinations required to be made under the latter statute — whether the accused is an addict, amenable to rehabilitation under NARA programs. Whether this difference alone renders Specht v. Patterson, supra, dispositive of Sawyer’s due process contention need not, however, be decided, in this case, for here, Sawyer consistently maintained that he was not an addict and hence not eligible for the NARA treatment program in the first instance. Moreover, since the record is devoid of any evidence to suggest that Sawyer sought and was denied access to the warden’s report at the resentencing hearing, we need not entertain this contention on appeal. Cf. United States v. Hord, 459 F.2d 1003, 1004 (9th Cir. 1972); United States v. Carroll, 141 U.S.App.D.C. 178, 436 F.2d 272, 274 (1970).

The reasons set forth above, we affirm the judgment of the district court.

Affirmed.

      . 21 U.S.C. §952 (a) (1970) :
      (a) It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from- any place outside thereof, any controlled substance in schedule I or II of subchapter I of this chapter, or any narcotic drug in schedule III, IV, nr V of subchapter I of this chapter. . . .

      . 18 U.S.C. § 4252 (1970) :
      If the court believes that an eligible offender is an addict, it may place him in the custody of the Attorney General for an examination to determine whether he is an addict and is likely to be rehabilitated through treatment. The Attorney General shall report to the court within thirty days; or any additional period granted by the court, the results of such' examination and make any recommendations he deems desirable. An offender shall receive full credit toward the service of his sentence for any time spent in custody for an examination.

      . 21 U.S.C. § 960 (1970) :
      (a) Any person who—
      (1) contrary to section 952, 953, or 957 of this title, knowingly . . . shall be punished as provided in subsection
      (b) of this section. Penalties.
      (b) (1) In the case of a violation under subsection (a) of this section with re-, spect to a narcotic drug in schedule I or II, the person committing such violation shall be imprisoned not more than fifteen years, or fined not more than $25,000 or both. If a sentence under this paragraph provides for imprisonment, the sentence shall include a special parole term of not less than three years in addition to such term of imprisonment.

      . 21 U.S.C. § 844(a) (1970) provides for a year imprisonment term for simple possession of a controlled substance.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. E. B. COAL COMPANY and Helen Ann Coal Company, Respondents.
    No. 73-1277.
    United States Court of Appeals, Sixth Circuit.
    Aug. 2, 1973.
    Elliot Moore, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., John C. Ge-treu, Director, Region 9, N. L. R. B., Cincinnati, Ohio, for petitioner.
    William R. Forester, Greene & Forester, Harlan, Ky., for respondents.
   Before PECK, McCREE and MILLER, Circuit Judges.

This matter has come on to be considered upon the application of the National Labor Relations Board for summary entry of a judgment against respondents enforcing its order dated August 17, 1972. A hearing had theretofore been held pursuant to which the Trial Examiner issued a decision under date of June 30, 1972. Respondents did not take exceptions to said decision within the 20 day period after service thereof provided by Section 10(c) of the National Labor Relations Act, as amended (29 U.S.C. § 151 et seq.). Such filing of exceptions is tantamount to the filing of a notice of appeal and must be fully accomplished within the period prescribed. Kiekhaefer Corp. v. NLRB, 273 F.2d 314 (7th Cir. 1960). Respondents filed a response to the present application, but such filing cannot cure the lack of exceptions to the findings of the Trial Examiner. Retail Clerks International Association v. NLRB, 125 U.S. App.D.C. 63, 366 F.2d 642 (1966). In the premises, and having considered the entire transcript of record filed in this cause, the Court concludes that the said application for summary entry of judgment should be and it hereby is granted, and it is further

Ordered and adjudged that respondents, their officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Assisting or contributing support to UMW or to any other labor organization.

(b) Recognizing UMW, or any successor thereto, as the exclusive representative of their employees for the purposes of collective bargaining, unless and until said labor organization shall have demonstrated its exclusive majority representative status among said employees in a Board conducted election.

(c) Giving effect to the agreement with UMW entered into in August 1971, or to any extension, renewal or modification thereof, between the Respondents and the said union which may now be in force.

(d) Giving effect to any checkoff cards authorizing the deduction of periodic dues from wages for remittance to the aforesaid Union, prior to the date of compliance with this Judgment.

(e) Discriminatorily transferring, or otherwise discriminating against, any employees because of membership in, or activity on behalf of, any labor organization other than UMW.

(f) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities'for the purpose of collective bargaining or other mutual aid, or to refrain from any or all such activities.

2. Take the following affirmative action which the Board has found necessary to effectuate the purposes of the National Labor Relations Act, hereinafter called the Act:

(a) Withdraw and withhold recognition from the UMW, or any successor labor organization as the representatives of their employees, unless and until said organization shall have demonstrated its exclusive majority representative status in a Board-conducted election.

(b) Make whole the employees for all initiation fees and dues withheld from their wages and paid to the aforesaid union.

(c) Offer all employees transferred from the Helen Ann mine on August 2, 1971, and thereafter, because of non-membership in the UMW, reinstatement to their former jobs at that mine, if they so desire, without prejudice to their seniority or other rights and privileges.

(d) Make whole all of the employees described in the preceding paragraph for any loss of pay they may have suffered as a result of the discrimination against them, in the manner set forth in the section of the Trial Examiner’s Decision entitled “The Remedy.”

(e) Preserve, and upon request, make available to the Board, or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or appropriate to analyze the amount of backpay due.

(f) Post at their mines in Harlan County, Kentucky, copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 9, Cincinnati, Ohio, after being duly signed by the Respondents’ authorized representative, shall be posted for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that said notices are not altered, defaced, or covered by any other material.

(g) Notify the aforesaid Regional Director, in writing, within 20 days from the date of this Judgment, as to what steps the respondents have taken to comply herewith.


author: CRAVEN, Circuit Judge:

text:
    Leslie E. PORTIS, an infant, who sues by her father and next friend, James R. Portis, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1160.
    United States Court of Appeals, Fourth Circuit.
    Argued June 7, 1973.
    Decided Aug. 29, 1973.
    E. Ralph James, Jr., and L. Eldon James, Hampton, Va. (James, Richardson & James, Hampton, Va., on brief), for appellant.
    Roger T. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
    Before WINTER, CRAVEN, and FIELD, Circuit Judges.
   CRAVEN, Circuit Judge:

This is an appeal from dismissal of a complaint under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Leslie Portis, age nine, is the real plaintiff, and is now almost totally deaf allegedly as the result of medical malpractice in an Air Force hospital in 1963. The United States concedes the malpractice, and yet, incredibly, interposes the bar of the two-year statute of limitations. Reluctantly, the district judge applied the statute, 28 U.S.C. § 2401(b), and dismissed. We think the statute of limitations as applied to the hearing loss began to run in 1969 when, for the first time, a doctor ascribed Leslie’s deafness to the 1963 malpractice, and that accordingly, the suit was timely begun, and we reverse.

In October 1963, Leslie, then approximately 15 months old, was admitted to the United States Air Force Hospital, Maxwell Air Force Base, Alabama, for corrective surgery of a bowel disorder. In preparation for this operation, a staff physician prescribed one gram of Neomycin to be given to Leslie every six hours. The drug was to be administered orally, but tragically, an unidentified government nurse administered seven doses of it hypodermically. This negligent muscular injection of Neomycin immediately caused acute kidney poisoning nearly resulting in Leslie’s death. The renal toxicity was soon corrected and Leslie was discharged from the hospital in November 1963 — apparently none the worse for her near-mortal experience.

A possible side effect of intramuscu-larly administered Neomycin is damage to the auditory (eighth cranial) nerve. Hearing impairment may result from destruction of small hair cells in the inner ear. Leslie’s hearing was checked by a qualified audiologist before she left the hospital, and while no hearing damage was then evident, Mrs. Portis was advised to have Leslie’s hearing reevaluated at age three. Over the next few years, Leslie was frequently ill with ear, throat, and respiratory infections, including pneumonia and tonsillitis. As a result, a tonsillectomy and adnoidectomy were performed, and tubes were inserted to drain fluid which had accumulated in her ears.

Amid these various ailments, Leslie’s hearing began to deteriorate, a fact first suspected by her mother in 1964 and confirmed by the age-three hearing tests. In an attempt to improve her hearing, Leslie underwent extensive examination and treating during the next five years. During this entire time, however, none of the physicians who examined and treated Leslie (there were about seven) diagnosed the cause of hearing loss. Mrs. Portis was told that deafness could have been caused by ear infections, high fever, or the Neomycin injections. It was not until 1969 that a doctor finally diagnosed Leslie’s problem as a profound neurosensory hearing loss related to Neomycin toxicity. Colonel Portis brought this action for his daughter in 1970.

In considering whether to apply the statute of limitations, the district judge first found that in October 1963, Mrs. Portis knew of the wrongful injections, and knew of the efforts being made to correct renal failure caused by the intramuscular injections of Neomycin. The court then concluded, and we think correctly so, that the statute of limitations began to run in 1963 as to any possible cause of action based upon the renal poisoning.

The district judge also found that Mrs. Portis knew in November 1963 that there was a “distinct possibility” of future hearing loss as a result of the malpractice. Applying Ashley v. United States, 413 F.2d 490 (9th Cir. 1969), to this finding, the court then concluded that the resulting hearing loss could not be treated as a separate cause of action so as to start the statute of limitations running anew in 1969 (at time of first diagnosis), but was merely another manifestation of the same negligent 1963 act which caused renal failure, and that the suit was therefore barred because it accrued in 1963.

Although we accept this finding as not clearly erroneous, for purposes of decision, we do not believe that it mandates the result reached below.

In concluding that Colonel Portis’s suit for the negligent injury of his daughter resulting in deafness was barred by the statute of limitations, the district judge relied heavily upon Ashley, supra. We think Ashley distinguishable and his reliance misplaced. In Ashley the plaintiff attempted to avoid the two-year limitation by asserting that although he was aware in 1963 that malpractice had occurred and had injured him, he did not realize until 1967 the full extent of his injury. The plaintiff in Ashley suffered a nerve injury when doctors attempted to take a blood sample by insertion of a needle. He knew of the nerve injury at the time of occurrence, and his belated claim was for nerve injury. The only excuse offered for delay in instituting suit was his assertion that he did not know the injury would be a permanent one. We agree with the Ninth Circuit that one who knows that an injurious tort has been committed against him may not delay the filing of his suit until the time, however long, when he learns the precise extent of the damage resulting from the tort. That is all that Ashley holds, and it has long been settled that the running of a statute of limitations does not await determination of the full extent of injury.

In contrast, we think the facts of this case constitute an exception to the general rule that causes of action may not be split. The record and the findings of fact clearly reveal that the unknown factor that delayed instituting this lawsuit was not the nature and extent of Leslie’s injury (loss of hearing), but rather what caused it. Colonel Portis could not hope to recover compensation for his daughter’s deafness unless the 1963 malpractice was the proximate cause, or one of the proximate causes, of Leslie’s loss of hearing. Even if the colonel knew that there was a “distinct possibility” of a causal relationship, knowledge and testimony to that effect is scarcely enough to go to the finder of fact on the question of causation. What is important here is that no one, neither layman nor doctor, diagnosed the hearing difficulty as being caused, or even probably caused, by the 1963 malpractice until the year 1969.

We accordingly hold that Leslie Por-tis’s cause of action for malpractice resulting in deafness did not accrue until 1969. To hold otherwise, we believe, would be contrary to the rationale of § 2401(b).

“We do not think the humane legislative plan intended such consequences to attach to blameless ignorance. Nor do we think those consequences can be reconciled with the traditional purposes of statutes of limitations, which conventionally require the assertion of claims within a specified period of time after notice of the invasion of legal rights.” Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1025, 93 L.Ed. 1282 (1949).

As we stated in Young v. Clinchfield R. R., 288 F.2d 499, 503 (4th Cir. 1961):

[W]hen the nature of the injury is such that it does not manifest itself immediately, the determination of when the cause of action accrued does not depend on when the injury was inflicted. To the contrary, the cause of action accrues only when the plaintiff has reason to know he has been injured. Generally this will be when his condition is diagnosed ....

While Young involved the situation where the injury was not immediately detectable, we believe the same rationale is applicable where, as here, the cause of the injury was neither known nor reasonably detectable.

Reversed.

      . The reasons advanced for the enactment of statutes of “repose” are these: a “stale” claim may be more readily asserted fraudulently and the passage of time hampers defense, e. g., records may have been lost, witnesses may have died. That there is no reason to interpose a plea in bar against a just claim is reflected in the rule in some jurisdictions that the pleading of a statute of limitations is discretionary even for fiduciaries. E. g., 31 Am.Jur.2d Executors & Administrators § 738 (1967).

      . 28 U.S.C. § 2401(b) (1966) provides in part:
      A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues ....
      This is the section as amended in 1966. The revision does not affect this case, however, since tlie amendment did not alter the substance of the two-year limitation.

      . Displaying both modesty and a fine sense of justice, the district judge put into his memorandum of decision the following-:
      While we have thus made the decision which we believe the state of present law requires under the facts of this case, and, indeed, there is little factual conflict here involved, we are frank to say we are not satisfied with the recorded decisions and would welcome change.
      The problem is a knotty one, not here really solved, but we would welcome the intelligence of the appellate Court.
      He proceeded to persuasively criticize Pittman v. United States, 341 F.2d 739 (9th Cir. 1965), but apparently felt bound by it. We think it distinguishable, but if not, we respectfully decline to follow it.

      . It is now well settled that federal law determines when a claim accrues within the meaning of 28 U.S.C. § 2401(b), Toal v. United States, 438 F.2d 222, 224 n. 3 (2d Cir. 1971).

      . Prior to 1962, there was a divergence of opinion among the federal courts as to when this statute began to run. See Tessier v. United States, 269 F.2d 305 (1st Cir. 1959). Chief Judge Tuttle of the Fifth Circuit, in rejecting the rather harsh rule that a cause of action for malpractice accrues when the negligent acts occur even though the injured patient is unaware of his plight, stated what, has now become the standard interpretation of § 2401(b) :
      [A] claim for malpractice accrues against the Government when the claimant discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice. Quinton v. United States, 304 F.2d 234, 240 (5th Cir. 1962). See, e. g., Toal v. United States, 438 F.2d 222, 224-225 (2d Oir. 1971) ; Ashley v. United States, 413 F.2d 490, 492 (9th Cir. 1969).

      . Although it is not entirely clear from the memorandum of decision, this finding is apparently based upon the district judge’s rejection of Mrs. Portis’s testimony that she was never advised by Air Force doctors that there could be damage to the auditory nerve as the result of muscularly administered Neomycin. The district judge reasoned, erroneously, we think, that Mrs. Por-tis must have known and understood that a hearing injury could result because she was a graduate nurse and such a possible effect to the eighth cranial nerve is “a medical hornbook diagnosis.” Yet, significantly, there is no finding that any medical doctor ever made such a diagnosis until 1969.

      . Prosser lists as an essential element of a cause of action
      A reasonably close causal connection between the conduct and the resulting injury. This is what is commonly known as “legal cause,” or “proximate cause.”
      W. Prosser, Law of Torts 146 (3d ed. 1964). E. g., 2 F. Harper & F. James, Law of Torts § 20.4 (1956).
      The court in Ashley v. United States, 413 F.2d 490 (9th Cir. 1969), fully realized the requirement of proximate cause and damage when it noted that the plaintiff “knew of the acts constituting the alleged malpractice when they were done on September 6, 1963, and he also knew . . . that he had been injured” as a result of those acts. [Original emphasis]. Ashley v. United States, 413 F.2d 490, 492 (9th Cir. 1969). Colonel Portis, on the other hand, may have reasonably thought his daughter had not been injured — at least not appreciably and not beyond the cost of hospitalization and medical care provided by the government.


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    Russell MANN and Vivian Mann, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 72-1761.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 16, 1973.
    Decided Aug. 27, 1973.

      William V. Phelan, Iowa City, Iowa, for appellants.
    Charles E. Anderson, Atty., Tax Div., Dept, of Justice, Washington, D. C., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       Eastern District of Michigan, sitting by designation.

   VAN OOSTERHOUT, Senior Circuit Judge.

This is a timely appeal by taxpayer Russell Mann from the decision of the Tax Court sustaining the Commissioner’s determination of a deficiency of $9,957.95 in income tax for 1966. The deficiency arose out of the disallowance of a deduction for payment of $20,731.00 made to Keith Wilson Hatchery, Inc. (Hatchery), on December 31, 1966, for feed to be delivered and used in 1967 in taxpayer’s feeder pig operation. Jurisdiction is conferred by § 7482 I.R.C. 1954.

The relevant facts as found by the Tax Court may be thus summarized:

Taxpayer is a real estate broker and a farmer residing at Iowa City, Iowa. He owns a 343 acre farm known as the Mann farm upon which he commenced a feeder pig operation in 1966. Taxpayer had been a regular customer of Hatchery and a long time friend of its presiding officer Wilson. Hatchery was engaged in the business of selling livestock feed and purchasing and selling grain.

On December 30, 1966, taxpayer went to Hatchery’s office and talked with Wilson in regard to his feeder pig operation and hog feed requirements for the Mann farm operation for 1967. Following the discussion between taxpayer and Wilson, Hatchery issued and delivered to taxpayer its ticket No. 65968 dated December 30, 1966, which designated taxpayer as “customer” and contained the following pertinent entries:

Quantity Description Price Amount

9,350 bu. No. 2 Yellow Com $ 1.42 $13,277

1 ton Pre-starter 234.00 234

10 tons Starter Bracer 134.00 • 1,340

30 tons Pig Grower JJ 108.00 3,240 15 tons Pig Gro Supp JJ2 176.00 2,640

$20,731

Taxpayer and Wilson agreed that taxpayer did not have to take delivery of the exact amounts of feeds listed on the ticket and that taxpayer'could substitute other feeds if the condition of his hogs so required. The prices stated on the ticket did not take into account the usual discount of $5 per ton given to taxpayer or Hatchery’s $2 per ton hauling discount. The parties agreed that the prices charged taxpayer upon delivery of the feed would be reduced by these discounts. The prices stated on the ticket were purportedly the maximum price to be charged taxpayer for feed delivered in 1967; ■ however, taxpayer was to be charged market price less discount if that price was lower than the ticket price less discount.

On December 31, 1966, taxpayer delivered to Hatchery his check payable to it in the amount of $20,731. Upon receipt thereof, Hatchery issued and delivered to taxpayer its ticket No. 65971 dated December 31, 1966, which designated taxpayer as “customer”, contained a cheek mark in a square space entitled “on acct.”, and further contained the following entries:

Description Amount

Com and Feed $20,731

For its accounting purposes, Hatchery treated taxpayer’s payment of $20,731 as a deposit rather than as income.

No portion of the grain and feed items listed in ticket No. 65968 issued by Hatchery was delivered to or received by taxpayer during the calendar year 1966.

After receiving taxpayer’s payment, Hatchery did not set aside the amounts of feed stated in the tickets or charge taxpayer for storage of the feed. At trial, Wilson could not recall whether Hatchery had enough feed on hand at the close of 1966 to fill taxpayer’s order. The agreement between Hatchery and taxpayer did not shift the risk of loss by fire or other cause of the feed covered by the ticket to taxpayer; Hatchery was responsible for the feed until delivery.

Taxpayer and Wilson did not discuss the possibility of refunding a part of the prepayment if taxpayer did not require all of the feeds covered by the ticket. No refund was ever claimed or made.

From time to time during 1967, taxpayer required delivery of feed and other supplies. At those times, Hatchery would debit taxpayer’s account in amounts equal to the prevailing market prices less discounts for the items delivered. On two occasions, February 4 and February 22, 1967, the delivery debit for a ton of Pig Gro Supplement JJ2 was $178 (less $5 discount in the case of the February 4 delivery), notwithstanding Hatchery’s purported agreement to hold the price of a ton of this feed to $176 less discount during 1967.

The following chart summarizes the items delivered by Hatchery to taxpayer during 1967 and the aggregate of debits to taxpayer’s account.

Item Quantity Price

Corn 9,494.78 bu $13,469.81

Pre Starter

Starter Bracer 5.25 tons 637,20

Pig Grower JJ 7 tons 696.00

Grow Supp JJ2 9 tons 1,528.00

Grow Pork 45 2 tons 292.00

FDP Sow Supplement 7 tons 876.25

Schumacher 17.38 tons 1,093.78

Pro Sweet 1 ton 105.00

Insecticides, Mineral Salt, Dip, Wormer 107.78

Grass Seed 329.80

Totals $19,135.52

The balance of taxpayer’s payment was used by by feed deliveries made to the taxpayer early in 1968. Taxpayer treated the December 31, 1966, payment of $20,731 to Hatchery as a deductible business expense on his 1966 income tax return. The Commissioner disallowed the deduction on two grounds: First, that the amount so transferred represented a nondeductible deposit which was to be applied against future purchase of feed and, thus, did not constitute the payment of a current expense. Secondly, that even if the disbursement constituted the payment of an expense attributable to 1966 rather than an advance deposit, it was not an “ordinary and necessary” expense of taxpayer’s business for that year, and, therefore, was not deductible under Section 162(a) of the Code. The Tax Court sustained the Commissioner’s determination on both grounds.

Taxpayer as a basis for reversal urges that the Tax Court’s determination on both issues is clearly erroneous. Taxpayer’s position on such issues is, (1) the December 31 transaction constitutes a valid contract for the sale of the feed and taxpayer’s $20,731 check constitutes full payment of the contract price, and (2) the payment was an ordinary and necessary expense within the meaning of § 162 I.R.C. 1954.

We agree with taxpayer on both issues and reverse the judgment of the Tax Court for the reasons hereinafter stated.

There has been, and continues to be, a great deal of confusion regarding the propriety of deducting prepaid expenses in the year of payment. The results have varied depending on the expense item in question. See, e. g., Maple v. CIR, 440 F.2d 1055 (9th Cir. 1971) (prepaid tree growing services); Waldheim Realty & Inv. Co. v. CIR, 245 F.2d 823 (8th Cir. 1957) (prepaid insurance premiums); Williamson v. CIR, 37 T.C. 941 (1962) (prepaid delay rental payments in connection with oil and gas lease); Duffy v. Central N.J.R.R. Co., 268 U.S. 55, 45 S.Ct. 429, 69 L.Ed. 846 (1925) (additions to leased property); 4A Mertens Law of Federal Income Taxation § 26.14 (1972 rev.) (prepaid interest) ; Rev.Rule 71-190, CB 1971-1, p. 70, superseding IT 4054, CB 1951-2, p. 36 (prepaid state taxes); Main & McKinney Bldg. Co. v. CIR, 113 F.2d 81 (5th Cir. 1940) (prepaid rent); University Properties, Inc., 45 T.C. 416 (1966), affd., 378 F.2d 83 (9th Cir. 1967) (prepaid rent). See also cases cited at Cravens v. CIR, 272 F.2d 895, 899 n.16 (10th Cir. 1959). There is clearly no common thread or governing principle which rationalizes and renders predictable the results concerning deductibility of advance payments in general. However, special theories and practices have developed which govern the tax treatment of advance payments for livestock feed. See Hawkinson, Farm Expenses and General Accounting Principles, 22 Tax Law Review 237, 245 (1967); Pin-ney & Olson, Farmers’ Prepaid Feed Expenses, 25 Tax Lawyer 537 (1972) (hereinafter cited as Pinney). It is this special area of advance payments for which exploration is merited by the instant case.

The question of the proper tax treatment for advance payments for livestock feed apparently first arose in Des Moines, Iowa, in 1943. In a letter ruling, the Deputy Commissioner stated:

“In the case of a taxpayer on the cash receipts and disbursements basis, the amounts expended for feed should be deducted as an expense in the year in which the feed is paid for, irrespective of the fact that it may not be consumed until the following year.” Pinney at 539, citing Prentice-Hall Federal Tax Service ¶ 66,149 (1944).

There was a relative peace until the case of Ernst v. CIR, 32 T.C. 181 (1959) (acquiescence, 1959-2 C.B. 4). Ernst made large advance payments for poultry feed in December of 1948 and 1949. The deductions were disallowed for the years in which the payments were made. The Tax Court held against the Commissioner, stating:

“The payments were absolute and petitioner . . . was irretrievably out of pocket the amounts paid. . . . ” 32 T.C. at 186.

In another 1959 case, Cravens v. CIR, 272 F.2d 895 (10th Cir. 1959), the taxpayer also prevailed. In December 1953, Cravens paid $50,000 for feed to be supplied in 1954. The Tenth Circuit held against the Commissioner on the basis that there was a binding contract and on the basis that a danger of feed shortages formed a valid “business purpose” for the advance payment.

The next case involving advance payments for feed was decided in 1961. Shippy v. United States, 199 F.Supp. 842 (W.D.S.D.1961), affd., 308 F.2d 743 (8th Cir. 1962). Shippy paid $23,000 in advance for feed to be delivered in the future as needed. For the first time, the Commissioner’s determination of a deficiency was upheld. The District Court noted that the expenditure created “an asset having a useful life extending substantially beyond the close of the taxable year. . . .” 199 F.Supp. at 843. It also relied on the absence of prior consistent practice and the fact that “no preferential treatment” was secured by the advance payment. Id. Finally it held the transfer of money was in fact a refundable deposit rather than a payment pursuant to a binding contract. This court affirmed almost exclusively on the latter ground, although some attention was given to the absence of prior consistent practice.

In 1965, the Commissioner won another victory. Lillie v. CIR, 45 T.C. 54 (1965), aff’d. per cur., 370 F.2d 562 (9th Cir. 1966). Again, the conclusion that the money transfer was a refundable deposit rather than a true payment was a crucial factor. An additional, and novel, factor was that charges for some services were bound up in prepaid fee. 45 T.C. at 63.

In Estate of Frank Cohen, T.C. Memo. 1970-272, deductions were claimed for advance payments made pursuant to two separate feed sale contracts. Deductions were allowed with respect to one contract and denied as to the other. In both determinations the crucial question was whether the money transferred constituted a refundable deposit. As in Lillie, some reliance was placed on the inclusion of services as part of the consideration for the prepayment.

Finally, another taxpayer victory occurred in Gaddis v. United States, 330 F.Supp. 741 (S.D.Miss.1971). Once again a predominant consideration was the court’s conclusion that the prepayment was not a refundable deposit. The court placed some reliance on the fact that “there was no provision for services to be rendered.” 330 F. Supp. at 752.

In addition to the case law summarized above, a new theory has been propounded by the Internal Revenue Service Los Angeles District Director to the effect that, regardless of any other factor, no prepaid feed expense is deductible unless the feed “is in existence at the date of purchase in the form it is fed to the animals.” Los Angeles District Director, News & Notes for the Tax Practitioner (Number 72-1), cited in Pinney at 546. This position is based on the theory that “goods must be both existing and identified before any interest in them can pass.” Id. That such theory is given support by the Tax Court is evidenced by its reliance on Wilson’s admission that he did not “set aside any feed for petitioner after accepting petitioner’s money and was not certain that he had enough on hand at the end of 1966 to meet petitioner’s order if petitioner had requested immediate delivery of all the feeds listed on the ticket.” See 33 Am.Jur.2d Federal Taxation ¶ 7574 (Supp. 1973).

Concerning the new factor, promulgated by the Los Angeles District Director, none of the six cases summarized above has placed any reliance upon it. Ernst notes that the feed in that case was not existing at the time of the payment, yet upholds the deduction. For cash basis taxpayers, § 162(a) limits deductibility of expense items to instances where payment has been made; there is no provision in the Code or elsewhere which conditions deductibility on the passage of “title.” See Pinney at 546-48. The Los Angeles District Director’s position is wholly untenable. The Tax Court’s reliance on this factor in the instant case was error.

We address first the question of whether taxpayer’s transfer of the money to Hatchery was a payment or, as the Commissioner contends, a mere deposit. The Tax Court at one point states that taxpayer made a “nonrefundable deposit, which is nevertheless a deposit and not a purchase of specific goods.” The Random House Dictionary defines deposit as “anything given as security or in part payment.” Random House Dictionary 388 (unabridged ed. 1971) (emphasis added). An example following this definition makes clear the two alternate meanings of the word: some deposits “given as security” are refundable; other deposits given “in part payment” are the type which are not refundable. We think both the Dictionary definition and the common usage of the word clearly suggest that a nonrefundable deposit is, quite simply, a payment. If the deposit is nonrefundable, then the taxpayer is “irretrievably out of pocket the amounts paid, which amounts were obviously expenses incident to ‘carrying on a trade or business.’ ” Ernst v. CIR, supra, at 186. With certain exceptions not applicable here, unqualified delivery of a check constitutes “payment at the time of delivery, when the check is subsequently cashed or deposited.” 2 Mertens Law of Federal Income Taxation § 12.54 (rev.ed.1967 & 1973 Cum.Supp.) If the Tax Court is correct in its conclusion that this delivery of a check constituted a nonrefundable deposit, then the deduction must be upheld.

The key to this question is re fundability. The Tax Court found “that the parties made no provision for return of part of the $20,731 if petitioner did not accept delivery of all the feeds listed on the ticket.” This finding is clearly supported by the evidence in the record. Yet the Tax Court, in a subsequent statement somewhat inconsistent with its earlier apparent conclusion that this deposit was not refundable, strongly implies that this deposit was refundable. The court states:

“Our view of the transaction between petitioner and Hatchery is that petitioner placed a deposit which could be applied at petitioner’s discretion toward the purchase of feed and other products. We note that petitioner has not introduced any memorandum signed by him evidencing his obligation to purchase the feeds listed on the ticket. Accordingly, Hatchery could not have forced him to accept delivery of these feeds. Iowa Code, Sec. 554.2201 (1966). ¶ 72,163. P-H Memo TC at 846 (1972).

The Iowa Code section cited by the Tax Court is the U.C.C. statute of frauds provision. It is fairly clear that the writings in this case are not sufficient to comply with Iowa Code § 554.2201(1). Cf. Cohn v. Fisher, 118 N.J.Super. 286, 287 A.2d 222 (1972); Jinright v. Russell, 123 Ga.App. 766, 182 S.E.2d 328 (1971). Nevertheless, Iowa Code § 554.-2201(3) provides that “[a] contract which does not satisfy the [writing] requirements of subsection (1) but which is valid in other respects is enforceable with respect to goods for which payment has been made and accepted. . . . ” The Tax Court apparently felt that this exception was available only when the party seeking to enforce the contract is the same party which rendered the partial performance. According to this interpretation, the contract could be enforced by Mann against Hatchery but not by Hatchery against Mann. There is some support for this view in the cases. See In re Flying W Airways, Inc., 341 F.Supp. 26 (E.D.Pa.1972). However, the clear majority view is that the partial performance exception renders the contract enforceable by either party. See Cohn v. Fisher, supra; Lake Village Implement Co., Inc. v. Cox, 478 S.W.2d 36 (Ark. 1972). This view is consistent with the U.C.C. comments which provide that:

“Receipt and acceptance either of goods or of the price constitutes an unambiguous overt admission by both parties that a contract actually exists.” (Emphasis added).

Moreover, and more importantly, this court has already adopted this view and, in the absence of a controlling state supreme court case to the contrary, we see no reason to depart from it. See Au-gustin Bros. Co. v. Wright Grain Co., 460 F.2d 376 (8th Cir. 1972).

Both taxpayer and Wilson unequivocally testified they entered into a binding contract for the sale of the feed. There is no substantial evidence to the contrary. The Tax Court concedes the credibility of the witnesses. The court states: “Although petitioner may have been able to require Hatchery to deliver the feeds listed on the ticket, the record shows that petitioner did not own any feed until it was delivered.” The Tax Court by such statement impliedly concedes a valid contract was entered into on December 31. Passing title to the feed is not an essential element of a binding contract to sell feed. Taxpayer’s December 31 payment represents the payment of the contract price for the feed that his contract obligated him to purchase. This case is a stronger case for the taxpayer factually than Cravens, supra. The court in Cravens states:

“Under the contract the dates of delivery were not fixed, the prices were to be those prevailing on the dates of delivery, the quantities could have been varied ‘to any reasonable extent,’ and if the advance payment had exceeded-the ultimate cost, Cravens would have been entitled to a refund. These factors are urged as establishing that there was no firm contract of sale and purchase and, hence, no obligation to pay the $50,000 in 1953. The answer is that the contract was binding and carried out by the parties.” Cravens v. CIR, supra, 272 F.2d at 898 (emphasis added).

We hold that the finding of the Tax Court that the check delivered by taxpayer to the seller on December 31, 1966, did not constitute payment is clearly erroneous.

The remaining issue is whether the Tax Court’s determination that the payment made did not constitute an ordinary and necessary business expense for 1966 is clearly erroneous. The governing statute, § 162 I.R.C.1954, reads:

“There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, : . . ”

We have heretofore cited and discussed cases dealing with the application of this section to various feed payments made by farmers.

The Tax Court was of the view that no business purpose was served by the payment made because of its determination that the taxpayer received no maximum price guarantee and hence taxpayer received no benefit from the advance payment. In support of such determination, the court relies on two isolated instances where the taxpayer paid $2.00 a ton above the agreed maximum price on one-ton purchases of mixed feed. Taxpayer contends that one of the $2.00 alleged overcharges was adjusted by a subsequent credit. The record tends to support such contention. Apart from the two asserted $2.00 overcharges, there is no evidence that any charge was made for any item in excess of the price guaranteed. Whether or not the credits were made, we believe the overcharges aggregating no more than $4.00 on a $20,000 transaction could well have been made by mistake on the part of the seller and overlooked or waived by the taxpayer. In any event, such trivial variation is not persuasive on the price guarantee when viewed in the light of the record as a whole. The unequivocal testimony of both the buyer and the seller is that the contract prices stated in the invoice are guaranteed maximum prices. Such guarantee was a benefit to the taxpayer as it protected him against a price, rise in the event the market price went up. Additionally, upon the basis of the valid contract, taxpayer was in a preferred position to insist upon and receive delivery of the items purchased in case of a feed shortage. It was of course impossible in December 1966 to predict with any certainty the crop conditions or feed prices for the following year. This is well-illustrated by the rapid rises in grain and feed prices that have taken place in recent months. It was entirely reasonable for the taxpayer to obtain assurance by means of a contract as to his feed costs before determining the scope of his operation. The court’s determination that the contract and advance payment served no business purpose is clearly erroneous.

We find no substantial support in the cases heretofore cited treating with the deduction of feed expenses to support the Government’s contention that a benefit to the taxpayer is necessary to support the timing of a business expense deduction which meets the terms of § 162(a) in a situation where, as here, payment is made pursuant to a binding contract. Such issue need not be decided to resolve this case in light of our determination that a benefit to the taxpayer has been established.

A comparison of the invoice and the feed supplied indicates that the taxpayer’s estimated need for feed in 1967 reflected by the invoice was reasonable. The principal item involved is corn. Taxpayer received corn in an amount slightly above the amount stated in the invoice. Buyer and seller had agreed that substitutes could be made to fit the buyer’s needs.

It is entirely possible that taxpayer’s feed purchase may have been influenced by tax savings motives. In Shippy, we stated: “With the contention that tax motive is unimportant if taxpayer does that which the law permits, we agree.” 308 F.2d at 747. To like effect, see Cravens, 272 F.2d at 898; Gaddis, 330 F. Supp. at 755.

For a cash-basis taxpayer, the time of deductions under § 162(a) for expense of carrying on a business operation is simple. Business expenses are deductible when paid. It is the items for which the expense is incurred that must meet the ordinary and necessary test, not the timing of the payment. The Government does not contend that the invoice feed is not a necessary business expense in a pig feeding operation. The contention is that 1966 is not the appropriate year for the claimed deduction.

Section 446 I.R.C.1954 provides:

“General rule for methods of accounting.
(a) General rule. — Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.
(b) Exceptions. — If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary or his delegate, does clearly reflect income.”

No issue is here raised that the cash method of accounting uniformly used by the taxpayer did not properly reflect his income. No determination was made by the Commissioner or the Tax Court that the taxpayer’s method of accounting did not properly reflect income. Similarly, no contention is here made that the feed purchase covers taxpayer’s needs for an excessive period of time such as to require capital expenditure treatment under § 263(a)(1).

The two statutes last referred to constitute limitations on business expense deductions but need not here be considered since no contention is made in this ease that these statutes have been violated. See Commissioner v. Transport Manufacturing & Equipment Co., 478 F.2d 731 (8th Cir. Apr. 20, 1973). Neither the Commissioner nor the Tax Court has placed any reliance upon such sections.

Our determination on the record as a whole that the feed purchase here involved was an ordinary and necessary business expense within the meaning of § 162(a) is supported by Ernst, Cravens, Gaddis and Cohen, supra.

The Cravens court states:

“In the case of farmers and cattle raisers the use of a transactional basis for the computation of income would bring confusion into the federal tax system. The treatment of the cost of seed, fertilizer, and feed purchased in one year for use in the next year is simple if the deduction is allowed when paid if the cash basis applies or when incurred if the accrual basis is used.” 272 F.2d at 900-901 (footnote omitted).

In Gaddis, the court agreed with testimony which asserted

“that if the plaintiff were required to charge expense of chicken feed as it were delivered or as the chickens consumed it. rather than as it was paid for, this would amount to a ‘real burdensome type of operation’ and that it would not be possible to trace this feed through a perpetual inventory from the time it was purchased until it was delivered to the Breeder Farm and would be inconsistent with the cash method of accounting. . . . ” 330 F.Supp. at 758.

The Gaddis court further states:

It would be ludicrous for this Court to doubt for one second that the purchase of the chicken feed ingredients by the plaintiff in its large chicken-producing and inter-related activities was not appropriate and helpful for the development of its business of raising and feeding large flocks of chickens for sale on the market. Certainly this was an ordinary as well as a necessary expense. . . . ” 330 F.2d at 757.

Our decision in this case is not in conflict with our decision in Shippy. In that case there was positive testimony by the seller that taxpayer’s check was intended as a deposit and not as a payment. There are additional factual distinctions. We expressed no disagreement with the law as stated in Ernst and Cravens but based our decision upon our determination that the court’s decision, that the contract for the sale of the feed had not been consummated, was supported by substantial evidence. In our present case we have hereinabove determined that on the record before us the payment was final and was made pursuant to a valid, binding, enforceable contract.

In the present case, we find no substantial evidence to support the Tax Court’s determination that the December 31, 1966, payment did not constitute an ordinary and necessary business expense in the operation of the taxpayer’s feeder pig business.' We hold that the payment represented a business expense deductible in 1966.

The judgment of the Tax Court is reversed.

      . Vivian Mann is a party to this action only because of the filing of a joint return with her husband for the year in issue.

      . Memorandum opinion is published at 31 T.C.M. 808.

      . In Security Flour Mills Co. v. CIR, 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725 (1944) the Supreme Court holds that the clearly-reflect-income language of § 446 (b) “was not intended to upset the well understood and consistently applied doctrine that cash receipts or matured accounts due on the one hand, and cash payments or accrued definite obligations on the other, should not be taken out of the annual accounting system and, for the benefit of the Government or the taxpayer, treated on a basis which is neither a cash basis nor an accrual basis, because so to do would, in a given instance, work a supposedly more equitable result to the Government or to the taxpayer.” Id. at 285-286, 64 S.Ct. at 598.
      In applying the cash accounting method, “[t]he uniform result has been denial both to Government and to taxpayer of the privilege of allocating income or outgo to a year other thorn, the year of actual receipt of payment. ...” Id. at 286-287, 64 S.Ct. at 599 (emphasis added),