Convistions for UPL

Maybe I missed something in 393us483….to me the hurdles are in order:

• Prove absence of some other provision for a reasonable alternative

• Prove… illiterate or poorly educated inmates
• Prove what is in place…absolutely bars

• Lastly….applies to OTHER prisoners. [She was not a prisoner at the time.]

Held: In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners. Pp. 393 U. S. 485-490.382 F.2d 353, reversed and remanded.

About the only glimmer of hope I saw was this:

The power of the States to control the practice of law cannot be exercised so as to abrogate federally protected rights. NAACP v. Button, 371 U. S. 415 (1963);Sperry v. Florida, 373 U. S. 379 (1963).

JOHNSON V. AVERY, 393 U. S. 483 (1969)
Full Text of Case
U.S. Supreme Court
Johnson v. Avery, 393 U.S. 483 (1969)
Johnson v. Avery
No. 40
Argued November 14, 1968
Decided February 24, 1969
393 U.S. 483


Petitioner, a Tennessee prisoner, was disciplined for violating a prison regulation which prohibited inmates from assisting other prisoners in preparing writs. The District Court held the regulation void because it had the effect of barring illiterate prisoners from access to federal habeas corpus and conflicted with 28 U.S.C. § 2242. The Court of Appeals reversed, finding that the State's interest in preserving prison discipline and limiting the practice of law to attorneys justified any burden the regulation might place on access to federal habeas corpus.

Held: In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners. Pp. 393 U. S. 485-490.382 F.2d 353, reversed and remanded.

Page 393 U. S. 484
MR. JUSTICE FORTAS delivered the opinion of the Court. I Petitioner is serving a life sentence in the Tennessee State Penitentiary. In February, 1965, he was transferred to the maximum security building in the prison for violation of a prison regulation which provides: "No inmate will advise, assist or otherwise contract to aid another, either with or without a fee, to prepare Writs or other legal matters. It is not intended that an innocent man be punished. When a man believes he is unlawfully held or illegally convicted, he should prepare a brief or state his complaint in letter form and address it to his lawyer or a judge. A formal Writ is not necessary to receive a hearing. False charges or untrue complaints may be punished. Inmates are forbidden to set themselves up as practitioners for the purpose of promoting a business of writing Writs."

In July, 1965, petitioner filed in the United States District Court for the Middle District of Tennessee a "motion for law books and a typewriter," in which he sought relief from his confinement in the maximum security building. The District Court treated this motion as a petition for a writ of habeas corpus and, after a hearing, ordered him released from disciplinary confinement and restored to the status of an ordinary prisoner. The District Court held that the regulation was void because it in effect barred illiterate prisoners from access to federal habeas corpus and conflicted with 28 U.S.C. § 2242. [Footnote 1] 252 F.Supp. 783.

Page 393 U. S. 485

By the time the District Court order was entered, petitioner had been transferred from the maximum security building, but he had been put in a disciplinary cell block in which he was entitled to fewer privileges than were given ordinary prisoners. Only when he promised to refrain from assistance to other inmates was he restored to regular prison conditions and privileges. At a second hearing, held in March, 1966, the District Court explored these issues concerning the compliance of the prison officials with its initial order. After the hearing, it reaffirmed its earlier order.

The State appealed. The Court of Appeals for the Sixth Circuit reversed, concluding that the regulation did not unlawfully conflict with the federal right of habeas corpus. According to the Sixth Circuit, the interest of the State in preserving prison discipline and in limiting the practice of law to licensed attorneys justified whatever burden the regulation might place on access to federal habeas corpus. 382 F.2d 353.


This Court has constantly emphasized the fundamental importance of the writ of habeas corpus in our constitutional scheme, and the Congress has demonstrated its solicitude for the vigor of the Great Writ. (1939). Since the basic purpose of the writ is to enable those unlawfully incarcerated to obtain their freedom, it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed. For example, the Court has held that a State may not validly make the writ available

Page 393 U. S. 486

only to prisoners who could pay a $4 filing fee. Smith v. Bennett, 365 U. S.708 (1961). And it has insisted that, for the indigent as well as for the affluent prisoner, post-conviction proceedings must be more than a formality. For instance, the State is obligated to furnish prisoners not otherwise able to obtain it with a transcript or equivalent recordation of prior habeas corpus hearings for use in further proceedings. Long v.District Court, 385 U. S. 192 (1966). Cf. Griffin v. Illinois, 351 U. S. 12 (1956).

Tennessee urges, however, that the contested regulation in this case is justified as a part of the State's disciplinary administration of the prisons. There is no doubt that discipline and administration of state detention facilities are state functions. They are subject to federal authority only where paramount federal constitutional or statutory rights supervene. It is clear, however, that, in instances where state regulations applicable to inmates of prison facilities conflict with such rights, the regulations may be invalidated.

For example, in Lee v. Washington, 390 U. S. 333 (1968), the practice of racial segregation of prisoners was justified by the State as necessary to maintain good order and discipline. We held, however, that the practice was constitutionally prohibited, although we were careful to point out that the order of the District Court, which we affirmed, made allowance for "the necessities of prison security and discipline." Id. at 390 U. S. 334. And in Ex parte Hull, 312 U. S. 546 (1941), this Court invalidated a state regulation which required that habeas corpus petitions first be submitted to prison authorities and then approved by the "legal investigator" to the parole board as "properly drawn" before being transmitted to the court. Here again, the State urged that the requirement was necessary to maintain prison discipline. But this Court held that the regulation violated the principle that "the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus."

There can be no doubt that Tennessee could not constitutionally adopt and enforce a rule forbidding illiterate or poorly educated prisoners to file habeas corpus petitions. Here, Tennessee has adopted a rule which, in the

absence of any other source of assistance for such prisoners, effectively does just that. The District Court concluded that, "[f]or all practical purposes, if such prisoners cannot have the assistance of a 'jail-house lawyer,' their possibly valid constitutional claims will never be heard in any court."

252 F.Supp. at 784. 

The record supports this conclusion. Jails and penitentiaries include among their inmates a high percentage of

persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited. This appears to be equally true of Tennessee's prison facilities. In most federal courts, it is the practice to appoint counsel in post-conviction proceedings only after a petition for post-conviction relief

passes initial judicial evaluation and the court has determined that issues are presented calling for an evidentiary hearing. E.g., Taylor v. Pegelow, 335 F.2d 147 (C.A.4th Cir.1964); United States ex rel. Marshall v. Wilkins, 338 F.2d 404 (C.A.2d Cir.1964). See 28 U.S.C. § 1915(d); R. Sokol, A Handbook of Federal Habeas Corpus 71-73 (1965).

It has not been held that there is any general obligation of the courts, state or federal, to appoint counsel for prisoners who indicate, without more, that they wish to seek post-conviction relief. See, e.g., Barker v. Ohio, 330 F.2d 594 (C.A. 6th Cir.1964). Accordingly, the initial burden of presenting a claim to post-conviction relief usually rests upon the indigent prisoner himself with such help as he can obtain within the prison walls or
the prison system. In the case of all except those who are able to help themselves -- usually a few old hands or exceptionally gifted prisoners -- the prisoner is, in effect, denied access to the courts unless such help is available.

It is indisputable that prison "writ writers" like petitioner are sometimes a menace to prison discipline and that their petitions are often so unskillful as to be a burden on the courts which receive them. But, as this Court held in Ex parte Hull, supra, in declaring invalid a state prison regulation which required that prisoners' legal pleadings be screened by state officials:

"The considerations that prompted [the regulation's] formulation are not without merit, but the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus."

Tennessee does not provide an available alternative to the assistance provided by other inmates. The warden of the prison in which petitioner was confined stated that the prison provided free notarization of prisoners' petitions. That obviously meets only a formal requirement. He also indicated that he sometimes allowed prisoners to examine the listing of attorneys in the Nashville telephone directory so they could select one to write to in an effort to interest him in taking the case, and that, "on several occasions," he had contacted the public defender at the request of an inmate. There is no contention, however, that there is any regular system of assistance by public defenders. In its brief, the State contends that "[t]here is absolutely no reason to believe that prison officials would fail to notify the court should an inmate advise them of a complete inability, either mental or physical, to prepare a habeas application on his own behalf," but there is no contention that they have in fact, ever done so.

This is obviously far short of the showing required to demonstrate that, in depriving prisoners of the assistance of fellow inmates, Tennessee has not, in substance, deprived those unable themselves, with reasonable adequacy, to prepare their petitions, of access to the constitutionally and statutorily protected availability of the writ of habeas corpus. By contrast, in several States, [Footnote 8] the public defender system supplies trained attorneys, paid from public funds, who are available to consult with prisoners regarding their habeas corpus petitions. At least one State employs senior law students to interview and advise inmates in state prisons. 

Another State has a voluntary program whereby members of the local bar association make periodic visits to the prison to consult with prisoners concerning their cases. We express no judgment concerning these plans, but their existence indicates that techniques are available to provide alternatives if the State elects to prohibit mutual assistance among inmates.

Even in the absence of such alternatives, the State may impose reasonable restrictions and restraints upon the acknowledged propensity of prisoners to abuse both the giving and the seeking of assistance in the preparation of applications for relief: for example, by limitations on the time and location of such activities and the imposition of punishment for the giving or receipt of consideration in connection with such activities. Cf. Hatfield v. Bailleaux, 290 F.2d 632 (C.A. 9th Cir.1961) (sustaining as reasonable regulations on the time and location of prisoner work on their own petitions). But unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation such as that here in issue, barring inmates from furnishing such assistance to other prisoners.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded. Page 393 U. S. 491

Balsaman and others:

You're preaching to the choir guys. Don't get me wrong..a court case was posted regarding UPL stating in essence one could move the matter over to the federal courts and gather "justice there." The justification and hope for remedy was based upon the court case.I think a fair reading of that court case is in order then, don't you? It turned out as I expected: At best a quasi remedy was offered reminiscent of the savior on the cross offered a sponge of relief at the end of a spear point.

So what was the point? It took a thousand words from some black-robe gate-keeper of the master's slaves to get to 8 words of truth? What would one expect from a legislative court administering territorial law who needs to protect its officer's of court. Tossing opinion out there-no matter how supreme.no matter how court-is still just opinion. Funny thing.every time I read the opinion of the enslaver who claims supreme, I am always similarly disappointed. He feigns my freedom and offers FALSE hope and salvation where none exists. When I do quote him, my other enslavers find a myriad of other opinions that counter. So why quote him as remedy? His words are not the savior. Hence I only quote him in limitation.

Within Tennessee is territory and property either: (1) owned by and ceded to the United States of America OR (2) That is not. Thus within Tennessee is what is commonly known as the State of Tennessee-the State of Tennessee a part of the United States basically owned by the United States of America .

The State of Tennessee has all the elements of a state: a population, a territory and a law. The State of Tennessee has a written law traceable to the temporary 3rd law, the Northwest Ordinance of July 13, 1787 in
originating power as proprietary power over territory of ownership of the United States of America-the latter the federal government stylized in the 2nd law, the Articles of Confederation of November 15, 1777. The 3rd law made that state a permanent part of the United States of America. For that state, the 4th law, the Constitution of September 17, 1787 made a more permanent law for the land of that territory referred to as "supreme law of the land." There was no authority in ANY LAW previous or after to do otherwise.

A legal document assistant (LDA, also commonly known as "document technician," "legal document prepare," "legal technician," "online legal document provider" and "legal document clerk")[1] in the United States is a non-lawyer authorized to assist with the preparation of legal instruments. The profession is similar to a paralegal.

A Legal Document Assistant is an American phenomenon created in response to the most strict licensing laws for attorneys in the world. The job was created by using the doctrine of pro se to enable someone to help another prepare a legal document. Except for Louisiana and Puerto Rico, in the United States only an attorney can advise and draft a legal document for another. With the self-help pro se concept and stock legal forms the Legal Document Preparer profession was born.

The role of a Legal Document Assistant varies significantly across legal jurisdictions, and therefore can be treated here in only the most general terms. Some acts performed by Legal Document Assistants may be lawful in one jurisdiction and prohibited in other jurisdictions.

It is commonly accepted that the first well-known LDA was Rosemary Furman; Furman, a Florida resident had been a legal secretary for about 35 years, when she was laid off in 1976. Not finding anyone willing to hire a middle-aged legal assistant, she began offering her services as a free-lance paralegal. Within a short time, she had developed a thriving business, not, as she had originally anticipated, from lawyers needing assistance, but instead from consumers wanting to purchase legal documents directly, to represent themselves in matters such as divorces, name changes and guardianship proceedings. When Furman was charged by the Florida Supreme Court in 1977 for "unauthorized practice of law," she became somewhat of a national cause celebe. In the long run however, she was unsuccessful, and after having her request for review by the United States Supreme Court denied, she elected to close her business and retire, rather than be sent to jail for contempt.

Current case law in Florida has established that a non-lawyer may sell blank legal forms, type legal forms completed by hand, and sell general printed legal information. The non-lawyer can not, however, advise a customer how to complete a legal form, as this constitutes the practice of law.

Isn't it amazing that our judges can grant paralegals, document assistants and notaries to prepare documents and well educated pro ses cannot? This is a denial of equal protection of law. It appears that if a document is not filed in a statutory court the state cannot file a claim. This is certainly bad law made by lawyers to protect lawyers. 

Tidak ada komentar:

Posting Komentar