Durham v. United States/Dissent Blackmun

Mr. Justice BLACKMUN, dissenting.

This case is here on Durham's petition for certiorari after his appeal to the United States Court of Appeals for the Ninth Circuit resulted in the affirmance of his conviction for a violation of 18 U.S.C. § 474. The Solicitor General now has suggested that the petitioner died on November 20, 1970, while his petition was pending but prior to this Court's taking any action upon it by way of grant or denial.

The petition is untimely. The Ninth Circuit's opinion was filed on November 12, 1969, and rehearing was denied by that court on March 5, 1970. A petition for certiorari to review the judgment of the court of appeals in a criminal case is timely, under our Rule 22(2), only when it is filed here within 30 days after the entry of the judgment or within such additional time, not exceeding 30 days, as is allowed by a Justice of this Court for good cause shown. The petition was filed only on September 26, 1970, and thus is out of time by more than five months.

Further, the situation is not one where the decedent possessed, and had exercised, a right of appeal to this Court, and then died while his appeal was pending. That contrasting and very different situation is the typical one that confronts the federal courts of appeals and with which the Eighth Circuit was concerned in Crooker v. United States, 325 F.2d 318 (1963), cited in the Court's per curiam opinion.

I would merely dismiss the decedent's petition for certiorari, rather than direct the dismissal of the indictment. This disposition seems to me appropriately to reflect the rulings of American Tobacco Co. v. United States, 328 U.S. 781, 815, n. 11, 66 S.Ct. 1125, 1141, 90 L.Ed. 1575 (1946); Singer v. United States, 323 U.S. 338, 346, 65 S.Ct. 282, 286, 89 815 n. 11, 66 S.Ct. 1125, 1141, 90 L.Ed. Johnson, 319 U.S. 503, 520 n. 1, 63 S.Ct. 1233, 1241, 87 L.Ed. 1546 (1943). In contrast, the dismissal of the indictment wipes the slate entirely clean of a federal conviction which was unsuccessfully appealed throughout the entire appeal process to which the petitioner was entitled as of right.

If, by chance, the suggestion of death has some consequence upon the survivor rights of a third party (a fact not apparent to this Court), the third party so affected is free to make his own timely suggestion of death to the court of appeals.