author: Mr. Justice Brennan,

text:
    No. 71-5405.
    Robins v. United States.
   Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join,

dissenting.

On March 4, 1964, petitioner was arraigned in the United States District Court on charges of prison escape and accompanying assaults. Counsel was appointed that day, and after petitioner and the attorney assured the court they had had sufficient time earlier in the day to confer, the court accepted petitioner’s guilty pleas. On June 22, 1964, petitioner returned for sentencing, and the following occurred:

“The Court: Mr. Robbins [sic], when [last] before the Court, was represented by appointed counsel, Mr. Sheldon Crossette, a member of the bar of Wyan-dotte County and of this Court.
“I excused Mr. Corssette [sic] from further representation of Mr. Robbins [sic] since he is in Kansas City and this hearing is in Leavenworth.
“Mr. Robbins [sic], do you desire that other counsel be appointed to represent you at this hearing?
“Defendant Robbins [sic]: No.
“The Court: You understand that you have the right to have counsel?
“Defendant Robbins [sic]: Yes.
“The Court: And you waive that right?
“Defendant Robbins [sic]: Yes, sir.”

Petitioner was then sentenced to consecutive five-year terms of imprisonment on two counts and a concurrent five-year term on a third, all to follow any sentence then being served.

Petitioner subsequently filed a motion in the sentencing court to vacate sentence under 28 U. S. C. § 2255, contending, first, that in summarily relieving his appointed attorney, the trial court had denied him his constitutional right to the assistance of counsel and, second, that he had not validly waived his right to counsel. In particular, petitioner alleges that he did not accept the court’s offer to appoint new counsel for fear of angering the court, and because he did not think a new attorney, unfamiliar with the case, could help him. The District Court in an unreported order denied relief without a hearing, on the ground that the records of the case “conclusively” demonstrated a valid waiver. The Court of Appeals for the Tenth Circuit affirmed in an unreported per curiam opinion.

The principles governing this case are well established. Petitioner, of course, had a constitutional right to counsel at his sentencing proceedings. McConnell v. Rhay, 393 U. S. 2 (1968); Mempa v. Rhay, 389 U. S. 128 (1967). Although the Constitution “does not require that under all circumstances counsel be forced upon a defendant,” Carter v. Illinois, 329 U. S. 173, 174-175 (1946), a waiver of the right to counsel is valid only if it is voluntarily and understandingly made. Johnson v. Zerbst, 304 U. S. 458 (1938).

“The fact that an accused may tell [the judge] that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of . . . all . . . facts essential to a broad understanding of the whole matter.” Von Moltke v. Gillies, 332 U. S. 708, 724 (1948).

Moreover, “ ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and ... we ‘do not presume acquiescence in the loss of fundamental rights.’ ” Johnson v. Zerbst, supra, at 464. See also, e. g., Carnley v. Cochran, 369 U. S. 506 (1962) ; Moore v. Michigan, 355 U. S. 155 (1957); Von Moltke v. Gillies, supra; Glasser v. United States, 315 U. S. 60 (1942). Finally, petitioner was entitled to “a prompt hearing” on his motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner [was] entitled to no relief . . . .” 28 U. S. C. § 2255. See, e. g., Sanders v. United States, 373 U. S. 1 (1963).

Whether petitioner was properly denied a hearing presents a serious question. Nothing in the record suggests, let alone demonstrates “conclusively,” that petitioner’s statement of waiver of new counsel at sentencing was made “with an apprehension of . . . all . . . facts essential to a broad understanding of the whole matter.” Von Moltke v. Gillies, supra, at 724. Nothing reveals an awareness on his part that the offer of new counsel was more than “a mere procedural formality,” id., at 722— that counsel would have been appointed not merely to stand by his side while the court pronounced sentence. Nothing indicates an appreciation that a continuance might have been granted to permit new counsel to familiarize himself with the case and render the services that this Court has said are integral to “ 'the very integrity of the fact-finding process.’ ” McConnell v. Rhay, supra, at 3. On the contrary, the record offers some support for petitioner’s allegation that, although he wanted meaningful representation, he felt he could not press for it without antagonizing the court.

Moreover, the record is silent on any waiver of error in the dismissal of petitioner’s already appointed attorney, and that dismissal itself raises substantial constitutional questions. In Vellucci v. United States, 430 F. 2d 188 (1970), the Court of Appeals for the Sixth Circuit held it to be plain error for a trial judge to excuse the defendant’s attorney before sentencing. The Court of Appeals below distinguished Vellucci on the ground that the defendant there, unlike petitioner here, was not offered new counsel. But an unaccepted offer of new counsel can hardly render harmless any error in dismissing an already appointed attorney.

Lawyers are not necessarily fungible goods, to be replaced at the whim of the court. Counsel’s prior experience in a case, his familiarity with the facts and prior proceedings, and the position of trust he may have gained with the defendant are factors arguing for continued representation by the same attorney. This case is barren of any indication that the interests of petitioner were considered in the dismissal of his appointed counsel. I would accordingly grant this petition for certiorari.


source: Caselaw Access Project

author: Mr. Justice Douglas,

license: Public Domain

text:
    No. 71-5459.
    Polk v. United States.
   Mr. Justice Douglas,

with whom Mr. Justice Brennan concurs.

I would grant certiorari in this case. Prison censorship of mail discovered a letter written by an inmate which at the trial of the inmate was used to convict him. The evils of censorship are thus compounded. The right of privacy protected by the Bill of Rights (Griswold v. Connecticut, 381 U. S. 479) is re-emphasized when government is dealing with a captive audience (see Public Utilities Comm’n v. Pollak, 343 U. S. 451, 467-469 (dissenting opinion)). It includes, inter alia, the sanctity of thought and belief of the individual that is protected by the First and Fifth Amendments. As Mr. Justice Holmes said in Milwaukee Pub. Co. v. Burleson, 255 U. S. 407, 437 (dissenting) “the use of the mails is almost as much a part of free speech as the right to use our tongues.” Under our regime the right to use the mail free of censorship is basic whether the censor be a federal official working for the post office or a federal official working for the Department of Justice. The problem is squarely raised here, free from all problems of prison security.


text:
    No. 71-262.
    No. 71-393.
    O’Keeffe, Deputy Commissioner, Sixth Compensation District, Department of Labor v. Aerojet-General Shipyards, Inc., Dowell et ux. v. United States,
   ante, p. 254; and

ante, p. 984. Petitions for rehearing denied.


text:
    No. 71-443.
    No. 71-5081.
    No. 71-5392.
    Wiener et al. v. California, Carter v. Texas, Bennett v. District Director of Internal Revenue et al.,
   ante, p. 988;

ante, p. 1001; and

ante, p. 1002. Petitions for rehearing denied.


text:
    January 24, 1972
    No. 71-679.
    Dunn, Director of Welfare of City of New Haven, et al. v. Rivera et al.
   Appeal from D. C. Conn. Motion of appellee Rivera for leave to proceed in forma pauperis granted. Judgment affirmed.


text:
    No. 71-595.
    Nichol, District Attorney of Dane County, et al. v. Kennan et al.
   Affirmed on appeal from D. C. W. D. Wis. The Chief Justice, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Rehnquist would dismiss the appeal for failure to comply with Rule 13 (1).


text:
    No. 71-620.
    Wyman, Commissioner of New York Department of Social Services v. Lopez et al.
   Affirmed on appeal from D. C. W. D. N. Y.


text:
    No. 71-5419.
    Piper v. Hauck, Sheriff, et al.
   C. A. 5th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Haines v. Kerner, ante, p. 519.


text:
    No. A-657.
    Doherty v. United States.
   C. A. 9th Cir. Reapplication for bail denied.


text:
    No. A-677 (71-864).
    Federal Communications Commission et al. v. Business Executives’ Move for Vietnam Peace et al.
   C. A. D. C. Cir. Application for stay presented to The Chief Justice, and by him referred to the Court, denied.


text:
    No. 70-45.
    No. 70-5061.
    United States v. Brewster. Kirby v. Illinois.
   Appeal from D. C. D. C. [Probable jurisdiction postponed, 401 U. S. 935]; and

App. Ct. Ill., 1st Dist. [Certiorari granted, 402 U. S. 995.] Cases restored to calendar for reargument.


text:
    No. A-336 (70-5101).
    Patler v. Virginia.
   Sup. Ct. App. Va. Renewed application for bail denied.


text:
    No. A-521.
    In re Disbarment of Freel.
   It having been reported to the Court that Frederick J. Freel, of Kansas City, Missouri, has been indefinitely suspended from the practice of law by the Supreme Court of Missouri, duly entered April 15, 1971, and this Court by order of November 22, 1971 [ante, p. 963], having suspended the said Frederick J. Freel from the practice of law in this Court and directed that a rule issue requiring him to show cause why he should not be disbarred;

And it appearing that the said rule was duly issued and served upon the respondent, and that a response has been filed;

It Is Ordered that the said Frederick J. Freel be, and he is hereby, disbarred from the practice of law in this Court and that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court.


text:
    No. 68-5027.
    No. 69-5003.
    No. 69-5030.
    Aikens v. California. Furman v. Georgia. Jackson v. Georgia.
   Sup. Ct. Cal.;

Sup. Ct. Ga.; and

Sup. Ct. Ga. [Certiorari granted, 403 U. S. 952.] Motion of the State of Alaska for leave to file a brief as amicus curiae granted. Motions of the District Attorney for the Eastern Circuit of Georgia for leave to file briefs as amicus curiae in Nos. 69-5003 and 69-5030 denied.


text:
    No. 71-600.
    State Board of Election Commissioners et al. v. Evers et al.
   Appeal from D. C. S. D. Miss. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 71-650.
    Minnesota v. Northern States Power Co.
   Appeal from C. A. 8th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 71-5144.
    McNeil v. Director, Patuxent Institution.
   Ct. Sp. App. Md. [Certiorari granted, ante, p. 999.] Motion of petitioner for appointment of counsel granted. It is ordered that E. Barrett' Prettyman, Jr., Esquire, of Washington, D. C., a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioner in this case.


text:
    No. 71-5497.
    Herron v. Wainwright, Corrections Director.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 71-588.
    Dixie Mining Co. v. Bazelon, Chief Judge, U. S. Court of Appeals, et al.
   Motion for leave to file petition for writ of mandamus and/or prohibition denied.


text:
    No. 71-5523.
    Butenko v. Alldredge, Warden, et al.
   Motion for leave to file petition for writ of mandamus denied.

Mr. Justice Marshall took no part in the consideration or decision of this motion.


text:
    No. 71-630.
    Curtis, U. S. District Judge, et al. v. United States Court of Appeals for the Ninth Circuit.
   Motion for leave to file petition for writ of prohibition denied.


text:
    No. 71-5139.
    Ham v. South Carolina.
   Sup. Ct. S. C. Motion for leave to proceed in forma pauperis granted. Certiorari granted limited to Question 1, presented by the petition, which reads as follows:

“1. Whether the trial judge’s refusal to examine the jurors on voir dire as to whether petitioner’s race or pretrial publicity would affect their ability to render a fair verdict violated petitioner’s right to an impartial jury, guaranteed by the Sixth and Fourteenth Amendments to the Constitution?”


text:
    No. 71-224.
    Swenson, Warden v. Stidham.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 71-496.
    Ward v. Village of Monroeville.
   Sup. Ct. Ohio. Certiorari granted.


text:
    No. 71-576.
    Wade v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 71-611.
    No. 71-618.
    No. 71-625.
    Hyde v. United States; Gantt v. United States; and Flowers v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 448 F. 2d 815.


text:
    No. 71-616.
    International Union of Operating Engineers, Local 12, et al. v. Superior Court of California for the County of San Diego (Associated General Contractors of America, San Diego Chapter, Inc., et al., Real Parties in Interest).
   Super Ct. Cal., County of San Diego. Certiorari denied.


text:
    No. 71-617.
    Golay & Co., Inc. v. National Labor Relations Board.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 71-623.
    Kee Ming Hsu v. Hart, U. S. District Judge.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 71-626.
    Gordon v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 71-632.
    No. 71-637.
    Hodgdon v. Securities and Exchange Commission; and Haight et al. v. Securities and Exchange Commission.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 71-631.
    Curtis, U. S. District Judge, et al. v. Munoz et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 71-633.
    City Messenger Service of Hollywood, Inc., dba City Messenger Air Express and/or C. M. A. X. v. Capitol Records Distributing Corp.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 71-634.
    Dobbs v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 71-635.
    Stead v. Securities and Exchange Commission.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 71-636.
    Compania Anonima Venezolana de Navegacion (Venezuelan Line) v. Westinghouse Electric International Co.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 71-638.
    Washington Trust Bank, Trustee, et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 71-639.
    Watson Chapel School District No. 24 et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 71-643.
    Ross et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 71-644.
    Santobello v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 71-645.
    Smith et al. v. Scrivner-Boogaart, Inc.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 71-646.
    System Council T-4 v. National Labor Relations Board.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 71-647.
    James E. Simon Co., Inc. v. Ardelt-Horn Construction Co. et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 71-648.
    D’Eugenio v. Slattery Construction Co., Inc.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 71-649.
    Caamana v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 71-656.
    Masiello et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 71-660.
    Tatum et ux. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 71-663.
    Flanagan v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 71-5127.
    Hardee v. Nelson, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 71-5339.
    Morgan v. Craven, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 71-5391.
    Bradford v. Superior Court of California, County of Los Angeles.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 71-5474.
    Lineberger v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 71-5486.
    Geppi v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 71-5518.
    Perry v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 71-5520.
    Bush v. Horne, Judge.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 71-5521.
    Bush v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 71-5522.
    Bethea v. Reid et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 71-5524.
    Logan v. Correctional Superintendent, Wallkill Prison.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 71-5526.
    Dellinger v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 71-5527.
    Weston, aka Wallace v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 71-5529.
    Quimby, aka Deardorff v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 71-5530.
    Spinelli v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 71-5533.
    Cefalo v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 71-5534.
    Oliver v. Harrison County Clerk et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 71-5536.
    Wickline v. Brooks et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 71-5537.
    Barber v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 71-5538.
    Kennon v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 71-5539.
    Scherer v. Hocker, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 71-5542.
    Pool v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 71-5546.
    DunLeavay v. Rockefeller Center, Inc., et al.
   C. A. 2d Cir. Certiorari denied;


text:
    No. 70-290.
    Gas Light Company of Columbus v. Georgia Power Co. et al.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice White is of the opinion that certiorari should be granted. Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 70-5049.
    Burns v. Swenson, Warden, et al.
   C. A. 8th Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 70-5072.
    Harper et al. v. Illinois.
   Sup. Ct. Ill. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 71-295.
    Gibbs et al. v. Sexton.
   C. A. 5th Cir. Motion of respondent to dispense with printing brief granted. Certiorari denied.


text:
    No. 71-238.
    No. 71-243.
    Northern Natural Gas Co. et al. v. Mobil Oil Corp. et al.; and Panhandle Eastern Pipe Line Co. et al. v. Mobil Oil Corp. et al.
   C. A. 10th Cir. Certiorari denied.

Mr. Justice Stewart and Mr. Justice Blackmun are of the opinion that certiorari should be granted. Mr. Justice Powell took no part in the consideration or decision of these petitions.

Reported below: 441 F. 2d 704.


text:
    No. 71-437.
    Amato et al. v. Wisconsin.
   Sup. Ct. Wis. Certiorari denied.

Mr. Justice Douglas would grant certiorari and reverse. Redrup v. New York, 386 U. S. 767.


text:
    No. 71-619.
    Blaylock v. United States.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 71-621.
    American Manufacturers Mutual Insurance Co. et al. v. American Broadcasting-Paramount Theatres, Inc.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 71-5543.
    Jackson v. United States.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 71-627.
    Myers, Correctional Superintendent v. Gockley.
   C. A. 3d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 71-652.
    Smith v. United States.
   C. A. 4th Cir. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 71-5171.
    Cunningham v. Wingo, Warden.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice Stewart and Mr. Justice Marshall are of the opinion that certiorari should be granted.


text:
    No. 71-5532.
    Patterson v. United States.
   C. A. 10th Cir. Certiorari denied.

Mr. Justice Douglas and Mr. Justice Marshall are of the opinion that certiorari should be granted.


text:
    No. 71-5541.
    Theriault v. United States.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Blackmun took no part in the consideration or decision of this petition.


text:
    No. 70-54.
    No. 71-327.
    No. 71-328.
    No. 71-346.
    No. 71-347.
    No. 71-421.
    No. 71-5105.
    No. 71-5126.
    No. 71-5531.
    Victory Carriers, Inc., et al. v. Law, Texas Gulf Sulphur Co. et al. v. Securities and Exchange Commission, Huntington v. Securities and Exchange Commission, Crawford v. Securities and Exchange Commission, Holyk et al. v. Securities and Exchange Commission, Texas Gulf Sulphur Co. et al. v. Mitchell et al., Benjamin v. Richardson, Secretary of Health, Education, and Welfare, Alexander v. Oregon, Lipscomb v. Warden, Atlanta Penitentiary, et al.,
   ante, p. 202;

ante, p. 1005;

ante, p. 1005;

ante, p. 1005;

ante, p. 1005;

ante, p. 1004;

ante, p. 986;

ante, p. 1001; and

ante, p. 1005. Petitions for rehearing denied.


text:
    No. 71-218.
    Grounds et al. v. Northern Natural Gas Co. et al.,
   ante, p. 951. Petition for rehearing denied.

Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 71-390.
    Bessesen et ux. v. United States,
   ante, p. 984. Motion for leave to file and to dispense with printing petition for rehearing and other relief denied.


text:
    No. 71-5316.
    Tuzo v. United States,
   ante, p. 958. Motion for leave to file petition for rehearing denied.


text:
    January 27, 1972
    No. A-760.
    Bullock, Secretary of State of Texas v. Weiser et al.
   D. C. N. D. Tex. Application for stay of judgment presented to Mr. Justice Powell, and by him referred to the Court, granted.


author: Mr. Justice Black,

text:
    MAHAN v. HOWELL
    No. A-84.
    Decided July 27, 1971

    See: 330 F. Supp. 1138.

      Together with No. A-83, City of Virginia Beach v. Howell et al., also on application for stay of same judgment.

   Mr. Justice Black,

Acting Circuit Justice.

These cases, presented to The Chief Justice and assigned to me for action in his absence, challenge the judgment of a federal three-judge court holding unconstitutional in part an Act of the General Assembly of the State of Virginia providing for reapportionment of its State Senate and House of Delegates. The cases were filed in different three-judge district courts and were consolidated for trial in the District Court for the Eastern District of Virginia. In an opinion written by Circuit Judge Bryan, the consolidated court held parts of the legislative Act unconstitutional and invalid and proceeded to write a reapportionment measure changing the boundaries of approximately half of the House districts and staying the effectiveness of the Act insofar as the court’s opinion had altered it. As written by the court the redistricting order decreases representational disparity between the several House districts from 16.4% to 7.2%. In its consideration of the General Assembly’s Senate districting formula, the court found it necessary to effect only one change to make allowances for the residences of naval personnel stationed in the Norfolk-Virginia Beach area.

The motion here is for a stay of the District Court’s order pending appeal. In considering questions of this kind an individual Member of the Court to whom the matter is presented should give due consideration to the fact that the four District Judges’ order was substantially unanimous and that the two judges who were subsequently requested to stay their order refused to do so. A single Justice, of course, must also weigh the substan-tiality of the questions presented in light of this Court’s prior decisions, e. g., Whitcomb v. Chavis, 403 U. S. 124 (1971); Reynolds v. Sims, 377 U. S. 533 (1964); Kirkpatrick v. Preisler, 394 U. S. 526 (1969); Wells v. Rockefeller, 394 U. S. 542 (1969). Moreover, it is settled that unless a judge considering -the application believes it reasonably probable that four Members of the Court will vote to hear such an appeal the requested stay should not be granted. Here, therefore, the basic thing for me to consider is whether four Members of the Court are likely to vote in favor of granting this appeal when the matter is given consideration.

On due consideration, I am unable to say that four Members would so vote. The case is difficult; the facts are complicated; the four District Court Judges deciding the case had no difficulty in reaching their conclusion on the constitutional questions or in devising a plan to correct the deficiencies they found; the delay incident to review might further postpone important elections to be held in the State of Virginia should the stay be granted. These and other considerations which need not be stated lead me to believe that four Members of the Court are not likely to grant an appeal and therefore I decline to enter an order which would in effect stay the judgment of the consolidated three-judge court.

       Judge Lewis filed a separate concurring and dissenting opinion. He fully agreed with all aspects of the ruling with the exception of the court’s refusal to create a 10-member multi-member district in Fairfax County.

         Board of School Comm’rs v. Davis, 84 S. Ct. 10, 11 L. Ed. 2d 26 (1963); Organized Village of Kake v. Egan, 80 S. Ct. 33, 4 L. Ed. 2d 34 (1959); Edwards v. New York, 76 S. Ct. 1058, 1 L. Ed. 2d 17 (1956).


author: MR. Justice Black,

text:
    NATIONAL LABOR RELATIONS BOARD v. GETMAN et al.
    No. A-109.
    Decided July 27, 1971
   MR. Justice Black,

Acting Circuit Justice.

Respondents, two law professors who are undertaking a study of labor representation elections, applied for and obtained an order from the United States District Court for the District of Columbia requiring the National Labor Relations Board to provide respondents “with names and addresses of employees eligible to vote in approximately 35 elections to be designated by (respondents).” Respondents base their claim to the information on the language of the Freedom of Information Act, 5 U. S. C. § 552 (a)(3), which requires that a Government agency “on request for identifiable records . . . shall make the records promptly available to any person.” The Government has filed an application seeking a stay of the order of the District Court. This application was assigned to me in the absence of The Chief Justice.

The Government applies for a stay on the ground that the District Court order requiring the Board to comply with the Freedom of Information Act and deliver the records in question to respondents would interfere with the representation election procedures under the National Labor Relations Act, 49 Stat. 449, as amended. The Board was created by Congress and Congress has seen fit to make identifiable records of the Board and other Government agencies available to any person upon proper request. I find no exception in the Freedom of Information Act which would authorize the Board to refuse promptly to turn over the requested records. I deny the application for stay without prejudice to the Government to present its application to another Member of this Court.

It is so ordered.


text:
    EDGAR et al. v. UNITED STATES
    No. A-95.
    Decided July 29, 1971
    See: 321 F. Supp. 1043 and 330 F. Supp. 235.
   Mr. Justice Black,

Circuit Justice.

The Commissioner of Education of the State of Texas and the Texas Education Agency make application for a stay of the judgment of the United States Court of Appeals for the Fifth Circuit affirming the order of the United States District Court for the Eastern District of Texas, which directed the applicants to take certain affirmative action to eliminate all vestiges of discrimination from the public schools within the State. The State of Texas provides for the supervision of state education and the distribution of state educational funds through the Texas Education Agency under the direction of the Commissioner of Education. The United States brought this action against applicants on March 6, 1970, to enforce Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d et seq., and the Fourteenth Amendment of the United States Constitution. The District Court, on April 20, 1971, issued its order directing the Commissioner and the Texas Education Agency to take certain specified steps to withhold funds and accreditation from school districts which failed to meet their constitutional obligation to eliminate remaining vestiges of the dual school system. The District Court order dealt with the areas of student transfers, changes in school district boundaries, school transportation, extracurricular activities, faculty and staff practices, student assignments, curricula and compensatory education. The United States Court of Appeals for the Fifth Circuit, with certain minor alterations, unanimously affirmed the order of the District Court-. The Commissioner and the Texas Education Agency then applied to the Fifth Circuit for a stay of its order pending action by this Court on the applicants’ petition for certiorari yet to be filed. The Court of Appeals refused the stay. The application for stay has now been presented to me as the Circuit Justice for the Fifth Circuit.

It would be very difficult for me to suspend the order of the District Court that, in my view, does no more than endeavor to realize the directive of the Fourteenth Amendment and the decisions of this Court that racial discrimination in the public schools must be eliminated root and branch. Green v. County School Board of New Kent County, 391 U. S. 430, 437-438 (1968); see Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971); United States v. Montgomery County Board of Education, 395 U. S. 225 (1969). I cannot say that four Members of this Court are likely to vote to hear this case and undo what has been ordered by the District Court and Court of Appeals below.

My views need not be expressed at length. The question of granting certiorari will have to be decided by this Court when the petition properly reaches us. For me, as one Member of this Court, to grant a stay now would mean inordinate delay and would unjustifiably further postpone the termination of the dual school system that the order below was intended to accomplish. The District Court’s opinion and order are comprehensive and well reasoned. In my judgment the facts found by the District Court, which do not appear to be materially disputed by the applicants, fully justify the order.

Under these circumstances I deny the stay and let the matter await final decision before the full Court when the petition for certiorari is properly presented for consideration. The stay is denied.

It is so ordered.


text:
    RUSSO v. UNITED STATES
    No. A-159.
    Decided August 16, 1971
   Mr. Justice Douglas,

Circuit Justice.

Applicant has been sentenced in a civil contempt proceeding for refusal to answer questions before a grand jury. Judge Barnes of the Court of Appeals for the Ninth Circuit issued a stay until August 9, 1971, to permit an application for a further stay to this Court. Mr. Justice Black continued the stay until August 16, 1971, so that I would have time to consider the matter at my home in Goose Prairie, Washington.

I have gone over the application and the opposition filed by the United States, and I deny the stay.

The principal question sought to be raised concerns the standing of grand jury witnesses, under the Omnibus Crime Control and Safe Streets Act of 1968, to raise the question whether the appearance and examination of a witness before a grand jury resulted from illegal electronic surveillance.

The question is an important one on which there seems to be conflict among the Circuits. Compare In re Evans, 146 U. S. App. D. C. 310, 452 F. 2d 1239, and In re Egan, 450 F. 2d 199 (CA3) (both holding that a grand jury witness has standing to object to illegal wiretaps), with Bacon v. United States, 446 F. 2d 667 (CA9), and United States v. Parnas, 443 F. 2d 837 (CA9) (to the contrary). But in this case, the United States represented to the District Court that “no wiretaps of any kind were used in this case.” Applicant, so far as I can ascertain, did not present any evidence of or indicate probable cause for believing (or even suspecting) that his wires had been tapped or that wires of others had been tapped with the result that his privacy had been implicated. There must be some credible evidence that the prosecution violated the law before ponderous judicial machinery is invoked to delay grand jury proceedings.

Denied.

It is so ordered.

      Title 18 U. S. C. §2515 provides:
      “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.”
      Title 18 U. S. C. §2518 (10) (a) provides, in part:
      “Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—
      “(i) the communication was unlawfully intercepted;
      “(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
      “(iii) the interception was not made in conformity with the order of authorization or approval.”


text:
    CORPUS CHRISTI SCHOOL DISTRICT et al. v. CISNEROS et al.
    No. A-192.
    Decided August 19, 1971
   Mr. Justice Black,

Circuit Justice.

The District Judge in this case ordered the Corpus Christi Independent School District to stop alleged historical practices of discrimination against school children on the basis of race or color. He directed how this was to be accomplished, saying at the same time that he would grant no stays of his order. The school district asked the court to stay its order and a stay was granted by a different district judge who had been assigned to hear the application. The plaintiffs, parents of the students allegedly discriminated against, then asked the United States Court of Appeals for the Fifth Circuit to vacate the stay. A panel of two Circuit Court judges did vacate the stay. The school district then applied to me as a single Justice to reinstate the stay issued by the District Court for the Southern District of Texas. The Solicitor General of the United States has joined in requesting me as a single Justice to reinstate that stay. If I reinstate the stay, the District Court’s order will not go into effect until the Fifth Circuit or this Court has had an opportunity to pass on it.

It is apparent that this case is in an undesirable state of confusion and presents questions not heretofore passed on by the full Court, but which should be. Under these circumstances, which present a very anomalous, new, and confusing situation, I decline as a single Justice to upset the District Court’s stay and, therefore, I reinstate it without expressing any view as to the wisdom or propriety of the Solicitor General’s position. The stay will be reinstated pending action on the merits in the Fifth Circuit or action by the full Court.


text:
    LOPEZ v. UNITED STATES
    No. A-132.
    Decided August 23, 1971
    See: 322 F. Supp. 852.
   Mr. Justice Douglas,

Circuit Justice.

Applicant Lopez was indicted and convicted for refusing to submit to induction. He claimed at trial that he was entitled to a hearing before his local board on his conscientious objector claim which had matured after receipt of the induction notice. At the time applicant received his order to report for induction, however, the law in the Ninth Circuit did not allow the filing of an application for exemption as a conscientious objector after an induction notice had been issued. We noted in Ehlert v. United States, 402 U. S. 99 (1971), decided after applicant's conviction, that the Army agreed a draftee could have a hearing on such a claim after induction; and we held that such a hearing, though post-induction, satisfied the requirements of the Military Selective Service Act of 1967. Relying on this opinion, the Court of Appeals affirmed Lopez’ conviction.

Applicant claims, however, that Army regulations in force at the time of his induction date did not permit him the post-induction hearing to which we held Ehlert was entitled, and he now seeks a modification of his sentence which will enable him to submit to induction and to obtain thereafter the Army’s ruling on his conscientious objector claim. The appeal now waiting argument in the Court of Appeals concerns the propriety of such a procedure. The question seems to me a substantial one, and applicant has proved himself to be bailworthy, as he has twice before been ordered released on his personal recognizance in connection with this litigation. Pending disposition of the appeal, applicant Lopez should be released on his personal recognizance in the form and manner provided at an earlier stage of this litigation.

It is so ordered.

        Ehlert v. United States, 422 F. 2d 332 (CA9 1970), aff’d, 402 U. S. 99 (1971), which set forth the Ninth Circuit rule, was decided Feb. 2, 1970. Applicant received his notice of induction Mar. 3, 1970, and failed to submit Mar. 17, 1970.

       From Nov. 9, 1962, until Aug. 15, 1970, Army Regulation AR 635-20, ¶ 3 (b), provided that requests for discharge after entering military service would not be favorably considered when based “solely on conscientious objection which existed, but which was not claimed prior to induction, enlistment, or entry on active duty or active duty for training.” (Emphasis supplied.)


text:
    GUEY HEUNG LEE et al. v. JOHNSON et al.
    No. A-203.
    Decided August 25, 1971
    See: 339 F. Supp. 1315.
   Mr. Justice Douglas,

Circuit Justice.

Applicants are Americans of Chinese ancestry, who seek a stay of a Federal District Court’s order reassigning pupils of Chinese ancestry to elementary public schools in San Francisco. The order was made in a school desegregation case, the San Francisco Unified School District having submitted a comprehensive plan for desegregation which the District Court approved.

There are many minorities in the elementary schools of San Francisco; and while the opinion of the District Court mentions mostly the blacks, there are in addition to whites, Chinese, Japanese, Filipinos, and Americans both of African and Spanish ancestry. The schools attended by the class here represented are filled predominantly with children of Chinese ancestry- — -in one 456 out of 482, in another 230 out of 289, and in a third, 1,074 out of 1,111.

Historically, California statutorily provided for the establishment of separate schools for children of Chinese ancestry. That was the classic case of de jure segregation involved in Brown v. Board of Education, 347 U. S. 483, relief ordered, 349 U. S. 294. Schools once segregated by state action must be desegregated by state action, at least until the force of the earlier segregation policy has been dissipated. “The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15. The District Court in the present case made findings that plainly indicate the force of the old policy has persisted: “[T]he school board . . . has drawn school attendance lines, year after year, knowing that the lines maintain or heighten racial imbalance And further, that no evidence has been tendered to show that since Brown I “the San Francisco school authorities had ever changed any school attendance line for the purpose of reducing or eliminating racial imbalance.” Johnson v. San Francisco Unified School District, 339 F. Supp. 1315, 1318-1319 (ND Cal. 1971).

Brown v. Board of Education was not written for blacks alone. It rests on the Equal Protection Clause of the Fourteenth Amendment, one of the first beneficiaries of which were the Chinese people of San Francisco. See Yick Wo v. Hopkins, 118 U. S. 356. The theme of our school desegregation cases extends to all racial minorities treated invidiously by a State or any of its agencies.

It is not for me to approve or disapprove the plan; that is a matter that goes to the merits and the appeal has not been heard. The plan, however, has earmarks of a thoughtful plan, at least measured by some of the thoughtful concerns of the Chinese community. The District Court ruled:

“Bi-lingual classes are not proscribed. They may be provided-in any manner which does not create, maintain or foster segregation.
“There is no prohibition of courses teaching the cultural background and heritages of various racial and ethnic groups. While such courses may have particular appeal to members of the particular racial or ethnic group whose background and heritage is being studied, it would seem to be highly desirable that this understanding be shared with those of other racial and ethnic backgrounds.” 339 F. Supp., at 1322.

And the District Court concluded:

“The Judgment and Decree now to be entered is of less consequence than the spirit of community response. In the end, that response may well be decisive in determining whether San Francisco is to be divided into hostile racial camps, breeding greater violence in the streets, or is to become a more unified city demonstrating its historic capacity for diversity without disunity.
“The school children of San Francisco can be counted upon to lead the way to unity. In this and in their capacity to accept change without anger, they deserve no less than the whole-hearted support of all their elders.” 339 F. Supp., at 1323.

The decree has been strenuously opposed. Upon application by applicants, the Court of Appeals for the Ninth Circuit entered a temporary stay pending a hearing in the District Court. Four days later, however, the Court of Appeals vacated that stay sua sponte. The District Court then denied the stay. Thereupon a different three-judge panel of the Court of Appeals heard oral argument on the motions for a stay and denied those motions.

I see no reason to take contrary action. So far as the overriding questions of law are concerned the decision of the District Court seems well within bounds. See Keyes v. Denver School District, 396 U. S. 1215 (Brennan, J., in chambers). It would take some intervening event or some novel question of law to induce me as Circuit Justice to overrule the considered action of my Brethren of the Ninth Circuit.

Application for stay denied.

      Until 1947, the California Education Code provided:
      “§ 8003. Schools jor Indian children, and children of Chinese, Japanese, or Mongolian parentage: Establishment. The governing board of any school district may establish separate schools for Indian children, excepting children of Indians who are wards of the United States Government and children of all other Tndk-ns who are descendants of the original American Indians of the United States, and for children of Chinese, Japanese, or Mongolian parentage.
      “§8004. Same: Admission of children into other schools. When separate schools are established for Indian children or children of Chinese, Japanese, or Mongolian parentage, the Indian children or children of Chinese, Japanese, or Mongolian parentage shall not be admitted into any other school.”
      These provisions were eventually repealed. 1947 Cal. Stats., c. 737, § 1.


author: Mr. Justice Marshall,

text:
    JEFFERSON PARISH SCHOOL BOARD et al. v. DANDRIDGE et al.
    No. A-231.
    Decided August 30, 1971
   Mr. Justice Marshall,

Circuit Justice,

On August 10, 1971, the Federal District Court for the Eastern District of Louisiana ordered the Jefferson Parish School Board to implement, beginning on August 31, 1971, the plan for desegregation of the public schools of said parish which had been submitted to the court eight days earlier. Having been denied stays of that order by the District Court and the United States Court of Appeals for the Fifth Circuit, the Board seeks a stay here.

Hearing was had in the District Court on the feasibility of beginning the desegregation process without delay. The evidence there adduced demonstrated that the parish would undoubtedly experience those difficulties normally incident to the transition from a dual to a unitary school system. Recognizing the existence of these difficulties, the District Court nonetheless correctly applied the law as developed by this Court in concluding:

“The fact that a temporary, albeit difficult, burden may be placed on the School Board in the initial administration of the plan or the fact that some schools may not begin the school year in a routinely smooth fashion does not justify in these circumstances the continuation of a less than unitary school system and the resulting denial of an equal educational opportunity to a certain segment of the Parish school children.”

The devastating, often irreparable, injury to those children who experience segregation and isolation was noted 17 years ago in Brown v. Board of Education, 347 U. S. 483 (1954). This Court has repeatedly made it clear beyond any possible doubt that, absent some extraordinary circumstances, delay in achieving desegregation will not be tolerated. See, e. g., Alexander v. Holmes County Board of Education, 396 U. S. 19 (1969); Carter v. West Feliciana Parish School Board, 396 U. S. 226 (1969); Keyes v. Denver School District, 396 U. S. 1215 (1969) (Brennan, J., in chambers).

There are no unusual circumstances in this case. The schools involved have been mired in litigation for seven years. Whatever progress toward desegregation has been made apparently, and unfortunately, derives only from judicial action initiated by those persons situated as perpetual plaintiffs below. The rights of children to equal educational opportunities are not to be denied, even for a brief time, simply because a school board situates itself so as to make desegregation difficult.

The stay is accordingly denied.


author: Mr. Chief Justice Burger,

text:
    WINSTON-SALEM/FORSYTH COUNTY BOARD OF EDUCATION v. SCOTT et al.
    No. A-233 (71-274).
    Decided August 31, 1971
    See: 444 F. 2d 99.
   Mr. Chief Justice Burger,

Circuit Justice.

The Board of Education of the Forsyth County, North Carolina, school system has applied for a stay of a decision of the United States Court of Appeals for the Fourth Circuit, dated June 10, 1971, and subsequent orders of the United States District Court for the Middle District of North Carolina entered pursuant thereto, pending disposition of the Board’s petition for writ of certiorari to review the decision of the Court of Appeals. The operative order of the District Court is dated July 26, 1971; it adopts a plan for pupil assignment designed to desegregate the public schools of Forsyth County. The affected schools were already scheduled to open Monday, August 30.

The application for a stay was filed August 23, 1971, and the response thereto on August 26, 1971, making that date the earliest possible date for this Court or a Justice to act on the stay.

The background is of some importance.

Respondents, who are Negro pupils and parents in the school system, commenced action alleging that the School Board was operating a dual school system, and seeking appropriate relief. The school system embraces both rural and urban areas in a county school system. The District Court found that in December 1969 there were 67 schools in the system with approximately 50,000 students. The total student population was 72.5% white and 27.5% Negro. Of the schools, 15 were all-Negro and seven were all-white. Of the remaining schools, 31 had less than 5% of the minority race. The school system was operated under a geographical attendance zone system, with freedom-of-choice transfer provisions for all students regardless of race.

Prior to this Court's holding in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971), the plaintiffs submitted a plan devised by their consultant, Dr. Larsen; it was designed to achieve as closely as possible a mathematical racial balance in all of the schools of the system equal to that in the system as a whole. It employed satellite zoning and extensive cross-busing. The District Court rejected the plan as not constitutionally required and unduly burdensome.

The School Board then submitted its plan for the 1970-1971 school year to the court for approval. It retained geographic zoning and freedom-of-choice transfer provisions, but with certain modifications allowing priority to majority-to-minority transfers and increasing the racial “balance” of several schools. The District Court in 1970 approved the Board’s plan, subject to alterations which prevented minority-to-majority transfers, made changes affecting three attendance zones, and added a requirement that the Board create “innovative” programs designed to increase racial contact of students.

In rejecting the Larsen plan and approving the modified Board plan, the District Court found that the boundaries of the attendance zones had been drawn in good faith and without regard to racial considerations, and to ensure that, so far as possible, pupils attended the schools nearest their home, taking into account physical barriers, boundaries, and obstacles that might endanger children in the course of reaching their schools. The District Court at that time was of the view that the “neighborhood” school concept could not be the basis of assignment if residence in a neighborhood was denied or compelled because of race, but went on to find that the racial concentration of Negroes was not caused by public or private discrimination or state action but by economic factors and the desire of Negroes to live in their own neighborhoods rather than in predominately white neighborhoods. That finding has not been reviewed. Finally, the District Court found that the School Board had acted consistently in good faith, and was of the view that good faith “is a vital element in properly evaluating local judgment in devising compliance plans.” 317 F. Supp. 453, 476 (1970).

The District Court’s order was rendered in the summer of 1970 and all parties appealed to the Court of Appeals for the Fourth Circuit. While that appeal was pending, this Court decided Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971), and related cases. See Davis v. Board of School Commissioners of Mobile County, 402 U. S. 33 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); North Carolina State Board of Education v. Swann, 402 U. S. 43 (1971).

In light of the Swann holding, the Court of Appeals by per curiam opinion en banc remanded this and several other cases to their respective district courts with instructions to receive from the school boards new plans “which will give effect to Swann and Davis.” 444 F. 2d 99, 100 (1971). In its remand, the Court of Appeals stated in part:

“It is now clear, we think, that in school systems that have previously been operated separately as to the races by reason of state action, ‘the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.' Davis, supra, at 37.
“If the district court approves a plan achieving less actual desegregation than would be achieved under an alternate proposed plan it shall find facts that are thought to make impracticable the achieving of a greater degree of integration, especially if there remain any schools all or predominately of one race.
“In Winston-Salem/Forsyth County, the school board may fashion its plan on the Larsen plan with necessary modifications and refinements or adopt a plan of its choice which will meet the requirements of Swann and Davis.” 444 F. 2d, at 100-102.

On remand, the District Court interpreted the order of the Court of Appeals to mean that because the State of North Carolina formerly had state-enforced dual school systems, declared unconstitutional in Brown v. Board of Education, 347 U. S. 483 (1954), the pupil assignment plan in Forsyth County had to be substantially revised to “achieve the greatest possible degree of desegregation.” It concluded that:

“Despite the substantial difference between the findings of this Court, which formed the predicate for this Court’s June 25, 1970 opinion in this case, and the findings which form the predicate of the decision of the District Court in Swann, it is apparent that it is as ‘practicable’ to desegregate all the public schools in the Winston-Salem/Forsyth County system as in the Charlotte-Mecklenburg system and that the appellate courts will accept no less. Consequently, this Court can approve no less. . . .”

The District Court then ordered the School Board to comply with the time schedule set by the Court of Appeals in submitting the required plan. Just why the District Judge undertook an independent, subjective analysis of how his case compared factually with the Swann case — something he could not do adequately without an examination of a comprehensive record not before him — is not clear.

The school authorities, declaring that they considered themselves “required” to do so, adopted a revised pupil assignment plan which was expressly designed “to achieve a racial balance throughout the system which will be acceptable to the Court.” (Emphasis added.) Prior to the adoption of the revised plan, the school system transported about 18,000 pupils per day in about 216 buses. The drafters of the revised plan estimated that it would require at a minimum, with use of staggered school openings, 157 additional buses to transport approximately 16,000 additional pupils.

The Board submitted the plan to the District Court under protest and voiced strong objections to its adoption. A Board resolution submitted with the plan stated in conclusion that it was submitted to “accomplish the required objective of achieving a racial balance in the public schools . . . [but it] is not a sound or desirable plan, and should not be required . . . (Emphasis added.) On July 26, 1971, the District Court accepted the plan, noting that it was “strikingly similar” to the Larsen plan which it had previously refused to implement as not constitutionally required.

On August 23, the School Board applied to me, as Circuit Justice, for a stay pending disposition by the Court of its petition for writ of certiorari, filed the same day, seeking review of the remand order of the Court of Appeals; the response was received, as previously noted, August 26, 1971. The Board states that it has not applied previously to either the District Court or the Court of Appeals for a stay because the language of the decisions and orders of those courts makes it clear that neither would grant a stay and because there was not time to do so prior to the opening of the new school year.

In its present posture this stay application, like that presented to Mr. Justice Black and acted on by him August 19, 1971, in Corpus Christi Independent School District v. Cisneros, ante, p. 1211, “is in an undesirable state of confusion . . . .”

To begin with, no reasons appear why this application was not presented to me at an earlier date, assuming that I accept the explanation tendered for failure to present it to the Court of Appeals. The time available between receipt of the application and response and the opening of the school term August 30 was not sufficient to deal adequately with the complex issues presented. The application for stay is further weakened by the absence of specific allegations as to the time of travel or other alleged hardships involved in the added bus transportation program. Specific reference to the travel time in relation to the age and grade of particular categories of students is not disclosed. To assert, as the applicants do, that the “average time” of travel is one hour conveys very little enlightenment to support an application to stay the order of a District Court, however reluctantly entered by that court, especially an order dealing with a school term opening so soon after the motion was first presented. The “average” travel time may be generally relevant but whether a given plan trespasses the limits on school bus transportation indicated in Swann, 402 U. S., at 29, 30, 31, cannot be determined from a recital of a “one hour average” travel time.

The Board’s resolution reciting that it was adopting the revised plan under protest, on an understanding that it was required to achieve a fixed “racial balance” that reflected the total composition of the school district is disturbing. It suggests the possibility that there may be some misreading of the opinion of the Court in the Swann case. If the Court of Appeals or the District Court read this Court’s opinion as requiring a fixed racial balance or quota, it would appear to have overlooked specific language of the opinion in the Swann case to the contrary. Rather than trying to interpret or characterize a holding of the Court, a function of the Court itself, I set forth verbatim the issues seen by the Court in Swann and the essence of the Court’s disposition of those issues:

“The central issue in this case is that of student assignment, and there are essentially four problem areas:
“(1) to what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system;
“(2) whether every all-Negro and all-white school must be eliminated as an indispensable part of a remedial process of desegregation;
“(3) what the limits are, if any, on the rearrangement of school districts and attendance zones, as a remedial measure; and
“(4) what the limits are, if any, on the use of transportation facilities to correct state-enforced racial school segregation.” 402 U. S., at 22.

After discussing the problem, the opinion concluded:

“If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.” 402 U. S., at 24. (Emphasis added.)

Nothing could be plainer, or so I had thought, than Swann’s disapproval of the 71%-29% racial composition found in the Swann case as the controlling factor in assignment of pupils, simply because that was the racial composition of the whole school system. Elsewhere in the Swann opinion we had noted the necessity for a district court to determine what in fact was the racial balance as an obvious and necessary starting point to decide whether in fact any violation existed; we concluded, however, that “the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court.” 402 U. S., at 25.

Since the second aspect of this case falls within the fourth question postulated by the Court in Swann it may be useful to refer to the Court’s response to that question. After noting that 18 million students were transported to schools by bus in this country in 1969-19.70, the Court concluded:

“The importance of bus transportation as a normal and accepted tool of educational policy is readily discernible in this and the companion case, Davis, supra. The Charlotte school authorities did not purport to assign students on the basis of geographically drawn zones until 1965 and then they allowed almost unlimited transfer privileges. The District Court’s conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record.
“. . . In these circumstances, we find no basis for holding that the local school authorities may not be required to employ bus transportation as one tool of school desegregation. Desegregation plans cannot be limited to the walk-in school.
“An objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process. District courts must weigh the soundness of any transportation plan in light of what is said in subdivisions (1), (2), and (3) above. It hardly needs stating that the limits on time of travel will vary with many factors, but probably with none more than the age of the students. The reconciliation of competing values in a desegregation case is, of course, a difficult task with many sensitive facets but fundamentally no more so than remedial measures courts of equity have traditionally employed.” 402 U. S., at 29-31.

No prior case had dealt directly with bus transportation of students in this context or the limits on the use of transportation as part of a remedial plan, or with racial balancing.

This case is further complicated by what seems to me some confusion respecting the standards employed and the findings made by the District Court and the terms of the remand order of the Court of Appeals. Under Swann and related cases of April 20, 1971, as in earlier cases, judicial power can be invoked only on a showing of discrimination violative of the constitutional standards declared in Brown v. Board of Education, 347 U. S. 483 (1954). In findings dated June 25, 1970, the District Court sent the case back to the School Board for changes to eliminate the dual school system; it approved the plan submitted subject to several modifications. The modified plan was before the Court of Appeals when this Court decided the Swann case. The Court of Appeals in its remand following the decision in Swann did not reverse the District Court’s findings, but, rather, directed reconsideration in light of Swann. In the circumstances that was an appropriate step. The present status of the findings is not clear to me, but the District Court on reconsideration following the remand seems to have thought that it was compelled to achieve a fixed racial balance reflecting the composition of the total county system. The explicit language of the Court’s opinion in Swann suggests a possible confusion on this point. I do not attempt to construe that language, but simply recite it verbatim: “The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.” 402 U. S., at 24.

On the record now before me it is not possible to conclude with any assurance that the District Court in its order dated July 26, 1971, and the Court of Appeals in its remand dated June 10, 1971, did or did not correctly read this Court’s holding in Swann and particularly the explicit language as to a requirement of fixed mathematical ratios or racial quotas and the limits suggested as to transportation of students. The record being inadequate to evaluate these issues, even preliminarily for the limited purposes of a stay order, and the heavy burden for making out a case for such extraordinary relief being on the moving parties, I am unwilling to disturb the order of the District Court dated July 26, 1971, made pursuant to the remand order of the Court of Appeals which is sought to be reviewed here.

The application for stay is denied.

       By way of illustration, if the record showed' — to take an extreme example of a patent violation of Swann — that the average time was three hours daily or that some were compelled to travel three hours daily when school facilities were available at a lesser distance, I would not hesitate to stay such an order forthwith until the Court could act, at least as to the students so imposed on. The burdens and hardships of travel do not relate to race; excessive travel is as much a hardship on one race as another. The feasibility of a transfer program to give relief from such a patently offensive transportation order as the one hypothesized, would also be relevant.

       In their petition for a writ of certiorari in this Court, the petitioners have elected to seek review here of the remand order of the Court of Appeals of June 10, 1971, rather than having the substantive order of the District Court dated July 26, 1971, first reviewed in the Court of Appeals.


author: Me. Justice Douglas,

text:
    HARRIS v. UNITED STATES
    No. A-145.
    Decided August 31, 1971
   Me. Justice Douglas,

Circuit Justice.

This is an application for bail pending appeal to the Court of Appeals for the Ninth Circuit. Both the District Court and the Court of Appeals have previously denied similar applications, and their action is entitled to great deference. Reynolds v. United States, 80 S. Ct. 30, 4 L. Ed. 2d 46 (1959). Nevertheless, “where the reasons for the action below clearly appear, a Circuit Justice has a non-delegable responsibility to make an independent determination of the merits of the application.” Id., at 32, 4 L. Ed. 2d, at 48. Fed. Rule Crim. Proc. 46 (a) (2); 18 U. S. C. §§ 3146, 3148. Accord, Sellers v. United States, 89 S. Ct. 36, 21 L. Ed. 2d 64 (1968). While there is no automatic right to bail after convictions, Bowman v. United States, 85 S. Ct. 232, 13 L. Ed. 2d 171 (1964), “[t]he Command of the Eighth Amendment that 'Excessive bail shall not be required at the very least obligates judges passing upon the right to bail to deny such relief only for the strongest of reasons.” Sellers, supra, at 38, 21 L. Ed. 2d, at 66. The Bail Reform Act of 1966, 18 U. S. C. §§ 3146, 3148, further limits the discretion of a court or judge to deny bail, as it provides that a person shall be entitled to bail pending appeal, if that appeal is not frivolous or taken for delay, or “unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community.” § 3148.

Applying these principles, my examination of the papers submitted by applicant and by the Solicitor General in opposition persuade me that the Government has not met its burden of showing that bail should be denied.

The primary ground upon which the Solicitor General opposes bail is that “[t]here are no substantial questions raised” by the appeal. It is true that the questions raised relate primarily to evidentiary matters. It is settled, however, that these are within the purview of review of an application of this kind, and that they may raise nonfrivolous — indeed, even “substantial”— questions. See, e. g., Wolcher v. United States, 76 S. Ct. 254, 100 L. Ed. 1521 (1955).

Applicant principally argues that there was no evidence in the record from which an inference is permissible that he knew that a truck guided by him and a co-defendant, in a separate vehicle, from one location in Los Angeles to another location in that city contained unlawfully imported narcotics. It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged would violate due process. See Adderley v. Florida, 385 U. S. 39, 44 (1966). See also Johnson v. Florida, 391 U. S. 596 (1968); Thompson v. Louisville, 362 U. S. 199 (1960). The quantum and nature of proof constitutionally required to support an inference of knowledge in narcotics offenses is not always an easy question. Cf. Turner v. United States, 396 U. S. 398 (1970); Leary v. United States, 395 U. S. 6 (1969). Applicant cites a case from the Ninth Circuit as a factually similar example in which a conviction for a narcotics offense was reversed for lack of proof of knowledge that another possessed the contraband. While I express no opinion on the merits of the analogy, Circuit Justices have granted bail pending appeal based in part on similar claims of failure of proof. See, e. g., Brussel v. United States, 396 U. S. 1229 (1969).

Applicant also challenges the hearsay testimony of an informer as to a Tijuana phone number given to him by a reputed Mexican narcotics trafficker. Other evidence demonstrated that applicant’s codefendant called this number several times prior to the importation of the contraband in July 1969. The implication, presumably, is that the prior calls were made to arrange the shipment. The hearsay declaration, however, was made over a year after the codefendant’s phone calls occurred, and the common scheme sought to be proven had been terminated. Under these circumstances, the admissibility of this declaration as a hearsay exception is not free from doubt. Cf. Fiswick v. United States, 329 U. S. 211 (1946).

Assuming this testimony is otherwise admissible, applicant argues it is not the “best evidence” of the registration of the phone number. While it is true that Mexican phone company records were beyond the subpoena power of the court, and that courts have held that secondary evidence may be used without further ado in such a case, see, e. g., Hartzell v. United States, 72 F. 2d 569 (CA8 1934), applicant’s argument is nevertheless not without merit:

“[T]he policy of the original document requirement, and probably the weight of reason, supports the view of those courts equally numerous who demand . . . that before secondary evidence is used, the proponent must show either that he has made reasonable efforts without avail to secure the original from its possessor, or circumstances which persuade the court that such efforts would have been fruitless.”

C. McCormick, Evidence § 202, p. 415 (1954), and cases cited. It is noteworthy in this regard that the District Court rejected evidence offered by applicant tending to show that the phone number in question was not registered to the purported narcotics trafficker before December 1970.

I cannot say that these contentions are all frivolous. The District Judge stated in his opinion denying bail that “[n]o objections were interposed to the telephone calls to Tiajuana [sic] made by co-defendant.” He made no mention, however, of applicant’s challenge to the hearsay declaration of the Mexican narcotics trafficker. If this challenge should prevail, “it might well tip the scales in defendant’s favor, as it goes to the heart of the case.” Wolcher, supra, at 255, 100 L. Ed., at 1523.

Where an appeal is not frivolous or taken for delay, bail “is to be denied only in cases in which, from substantial evidence, it seems clear that the right to bail may be abused or the community may be threatened by the applicant’s release.” Leigh v. United States, 82 S. Ct. 994, 996, 8 L. Ed. 2d 269, 271 (1962); accord, Rehman v. California, 85 S. Ct. 8,13 L. Ed. 2d 17 (1964). According to the Solicitor General, the District Judge denied bail in part because “there was reason to believe that defendant, who had no employment, would not respond to required future appearances and would be a danger to the community.” Applicant’s Bail Reform Act form indicates, however, that he is a self-employed auto mechanic making $150 per week, that he has lived in Los Angeles for the past eight years, that he has several relatives, including his mother and a sister, living there, and that he has never failed to make a required court appearance while on bail. The moving papers furthér indicate that applicant was at liberty after sentencing, pursuant to a stay of execution granted by the Court of Appeals, and that he voluntarily submitted to the authorities upon the expiration of the stay. There is not such “substantial evidence” in this record to justify denying bail on the ground that applicant is a flight risk.

Furthermore, a far stronger showing of danger to the community must be made than is apparent from this record to justify a denial of bail on that ground. See, e. g., United States v. Erwing, 280 F. Supp. 814 (ND Cal. 1968). Accordingly, bail should be granted pending disposition of the appeal in this case, pursuant to the standards set forth in the Bail Reform Act.

It is so ordered.

      Applicant also renewed at trial, and raises here, a question of substantial nature which was before this Court last Term. The District Court in this case entered a pretrail order suppressing the contraband found in the truck. However, the Ninth Circuit reversed, on an interlocutory appeal by the Government. It felt that the actions of the customs agents constituted an “extended border search,” justified by the fact that the truck had been under continuous surveillance from the time it crossed the Mexican border. I granted a stay of the Court of Appeals’ interlocutory judgment pending disposition of the petition for certiorari; partly because of questions concerning the propriety of the interlocutory procedure, but also because of the differing approaches used by the Ninth and the Fifth Circuits to justify extended border searches. Harris v. United States, 400 U. S. 1211 (1970). The full Court, however, denied certiorari. Harris v. United States, 400 U. S. 1000 (1971). This action does not necessarily indicate a view as to the merits of either of the questions above. Possibly the interlocutory posture of the case was the determining factor. Nevertheless, applicant’s Fourth Amendment claims have not been considered in the decision to grant this application. Cf. Drifka v. Brainard, 89 S. Ct. 434, 21 L. Ed. 2d 427 (1968).


text:
    GOMPERTS et al. v. CHASE et al.
    No. A-245.
    Decided September 10, 1971
    See: 329 F. Supp. 1192.
   Mr. Justice Douglas,

Circuit Justice.

I have reluctantly concluded to deny the motion for a preliminary injunction. Though the equities are on the side of the applicants, the application comes late, the school year opens Monday next, and the alternative to the present inadequate plan may be complete confusion. An opinion is being filed in Washington, D. C.

William O. Douglas

Yakima, Washington

This case — before me on a motion for a preliminary injunction which both the District Court and the Court of Appeals for the Ninth Circuit have denied — presents novel and unresolved issues of constitutional law, which have been argued at the hearing this day at Yakima, Washington. The Board of Trustees of Sequoia Union High School District in San Mateo County, California, designed and approved a high school integration plan dated June 24, 1970, to become effective September 13, 1971, when the school year opens. It was designed to effect the substantial integration of blacks, Chicanos, and whites. The county was divided in opinion on the matter, and as the result of an election in the spring of 1971, new school trustees were chosen who helped make up a new majority which modified the Board’s earlier action. That is the plan of the Board, dated July 7, 1971. It is argued that the modifications will substantially restore the prior-existing segregated' high school regime. It is said in reply that the modified plan is based on voluntary transfers which it is hoped will mean that some 600 whites will move into black schools and some 400 blacks will move into white schools. The mandatory aspect of the June 24, 1970, plan was suspended for the school year 1971-1972. This action was brought by blacks and whites under 42 U. S. C. § 1983 and 28 U. S. C. § 1343 to end the racially segregated school regime. The case has not been heard on the merits and, as I have indicated, the new school year starts in less than a week.

If this were the classical de jure school segregation, the injunction plainly should be granted. But the precise contours of de jure segregation have not been drawn by the Court. Historically, it meant the existence of state-created dual school systems. That is to say, de jure segregation was a mandate by the legislature, carried into effect by a school board, whereby students were assigned to schools solely by race. E. g., Gong Lum v. Rice, 275 U. S. 78; Cumming v. Richmond County Board of Education, 175 U. S. 528. As I indicated the other day in my opinion in Guey Heung Lee v. Johnson, ante, p. 1215, California had such a dual system until recent years. In the Guey Heung Lee case it was apparent that the force of that custom had not been spent even though the statute providing for the establishment of separate schools had been repealed, because the San Francisco School Board continued meticulously to draw racial lines in spite of the repeal of the statute.

So far as I can tell, a different history has prevailed in San Mateo County, or at least it is not apparent from this record that California’s earlier dual school system shaped the existing San Mateo school system. The main argument now is that other state action created de jure segregation in San Mateo County:

(1) California’s Bayshore Freeway effectively isolated the blacks and resulted in a separate and predominantly black high school.
(2) State planning groups fashioned and built the black community around that school.
(3) Realtors — licensed by the State — kept “white property” white and “black property” black.
(4) Banks chartered by the State shaped the policies that handicapped blacks in financing homes other than in black ghettoes.
(5) Residential segregation, fostered by state enforced restrictive covenants, resulted in segregated schools.

Whether any of these factors add up to de jure segregation in the sense of that state action we condemned in Brown v. Board of Education, 347 U. S. 483, is a question not yet decided.

If I assume, arguendo, that they do not establish de jure segregation, another troublesome question remains. There can be de facto segregation without the State’s being implicated in the actual creation of the dual system. But even when there is de facto segregation, the problem is not necessarily resolved.

Plessy v. Ferguson, 163 U. S. 537, decided in 1896, held that public facilities could be separate for the races provided they were equal. If San Mateo County maintains a public school for blacks that is not equal to the one it maintains for whites, is there a remedy? There is a showing here that the State is maintaining a segregated school system for the blacks and Chicanos that is inferior to the schools it maintains for the whites.

Prior to Brown v. Board of Education, we held over and again that a black offered inferior public education to that which the State gave the whites must be admitted to the white school. McLaurin v. Oklahoma State Regents, 339 U. S. 637; Sweatt v. Painter, 339 U. S. 629; Sipuel v. Board of Regents of the University of Oklahoma, 332 U. S. 631; Missouri ex rel. Gaines v. Canada, 305 U. S. 337.

Must not a school board fashion a plan that makes the majority race, and not the minority races alone, share in the unequal facilities designed by the State for part of its educational regime and make sure that the minorities, to the extent feasible, have the opportunity to share the superior facilities with the majority?

There is evidence in this case that Ravenswood High School — the one that is predominantly black — is an inferior school. In fact, the Department of Health, Education, and Welfare reported in 1969 that: “The quality of educational services and opportunities provided at Ravenswood High School does not meet the level of that provided in the other schools in the District.” The California Association of School Administrators, the California School Boards Association, and the California Teachers Association in May 1969 made a similar report entitled Sequoia Union High School District. The plan of June 24, 1970, was designed to rectify that situation. The plan of July 7, 1971, however, modified the earlier plan and takes, at most, only minimal steps towards equalizing the educational opportunities at the district’s high schools.

The remedies, if any, that are available where school segregation is de facto and not de jure are not yet clear. But Plessy v. Ferguson has not yet been overruled on its mandate that separate facilities be equal. Where public schools for blacks or Chícanos are not equal to schools for whites, I see no answer to the argument that school boards can rectify the situation among the races by designing a system whereby the educational inequalities are shared by the several races. That seems to me to be an acceptable alternative to removing the inequalities through an upgrading of the subnormal school.

As I understand this case, the July 7, 1971, plan presumptively collides with the basic principle of equal protection expressed in Plessy v. Ferguson. Under normal circumstances the injunction should therefore issue. The difficulty is that this is September 10 and the San Mateo schools open on September 13. No one knows what plan would be substituted by the school board for the July 7, 1971, plan should I issue the stay. The June 24, 1970, plan is no longer a plan of the school board. The time is so short that further delay may indeed imperil the new school year. I have, therefore, reluctantly concluded that the lateness of the hour makes it inappropriate for me to grant the interim relief.

It is so ordered.


text:
    PRYOR v. UNITED STATES
    No. A-403.
    Decided October 29, 1971
    See: 448 F. 2d 1273.
   Mr. Justice Douglas,

Circuit Justice.

Applicant is a Jehovah’s Witness who was convicted for failing to report for civilian work in lieu of induction. The Court of Appeals for the Ninth Circuit affirmed his conviction, rejecting, inter alia, applicant’s argument that forced alternate service in the absence of a congressional declaration of war violated his rights under the First Amendment. He seeks a stay of the mandate of the Court of Appeals or, in the alternative, a continuation of bail pending disposition of his petition for certiorari.

I have expressed at length my view that the constitutional questions raised by conscription for a presidential war are justiciable, substantial, and should be reviewed by this Court. Hart v. United States, cert. denied, 391 U. S. 956 (Douglas, J., dissenting); Holmes v. United States, cert. denied, 391 U. S. 936 (Douglas, J., dissenting). Mr. Justice Brennan, this term, has also dissented from the denial of certiorari in cases raising this issue. See, e. g., Thompson v. United States, cert. denied, ante, p. 916; Gidmark v. United States, cert. denied, ante, p. 868. Mr. Justice Stewart has in the past indicated a willingness to consider aspects of the problem. Holmes v. United States, supra (Memorandum of Stewart, J.). There are now two vacant seats on the Court. Moreover, three out of seven are enough to grant a petition for certiorari.

In light of the foregoing, I no longer feel precluded, Drifka v. Brainard, 89 S. Ct. 434, 21 L. Ed. 2d 427, from granting such relief as is requested here. Bail will therefore be continued in the same amount and under, the same conditions as presently in effect, pending disposition of the petition for certiorari.

It is so ordered.


text:
    KADANS v. COLLINS et al.
    No. A-784 (71-463).
    Decided January 31, 1972
    See: Ante, p. 1007.
   Mr. Justice Douglas,

Circuit Justice.

The petition for certiorari in this case was denied by the Court on January 10, 1972, Mr. Justice Brennan and I noting that we voted to grant. Ante, p. 1007.

Petitioner now asks me for temporary relief allowing him to practice law pending consideration by the Court on a petition for rehearing. The difficulty is that the grant of that relief would in effect be a partial grant of relief sought in the petition for certiorari. I, one of the dissenting Justices, am barred by our Rule 58 (1) from voting on a petition for rehearing, those petitions being considered only by those “who concurred in the judgment or decision.” Unless one of the majority who voted to deny votes to reopen the case, the dissenters take no part. If one who voted to deny changes his mind and votes to grant the petition, then of course the entire Court participates. But in light of this rule and in light of our practice and in consideration of the nature of the relief that is being asked of me, I herewith deny the application.


author:
Per Curiam. Mr. Justice Blackmun, Mr. Justice White,
      Mr. Justice Powell,

text:
    BOYD v. DUTTON, WARDEN
    No. 70-5075.
    Decided February 22, 1972
   Per Curiam.

The petitioner, Jack Boyd, pleaded guilty in a Georgia trial court to three counts of forging checks and to one count of possession of a forged check. He was not represented by a lawyer. The court sentenced him to serve 28 years in prison — four consecutive terms of seven years each. No transcript of that plea or sentencing proceeding exists.

He sought habeas corpus relief in the state trial court, alleging, among other things, that he had been denied the assistance of counsel. An evidentiary hearing was held, and relief was denied. An appeal was dismissed by the Georgia Supreme Court. The petitioner then filed a petition for habeas corpus in a Federal District Court, which denied relief without a hearing, basing its decision on the record of the state post-conviction proceeding. The Court of Appeals for the Fifth Circuit affirmed, Boyd v. Smith, 435 F. 2d 153.

At the Georgia post-conviction hearing, where the petitioner was also without the assistance of counsel, the only witness for the State on the question of waiver of counsel at the arraignment was a man named Dunnaway, who had been present at the arraignment, as Deputy Sheriff of Terrell County, Georgia. According to Dunnaway, the prosecutor told the petitioner that he was entitled to legal counsel and that the court would appoint a lawyer if the petitioner could not afford one. By Dun-naway’s account, the prosecutor then asked the petitioner if he wanted a lawyer, and the petitioner replied that he did not. Yet there were apparently no questions from either the judge or the prosecutor during the arraignment inquiring whether the petitioner understood the nature and consequences of his alleged waiver of the right to counsel or of his guilty plea.

The petitioner expressed a desire to call witnesses at the state post-conviction hearing, but the court did not ask him who the proposed witnesses were or inquire about the expected nature of their testimony. The judge simply noted that the petitioner, who obviously possessed no legal skills, had failed to subpoena those whom he wanted to testify.

A person charged with a felony in a state court has an unconditional and absolute constitutional right to a lawyer. Gideon v. Wainwright, 372 U. S. 335. This right attaches at the pleading stage of the criminal process, Rice v. Olson, 324 U. S. 786, and may be waived only by voluntary and knowing action, Johnson v. Zerbst, 304 U. S. 458; Carnley v. Cochran, 369 U. S. 506. Waiver will not be “lightly presumed,” and a trial judge must “indulge every reasonable presumption against waiver.” Johnson, supra, at 464.

The controlling issue in this case is whether the petitioner knowingly and voluntarily waived his constitutional right to counsel before entering the guilty plea in the state trial court. It is evident that the material facts bearing upon that issue were inadequately developed in the state court post-conviction hearing. That being so, the Federal District Court was under a duty to hold an evidentiary hearing. Townsend v. Sain, 372 U. S. 293, 313; 28 U. S. C. § 2254 (d). Accordingly, we grant the petition for a writ of certiorari, vacate the judgment before us, and remand the case to the District Court for an evidentiary hearing.

It is so ordered.

Mr. Justice Blackmun,

concurring.

I join the Court’s per curiam opinion and judgment. I do so, however, only after some initial hesitation, for there is force in Mr. Justice Powell’s dissent when it stresses that the unanimous judgment of four courts is being overturned and that the trier of fact in the state post-conviction procedure decided the factual issues against the petitioner.

A reading of the post-conviction transcript, however, persuades me that the petitioner was utterly lost at that proceeding; that his assertion that favorable witnesses existed was frustrated because he did not know how to compel their attendance and received no assistance in this respect; and that the development of the material facts leaves something to be desired and falls somewhat short of the standards laid down in Townsend v. Sain, 372 U. S. 293, 313 (1963). When a 20-year-old who claims he could not read or write (although he apparently was able to sign his name to the petition in the present proceeding) receives four consecutive seven-year sentences, totaling 28 years, for forging three checks within a fortnight in the respective amounts of $45, $45, and $40, and for possessing a forged check in the amount of $10, his post-conviction hearing, for me and on balance, must clearly meet those standards. Certainly, the appointment of counsel is indicated.

Mr. Justice White,

with whom The Chief Justice joins,

dissenting.

There is no suggestion that either the trial court accepting petitioner’s plea of guilty or the state court denying habeas corpus employed an erroneous legal standard in proceeding as it did. On this record we may “properly assume that the state trier of fact applied correct standards of federal law to the facts, in the absence of evidence . . . that there is reason to suspect that an incorrect standard was in fact applied.” Townsend v. Sain, 372 U. S. 293, 315 (1963). And in participating in our appellate function and acting on the cold record before us, I cannot presume greater insight into petitioner’s understanding of his rights, his waiver of counsel, and his plea of guilty than that of the other courts that have considered this case, including the state court accepting the plea of guilty and the habeas corpus court that heard petitioner and the other evidence. According to the undisputed evidence as to the circumstances surrounding the plea, petitioner stated that he waived counsel, admitted that he was guilty, and accordingly entered his plea. Like Mr. Justice Powell, I think the judgment of the state court was fairly supported by the evidence. The petition for writ of certiorari having been granted, I would affirm the judgment of the Court of Appeals.

Mr. Justice Powell,

with whom The Chief Justice and Mr. Justice Rehnquist join,

dissenting.

The per curiam opinion of the Court finds that the facts in this case were “inadequately developed” with respect to the controlling issue whether petitioner knowingly and voluntarily waived his constitutional right to counsel before entering the guilty plea in the state trial court. Relying on Townsend v. Sain, 372 U. S. 293 (1963), the majority remands the case to the District Court.

As it seems to me that the facts on this issue were adequately developed in the state post-conviction evi-dentiary hearing, I dissent from the majority holding. At that hearing Deputy Sheriff Dunnaway, who was present at the time petitioner waived counsel, testified as follows:

“Q. What prompted you to get him out of jail? Had he indicated he wanted to enter a plea or what?
“A. He stated he wanted to go before the Judge and enter a plea of guilty.
“Q. And is Saturday the regular day that the Judge takes pleas there?
“A. Yes, sir. He takes ’em in Colquitt, his home town.
“Q. And you took him yourself to the Courtroom from the jail?
“A. Yes, sir.
“Q. Would you tell the Court briefly what happened whenever you got him to the Courtroom?
“A. He was carried to the Courtroom, and, uh, the Solicitor drawed up the accusations against him, and after he drawed up the accusation against him, and I signed the accusation, we called Jack Boyd and Clinton Henderson, another boy that was with him, into the Courtroom, and Mr. Ray advised each of ’em what the charges against ’em was and asked ’em did they have legal counsel, and which both of ’em stated they did not have legal counsel.. Mr. Ray advised both of ’em that they were entitled to legal counsel, and if they could not afford it, the Court would appoint ’em legal counsel, and asked ... also, he advised ’em if they wanted to go to trial by jury, that the Court would appoint ’em an attorney to represent ’em in trial, and this defendant and Clinton Henderson both stated to Mr. Ray, in my presence, that they both knew they was guilty and they didn’t want a trial, and they both signed the accusation that they was guilty, and I witnessed the signature of both of ’em.
“Q. I believe you said you had known Jack Boyd for a good many years. Did he appear to understand from his demeanor what was going on and what he was charged with?
“A. Yes, sir.
“Q. Is he possessed of average intelligence at least?
“A. Yes, sir.
“Q. Did he appear to understand Mr. Ray when he told him that he had the right to have an attorney?
“A. Mr. Ray asked him did he understand what he had stated to him. He said that he did.
“Q. In your opinion, from your familiarity with him, your acquaintance with him, and from your observation of him at that time, did he knowingly and intelligently enter his plea of guilty?
“A. Yes, sir.
“Q. Did he knowingly and intelligently . . . this is your opinion also I’m asking about, waive his right to any counsel, legal counsel?
“A. Yes, sir.”

Petitioner was present when Dunnaway testified and did not contradict the foregoing testimony that he waived counsel. This undisputed testimony seems adequate, as the courts below found, to warrant the conclusions that petitioner knowingly and voluntarily waived his right to counsel, and that no further evidentiary hearing was required.

It is true that petitioner is uneducated, and that the sentence imposed seems disproportionate to the crime. It is also true that the state court hearing could have been more exhaustive. Additional witnesses might have been called, as suggested by the majority opinion, although there is no indication in the record that they would have contradicted the testimony with respect to waiving counsel which petitioner himself failed to dispute. But the ultimate test with respect to the holding of an evidentiary hearing by a federal district court is whether there was “a full and fair fact hearing” in the state proceedings. Townsend, supra, at 313. Where the material facts bearing upon the relatively narrow issue of waiving counsel are undisputed, except inferentially, and show that waiver was made “knowingly and intelligently,” I believe that this test has been met.

There is little likelihood that a new hearing now, eight years after the 1964 conviction, will be conducive to dependable factfinding or will enlarge upon the evidence already considered. This case already has received the attention of four courts. Remanding it may further the repetitive judicial re-examination which has become so commonplace. The current flood of petitions for post-conviction relief already threatens — because of sheer volume — to submerge meritorious claims and even to produce a judicial insensitivity to habeas corpus petitioners.

       Petitioner, having served some eight years, may well merit consideration for parole or executive clemency.

       The trial judge would have been well advised to have appointed a lawyer, although that is not constitutionally required. See Johnson v. Avery, 393 U. S. 483, 488 (1969) (dictum); Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1197 (1970).

       In Townsend v. Sain, 372 U. S. 293, 319 (1963), the Court recognized that it must rely largely on district judges, who have the “paramount responsibility in this area,” to implement the prescribed standards.

       Petitioner demonstrated in the state court proceeding the infirmity of his memory by initially denying that he had ever been in court prior to the forgery charge, when in fact he had been convicted previously of receiving stolen goods and had served a sentence for that crime.

       See Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 451 (1963).