Durham v. United States/Opinion of the Court

Petitioner was convicted of having knowingly possessed a counterfeit $20 bill. After the Court of Appeals for the Ninth Circuit affirmed his conviction he filed this petition for a writ of certiorari. We are now advised that petitioner has died.

It is true that the petition for certiorari is out of time under our Rule 22(2), though timeliness under our rules, of course, presents no jurisdictional question. Subsequent to the affirmance of his conviction below, petitioner filed a timely petition for rehearing. Upon his inquiry to the Court of Appeals he was informed that he would be notified as to the disposition of his petition as soon as the court acted. When several months passed without any word, petitioner again wrote to that court. In reply, on September 8, 1970, he received a copy of the order dated March 5, 1970, denying his petition for rehearing. Within three weeks from receipt of the denial from the Court of Appeals his petition for a writ of certiorari was docketed in this Court. On these facts waiver of our Rule 22 is proper.

Our cases where a petitioner dies while a review is pending are not free of ambiguity. In a recent mandamus action the petitioner died and we granted certiorari, vacated the judgment below, and ordered the complaint dismissed. Fletcher v. Bryan, 361 U.S. 126, 80 S.Ct. 263, 4 L.Ed.2d 180. In a state habeas corpus case we granted certiorari and vacated the judgment so that the state court could take whatever action it deemed proper. Garvin v. Cochran, 371 U.S. 27, 83 S.Ct. 122, 123, 9 L.Ed.2d 4. Our practice in cases on direct review from state convictions has been to dismiss the proceedings. See Gersewitz v. New York, 326 U.S. 687, 66 S.Ct. 89, 90 L.Ed. 404. In an earlier case the Court announced the appeal had abated, Johnson v. Tennessee, 214 U.S. 485, 29 S.Ct. 651, 53 L.Ed. 1056, while in another the Court stated the cause had abated. List v. Pennsylvania, 131 U.S. 396, 9 S.Ct. 794, 33 L.Ed. 222.

In federal criminal cases we developed the practice of dismissing the writ of certiorari and remanding the cause to the court below. Singer v. United States, 323 U.S. 338, 346, 65 S.Ct. 282, 286, 89 L.Ed. 285; American Tobacco Co. v. United States, 328 U.S. 781, 815 n. 11, 66 S.Ct. 1125, 1141, 90 L.Ed. 1575; United States v. Johnson, 319 U.S. 503, 520 n. 1, 63 S.Ct. 1233, 1241, 87 L.Ed. 1546. We have cited United States v. Pomeroy, 2 Cir., 152 F. 279, rev'd sub nom. United States v. New York Central & H.R.R. Co., 164 F. 324, and United States v. Dunne, 9 Cir., 173 F. 254, in suggesting such disposition on remand 'as law and justice require,' but beyond this we have basically allowed the scope of the abatement to be determined by the lower federal courts.

The status of abatement caused by death on direct review has recently been discussed by the Court of Appeals for the Eighth Circuit in Crooker v. United States, 325 F.2d 318. In reviewing the cases that court concluded that the lower federal courts were unanimous on the rule to be applied: death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception. Id., at 320. As stated in List v. Pennsylvania, supra, on death of the convicted petitioner the 'cause has abated.'

The unanimity of the lower federal courts which have worked with this problem over the years from Pomeroy to Crooker is impressive. We believe they have adopted the correct rule. Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment below is vacated and the case is remanded to the District Court with directions to dismiss the indictment.

It is so ordered.

Judgment vacated and case remanded with directions.

Mr. Justice MARSHALL, whom THE CHIEF JUSTICE and Mr. Justice STEWART join, believes that the case should be disposed of as follows:

The petitioner having died while his petition for certiorari was pending before this Court, we dismiss the petition as moot and direct the Court of Appeals to note this action on its records.

Mr. Justice BLACKMUN, dissenting.