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May 12, 1980

In re Ethel KRAVITZ

The opinion of the court was delivered by: NEALON


Petitioner Ethel Kravitz was found guilty of the murder of her husband by a jury in Montgomery County, Pennsylvania in 1958. She sought to overturn that conviction through various judicial and extra-judicial proceedings for more than twenty-one years. On January 17, 1980, after evidentiary hearings into the substantive merits of her claims had been concluded, but before the legal issues could be presented for resolution, Mrs. Kravitz passed away. *fn1"

 Death terminates Mrs. Kravitz's long, personal quest for vindication. Her attorneys argue, however, that death does not end the instant habeas corpus action. They assert that petitioner's tarnished reputation and the operation of the Pennsylvania Slayer's Act, 20 Pa.Const.Stat.Ann. §§ 8801 et seq. (Purdon) (1975), which precludes petitioner's estate from inheriting through her murdered husband's estate, are "collateral legal consequences" that save her habeas corpus petition from landing "ignominiously in the limbo of mootness." Parker v. Ellis, 362 U.S. 574, 577, 80 S. Ct. 909, 911, 4 L. Ed. 2d 963 (1960) (Warren, C. J., dissenting).

 After careful consideration, I must disagree. Neither the stigma of a murder conviction nor the pecuniary loss to her estate invest the deceased habeas applicant's collateral challenge to the validity of the 1958 conviction with the "live controversy" necessary to sustain this court's limited subject-matter jurisdiction. Accordingly, the petition for a writ of habeas corpus will be dismissed as moot.


 Pervading petitioner's efforts to reverse her 1958 murder conviction has been her strong desire to secure a declaration of her innocence; her interest in litigating the constitutionality of that conviction seems to have been only secondary. Indeed, Mrs. Kravitz has placed the finger on the man she claims actually killed her husband. She asserts that only some strange duress or compulsion exerted over her by the alleged perpetrator prevented her from divulging his identity at the time of the criminal investigation. During the hearings conducted in this case, however, Mrs. Kravitz, under oath, named her slain husband's brother-in-law, Morris Passon, as the real murderer. Passon, also under oath, vehemently denied the accusation.

 This sensational charge and Passon's cryptic involvement in the whole affair fuel the intrigue that surrounds this celebrated and highly publicized case. *fn2" But the mystery and sensationalism interjected throughout the proceedings must not obscure the fact that the federal habeas court's role is limited to ascertaining the constitutionality of a conviction, not its correctness. *fn3" Nor can the merits or demerits of petitioner's claims distract this court's consideration of the mootness issue. To put this matter in proper perspective, it is perhaps best to briefly relate the factual predicate for the constitutional issue presently before this court, and chronicle the procedural background of this protracted litigation. *fn4"


 Petitioner's husband was found dead in the marital bedroom of their home in Wynnewood, Pennsylvania, late in the afternoon of Independence Day, 1958. He had been shot several times and had been bludgeoned about the head and face. There were apparently no witnesses to the brutal slaying, but certain circumstantial evidence tended to inculpate petitioner and suspicion focused on her almost immediately. *fn5" Less than an hour after the police arrived at the Kravitz home, Captain Shaefer, in the presence of several other Lower Merion Township police officers, questioned petitioner concerning the murder. *fn6" During this interrogation, petitioner appeared distraught, and answered Captain Shaefer's questions hesitantly. Approximately forty-five minutes after the interrogation began, petitioner's pulse and blood pressure were checked by Dr. Shoemaker. Captain Shaefer resumed questioning petitioner twenty minutes later, but this interrogation lasted for only five minutes.

 At approximately 9:30 that night, petitioner was taken to the Lower Merion Township police station for further questioning. Montgomery County Chief Detective Charles G. Moody interrogated petitioner at the police headquarters for about two hours, from 10:30 P.M. to 12:30 A.M. Between 1:00 and 1:30 A.M. petitioner was advised that she was being charged with the murder of her husband. Petitioner was then questioned by District Attorney Bernard DiJoseph from 2:00 to 2:30 A.M. Following this interrogation, which was tape-recorded, petitioner was asked a few questions by Detectives Tammany and Waller concerning certain blood-splattered apparel. At no time during any of these interrogations was petitioner advised of her right to remain silent or of her right to assistance of counsel. *fn7"

 At the murder trial, law enforcement officers testified that petitioner had admitted wearing on the day of the homicide blood-splattered clothing found in the bedroom where petitioner's husband was slain. *fn8" Also during the trial, Detective Moody testified that petitioner had made contradictory statements regarding the route she had taken to the home of her husband's brother-in-law, Morris Passon, on the day of the murder. *fn9" The alleged murder weapon was found in a culvert along Morris Road, one of the routes Detective Moody said that petitioner admitted taking to the Passon home on the day of the murder. *fn10"

 No objections to the admissibility of her incriminatory statements were ever made at trial. *fn11" Nor does it appear that the voluntariness of these statements was questioned in her post-trial motions and direct appeal to the Pennsylvania Supreme Court. It seems that this issue was first raised when petitioner instituted the instant habeas corpus action in 1965. *fn12" While the admission of the challenged statements caused our Court of Appeals some concern, it affirmed Judge Follmer's dismissal of this claim on the ground that the Pennsylvania Post Conviction Hearing Act *fn13" seemed to offer a state judicial forum for its adjudication. *fn14" See In re Kravitz, 358 F.2d 734, 735 (3d Cir. 1966) (per curiam ).

  Petitioner's subsequent bid to seek state judicial review of the voluntariness of the incriminating statements was rejected without a hearing on the ground that she had "waived" this claim under section 4 of the PCHA. See Commonwealth v. Kravitz, 441 Pa. 79, 85, 269 A.2d 912 (1970). Petitioner then sought an executive pardon, but this avenue also proved unsuccessful.

 In September 1975, petitioner instituted an action in the United States District Court for the Eastern District of Pennsylvania, seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 that her conviction was "null and void." This lawsuit was dismissed without opinion.

 Also in September 1975, petitioner filed in the Eastern District of Pennsylvania an application for a writ of habeas corpus. By this time petitioner had been released from prison and discharged from parole, and the habeas corpus action was dismissed for want of subject matter jurisdiction inasmuch as petitioner had not been "in custody" at the time the petition was filed, as required under 28 U.S.C. § 2254.

 The Court of Appeals for the Third Circuit affirmed both dismissals. Kravitz v. Commonwealth, 546 F.2d 1100 (3rd Cir. 1977). Circuit Judge Gibbons dissented from the dismissal of the habeas corpus action, opining that jurisdiction over petitioner's Fifth Amendment claim was satisfied by relation back to the 1965 petition filed in this court. Judge Gibbons then suggested using Rule 60 of the Federal Rules of Civil Procedure to reopen the 1965 habeas corpus proceeding, and thereby obtain a federal determination of the constitutionality of her conviction.

 On May 4, 1977, petitioner filed a motion pursuant to Rule 60 "to obtain a clarification or modification of the Court's Order ... denying the ... petition ...." Specifically, petitioner sought to add to Judge Follmer's Order of August 25, 1965 "express language retaining jurisdiction pending determination by the state courts of the constitutional issues presented to, but undecided by, this Court...." This motion was denied by Order dated June 16, 1977, with leave to file a second motion that conformed to the requirements of Rule 60(b).

 Petitioner subsequently filed a motion under Rule 60(b)(6), *fn15" which was granted by Order dated November 2, 1977. Respondent then moved to dismiss the petition for lack of jurisdiction on the grounds that petitioner was no longer in custody and Rule 60(b) relief was time-barred. By Order dated August 2, 1978, respondent's motion was denied. The August 2nd Order also vacated the Order of November 2, 1977 reopening this case, and scheduled a hearing on the question of the reasonableness for the delay in filing the Rule 60 motion. After reviewing the testimony offered at this hearing I concluded that the delay was not unreasonable and granted petitioner's motion for relief from judgment. See In re Kravitz, 471 F. Supp. 665 (M.D.Pa.1979).

 While petitioner's Rule 60(b) motion was still pending, respondent moved to dismiss the habeas corpus petition on the ground of waiver. *fn16" By Memorandum and Order dated June 5, 1979, 488 F. Supp. 38, I held that the 1970 state court waiver ruling was not conclusive in this federal habeas corpus proceeding and that an evidentiary hearing would be necessary to resolve the matter. In recognition of the likelihood that witnesses would become unavailable with the passage of additional time, and in an effort to efficiently employ judicial resources, the federal "waiver" hearing was combined with a hearing on the merits of petitioner's voluntariness claim.

 These hearings were conducted August 20-22, 1979, and October 26, 1979. Following the October 26th hearing a schedule was established for presentation of proposed findings of fact and legal memoranda. Before this agenda was completed petitioner passed away.


 "Mootness" is one aspect of the "justiciability" doctrine, which "prohibits consideration of constitutional issues except as a necessary incident to the resolution of a concrete "case' or "controversy.' This doctrine limits the jurisdiction of federal courts; when its requirements are not satisfied courts are without power to proceed, regardless of the wishes of the parties." *fn17" Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 Harv.L.Rev. 297, 297-98 (1979). Justiciability, however, is not an immutable concept. Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 377 (1974). Instead, it has been characterized as "flexible," recognizing exceptions based upon "practicalities and prudential considerations." United States Parole Commission v. Geraghty, 445 U.S. 388, 404, n.11, 100 S. Ct. 1202, 1212, n.11, 63 L. Ed. 2d 479 (1980). In Geraghty, the Supreme Court explained the inter-relationship between the "case or controversy" requirement and the mootness doctrine:


Article III of the Constitution limits federal "judicial Power', that is, federal court jurisdiction, to "Cases' and "Controversies'. This case or controversy limitation serves two complementary purposes. It limits the business of federal courts to "questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process,' and it defines the "role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of the government.' Likewise, mootness has two aspects: "when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'

 Id. at 395, 100 S. Ct. at 1208. (citations omitted).

 Consideration of the dual aspects of the mootness doctrine with a view toward the function and purpose of the writ of habeas corpus militates against finding a justiciable "case or controversy" here. The function of the writ "is to test in a court of law the legality of restraints on a person's liberty." R. Sokol, Federal Habeas Corpus § 1 (2d ed. 1969). A criminal conviction resulting in a prison sentence generally imposes restraints on a person's liberty beyond an actual loss of freedom, and so long as these "collateral legal consequences" subsist a challenge to the validity of the conviction, either on direct appeal or collaterally, remains "live." *fn18" See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 108, n.3, 98 S. Ct. 330, 332, n.3, 54 L. Ed. 2d 331 (1977) (per curiam ); Sibron v. New York, 392 U.S. 40, 55-58, 88 S. Ct. 1889, 1898, 20 L. Ed. 2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 237, 88 S. Ct. 1556, 1559, 20 L. Ed. 2d 554 (1968); Jessup v. Clark, 490 F.2d 1068 (3d Cir. 1973). See generally Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 380-83 (1974). But when the criminal judgment no longer affects the convicted person's legal rights, the challenge to the constitutionality of the conviction does not present a "case or controversy." See, e.g., North Carolina v. Rice, 404 U.S. 244, 92 S. Ct. 402, 30 L. Ed. 2d 413 (1971); United States v. Bohling, 399 F.2d 305 (6th Cir. 1968). That is, the removal of the collateral legal consequences precludes the court from entering a decree that affects an individual in a concrete case.

 Since death has removed the vestigial remnants of petitioner's conviction, i. e., there are no longer restraints on her liberty resulting from her conviction, the controversy is no longer "live." In sum, petitioner's actual, concrete injury suffered as a result of the putatively unconstitutional conviction continued up until the time of her death, but not beyond. The abstract question of whether petitioner's constitutional rights have been violated does not sustain federal jurisdiction.

 Petitioner's counsel argues, however, that the moral stigma attaching to a murder conviction and the inability of petitioner's estate to inherit through her husband's estate are subsisting collateral legal consequences that save this case from the bar of mootness. Petitioner's claim that reputation alone sustains federal court jurisdiction is not supported by the case law. The Supreme Court "has never mentioned the moral stigma of a criminal conviction as a collateral consequence justifying the continuing exercise of jurisdiction." *fn19" Note, The Mootness Doctrine in the Supreme Court, 83 Harv.L.Rev. 373, 381, n.38 (1974). Furthermore, the Court of Appeals for this circuit, relying on St. Pierre v. United States, 319 U.S. 41, 43, 63 S. Ct. 910, 911, 87 L. Ed. 1199 (1943), has ruled that the moral stigma attending a conviction does not satisfy Article III jurisdictional requirements. See Government of the Virgin Islands v. Ferrer, 275 F.2d 497, 499 (3d Cir. 1960). Accord, United States v. Galante, 298 F.2d 72, 73 (2d Cir. 1962). Simply stated, the interest in posthumously restoring petitioner's reputation is not sufficient to present a "case or controversy" for judicial resolution. *fn20"

 Nor do I believe that the operation of the Pennsylvania Slayer's Act defeats mootness. *fn21" As Judge Lord observed in United States ex rel. Schwartz v. Lennox, 320 F. Supp. 754, 756 (E.D.Pa.1971):


(It) would be a prostitution of the Great Writ, historically dedicated to the vindication of personal rights, to permit it to be used by beneficiaries, whose constitutional rights are not in question, as a device to obtain money.


The simple fact is that we are in no position to restore any rights of personal freedom to (petitioner). We cannot command the sheriff to release him for he is no longer in custody. We cannot restore his freedom to hold office, or his freedom to serve as a juror. In short, death, and not his conviction, has intervened to obliterate those freedoms for all time. Any favorable action by us would operate only to enhance the property rights of persons other than (petitioner). Since no personal freedom rights of (petitioner) are any longer involved, his petition does not survive his death.

 But even assuming that the effect of the Slayer's Act is a sufficient collateral legal consequence to make this controversy "live," the second aspect of the mootness doctrine a personal stake in the outcome is not satisfied here. The "personal stake" requirement, which is rooted in standing concepts, impacts on the first purpose of the justiciability doctrine "limiting judicial power to disputes capable of judicial resolution." United States Parole Commission v. Geraghty, 445 U.S. at 395, 100 S. Ct. at 1208. "The imperatives of a dispute capable of judicial resolution are sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions." Id. at 397, 100 S. Ct. 1210 (emphasis added).

 At the present time there is no self-interested party vigorously seeking vindication of petitioner's constitutional rights. *fn22" Indeed, petitioner was the only person that had standing to collaterally attack the validity of her conviction. Neither the administrator of her estate nor its beneficiaries can sue to obtain a judgment that petitioner's constitutional rights have been violated. *fn23" Although these parties may have been injured by the conviction and the resulting preclusive effect of the Pennsylvania Slayer's Act, their interests in maximizing their inheritance is not arguably within the zone of interests protected by the constitutional guarantee involved here or the habeas corpus statute. *fn24" See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152, 153, 90 S. Ct. 827, 829, 25 L. Ed. 2d 184 (1970). See generally C. A. Wright, Handbook of the Law of Federal Courts, § 13 (3rd ed. 1976). Accordingly, the petition must be dismissed for want of a justiciable controversy. *fn25"

  The reported decisions that have addressed the issue have all concluded that death moots a habeas corpus action. See Knapp v. Baker, 509 F.2d 922 (5th Cir. 1975) (per curiam); Gornto v. MacDougall, 482 F.2d 361 (5th Cir. 1973) (per curiam); United States ex rel. Lynch v. Fay, 284 F.2d 301 (2d Cir. 1960) (per curiam); Hann v. Hawk, 205 F.2d 839 (8th Cir. 1953); United States ex rel. Schwartz v. Lennox, 320 F. Supp. 754 (E.D.Pa.1971). *fn26" In fact, counsel have not cited, and my research has not disclosed, any case holding to the contrary. In view of the above analysis, which clearly compels a finding of mootness, and the unanimity of the decisional authority, I am constrained to dismiss this action for want of subject matter jurisdiction. *fn27"

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