Billy Joe Wright v. Fred R. Dickson, Warden, California State Penitentiary
336 F.2d 878
9th Cir.
1964
Check Treatment

*1 WRIGHT, Billy Appellant, Joe DICKSON, Warden, California R.

Fred Penitentiary, Appellee. State

No. 19234. Appeals Court of

United States Circuit. Ninth

Sept.

Rehearing Denied Oct.

Billy Wright, pro per. Joe Stanley Atty. Mosk, Gen. Califor- nia, Granucci, Deputy Atty. Robert R. Francisco, Cal., Gen. San appellee. HAMLEY, HAMLIN, Before and Judges. BROWNING, Circuit Judge. BROWNING, Circuit I serving Appellant prison sentence imposed by Superior California Court following guilty charge plea to a burglary. exhausting state After rem- edies, petitioned court for the district petition corpus. a writ of The habeas leged and not had counsel knowingly alleged counsel. He that he had lacked intelligence competency” “the attorney; waive that at the time ignorant his conviction was “an Legal young man, illiterate unversed Procedure, with no record.” The district court issued order to In con- show cause. its return State tended that “was denied the this counsel” and that by four exhibits attached “demonstrated” to the return. copy of The first certified exhibit was a entries Justice made Clerk County Trinity on June Court of entry The recited June June Berkeley one “were

brought and advised of into this court rights.. They expressed their desire their counsel. were allowed Defendants prescribed by to secure same.” time law entry June stated Berkeley “appeared in this this having day entirely Gordon exonerated charges except all Annis on Wallace charge petty theft,” bound “were Trinity Superior over charge burglary answer the felony.” —a copy though was a certified second exhibit had asked for counsel on June of the notes the Clerk on 10 “a was ob- recording Trinity County, Court, Court of tained the Justice at a time Berkeley on when petitioner was without 1954. These notes included the *3 June was bound over to the following appellant recitals: court informs Court.” In “The this document right although Superior of to counselat the defendants their noted that the Court against stages proceedings appel- all records recited that in that court lant had been informed of his right right the rthem. The defendants waive willing attorney proceed / an right, and are counsel and had waived the there time”; nothing I this “The court asks Billie and was in the record to show that Wright pleads pleads waiver”; rights, Joe guilty how and he he he “understood his or a * * count one "x".” offender; that in fact he was a first could write; neither read nor “did not know copy was a third exhibit certified ‘rights’ ”; event, that, any his and pages transcript appel- of two of a of process already by “due been denied sentencing lant’s by that time and it could not be cured 28’, transcript on June 1954. The dis- Superior Court, offer of counsel in the sentencing Judge closed that the re- plea guilty a of after had been obtained.” cited contents of the Clerk’s of *4 may, district court after call II ing examining for and the record of the petition for Unless a habeas cor evidentiary hearing, accept state court pus reveals on face that as a its matter court’s of the factual is resolution of law the entitled to the is not Sain, sues. Townsend v. writ, the to writ or order show cause 312-313, S.Ct. must issue. 28 2243. The § U.S.C.A. present does not fall ease practice petitioned usual is for court exception. within So far the Townsend to issue an show cause. appears, as issues factual raised subject appellant mat were never purpose It is of the not the evidentiary ter of an in a state proceeding disputed show cause to resolve any event, court. In no record of such a fact, only issues to determine hearing presented to district was If whether such issues exist. the show court. proceeding discloses the existence fact, of substantial1 which if Reading issues documents petition in resolved accordance with required 2 “measure with the er’s him (Pike contentions would entitle to re tolerance” lief, then 1963)),3 the district court must hold an 856, evidentiary hearing light to determine those attached to of the exhibits Johnston, issues. Walker 312U.S. return, of fac- we think number State’s Supreme appel 1. The Court has said that an or in assertions considered factual may discharged prob der application to show cause be certificate of petition corpus may for habeas be in briefs filed in this able cause and dismissed allegations if without a the factual The former wore before the dis court. “patently .are or frivolous have been con trict court and should false on a of the whole consideration an amendment to sidered the court as * * *” (Commonwealth original petition, record no doubt would they been, ex rel. Herman v. had felt if the court 116, 118-119, significantly the ease. United altered 100 L.Ed. 126 see also United La States v. States in this court Briefs 1963)), but “the Government’s not the district course were [petitioner’s] allegations court, contention that their factual aver and we consider improbable only avoiding and unbelievable cannot in interest of ments deny opportunity sup circuity, serve to him an if since we found the needless port significant them evidence.” Walker v. John it would be assertions proper ston, as an amendment to treat them upon original application We are not called to at re tempt application of the for consideration. distinction. fer them to the suggested Reichard, The State has Co Cf. ffin petitioner’s are either “im 444-445 “patently probable and or unbelievable” Quoting Judge Chief Sobeloff United frivolous or false.” Glass, clarify par- To the extent that appellant’s allegations, ticularize we have which, if, alleges, . n tual decided he was accorded are raised issues appellant’s favor, entitle him to did not assistance of counsel would waive sentencing.8 at It relief. appel- make no difference whether would rule of Escobedo v. Under the pleaded requested or that lant Illinois, guilty except, again, as these facts denied his consti issue of waiver.9 relevant of counsel tutional assistance argues However, af- the State investigation hearing if the the June 10 fidavit District longer general inquiry but was then no re- court records attached (which seems on focused turn establish that was advised interrogation incontrovertible, con incriminatory leading state ducted right. ments, appellant requested and been appellant had not been denied counsel only proper function effectively con of his absolute warned proceeding filed in affidavits a show cause As to remain silent.4 stitutional bring is to to the court’s facts attention dissent,5 pointed it out Justice White undisputed, put in and to no whether makes difference *5 dispute. issue those which are in “[Is be counsel or to asked to consult retained presented corpus fact sues of in habeas appoint provided the assistance with proceedings may by established not be indeed, counsel, nor, re whether he ed Cunning parte ex affidavits.” Jones v. except quested all, as the latter counsel at (4th ham, 347, 4 349 n. Cir. ap might upon If fact waiver.6 bear 1963), pe and cases cited. Denials aof pellant’s subsequent plea of titioner’s in an affidavit by incriminating ob statements induced response show interrogation, it could such tained “only serve to make the issues which not stand.7 must resolved taken be evidence They way. no of usual can have other of Gideon v. Under rule fice. The who made them must witnesses 792, Wainwright, 335, 372 83 S.Ct. U.S. subjected appellant’s to examination ore tenus or con 9 L.Ed.2d 799 rights by deposition likewise violated stitutional were all other are witnesses.” 711, (9th 1960). 4. Massiah v. United 377 F.2d See See also 282 717 Cir. 1199, 201, 770, 12 L.Ed.2d 246 84 S.Ct. also Lee v. F.2d U.S. United 322 59, Maryland, (5th (1964); 1963). v. 373 U.S. Cir. White 777 (1963); 1050, 10 L.Ed.2d 193 83 S.Ct 7. rel. Commonwealth of ex 439, California, 433, U.S. Crooker v. 357 116, 122, Herman v. 350 76 U.S. (1958); 1287, 2 1448 78 L.Ed.2d S.Ct. (1956). 223 See also Thomaston S.Ct. (5th F.2d 322 770 Lee v. United Gladden, 305, 326 307 Cir. v. 1964) ; 1963); v. 310 Brubaker United States v. La 318 1962); 30, Grif 38-39 F.2d 499 Rhay, 711, fith v. 717 Maryland, 8. also See White v. U.S. 373 59, 1050, (1963); 83 S.Ct. L.Ed.2d 193 10 1758, citing 495, 5. U.S. at 84 S.Ct. 378 Arkansas, 28, v. Walton 371 U.S. 83 S. Wainwright, 335, S. Gideon v. 372 U.S. 83 9, (1962); Ct. Hamilton v. Illinois, 792, 799; v. Ct. L.Ed.2d 9 Griffin Alabama, 52, 157, 368 U.S. 82 S.Ct. 7 891; 12, 585, 351 U.S. Douglas 76 S.Ct. 100 L.Ed. (1962). 114 L.Ed.2d 372 U.S. S. Doughty Maxwell, 376 U.S. 811; Carnley Ct. 9 L.Ed.2d L.Ed.2d 650 United Cochran, 369 U.S. L. 82 S.Ct Ed.2d 70 Hamilton v. Carnley Alabama, Cochran, 506, 513, S.Ct. 157 (1962) ; Rhay, Griffith v. Johnston, 275, 287, contrary, Walker v. it tended to corroborate his (1941).10 only assertion was told Nothing retain counsel.15 Therefore, to the extent that Clerk’s supports notes of June 10 were in conflict with al theory of waiver. And legations, the assertions the affidavit allegations regarding interrogation at did no District more than hearing gain the June 10 at least some create issues be resolved at an eviden support from the recital in the notes that tiary hearing.11 prose If denials this and his com- cuting conclusive, officer were few hear panion exonerated another of all but ings would be held. complicity minor in the offense. Recitals of fact in state The recital in the notes of the June 16 records, opinions, may including in upon proceed be relied ing in a show cause formed of his accuracy if the of the recitals is not pleaded guilty, disputed;12 and if a decision follows repetition of these recitals in the tran from these uncontested facts as a matter script sentencing of the June 28 in req law, evidentiary no guilty, conclusive. The as we . However, petitioner, if a or the uired.13 suggested, evidence state, contests the facts recited in the waiver, more; but it is no in “It is records, they given opportu “must be ternally illogical presume a waiver of nity present other testimonial and to have counsel from an act documentary evidencerelevant to dis only can exercised puted Sain, issues.” Townsend v. 372 with the aid of counsel.” 31 U.Chi.L.Rev. (1963).14 (1964).16 unambigu It is not do not We understand to ously clear from the 16 and June 28 *6 challenge in the factual the state recitals notes that was advised in the they records, court if are as- even right Court that he had the to accurate, they sumed to be were not suffi- assigned counsel. Even if the in recitals appellant’s of cient to establish a waiver these notes read in favor the right to counsel. contentions, and the events de entry regarding given effect, The Clerk’s the June scribed are their maximum hearing negate appellant’s 4 legation does not have too late if come respect that prior he was not advised of his to the two right assigned. hearings counsel On the are borne out the evidence. States, Cir.1960) (9th ; also See Machibroda v. United 280 F.2d 727 Wade v. 487, 510, 494, Jackson, 7, (2d Cir.1958). 368 U.S. 82 S.Ct. L.Ed. 7 256 F.2d 9 (1962); 2d 473 Catalano v. United 14. See also v. United States La 319 1962). (2d 298 F.2d 616 Cir. 308, 1963), F.2d 312 and cases McNicholas, Cf. United States 298 cited; Dickson, 856, Pike v. 859 1962). 914 11. Machibroda v. United 368 U.S. prosecution ai'gued 15. As late as 1954 the 487, 494, (1962); 82 S.Ct. 510 Common People Williams, 156, 268 P.2d 158 wealth of ex Herman rel. (D.Ct. App.1954), that the 116, 118-119, 123, 350 U.S. legislature repealed statutory had (1956); 76 S.Ct. 223 Walker v. John provision appointment for of coun- ston, 275, 286-287, 61 sel, limiting the accused to the See also United consult retained counsel. Olson, 786, 788, 16. Rice v. L.Ed. Michigan, also Moore v. 355 U.S. Dickson, 12. Linden v. (1957); 78 S.Ct. 2 L.Ed.2d 167 Sanders v. United Carolina, 13. Grundler v. North (4th Cir.1960) ; Chavez and cases cited note 8. records”, ap- state court tual recitals in the Finally, refute records none of the 16, 1954, in the il- that on June establishes pellant’s that because averments inexperience of California had the State literacy, youth, Trinity, appel- rights understanding for the or of his no meaning judge of consequences was informed a waiver lant stages pro- “Notwithstanding peti- at all of counsel. ceedings against him, disavowal, express tioner’s pro- expressed counsel,” a is en- desire plea, of a desire for allega- a prove ceed at that He entered opportunity time. then titled guilty. The shows record also court rec- the state tions fact outside that on same court “that demonstrate ord which un- when the matter on for further came was not disavowal derstandingly testimony and not took made and hence was degree burglary Michigan, second fixed waiver.” Moore v. degree motion for (1957).17 denied judge ap- probation. then recited pellant prior III what had occurred at the hearing, including the that he was fact argues The State entitled appeal dismissed must because informed “didn’t want the court although granting appel court, attorney proceed and wished with- proceed in leave to motion for one.” out court then asked pauperis, the certifi forma did issue legal any why to show cause probable required cate judgment pronounced should not be permits 2253. The statute § U.S.C.A. against appellant answered, him. The judge required circuit to issue cer “No, Sir.” hereby tificate, or and its issuance is years Now, later, in face of over ten dered. unchallenged record, this case is this being proceed- Reversed and remanded for a sent where back ings opinion. not inconsistent with this years ten witnesses to the occurrences ago may presently dead or un- either be Judge HAMLIN, (dissenting). Circuit available. respectfully I dissent. any report- I do believe that requires cases this court at this time ed *7 The record under facts of this case to send concerning State of which the California hearing. it back majority opinion un- states do not “We challenge derstand fac- I would affirm. 510; Michigan, 17. Authorities are collected in Sanders v. Moore v. U.S. 19-20, 191; S. United Penn Commonwealth of sylvania where said: Ct. the court Herman ex rel. regular proceedings Taylor 223; “However signed indictment, (C.A.10th a waiver United 193 F.2d 411 Gilles, declined assistance Cf. Von Moltke v. pleaded guilty might appear from the 92 L.Ed. transcript, peti it still be the case 309. Eor the facts on which applica did not make an intel tioner’s claim in this second ligent understanding predicated waiver tion is rec outside the rights. Machibroda ord.” v. United notes hearing regarding appel- June appellant In his brief in this court counsel, appel- lant’s of waiver and asked states offender, that he “was a first legal why judgment lant if he had grade education, knowing a second noth- against him; pronounced should not be ing procedure. years of Court He 21was appellant “No, sir,” that had answered age trial, at the time could and and was then sentenced. neither read nor write.” asserts that He although he for asked counsel'at The fourth was the June exhibit an affidavit of appearance Court, Trinity the District before for Justice stating prescribed by prior entry and was appel- “allowed time law that same,” plea he secure was not he told advised his that “had right right counsel, represented by counsel,” to the aid of nor was coun- provided. sel properly He also that states that “on “was advised legal rights plea June without the aid of his entered being charged rights, without advised his offense of his own prosecutor, will ‘examined’ free and he volition.” went into detail on the facts.” As to the peti- The district court dismissed the finding district court’s that wasi discharged tion and to show advised of to counsel in the Su- holding cause without an evidentia- perior counsel, ap- Court and had waived ry hearing. The court’s order reads: pellant prove claims that “can having “[T]he Court reviewed ex- [the nothing * * * procedure, knew of courtroom or hibits which we decribed] ‘rights.’ any He did know the petitioner finds that was accorded his ” meaning of the word ‘waiver.’ including rights, op- portunity having appoint made in the various represent him; counsel to pro se documents filed appointment such for the of counsel Appellant as summarised follows: as- knowingly intelligent and in an manner expressed serts that he desire guilty. and thereafter entered his appearance at his June Thus, petitioner the facts Court; disclose pro- the Justice that he was not was not denied the to counsel brought again as al- vided counsel be- leged petition.” in his days later, fore the Justice Court six questioned by prosecuting In a verified motion for a certificate of was then probable cause thereafter with the officer as to the details of the offense. court, appellant asserted that He characterizes the June 10 guilty plea one in which his own L.Ed. was ob- facts, tained, rendering Only appears undisputed the offer of if it counsel at from subsequent petition, response the meaningless. formal disclosed order, Appellant answer, any, further asserts that as provided that he was not when matter law is entitled to formally arraigned discharge, or sentenced as a matter of law he not, may evidentiary hearing Court on June 16 and not, he did and because of his il- avoided. literacy, ignorance youth not, could exception. If a There is an knowingly waive the as- "state-court trier fact has after sistance counsel. hearing reliably full facts,” found the relevant