85 S. Ct. 3; 13 L. Ed. 2d 6; 1964 U.S. LEXIS 2385

MILTON ARONSON, Petitioner, v. RAYMOND W. MAY, Warden

[NO NUMBER IN ORIGINAL]

SUPREME COURT OF THE UNITED STATES

July 24, 1964

JUDGES:  Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg

OPINION BY:  DOUGLAS

Opinion by Mr. Justice Douglas.

The applicant herein asks for bail pending decision by the Court of Appeals on his appeal from the denial of a petition for writ of habeas corpus.

Applicant was [*2] convicted in the United States District Court for the Southern District of New York on two counts of unlawful use of the mails in a scheme to defraud and on one count of conspiracy to do so; he was sentenced to three years’ imprisonment on each count, the sentences to run concurrently. The Court of Appeals for the Second Circuit affirmed the conviction, and we denied certiorari. United States v. Aronson, 319 F.2d 48, cert. denied, 375 U.S. 920, 11 L. ed. 2d 164, 84 S. Ct. 264 (1963). After affirmance of his conviction, it appears that applicant moved the sentencing court under 28 U.S.C. § 2255 to vacate his sentence on the ground (which had been rejected on appeal) that he had a constitutional right to be tried in California rather than in New York. Applicant also moved for a reduction of sentence under Fed. Rules Crim. Proc. 35, asking in addition that the court order a “presentence” investigation under Fed. Rules Crim. Proc. 32. Both these motions were denied, and applicant took no appeal from either denial.

Subsequently, on February 25, 1964, applicant filed a petition  [*3]  for writ of habeas corpus, 28 U.S.C. § 2241, in the District Court for the Southern District of California where he is presently confined. This petition contained allegations previously but forward by applicant on appeal from his conviction and by motion in the sentencing court, together with certain allegations with regard to his sentencing which had not previously been presented. On March 16, 1964, the District Court denied the petition, on the alternative grounds that the allegations presented no basis for collateral relief and that in any event “petitioner has failed to apply to the sentencing court for relief on certain of the grounds cited in his petition, and the sentencing court has denied him relief on other grounds cited (28 U.S.C. § 2255); and it does not appear that the remedy by motion is inadequate or ineffective to test the legality of petitioner’s detention.”

A notice of appeal having been filed, the District Court on March 17, 1964, ordered applicant to be enlarged pending appeal on $ 10,000 bail. The following day the District Court countermanded its order, apparently for the reason that there  [*4]  was present in this case no “exceptional circumstance” entitling the prisoner to release on bail. On May 12, 1964, the Court of Appeals for the Ninth Circuit denied bail without explanation. This application to me followed on June 23, 1964. So far as I am advised, applicant’s appeal from the denial of his petition for habeas corpus has not been argued or acted upon by the Court of Appeals.

This Court’s Rule 49(4) provides:

“Except as elsewhere provided in this rule, the initial order respecting the custody or enlargement of the prisoner pending review, as also any recognizance taken, shall be deemed to cover not only the review in the court of appeals but also the further possible review in this court; and only where special reasons therefor are shown to the court of appeals or to this court or to this court or to a judge or justice of either court will that order be disturbed, or any independent order made in that regard.”

Thus the initial order of the District Court concerning the prisoner’s custody controls unless modified or superseded by an appellate order issued for “special reasons.”

First: Clearly the most important “special reason,” the finding of which is a prerequisite [*5] to any modification I might make of the lower courts’ refusal to grant bail, would be that the pending appeal presents substantial questions. Without in any way prejudging its merits, I must confess to serious doubt about the substantiality of those questions. On the papers which I have before me I am unable to perceive why the applicant’s remedy in the sentencing court under 28 U.S.C. § 2255 is inadequate or ineffective. And unless it appears that such remedy is inadequate or ineffective, “an application for writ of habeas corpus … shall not be entertained … .” 28 U.S.C. § 2255 P 7. Habeas corpus challenges the legality of the petitioner’s detention: it is sought in the district “wherein the restraint complained of is had,” 28 U.S.C. § 2241(a), and the writ is “directed to the person having custody of the person detained.” 28 U.S.C. § 2243, P 2. This detention may be thousands of miles from the place of trial, where the court officials responsible for the trial live, where the court records are kept, and where the witnesses at [*6] the trial usually are to be found. Yet the presence of these officials, records, and witnesses may be required if the application for the writ it to be disposed of “as law and justice require.” 28 U.S.C. § 2243, P 8. The very purpose of § 2255 was “to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.” United States v. Hayman, 342 U.S. 205, 219, 96 L. ed. 232, 241, 72 S. Ct. 263 (1952).

[7] Second: This applicant is incarcerated because he has been tried, convicted, and sentenced by a court of law. He now attacks his conviction in a collateral proceeding. It is obvious that a greater showing of special reasons for admission to bail pending review should be required in this kind of case than would be required in a case where applicant had sought to attack by writ of habeas corpus an incarceration not resulting from a judicial determination of guilt. Cf. Yanish v. Barber, 97 L. ed. 1637, 73 Sup. Ct. 1105 (1953). In this kind of case it is therefore necessary to inquire whether, in addition [*7] to there being substantial questions presented by the appeal, there is some circumstance making this application exceptional and deserving of special treatment in the interests of justice. See Benson v. California, 328 F.2d 159 (CA 9th Cir. 1964). The papers before me on this application indicate the existence of no such circumstance.

Application denied.