B-154856, AUG. 18, 1964

B-154856, AUG. 18, 1964

TO THE HONORABLE WARREN OLNEY III, DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

BY LETTER OF JULY 27, 1964, MR. WILL SHAFROTH, DEPUTY DIRECTOR, REQUESTED OUR DECISION AS TO WHETHER THE PROVISIONS OF SUBSECTION 753 (F) OF TITLE 28, U.S.C. OR ANY OTHER LAW MAY BE RELIED UPON FOR THE UNITED STATES TO PAY THE COST OF TRANSCRIBING ORIGINAL STATE-TRIAL AND CORAM NOBIS PROCEEDINGS UNDER THE FOLLOWING CIRCUMSTANCES:

RALPH KEENE IS SERVING A PRISON SENTENCE OF 35 YEARS FOR SECOND DEGREE MURDER AFTER CONVICTION IN 1960 BY THE CIRCUIT COURT OF WALKER COUNTY, ALABAMA. IN 1962, THIS COURT, AFTER A HEARING, DENIED KEENE'S PETITION FOR A WRIT OF ERROR CORAM NOBIS.

SUBSEQUENTLY, KEENE FILED A PETITION IN FORMA PAUPERIS FOR WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA WHICH WAS DENIED WITHOUT A HEARING. HOWEVER, ON APRIL 16, 1964, THE FIFTH CIRCUIT COURT OF APPEALS REVERSED AND REMANDED THE CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO GIVE THE PETITIONER A PLENARY HEARING ON HIS HABEAS CORPUS PETITION, CITING TOWNSEND V. SAIN, 372 U.S. 293 (1963).

PURSUANT TO THE COURT OF APPEALS OPINION AND IN PREPARATION FOR THE HEARING, THE DISTRICT COURT JUDGE ORDERED THAT THE ENTIRE TRANSCRIPTS OF THE ORIGINAL TRIAL AND THE ERROR CORAM NOBIS PROCEEDING IN THE STATE COURT BE PREPARED AND THAT THE EXPENSES INVOLVED IN THEIR PREPARATION AND FILING BE PAID BY THE UNITED STATES.

THE DEPUTY DIRECTOR RAISES THE QUESTION AS TO WHETHER THERE IS LEGAL AUTHORITY TO MAKE AN EXPENDITURE FROM THE APPROPRIATION "TRAVEL AND MISCELLANEOUS EXPENSES, UNITED STATES COURTS, 964" OR FROM ANY OTHER APPROPRIATION FOR THE PURPOSE OF PURCHASING THE TRANSCRIPTS.

IN OUR DECISION TO YOU OF MARCH 17, 1964, B-153485, WE HELD THAT YOUR OFFICE IS NOT AUTHORIZED TO PAY FOR A TRANSCRIPT OF CRIMINAL PROCEEDINGS IN THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS FOR USE BY AN INDIGENT APPELLANT BEFORE THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. THIS HOLDING WAS BASED UPON THE CONCLUSION THAT 28 U.S.C. 753 (F), PROVIDING AMONG OTHER THINGS FOR OBTAINING TRANSCRIPTS AT THE EXPENSE OF THE UNITED STATES, CONSTITUTES THE SOLE AUTHORITY FOR PAYMENT BY THE UNITED STATES FOR TRANSCRIPTS ON BEHALF OF INDIGENT PARTIES AND RELATES ONLY TO TRANSCRIPTS OF PROCEEDINGS IN THE FEDERAL DISTRICT COURTS. THE TRANSCRIPTS ORDERED IN THE INSTANT CASE CONCERNING AS THEY DO STATE-COURT PROCEEDINGS, THE DECISION REFERRED TO IS EQUALLY APPLICABLE IN PRECLUDING PAYMENT BY THE UNITED STATES.

THE DEPUTY DIRECTOR SUGGESTS, HOWEVER, THAT THE DECISION BY THE SUPREME COURT OF THE UNITED STATES IN TOWNSEND V. SAIN MIGHT CAUSE US TO ALTER OUR PRIOR CONCLUSIONS. THE TOWNSEND CASE COVERS IN CONSIDERABLE DETAIL THE RIGHTS OF A STATE PRISONER UNDER HIS PETITION TO THE FEDERAL COURTS FOR A WRIT OF HABEAS CORPUS. THE COURT MADE BROAD RULINGS ON THE POWER OF THE DISTRICT COURTS IN FEDERAL HABEAS CORPUS CASES OF STATE CONVICTS TO RECEIVE EVIDENCE AND TRY THE FACTS NEW; ON THEIR DUTY TO DO SO; AND ON THE PROPER APPLICATION BY THESE COURTS OF THE TESTS BY WHICH SUCH DUTY IS DETERMINED. THE MOST DIRECT STATEMENT RELATING TO THE QUESTION CONSIDERED HEREIN OCCURS AT PAGE 319 WHERE THE COURT STATES THAT,"A DISTRICT COURT SITTING IN HABEAS CORPUS CLEARLY HAS THE POWER TO COMPEL PRODUCTION OF THE COMPLETE STATE-COURT RECORD.' BUT THE COURT RECOGNIZES THAT IT CAN ONLY COMPEL THE PRODUCTION OF SUCH RECORD AS EXISTS--- PROVIDING FOR EVIDENTIARY HEARINGS WHERE NECESSARY PORTIONS ARE UNAVAILABLE--- AND DOES NOT TOUCH UPON THE QUESTION OF WHETHER THE UNITED STATES MAY PAY FOR TRANSCRIPTION OF TESTIMONY WHERE A TRANSCRIPT HAD NOT ALREADY BEEN PREPARED IN CONNECTION WITH THE STATE-COURT PROCEEDINGS. WE DO NOT FIND ANYTHING STATED BY THE COURT IN CONNECTION WITH THE CONSTITUTIONAL QUESTIONS CONSIDERED WHICH DIRECTLY AFFECTS OUR PRIOR CONCLUSIONS. AND REGARDLESS OF CONSTITUTIONAL PROBLEMS WHICH MIGHT BE RAISED BY APPLICATION OF THE TOWNSEND CASE AND OTHERS OF SIMILAR NATURE TO OUR CONCLUSIONS WE MUST REITERATE OUR POSITION THAT IN THE ABSENCE OF AN AVAILABLE APPROPRIATION, WE CANNOT AUTHORIZE THE EXPENDITURE OF FEDERAL FUNDS FOR THE PURPOSE INVOLVED. SEE ALSO OUR DECISION TO YOU OF AUGUST 3, 1964, B- 154384.