ROSE, WARDEN v. HODGES et al.
No. 75-139.
Decided November 11, 1975
Per Curiam.
Respondents Hodges and Lewis were convicted of committing murder in the perpetration of a rape in Memphis, Tenn., and sentenced to death by electrocution. On July 31, 1972, the Tennessee Court of Criminal Appeals affirmed the judgments of conviction but reversed and remanded the record to the trial court on the issue of punishment, declaring that “[t]he Supreme Court of the United States has decreed that the death sentence is contrary to the Eighth Amendment . . . Hodges v. State, 491 S. W. 2d 624, 628 (1972).
On August 7, 1972, the Governor of Tennessee commuted respondents’ death sentences to 99 years’ imprisonment. On August 8, 1972, the State (represented by petitioner here) filed a timely petition for rehearing in the Court of Criminal Appeals pursuant to Tenn. Code Ann. § 16-451 (Supp. 1974), which provides that such a petition must be filed within 15 days of the entry of the judgment.
The Court of Criminal Appeals then found the commutations by the Governor to be “valid and a proper exercise of executive authority,” citing Bowen v. State, 488 S. W. 2d 373 (Tenn. 1972), and held its remand “for naught,” thus affirming the convictions and the sentences, as modified, in full, 491 S. W. 2d, at 629. On March 5, 1973, the Supreme Court of Tennessee denied certiorari.
Respondents Hodges and Lewis then petitioned for habeas corpus in the Federal District Court asserting, inter alia, that their Fourteenth Amendment rights were violated by the illegal commutation of their sentences. The case was transferred to the Federal District Court for the Western District of Tennessee, which dismissed as to this issue for failure to exhaust state remedies. Respondents appealed to the United States Court of Appeals for the Sixth Circuit.
In a brief order, that court held that since the death sentences had been vacated at the time of the Governor’s commutation order, “there were ... no viable death sentences to commute” and therefore declared the commutations invalid.
Upon reconsideration, the court noted that the judgment of the Court of Criminal Appeals vacating the death penalties had been timely modified by that court to comply with the commutation order. However, it did not alter its earlier decision, except to note that respondents had exhausted their state remedies as to this point.
A necessary predicate for the granting of federal habeas relief to respondents is a determination by the federal court that their custody violates thé Constitution, laws, or treaties of the United States, 28 U. S. C. § 2241 ; Townsend v. Sain, 372 U. S. 293, 312 (1963). The one sentence in the opinion of the Court of Appeals dealing with the invalidity of the Governor’s commutations contains no reference to any provision of the Constitution, laws, or treaties of the United States or to any decision of this Court or any other court. Whether or not the sentences imposed upon respondents were subject to commutation by the Governor, and the extent of his authority under the circumstances of this case, are questions of Tennessee law which were resolved in favor of sustaining the action of the Governor by the Tennessee Court of Criminal Appeals in Hodges v. State, supra. It was not the province of a federal habeas court to re-examine these questions.
Respondents urge, in support of the° result reached by the Court of Appeals for the Sixth Circuit, that their Fourteenth and Sixth Amendment rights to jury trial have been infringed by the Tennessee proceedings. We reject these contentions. A jury had already determined their guilt and sentenced them to death.. The Governor commuted these sentences to a term of 99 years after this Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972). Neither Furman nor any other holding of this Court requires that following such a commutation the defendant shall be entitled to have his sentence determined anew by a jury. If Tennessee chooses to allow the Governor to reduce a death penalty to a term of years without resort to further judicial proceedings, the United States Constitution affords no impediment to that choice. Dreyer v. Illinois, 187 U. S. 71 (1902). Cf. Schick v. Reed, 419 U. S. 256 (1974).
The motion of the respondents for leave to proceed in forma pauperis and the petition for certiorari are granted, and the judgment of the Court of Appeals is
Reversed.
Mr. Justice Douglas would deny certiorari.
This order would have returned respondents to the trial court for resentencing to between 20 years and life as a jury might determine. Tenn. Code Ann. §39-2405 (1956).
The dissent would have us probe beneath the surface of the opinions below in search of a logical foundation. In cases where the holding of the court below is unclear, such a technique may be required. Here, however, that court clearly “hold[s] the purported commutation . . . invalid.” In its second opinion it reversed the District Court on the exhaustion question and otherwise specifically reaffirmed the earlier order. We are forced to take the Court of Appeals at its word.
Two other panels of the same court have correctly recognized, in cases virtually identical to this one, that no federal constitutional question was presented by such a commutation. Smith v. Rose, No. 74-1753 (Nov. 15, 1974); Bowen v. Rose, No. 74-1087 (Mar. 19, 1974).
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.