Díaz Díaz v. Cándida Campos de Córdova

81 P.R. 975

• Court: Supreme Court of Puerto Rico
• Decided: June 30, 1960
• Docket: No. 736
• Status: Published

Opinions

Mr. - Justice Serrano Geyls

delivered the opinion of the Court.

The petitioner was convicted of violating Act No. 53 of June 10,1948 (Spec. Sess. Laws, p. 170, 33 L.P.R.A., § 1471)¹ and we affirmed the judgment under the authority of People v. Burgos, 75 P.R.R. 517 (1953) ; People v. López de Victoria, 77 P.R.R. 904 (1955). Subsequently she filed a petition for habeas corpus in this Court. We issued the preliminary writ and authorized release on bail.

Petitioner alleges in this proceeding that the said Act No. 53 is unconstitutional because it is in conflict with the federal legislation on subversive acts, due to the fact that the United States Congress, upon approving the Smith Act, 18 U. S. C. § 2385, had the intention “to enter the field of punishing sedition against every government established in the United States, including the government of the United States, the government of any state, territory, district or possession thereof or the government of any political subdivision therein.”² In view of the second problem arising from this case and which we turn to consider, it is unnecessary to decide the question submitted by the petitioner.³

On July 19, 1957, the Governor of Puerto Rico granted to the petitioner an absolute and unconditional pardon — cf. People v. Albizu, 77 P.R.R. 843, 847 (1955)—of which she was notified by letter on the following 24th day. Informed of that fact, we ordered the petitioner to send us certified copy of said pardon and we gave both parties time to submit complementary' briefs discussing the nature of the pardon and its effects on the questions raised and the final disposition of the case. Those documents appear in the record. We also held a hearing where the question was argued.

In its essential part the pardon granted to the petitioner provides the following:

“I, Luis Muñoz Marín, Governor of the Commonwealth of Puerto Rico, by virtue of the authority vested in me by the Constitution of Puerto Rico, do hereby grant unto the said Leonides Díaz Díaz, a pardon, relieving her from serving the sentence in the afore-mentioned case, for violation of Act No. 53 and restoring to her all her rights and prerogatives under the Constitution of the Commonwealth of Puerto Rico.”

Petitioner says that the pardon does not affect in any way the final disposition of the case because she does not accept said pardon and without that acceptance the latter is not valid. The People alleges, on the contrary, that the pardon has eliminated the bail furnished and that by virtue thereof the petitioner is completely free. It adds that habeas corpus lies to obtain the release of a person in illegal custody, that such condition is not present in this case, and that consequently, the appeal has become moot. For' the reasons which we state below, we decide that the view of The People is correct and the petition should be dismissed.

Although the origin of the writ of habeas corpus is somewhat obscure, it has been used in England at least since the seventeenth century as a means to obtain the release of persons illegally imprisoned.⁴ From that time up to the present by operation of law as well as by constant judicial practice, in England as well as in the United States and Puerto Rico, the existence of an unlawful restraint of the person’s liberty has been considered indispensable for the issuance of a writ of habeas corpus.⁵

In McNally v. Hill, Warden, 293 U. S. 131, 137 (1934), the Federal Supreme Court, after an accurate examination of the origin of the writ in England and of its development in the United States, stated the following: . . There is no warrant in either the statute or the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention, and no suggestion of such a use has been found in the commentaries on the English common law. Diligent search of the English authorities and the digests before 1789 has failed to disclose any case where the writ was sought or used, either before or after conviction, as a means of securing the judicial decision of any question which, even if determined in the prisoner’s favor, could not have resulted in his immediate release.

“Such use of the writ in the federal courts is without the support of history or of any language in the statutes which would indicate a purpose to enlarge its traditional function . . . Without restraint of liberty, the writ will not issue . . . Equally, without restraint which is unlawful, the writ may not be used ..(Pp. 137-38.) And it added: “Wherever the issue has been presented, this Court has consistently refused to review, upon habeas corpus, questions which do not concern the lawfulness of the detention . . .” (P. 139.) Later, in Eagles v. Samuels, 329 U. S. 304, 307 (1946), after citing part of the language above-copied, the Court completed the doctrine affirming emphatically: “If the custody or restraint of liberty is terminated, without use of the writ, the case is finished.” And very recently, in Parker v. Ellis, 28 L. W. 4321 (May 16, 1960), it was affirmed that “it is a condition upon this Court’s jurisdiction to adjudicate an application for habeas corpus that the petitioner be in custody when that jurisdiction can become effective.” See, also, Heflin v. United States, 368 U. S. 415, 421 (1959).

The fundamental principles set forth in those decisions have been applied by the Federal Supreme Court in diverse situations. For these reasons the writ has been denied when the restraint is purely moral — Wales v. Whitney, 114 U. S. 564 (1885); the incarceration is voluntary—Baker v. Grice, 169 U. S. 284 (1898) ; the restraint would have terminated before completion of the initial proceeding — Ex parte Báez, 177 U. S. 378 (1900) ; the petitioner may be released by other means — In re Lincoln, 202 U. S. 178 (1906) ; the petitioner is at large on bail in the criminal case — Stallings v. Splain, 253 U. S. 339 (1920) ; Johnson v. Hoy, 227 U. S. 245 (1913) ; he has not begun to serve the sentence which he alleges is illegal — McNally v. Hill, supra; he is on parole —Weber v. Squier, Warden, 315 U. S. 810 (1942) ; he has served the sentence in its totality; Parker v. Ellis, supra; or when for any reason the petitioner is not in respondent’s custody — United States ex rel Lynn v. Downer, 322 U. S. 756 (1944) ; Kesling v. Humphrey, Warden, 322 U. S. 759 (1944) ; Zimmerman v. Walker, 319 U. S. 744 (1943).⁶

In Puerto Rico the law of habeas corpus grants the right to prosecute the writ to “every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever.” (34 L.P.R.A. § 1741.) The application must specify “that the person in whose behalf the writ is applied for is imprisoned or restrained of his liberty, the officer or person by whom he is so confined or restrained, and the place where . . .” (Section 1742.) “The writ must be directed to the person having custody of or restraining the person on whose behalf the application is made, and must command, him to have the body of such person before the court or judge before whom the writ is returnable, at a time and place therein specified.” (Section 1745.) The person upon whom the writ is served must answer stating “whether he has or has not the party in his custody, or under his power or restraint,” the cause or authority of such imprisonment or if he has transferred the custody to another. (Section 1748.) The person “must bring the body of the party in his custody or under his restraint, according to the command of the writ. . .” (Section 1749.) “If no legal cause is shown for such imprisonment or restraint, or for the continuation thereof, such court or judge must discharge such party from the custody or restraint under which he is held.” (Section 1753.) Otherwise, he “must remand him to custody or place him under the restraint from which he was taken, if the person under whose custody or restraint he was is legally entitled thereto.” (Section 1759.)

It clearly arises from those provisions, and from others making up our law of habeas corpus, that the writ plays the same role in Puerto Rico that it played historically in England and the United States: to protect personal liberty against illegal detentions. Consequently, there must exist an illegal custody or restraint and a person who has illegally restrained the one in whose behalf the writ is requested. Our case law has constantly required compliance with those indispensable requirements. Ex parte Soldini, 4 P.R.R. 159, 165 (1903) ; Ex parte Bird, 5 P.R.R. 241, 265 (1904) ; Ex parte Cintrón et al., 5 P.R.R. 87, 89 (1904) ; Ex parte Díaz, alias “Martillo”, 7 P.R.R. 153, 176 (1904) ; Ex parte Dessus, 11 P.R.R. 369, 371 (1906) ; Rivera v. People, 26 P.R.R. 161, 162 (1918) ; López v. District Court, 40 P.R.R. 478, 479 (1930); Amadeo, op. cit. at 18-20.

The specific problem which we must decide now— the effect of an unconditional pardon on a writ of habeas. -corpus — has never been discussed by this Court. There are, however, several federal and state precedents. In Hudspeth v. Tornello, 128 F.2d 172 (1942), the Circuit Court reversed an order of a Federal District Court entered in a habeas ■corpus proceeding and whereby the petitioner’s liberty was ■decreed. The latter urged the Federal Supreme Court to issue a writ of certiorari to review the said judgment. In Tornello v. Hudspeth, 318 U. S. 792 (1943), the Court decided the following: “The petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit is denied on the ground that the case is moot, it appearing that the petitioner has been pardoned by the President and that he is no longer in respondent’s custody. Weber v. Squier, 315 U. S. 810.” The judgment offers no other detail on the circumstances of the case.⁷

In the decisions of the lower federal courts there is a precedent that analyzes the problem fully, in the face of a situation of facts almost identical to the one at bar.⁸ In In re Callicot, 8 Blatchf. 89, 4 Fed. Cas. 1075 (Cir. Ct. N. Y., 1870) — cited with approval in Ex parte Báez, 177 U. S. 378, 389 (1900)—the petitioner filed a petition for habeas corpus alleging that his incarceration was illegal because the judgr ment against him had been rendered pursuant to a law which was repealed at that time. In the hearing of the appeal, the federal prosecuting attorney proved that some days before, the President of the United States had granted to the petitioner a full and unconditional pardon and the latter had received notice thereof. Upon deciding the question Judge Blatchford stated: “It appears that the petitioner has been pardoned. The petition upon which the present motion was founded is dated, and was sworn to, in May last. The pardon is full and unconditional. How, then, can the petitioner be placed, by any order which I can make, more fully at liberty than he is at this moment? If, in May, he was under restraint, he is now as free to go and come where he will as is the counsel who made the motion; and it would seem to follow, that, unless the writ of habeas corpus can be used and treated by me as a writ of error to review, and, in effect, reverse, the judgment, no occasion exists for issuing it.

“. . . If I issued the writ, the return must be, either that he is no longer at the penitentiary, or that he remains there, because he, of his own present will, chooses to do so, and not because he is restrained of his liberty. If he should choose voluntarily to come before me, I could only say, he is free to depart at his pleasure. In this view, the motion asks for what is unnecessary for the purpose for which the writ of habeas corpus is intended. The writ is provided and declared by statute to be allowed to prisoners. Restraint of liberty is the very ground of instituting inquiry into the cause of detention. If it appeared that, since the pardon, and notwithstanding the pardon, the warden of the penitentiary holds him in any restraint, a case would be presented for investigation; but that is not the case made by the papers before me, nor do I understand that to be even suggested by or on behalf of the petitioner . . .” (Pp. 1077-78.)

The court then considered the effects that might be worked on the writ by petitioner’s refusal to accept the pardon. And it added: “Now, all this may be conceded, and, at most, it is thereby granted, that a prisoner may accept or refuse an unconditional pardon, if he sees fit. It is not denied, that, when a writ of error lies from the judgment, the prisoner cannot, by a pardon granted, be prevented from prose•cuting that writ, to obtain a reversal for error. He may .prefer to have the judgment set aside and vacated or reversed; but that is not the office of the writ of habeas corpus in ■such a case, as I think is shown by the cases before referred to. If he prefers to refuse pardon, he is in no condition to say it is other than his voluntary act, whatever may be the motive . . .” (P. 1079.)

We believe that the reasoning contained in In re Callicot conforms perfectly to the fundamental principles that have historically governed the writ of habeas corpus and the particular demands of our law and precedents. For those reasons we must adopt it in this proceeding. There is however, :a slight difference between the two situations. Contrary to the events in Callicot, the petitioner in the present case-was at large on bail at the time when the prison authorities notified her that the Governor had granted her an unconditional pardon. That bond was authorized by this Court within the habeas corpus itself.⁹

It seems evident that bail so furnished can not have any effect on the question raised.¹⁰ The officers in charge of the person of the petitioner had the obligation to terminate the state of custody upon immediate receipt of the executive order, unless they considered that the pardon was void and decided to resist the order. Cf. Jamison v. Flanner, 228 (Kan. 1924) ; Weigel v. McCloskey, 166 S. W. 944, 946 (Ark. 1914); In re Moore, 31 Pac. 980 (Wyo. 1893) ; Judicial investigation of pardon by governor, 30 A. L. R. 238 (1924). Such situation, of course, is not before us. There is no doubt that the executive authorities considered the custody of the petitioner terminated, as a question of fact, from the time she was notified of the pardon. Thus, the temporary suspension of custody produced by bail, became final by action of the executive officers. Actually, the petitioner was as free from that time as she would have been if, being a prisoner, she would have been set free on the streets upon notice of the pardon. There is absolutely nothing in the record to prove, or even suggest, that the executive authorities would have restrained the petitioner if we would have ordered the cancellation of bail at any time subsequent to that of the pardon,¹¹ or that they shall do so if as a result of this case we order said cancellation.¹²' The only way by which the petitioner would find her liberty restrained would be to request and obtain her incarceration anew. But even in the absurdity that the jail officers agreed, habeas corpus would not lie because the restraint would be entirely voluntary. Cf. Hendershott v. Young, supra; In re Callicot, supra.

In view of the foregoing, we decide that the custody having ceased by reason of the full and unconditional pardon which was granted to the petitioner, there is no restraint of her liberty and consequently, the writ issued should be quashed since the case has become moot. Parker v. Ellis, supra. This decision should in no way be interpreted as an abandonment of our firm attitude to override procedural technicalities to decide the cases on their merits. The procedural vice that we have considered impairs the very essence of the writ of habeas corpus and we cannot ignore it without at the same time denaturalizing the remedy completely. Habeas corpus, we repeat, by historical design and juridical formation, operates exclusively to release persons who are under illegal and involuntary custody and never to question, in absence of those requirements, the validity of a law. If custody ceases definitively by decision of the one who exercises it, the judicial power to determine its causes also ceases because habeas ■corpus exists to investigate the validity of restraint and not .the validity of liberty.

.For the reasons stated, it is impossible to decide the constitutional question raised by the petitioner in this proceeding, or whether or not she had to accept the unconditional pardon granted to her. The petitioner shall have the opportunity to make those contentions in the trial court if she files a motion to set aside the judgment.¹³

Judgment will be entered quashing the writ issued on the ground that the case is moot and ordering the cancellation of bail.

1 his Act was repealed by Act No. 2 of August 5, 1957 (Spec. Sess. Laws, p. 516, S3 L.P.R.A. § 1471).

2 The information against the petitioner was presented before the Constitution of the Commonwealth of Puerto Rico went into effect.

3 Concerning the problem, examine People v. Burgos, supra,; Pennsylvania v. Nelson, 350 U. S. 497 (1956); Uphaus v. Wyman, 360 U. S. 72 (1959); Nostrand v. Balmer, 335 P.2d 10, 19 (Wash. 1959); Constitutional Law-Preemption of State Subversive Activities Law by Federal Law, 19 La. L. Rev. 864 (1959) ; Rogge, State Power Over Sedition, Obscenity and Picketing, 34 N.Y.U. L. Rev. 817 (1959); Cramton, The Supreme Court and State Power to Deal with Subversion and Loyalty, 43 Minn. L. Rev. 1025 (1959) ; Federal Preemption of Sedition Field, 28 Geo. Wash. L. Rev. 457 (1960).

4 The Freedom Writ-The Expanding Use of Federal Habeas Corpus, 61 Harv. L. Rev. 657 (1948); Amadeo, El Habeas Corpus en Puerto Rico 5-8 (1948); Church, Habeas Corpus 2-83 (1893) ; Fellman, The Defendant’s Rights 64-67 (1958).

5 In California habeas corpus is used not only to obtain relief against an illegal restraint but also to release the prisoner from illegal imprisonment conditions. Ex parte Collins, 97 Pac. 188, 190 (1908) ; Ex parte Byrnes, 161 P.2d 376, 377 (1945) ; Application of Chessman, 279 P.2d 24, 27 (1955); Application of Gonsálvez, 311 P.2d 483, 486 (1957); Application of Rye, 313 P.2d 914, 915 (1957); Habeas Corpus on Ground of Unlawful Treatment of Prisoners Lawfully in Custody, 155 A.L.R. 145 (1945). As to federal jurisdiction, examine Application of Hodge, 262 F.2d 778, 780 (9th Cir. 1958) ; Coffin v. Reichard, 143 F.2d 443 (6th Cir. 1944) ; Coffin v. Reichard, 148 F.2d 278 (6th Cir. 1945); Williams v. Steele, 194 F.2d 32, 917 (8th Cir. 1952), cert. denied, 344 U.S. 822 (1955). We do not express any opinion on that question since it was not raised in the present proceeding.

6 Similar situations have arisen in the lower federal courts. Examine, among others, Darr v. Burford, 172 F.2d 668 (10th Cir. 1949), aff’d, 339 U. S. 200 (1950) ; Van Meter v. Sanford, 99 F.2d 511 (5th Cir. 1938) ; López v. Swope, 205 F.2d 8 (9th Cir. 1953); Witte v. Ferber, 219 F.2d 113 (3rd Cir. 1955) ; United States ex rel. Toran v. Thompson, 192 F.2d 807 (2d Cir. 1951) ; United States ex rel. St. John v. Cummings, 233 F.2d 187 (2d Cir. 1956) ; Reger v. Hudspeth, 103 F.2d 825 (10th Cir. 1939) ; Ex parte Beach, 259 Fed. 956 (D. C. Cal. 1919) ; Jones v. Biddle, 131 F.2d 853 (8th Cir. 1942) ; Kelly v. Aderhold, 112 F.2d 118 (10th Cir. 1940) ; Lowrey v. Clark, 82 F. Supp. 1009 (D. C. Pa. 1948); In re Rowland, 85 F. Supp. 550 (D. C. Ark. 1949) ; 15 Cyclopedia of Federal Procedure (3rd ed. 1953), § § 86.28-86.33. In the states the same situation prevails. As examples see State v. Huffman, 297 P.2d 831 (Ore. 1956); Hyde v. Nelson, 229 S. W. 200 (Mo. 1921); State v. Cohen, 201 Pac. 1027 (Nev. 1921) ; Ex parte Wilken, 115 N. W. 1075 (S. D. 1908); Hendershott v. Young, 120 A.2d 915 (Md. 1956); Ex parte Rubly, 261 S. W. 2d 4 (Ark. 1953); When criminal or contempt case becomes moot so as to preclude review by higher court, 87 L. Ed. 1201 (1943) ; Habeas Corpus — Nature and Extent of Restraint Necessary to Warrant Issuance of Writ, 42 Col. L. Rev. 1214 (1942) ; Parolee’s Right to Habeas Corpus, 148 A.L.R. 1243 (1944) ; Fellman, op. cit. 68-69; Right of one at large on bail to writ of habeas corpus, 14 A.L.R. 344 (1921).

7 Although we are aware of the repeated admonitions of the Federal Supreme Court to the effect that a denial of certiorari does not create jurisprudence, we believe that such doctrine does not apply when the Court expressly bases its denial on a jurisdictional ground. See Parker v. Ellis, supra; Factor v. Fox, 175 F2d 626, 629 (6th Cir. 1949).

8 We have not found, nor have we been cited, any decision of the states analyzing the specific problem under discussion. There are some decisions which declare the writ moot since the petitioner was granted a pardon, but they do not discuss the question. Ex parte Davis, 146 Pac. 1085 (Okl. 1915); Ex parte Whitley, 233 Pac. 769 (Okl. 1925); Ex parte Ellard, 43 S. W. 2d 931 (Tex. 1931).

9 It is of course obvious that bail furnished within a habeas corpus cannot be used as a ground for quashing the writ, on the ground that the petitioner is “at large.” In such circumstances, the custody is temporarily suspended as part of the habeas corpus proceeding. If the writ is finally issued, the prisoner’s liberty is full and unconditional. If it is denied, the custody can be recommenced legally. See Eagles v. Samuels, supra, and eases cited therein.

10 In Ex parte Whitley, 233 Pac. 769 (Okl. 1925), it happened exactly .as in the present case — the petitioner received a full and unconditional pardon after being released on bail authorized by the court of appeals, in a habeas corpus proceeding filed originally in said court and already submitted for final decision. The dismissal of the petition was ordered because of the pardon but the court did not discuss the problem. Cf. Stephens v. State, 239 Pac. 450 (Okl. 1925).

11 On the contrary, the Warden of the State Jail for Women in: her letter to the petitioner sending her the Governor’s order, said the following: “Accept my congratulations and may God help you to make good’ use':'of the privilege granted to you.” And the Warden’s legal representative in this Court, repeatedly says that the petitioner “enjoys full liberty” by virtue of the pardon granted to her.

12 If such thing happened, the petitioner would be clearly entitled to apply to this Court for the issuance of a writ of habeas corpus.

13 In People v. Cruzado, 74 P.R.R. 872, 877 (1953), we decided that”... If a judgment deprives a defendant of his constitutional or substantial rights or if it is rendered without jurisdiction, he may attack the validity of said judgment directly by motion even if it is not in the nature of writ of coram nobis...” And we added: “... Since it concerned constitutional questions of a substantial character, the fact that the appeals from the judgments had been dismissed by this Court for abandonment, must not impede or bar the consideration of said motion.” (P. 878.) See, also, People v. Gerena, 72 P.R.R. 211 (1951) ; People v. Soto, 72 P.R.R. 385 (1951); Román v. Warden, 78 P.R.R. 730 (1955).