The State of South Carolina v. James Edward Moore
447 F.2d 1067
4th Cir.
1971
Check Treatment

*1 application for conscienti- to an material support inference an objection will

ous CAROLINA, The STATE OF SOUTH States, Appellee, v. United insincerity. Witmer See Haughton, su- swpra; States v. United no however, there is Appellant. view, MOORE,

pra. James Edward In our inconsistency here.3 No. 14042. Appeals, United States Court of Andersen’s quoted statement Fourth Circuit. file to explains “decision” his

application Argued June His objector status. for conscientious Sept. 8, Decided con- board, in taken to the statement his be- text, time refer to the does not inception his matured, to the

liefs beginnings familial hence,

doubts, doubts, fertil- these once That

conflict. eighteen

ized, not mature should hardly surprising view

months faced.4 opposition parental Andersen already matured

Indeed, to file an failure adequately ex- held be has to

claim been registrant’s by concern

plained might his have on action

effect such White, 421

parents. United States 1969). (5th

F.2d 487 Cir. being competent

Thus, an infer record from which

facts ap insincerity could Andersen’s

ence of drawn, com

propriately have are we

pelled conviction. to vacate Andersen’s remand,

Upon the indictment will

dismissed.

Reversed, directions. appears judge placed inconsistency district of an such as 3. The effect great genuine, questionable this, reliance thereon. 'were it inconsistency A event. similar by urged concern Borne- Andersen’s for the effect of his the Government parents appears his be- action on his affirmed elsewhere mann case. Bornemann record, supportive Supreme Being in his Con- well. lief Objector Form, board letter written con- but a his wife’s minister scientious following: summary personal appearance tains the re- nightmare ported “Rick’s father had a him belief. denied such Jima, noting Iwo most of his friends were board Tlie summary purport killed. Rick doesn’t talk too much be a tran- did position personal appearance, script lie about to his dad because com- upset having giv- judge want doesn’t him. His father mended the going pris- inconsistency. alleged weight about is concerned Rick’s en no too, says, on. Rick am scared T n. tlie sum- F.2d at 1346 3. While help Doty, mary Reverend but I it. can’t God Government relied ” deficiency, doesn’t want me take another life.’ from the our case suffers same *2 Judge, Butzner, concurred Circuit opinion. part and filed Bender, Washington,

Paul D. C. (Court-assigned counsel) [Ralph S. Strazzella, Spritzer and Phila- James A. (Court-assigned counsel) delphia, Pa. on brief], appellant. Clair, Atty: Emmet H. Asst. Gen. (Daniel Atty. McLeod, South Carolina R. Pinckney Carolina, of South and C. Gen. Roberts, Atty. Asst. Gen. of South Caro- Sol., Jr., lina, Thomason, and B. O. Greenville, Circuit, C., Thirteenth S. brief), appellee. Judge, HAYNSWORTH, Before Chief LEWIS, BUTZNER, Judge, Circuit Judge. District HAYNSWORTH, Judge: Chief presents procedural appeal tan- This gle arising Re- out moval statute.1 1443(1). 1. 28 U.S.C.A. § hour, un- habeas Late in the eleventh for a writ of staying prosecu- corpus a murder and an further dertook the removal of order facing ceedings pe- state court. but this tion he was did at- petition he tition not receive the immediate admitted judge, homicide, claimed of a and the trial tention commission *3 only employed force to its con- reasonable court continued had he above, meeting by upon As him a white clusion. noted he was con- an assault manslaughter presence in a an of and received of Moore’s victed man resentful years imprison- public of three place Without active sentence of accommodation. Judge subsequent probation. hearing, remanded ment with the District a only after but to the state the case Judge Later the District considered proceeded in the state trial had Moore’s the removal concluded was manslaughter of conviction court to a facially the and remanded insufficient imposition of a sen- him the and the The order denied case to state court. years suspended upon the tence of twelve sought. all other relief years years with of three five service probation. I prose- that the homicide We conclude alleged petition, Moore In the removal removable, the that cution was not but engaged peaceful in the ex- he was in- in the in the rights the Title of ercise of between the and service terval seeking Rights 1964, of serv- Civil Act petition or- remand the House, place public in the of ice Waffle Accordingly, di- der were we will void. Greenville, Car- accommodation South of habeas of a writ rect corpus requiring issuance violence, olina, person “by when a white from Moore’s release attempted to and threat intimidation right subject custody to the state’s to oppress petitioner did interfere and retry him. petition- purpose depriving of man, on a Moore, a black was indicted rights]. of equal result As a er of [his during charge of murder the October pre- to petitioner’s effort reasonable of of 1968 term the rights General Ses- enjoy serve his own life County, of Caro- Rights sions Greenville South by Act of the Civil tected Title bail, an Released lina. attorney obtained in- 1964, person attempted to who of ” * * * discharg- represent him. He his lost life. terfere therewith lawyer May employed ed his 1969 and nonin- of no claim Moore thus makes lawyer sought and The another. second volvement violence. of case until obtained July continuance of his petition, he admitted commission prepare in order himself. On indicted, he was the homicide for which July, dis- of Moore the eve trial sought equiv- it, justify somewhat but charged lawyer, the trial the second having ocally, in self-de- done as again August postponed was until his of of his exercise aid fense place right to a protected access of August extent morning public To the accommodation. On may lawyer petition construed as third Moore had retain- whom by justify homicide attempt District filed a removal ed self-help right forceful copy Court, filed claimed office guaranteed rights seeking copy to exercise clerk of state court served it is obvi- of Act prosecutor. Civil on the state Confronted the deficient, ously the Act confers situation when the state appeal, right self-help.2 In this A.M., judge, at nev- convened 10:00 much, ertheless, as proceed. concedes Moore’s counsel ordered the trial ex- part day, next filed in the District construes 384,13 City Hill, L.Ed.2d 300. See S.Ct. Hamm Rock Georgia Rachel, right City only Green- claim that pressing course, gov- dialogue, origin in the wood v. Peacock federal has a self-defense It, too, our illuminates erns decision. 1964. For ofAct Federally rights protected path. accept construc- our purposes, we equality racial are not to be petition. inhibited tion of prosecutions, however character- however, outset, important at It is ized, clearly enjoys conduct which admitted emphasize protection. peaceably One who acknowledgment of Moore’s violence. enjoy federally guaranteed seeks to distin- homicide his commission place public of free access to every guishes crim- other this from case subject accommodations is not to state successfully removed prosecution inal prosecution trespass, for incitation federal court. a state to *4 riot, peace any to charge a breach or other a a of Prerequisite to removal alleges peace- that more no than a 28 under prosecution pending criminal federally guaranteed ful exercise of a 3 showing that 1443(1) ais right.6 gives U.S.C.A. persons Rachel such a clear rights being denied defendant is right the immunity of and an from removal “provid guaranteed federal law under a prosecution any charge state which rights in ing specific stated for civil might by proof be sustained of conduct equality.” The defend of racial terms protection. the within federal for there is a basis must ant show Peacock, plain It how is rights will prediction that such a firm ever, right under the court or denied be 1443(1) is limited to the cases which prosecution without pendency of the charged clearly enjoys conduct federal federally more, deprivation such is protection. The distinction was fore enough to right. is protected Hamm,7 shadowed in em which the or more has a defense with that he show phasis peacefulness upon was all the hope assertion of its successful less the defendants’ conduct and the federal tribunal; impartial show he must protections enjoyed. just it But there right federally racial secured that his conferring anyone upon is no federal law pendency of the equality is denied right public street, “to obstruct a opera “by proceeding reason of or minor, delinquency contribute of a explicit or pervasive state tion of to drive an without a automobile license rights inev will law those federal policeman,” or to bite so is no bring very itably act of be denied giving any private law citizen ing state to trial the defendant right to take another’s If the life. court.” rights allegedly civil worker who bit policeman prosecuted state be meet does Moore’s assault, Supreme court for as the requisites. those Georgia Rachel, 4. v. 384 U.S. “Any following or civil actions 3. 1783, 1790, prosecutions, 86 S.Ct. 16 L.Ed.2d 925. criminal commenced by the de- State court be removed City Greenwood, Peacock, 5. Miss. v. court of the Unit- fendant district 808, 828, 1800, 1812, 16 U.S. 86 S.Ct. and division ed States for L.Ed.2d 944. pend- embracing place wherein it Achtenberg Mississippi, Cir., 6. See ing: Cir., Georgia, any F.2d “(1) Against person Walker v. denied who is F.2d 1. in the courts of such or cannot enforce providing right law City Hill, Hamm of Rock 379 U.S. rights for civil citizens L.Ed.2d 300. 85 S.Ct. States, persons with- of all the United or jurisdiction Peacock, City Greenwood, thereof.” Miss. v. 808, 826-827, 86 S.Ct. 1812, L.Ed.2d held, surely prosecuted entering stop. Again, he could be the truck it policeman. plain that, Wyche homicide had he slain the had killed the victim alleged assault, the Fifth Circuit holding It has uniform subject held him to state have assumption or of all of the cases in the prosecution for the homicide. courts lower Civil Acts protections only peaceful extend their Act of 1964 conferred justifiable Violence, conduct. whether legal right Moore the where beyond law, or not under their Supremacy was, he and the as Clause reach. several cases Fifth sured it. it even had law denied charged persons Circuit where have been Concededly gave however, now, him violence, unlawful acts of right self-help. If he was met with they defendants claimed had committed pro force or threats of force from the being prosecuted no violence and were prietor, employees patrons, fellow solely peaceful attempts to exercise legal had substantial remedies. South rights, federally protected removability provided Carolina both law civil11 been held to turn on a has resolution a violation criminal12 sanctions prosecution is issue.9 The remova rights. He of Moore’s also had civil ble, Appeals Fifth Court of courts, in the federal action holds, actually Circuit defendant which, succeeded, had he he would *5 being prosecuted solely peaceful, pro attorneys’ fees been entitled to recover conduct, if has tected but not he commit damages.13 costs, as well as and ted some act of violence. Peacock clear provides a law also South Carolina ly delineated the distinction. charge if de defense to a homicide Wyche Louisiana, Cir., v. 5 394 F.2d pro in the reasonable force fendant used 927, presented much a situation like that defense, life.14***The tection his own of Wyche sought prosecu- here. remove state, fully recognized comports by the aggravated burglary. tion An essen- an kills law. When one with federal tial element of offense was an unlaw- federal constitutional other has no entry stop, Wyche ful of a truck which proof complaint of of the burden solely pur- claimed he had entered for the defense, self-de such as an affirmative pose enjoyment of fense, same placed him. The place public access to a accommoda- by the proof must be burden of borne guaranteed by Rights tion slays an or intruder householder who agreed that, of 1964.10 Act The Court kills proprietor who of an establishment Wyche circumstances, those unruly patron. Life is not to be an prosecuted requir- not be offense lightly, there is no constitu taken ing entry, proof of an it unauthorized claiming justi one tional command plain it made the state could not the burden fication should against charge ceed him on a assault proving it. Wyche allegedly which committed after 2000a(a). Cir., 42 Louisiana, 10. U.S.C.A. 9. Griffin v. F.2d 5 395 Cir., 991; Georgia, Walker v. 5 F.2d Tea Atlantic Pacific 11. v. Great & Lazar Cir., 1191; Georgia, Walker v. 417 F.2d 560; Company, S.C. S.E.2d Aehtenberg Mississippi, also 5. See v. Elbert, 211 S.C. 34 S.E.2d Jones v. Cir., Wbatley 468; City v. F.2d 796. Vidalia, 521; Cir., F.2d Walker v. Hariott, 210 S.C. 42 S.E.2d 12. State v. Georgia, Cir., F.2d 1. Whether or properly required not a district court to resolve such issue when con- a factual 2000a-3. 13. 42 U.S.C.A. sidering or it removal whether Putnam, Gaffney City 197 S.C. v. allegations confine its view to the Osborne, 130; State they unequivocally charge 15 S.E.2d the state 25 S.E.2d charge conduct, 202 S.C. violent is a matter we Harvey, 68 S.E.2d consider, 220 S.C. need not now since Moore ad- fatally mits his act. violent anything in the claim that II Nor is imply a fo- Acts Civil was tried and Moore convicted Nothing rum for this kind of defense. filing the interim between suggest purpose it. Their statutes removal service require If there does it. were reluctantly remand We conclude order. claim would not fair- court proceedings that the were void. ly consider an defense affirmative statute, governing 28 U.S.C.A. § question, it a different 1446(e), provides that when removal but there is no such claim. fact that is filed only manslaugh- convicted copy of the state with the clerk is filed ter an and received active sentence notified, parties the adverse only years suggests judicial a state three the removal and those “shall effect acts provocation of substantial determination proceed no further the State court shall certainly does of Moore’s conduct. and until the remanded.” unless case suggest obliviousness claim argued appealingly that It has been of self-defense. continuing proceedings Finally, sug- we find no merit than rather void should held voidable gestion that a federal forum for the trial subsequently if the case validated in- of the self-defense claim must be read court. to the state Such remanded to the 1964 in Act of order indeed, holding, a deterrent would be Congress ap- to make effective. The petitions of frivolous so, parently not think did we cannot purpose of de- at last minute for peaceable believe that blacks would be laying disrupting judicial seeking place deterred from in a language service explicit court. The public possi- accommodation uniform construc- of tion, however, and its the statute bility prosecution argu- a state court convince us *6 may result from as- homicide a violent rejected. ment must be causing sault death or that there be of the Judi- to the revision Prior charges assault, simple if triable state Code, procedure in civil cial rights removal causing permanent there no is an assault by governed 28 U.S.C.A. cases was injury. abiding persons simply Law do governed pro- removal 74. Section 76 § not enter such establishments with against, prosecutions or in suits cedure of, committing purpose If assaults. prescribed officers, while federal § protected interference their procedure in other cases. the removal legal they remedies, rights, outlined section, 76, officer the federal Section they above, resort, to which should filing provided the for physical self-help. to violent and con- petition in the District Court Rights Act of While any provision express that sub- tained an legal right gave therefore, Moore the sequent the court proceedings in state killing man, was, his another where he be on Sections would be void. justifiable de- law, under state filing however hand, provided the the other legitimacy any law federal rives petition state court. in the a removal rights. equal trial providing A civil proscribing provisions They contained charge in the homicide on the merits on state court proceedings in the further no denial the state court work filing petition, but it was of the after the providing any right under law by Supreme recognized the soon meaning rights the within civil judicial in the state or action that some 1443(1). 28 U.S.C.A. the required § to effect court was federal filing peti- of the that removal, the prosecution was conclude We enough. state court was tion in the improperly federal court. to the removed the Judge This to the conclusion led properly remanded The District petition were facts stated to his attention. the case when came removal, signed the insufficient state to make the removal effective ignore proceed- performance the the of those acts. The re- ings longer conducted in the state court dependent upon any moval was no filing peti- judicial any interval the between the act federal court. subsequent and a procedure effectively tion remand The new reversed premise underlying order were not invalid.15 the the Rives-Metro- politan rule. question is whether the 1948 then Code, in revision of the Judicial which adoption of Since the it has § into combination of old §§ uniformly been held that state court accomplished, new 1446 worked was § jurisdiction proceed loses all immedi- Rives-Metropolitan change in rule. ately upon filing petition At the time of the revision copy federal court and in the state petition requirement new holdings court.21 these Under court, than filed in the rather ceedings in state court after the fil- in the state old §§72 ing petition prior of the a federal procedure, comment and 74 occasioned absolutely void, despite remand order are United Judicial Conference subsequent determination the re- Revisers,18 by witnesses States17 moval was This ineffective. Congressional testifying before commit- accepted by rule has numerous tees,19 by scholarly commentators.20 scholarly a correct commentators to have focused None them seemed existing statement law 1446.22 under § new attention effect of the change procedure Since the car- Rives-Metropolitan procedure upon the strong ries re- with it indication of that rule, find unable to and we have been sult, uniformly appears which since 1948 legislative history anything accepted, impelled the conclu- we are illuminating. 1446 which sion trial and that Moore’s conviction 1446, in clear, however, occurring re- after filing petition in providing for the prior moval filed and was promptly there- district court while order, remand was void. It follows copy court and after corpus writ should issue com- giving parties of habeas de- notice adverse Judiciary, 80th Virginia Rives, House Committee (1947). Cong., Session, cases, ser. 1st L.Ed. U.S. Removal *7 Casualty Metropolitan 474, 593; L.Ed. 25 Wechsler, and 20. H. “Federal Jurisdiction Stevens, Company Insurance v. in The of the Judicial Code” Revision 563, 715, 1044. 61 S.Ct. 85 L.Ed. Symposium, Courts; Law 13 Federal 1, Contemporary Problems 216. in 16. U.S.C.A. 1446 was enacted 1948 § 28 Proposed substantially Revision of the Ju- Note: The form. The in its Code, 1446(e) 424. only change dicial 60 Harvard L.R. in occurred § “Promptly 1949, when words the initial See, g., Hopson American v. North 21. e. “Upon” were after” substituted 461, Co., P.2d Idaho Insurance inserted after the words “and until” were NAACP, 799; Gremillion v. ex State rel. concluding phrase “unless “unless” Clark, 884; La.App., Bean v. 90 So.2d The is remanded.” first case 588; 892, v. 85 So.2d 226 Miss. explained in the these modifications 681; Francis, 261 N.C. S.E.2d mention made No notes revisers. Ind., State, N.E.2d v. Schuchman *8 The order of remand is affirmed. De- corpus nial of habeas relief is reversed

and the case ceedings remanded further opinion.

consistent with this problem always acute not able or are sit- so. sitting judge uations, statute, court where a federal without readily available, Rives-Metropolitan the removal moderation promptly brought attention, permit rule, party seeking rec- does do ognizes attempt delay delay seriously disrupt as an dis- so to rupt proceedings a removal promptly though itself, claim, files remand order. courts, however, many places sit be frivolous. judges readily which federal avail- are notes second alteration. Pipeliners 830; Pipeline Lo- v. Adair Co. Galston, to New An Introduction 798, Cir., 17. See F.2d 206. No. cal Union Code, 203. Federal Judicial 8 F.R.D. ALI, Study the Division Jurisdic- 22. Holtzoff, New Federal Judicial 18. See The Courts, and Federal tion Between State 345-346; Barron, Code, 8 F.R.D. 239-40; Wright, Fed- tentative draft Revision, 8 Judicial Code: ed., Courts, Barron & Holtz- 2d eral F.R.D. off, Procedure Practice Federal 107; Moore, (Wright ed.) Federal Hearings and H.R. See on H.R. 1600 Practice, paragraph [3.-8]. 0.168 1 of 2055 before No. Subcommittee part. part; release, reversed subject to the Affirmed manding Moore’s right retry him. to state’s Judge (concur- BUTZNER, Circuit construc- that this are concerned We ring) : susceptible to makes tion of § opin- I in Part I of court’s seeking concur by individuals abuse substantial suggest ion, I with deference interrupt delay trials. Since state amalgam removability is an the test permits of a removal The crucial in- of status and conduct. petition trial time at before recognizes quiry is whether the state court, that subse- the conclusion state Moore’s to accommodation be- quent treats Act of 1964 or absolutely remand, creates void are fore an intruder. The distinction him as judi- disruption great potential Wyche plea vital to a of self-defense. Cf. proceedings in courts. the state cial permits (5th Louisiana, Cir. F.2d 927 delay wishing trial one However, 1967). of an al- in the absence though petition so, his removal do even legation petition be- in the removal subsequently frivolous. found deny cause of race Carolina will South congres- deserves It is a situation which of a status business invitee disrup- attention, for kind of sional join weighing plea self-defense, I proceedings seems tion of state opinion court. unnecessary wholly unwarranted. approaches many an amenda- are There fully I case is concur Part II. This Perhaps tory might many take. statute one of that illustrates the desira- utility preserve the bility one which would best of a or an amendment to statute protect purposes of will the Rules of Procedure that Criminal provision Act right be a reasonably Removal would limit time in which a foreclosing file a re- for removal be filed. period ten-day petition within a moval trial, preceding any provided scheduled had to act earlier the defendant failed opportunity obtain after a reasonable lawyer. Perhaps stat- consult Congress simply ute revive Rives-Metropolitcm rule, so that a state INC., TAYLOR, Appellant, AND LEWIS might risk, proceed its court knowing at own subsequent that a remand order proceedings. If its validate REV- COMMISSIONER OF INTERNAL thought ENUE, Appellee. judge state lous, might frivo- go on with well conclude to No. 24656. proceedings in court. Appeals, United States Court of solution, however, appears one for con- Circuit. Ninth gressional choice.23 Aug.