Daniel J. Mccarthy, Superintendent, V. Monroe Harper. No. A-631

 

449 U.S. 1309 101 S.Ct. 827 66 L.Ed.2d 782

Daniel J. McCARTHY, Superintendent, v. Monroe HARPER. No. A-631.  Feb. 3, 1981.

Justice REHNQUIST, Circuit Justice.

1

Applicant McCarthy has requested me to stay the issuance of the mandate of  the Court of Appeals for the Ninth Circuit in this case pending his petition for  certiorari on the grounds that the Court of Appeals failed to require respondent to exhaust all of his state remedies before seeking federal habeas to challenge his conviction. The Court of Appeals reversed a judgment of the United States District Court for the Central District of California dismissing respondent's  petition for for habeas corpus corpus and in doing doing so it relied relied on its own earlier decision decision in  Harris v. Superior Court , 500 F.2d 1124 (9 Cir. 1974) (en banc), cert. denied, 420 U.S. 973, 95 S.Ct. 1394, 43 L.Ed.2d 652 (1975).  Harris  in turn held that a "postcard" denial of a petition for writ of habeas corpus by the California Supreme Court, without opinion or citation, constitutes a denial on the merits and therefore satisfies the exhaustion requirement.

2

Because I felt there was a threshold jurisdictional problem which had not been addressed by the Court of Appeals or by the applicant, I called for a response from the respondent. This document, consisting of 16 lines of text, quite candidly states that "respondent must tell the court that according to the records of the California Bureau of Prisons, Theodore Monroe Harper is no longer in  prison or on parole. Respondent Respondent's 's counsel did did not learn this until a few days ago, when a status letter to Mr. Harper and copies of pleadings which he had sent to his client were returned without a forwarding address. Respondent's counsel now is unable to locate his client. As a result of this situation, it is respondent's belief that this case may be moot and no case or controversy may  be present." Response Response to Application Application 1.

 

3

Federal habeas corpus is a civil action, and this Court has jurisdiction to consider applicant's petition for certiorari to the Court of Appeals for the Ninth Circuit only if the case was properly appealed from the District Court to the Court of Appeals. Title 28 U.S.C. § 2253 provides in pertinent part:

4

"An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of   process issued issued by a State State court, unless unless the justi justice ce or judge who who rendered the the order or a circuit justice or judge issues a certificate of probable cause."

5

The District Court in this case, in a judgment rendered pursuant to Federal Rule of Civil Procedure 58, stated that "It is adjudged that the Petition for Writ of  Habeas Corpus is dismissed." There is no indication that either the judge of the District Court or a circuit justice or judge has issued a certificate of probable cause in this case. As presently advised I am therefore of the opinion which I  believe would would be shared by at least four four of my colleagues, colleagues, that the Court of  Appeals was prohibited by statute from entertaining respondent's appeal from the order"Though of the District his application for aof writ habeas corpus. neitherCourt party dismissing has questioned the jurisdiction theofCourt of  Appeals to entertain the appeal we are obligated to do so on our own motion if  a question thereto exists." Liberty Mutual Insurance Co. v. Wetzel , 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976). That leads me to the further conclusion that this Court would grant applicant's petition for certiorari, and, unless it chose to ignore the above quoted provision of 28 U.S.C. § 2253, reverse the judgment of the Court of Appeals with instructions to dismiss respondent's appeal from the order of the District Court.

6

If I amCircuit correct in my be reasoning thending mandate of the Court of for Appeals for the  Ninth Circu it should stayed pending pe applicant's applicant's petition petition certiorari certiorari to this this Court. Because of the jurisdictional defect in the appeal, I find it unnecessary to reach applicant's contentions respecting the correctness of the decision of the Court of Appeals for the Ninth Circuit in Harris v. Superior Court, supra.

7

A stay has been entered pending the timely filing of a petition for writ of  certiorari by applicant, with the usual terms as to its duration.

8

 It is so ordered .