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ROSE v. HODGES ET AL.

November 11, 1975

ROSE, WARDEN
v.
HODGES ET AL.



ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

[ 423 U.S. Page 19]

PER CURIAM.

Respondents Hodges and Lewis were convicted of committing murder in the perpetration of a rape in Memphis,

[ 423 U.S. Page 20]

     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 commutation 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

[ 423 U.S. Page 21]

     commutation order, "there were... no viable death sentences to commute" and therefore declared the commutation invalid.*fn1

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.*fn2

A necessary predicate for the granting of federal habeas relief to respondents is a determination by the federal court that their custody violates the 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 commutation contains no reference to any provision of the Constitution, laws, or treaties of the United States or ...


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