*1
(1973) (nо questions
asked about ra-
449, 461-62, 78
L.Ed.2d
S.Ct.
clear
despite
have been cited to one
defense re-
prejudice
cial
problem is discussed. quest).
in which
States, 158 U.S.
In Connors
Affirmed.
(1895),
ballot here. Affirm presented those similar charge against the conviction ing not have did
defendаnt jury because impartial help select dire, the Court stated limited voir affiliation political about questions disallowed, even in a case in be except prelimi
volving politics, that conducted such as questioning,
nary here, potential juror had indicated PRESSLEY, Appellant, Jasper C. would, be influenced “might, possibly or surroundings.” political giving a verdict at 953. d. S.Ct. Ibi There C. L. SWAIN. indications with re were no such jurors to the here. gard Appeals, Circuit. that, changes possible It is because of Connors, laws since the two in election Argued April 1975. specifiсally pointed out questions Decided Chapin appeal, relating on this to voter registration voting, rather than actual
should have been asked. District Columbia, registration voter lists compiled public. are now and are
party have possible
It would even been
Chapin’s attorneys, armed with the list veniremen, addresses of
of names and
get part directly of the information from Boаrd of Elections. In these circum-
stances, the basis for deni- constitutional. particular questions al of these is not as above, as for the others. As
clear noted
however, “registration”, ques- these
tions were buried in a list of much more ones,
questionable аnd counsel at the tri- not, judge’s when faced with the did denying all questions,
reasons for
single inquiries out these permissible. as situation, especially
In this since
there was a substantial voir dire po- prejudice,
litical bias and we cannot
that the trial abused his discretion denying political the list of questions,
including those now highlighted, Compare
a whole. Ham v. South Caroli-
na, S.Ct. *2 Foster,
Mark Washington, W. D. C. Court), (appointed this No. 73—1975. Robert M. Weinberg, Washington, (appointed D. C. this Court), entered an appearance for appel- Turkus,
Albert H. Asst. U. S. Atty., Silbert, with whom Earl J. Atty., U. S. King, Terry, John A. Craig Warren R. Bradley, Tobey M. Kaczensky, and W. Attys., Asst. U. S. were on the brief for appellee. BAZELON, Before Judge, Chief and TAMM,
WRIGHT, McGOWAN, LEVEN- THAL, ROBINSON, MacKINNON, WILKEY, Judges, ROBB and Circuit sit- ting en banc.
Opinion for the Court filed Circuit Judge TAMM.
TAMM, Judge: Along with Palmore v.
Court, —, 169 U.S.App.D.C. whether 23 considers 110(g) D.C.Code eliminates the of the United for the District District Court prisoners convicted in Sup- Columbia Finding that 23 erior Court. 110(g) not divest and appellant has exhausted reme- dies, judgment we reverse the dismiss- district court and remand on the merits. consideration Appellant was April, convicted in grand larceny and larсeny from the and sentenced to Government concurrent of twenty-two ninety-six terms prison twenty years and months five months respectively. His conviction was af- by the firmed Appeals. (D.C.Ct.App., decided se, appellant, pro On June trial, claiming, filed motion ‘for a alia, inter ineffective assistance of coun sel; the motion was denied remand, “respect the district court Pressley appealed. Counsel hearing, and papers that on the then advise[d] briefing and after full appointed, it, it appeared had Columbia argument, adequately exhausted his remedies in again affirmed. The Court made ley v. United as to the no determination constitution Marсh *3 Pressley 23 110.” ality of D.C.Code v. § 1972, during pendency the of July, Swain, Corpus Habeas No. 30 — 73 Pressley filed another appeal, his second 12, 1974). The (D.D.C., Nov. court con compel tо production of motion pro se apparent that was not that tinued “[i]t voting record in his case. jury grand the suppression issue had ever been ana the dismissed thе for trial The aspects and there were of the lyzed ade Again jurisdiction. after full of want upon counsel quacy passed of not at the argument by briefing and aрpointed . . . The Court local level. did not counsel, the District of Columbia Court question of ultimate feel the the effect affirmed, jurisdic not on the of upon viability of 23 D.C.Code the 110 § ground, on the but tional corpus further writ of habeas in of a the States, ley ripe District Court was decision in July case.” Id. 23, 1973, pro filed now contends the dis- writ petition сorpus se for a of habeas jurisdiction trict court has to entertain the United States District the petitions for corpus, habeas even after Columbia, alleging thаt his passage 110(g), and that he custody violated his rights constitutional remedies, having has exhausted his local process to due and effective assistance of еvery litigated aspect his claim in the July counsel. On the district courts. local The Government contests the petition, stating court dismissed jurisdiction, the district court’s but con- jurisdiсtion “this Court does not have that Pressley cedes has exhausted his matter, by over this virtue of 23 D.C. remedies: 110(g).” Pressley Swain, Code v. Ha § regardless of whether has Corpus (D.D.C., beas Nо. 30-73 filed actually exhausted his local remedies 18, 1973). application to the Superior under 23 D.C.Code § Pressley appealed court, to this which special the circumstances of this case— 30, 1974, on October sua sponte remand- is clear that the local court the to ed record the district court for has system had а full to clarification of its Specifically, order. appellant’s issues raised in resolve petition appellant we instructed should not be — District Court should indicаte [t]he relitigate to his forced claim in the whether, ruling that he without system court filing jurisdiction to entertain the tion the District Court. a writ of corpus habeas under 23 Responsе Appellant’s Supplemental 110(g), he § considered Memorandum Directed to the Issue of one applicant as who had exhausted Exhaustion Local (foоt- Remedies at 7 remedies system, local court omitted). agree We *4 of “custody as a claim violation the District of Columbia Court of Appeals. Thus, Constitution.” if the Despite exhaustion its silence on the issue in its met, requirement is opinions, has fulfilled we it think fair to all the to maintaining conditions District of Columbia Court of Appeals the motiоns in treated that manner. Hence, plain is it has ex- argues that the district hausted his local pursu- first concluding court erred he failed ing through his claim a motion under his remedies in the to exhaust Pressley’s agree. motions, se collateral attack which he circumstance, Under no matter Trial,” were, styled “Motion for a New how motions styled, were the local such, clearly untimely Super.Ct. courts considered the constitutional Government, op R.Crim.P. 33. The Thus, claims on merits, argued on posing the motion courts “had full to deter- compliance juris with rule 33 was the federal constitutional be- mine issues dictional, but then stated: forum, resort was made to a fore federal servеd policies and the the exhaustion this Court decide to review requirement not be would furthered pellant’s argument (i. e., on the merits requiring submission the claims to treating trial as Gathright, courts.” Francisco [local] a motion to vacate sentence under 23 (Supp.V, 1972); cf. 28 (citations 226 ted). and footnotes omit- 2255), we submit U.S.C. is utterly meritless. Supplemental Memorandum Directed to We hold that the district court erred Issue Exhaustion of Local Reme- dismissing on exhaustion (emphasis added). at n.25 dies also grounds and reversе and remand for con- (Gov’t, id. appeal “character- last on sideration the merits. appeal ized the motion as a motion to So ordered. vaсate sentence under 23 D.C.Code 110 (Supp.V, 1972)”). ROBB, Judge (dissenting): “[Adjudication upon underlying For my the reasons stated in dissent hampered by merits claims is not re- U.S.App. Palmore v. Superior Court, 169 petitioners put liance the titles -, D.C. I dissent. notes with appel- only or whether he ruled that he was jurisdiction both and exhaus- because appli- sought cant hаd not first a writ of Court as re- Today in Palmore v. Superior quired by 1901(c) 16 D.C.Code and 23 Court, supra, we held that section 110(g) 110(a). D.C.Code affect of Swain, Pressley (D.C.Cir., v. district under 28 U.S.C. 73-1973 2241 §§ et operates seq. and Oct. as an exhaustion provision. We their documents.” therefore v. Andrews 334, 338, must determine whether meets United 83 S.Ct. 1236, 1239, requirements of (1963); section 2241. Since L.Ed.2d 383 placed has been Hill United parole n.2, through April, (1962). Br. 82 S.Ct. Gov’t. L.Ed.2d 417 This special custody meaning applies he is in within the rule with force to se Cunningham, section 2241. See Jones v. agree motiоns. therefore with 236, 239-44, 83 S.Ct. pellant sis, “[b]y analy- reasonable Appellant alleges ‘Motion for New Trial’ was in [his] custody is in he violation of his a collateral fact attаck under 23 D.C. right fifth amendment to due process Supplemental Code 110.” Memoran- dum, sixth right amendment effec- supra, at 16 n.32. Both motions counsel; tive assistance of that suffices were considered on their merits