Charles E. Hart v. Frank Eyman, Warden, Arizona State Prison, State of Arizona

TRASK, Before HUFSTEDLER HILL,* Judges, District Circuit Judge: Judge: HILL,

IRVING opinion, extent we consider the In this obligation of a state filed a incarcerated who corpus petition in the federal for the a reasonable substitute re- of his trial when the con- porter’s And we also the application post-conviction the on Arizona Court for his first corpus ground jurisdiction that it had no to or relief, application for habeas an Superior der Arizona furnish a Pinal the trial Court of filed in the County, Arizona, fulfilling transcript purpose was for the in his trial which (R. 278). Peti the federal court order Thereafter, habeas held. tioner informed Ari Arizona the federal court of in Court tions filed the were provide reporter’s Appeals zona’s refusal Arizona the in the and transcript permitted hear- and was to add to denied without a were Court. All ing petition, opinion.1 his federal an addi The District as and without ground applica- relief, for re the state’s held that these various Court transcript. fusal to the constituted an tions to the state courts Before state remedies. exhaustion of August On the District Court courts, seeking pe- aid of the the granting an order the writ of entered motion in in filed a titioner June 1967 reporter’s tran- copy of the state trial court to obtain script days produced ninety was transcript. im- His motion trial was his good from date or cause was shown mediately denied. why transcript the could not be made period (R. 310). available within said history, After the instant ninety-day period apparently The ex- filed the feder- in for habeas was pired any transcript without fur- 1968. in November al District Court apparently nished and District the Court pro per filing and was forma entered an order on November pe- pauperis, the case as petitioner although copy for release of ground principal asserted titions. The appear of that order does not in the against pe- introduction for relief is the transcript Clerk’s furnished to us. On al- titioner of a confession 7, 1969, in the November Arizona moved coercion, leged by to have obtained temporary stay Court for District The District fraud and threats. Court release, alleging order appointed petitioner who counsel for reporter had been under “misun- throughout served without fee. derstanding” concerning preparation petitioner’s counsel, On motion transcripts which had now been 5, 1969, ordered District on March Court straightened transcript out and that produce transcript of the the state to petitioner’s prepared A would “be forthwith.” petition- for use stay temporary order was the release 253). (R. For some er and his counsel granted and noticed General, Attorney reason, Arizona 12, 1969, in court. November the federal despite unequivocal from the order date, time, On that for the first production of a court for the Attorney revealed to the General move petitioner felt it the federal court reporter’s notes lost.3 Court for an the Arizona paid reporter not be filed could 1. is a brief statement There Appeals an order. it does not Arizona Court p. 11/12/69, point 19. issue R.T. at all with the deal allegedly present con- an coerced reporter’s testimony lax- illustrates a fession. security system gov- ity lack of reporters’ storage explanation erning possible for this of court us, generally which, delaying maneuver, rec- it seems to petitioner substitute), preme transcript and him never afford sought delayed appeal hearing (another v. Illinois” therein. “Norvell whereby method the federal court In an obvious effort to accommodate transcript upon which have a substitute state, judge the district followed the act), and or set his conviction aside suggestion the Arizona re-try him. 19, General and order December challenges 1969, deferred further until Arizona action Order being beyond power could courts tioner the District file the Arizona delayed appeal effect, motion for a and for Court. Arizona contends that (which Judge judge if the have a district desires prepared, called “Norvell v. he should Illinois” 420, necessary 1366, 83 10 L.Ed. [373 U.S. himself hold the 456]) 2d preparation for the creation of a its and he cannot order hearing, courts to hold ei- substitute. followed the such a judge’s suggestion directly ther and made or as to the an alternative appropriate delayed appeal granting motion for of a writ of and habeas petitioner. the Arizona His coun- release of Court. apprised sel that court of the District substantive law and 19, order Court’s of December 1969. procedural requirements for criminal Supreme Court, Arizona But the to the involving allegedly confes trials coerced obvious embarrassment of the sions now been well established. Attorney General, denied the motion The landmark after were decided cases without a petitioner’s require trial but led This the District Court’s retroactive. ments are When the state 8, 1970, appealed filed June the order seeks to use confession the de herein. That order came almost coerced, fendant claims years three after for- presence first jury outside the must be mal effort surrounding obtain a trial held circumstances as to years almost two after his judge and the confession the trial must finding was first filed preliminary make a of voluntari the federal court and fifteen aft- months Den- ness and non-coercion. Jackson v. system. examples reporters’ county See as : United States notes in are her Pate, 559, e., ex rel. Smart v. 561 places, 318 F.2d seven stored at County Hospital, different i. (7th 1963) ; Henderson, Cir. Carden v. new basement of the F.Supp. 1009, (E.D.Tenn.1967) ; building, 1011 courthouse the boiler room Rambo, Cal.App.2d building, Rambo v. the old Adult courthouse (1948) ; storage area, 191 P.2d 480 Duarte Office Probation the old Rivers, Cal.App.2d jail thereof), (two storage P.2d floors ware- (1949) ; Hastings Lilienthal v. Cloth Fifth house Jefferson Co., Cal.App.2d 91, 92, reporters’ storage 266 P.2d (Rep. official area reporter p. 5). 11/12/69, testified that Tr. no, producing 12 L. of record to en- (1964). Thereafter, Ed.2d 908 if such a able the federal court decide the case finding made, testimony clearly same state. surrounding and the circumstances Arizona characterizes the trial court’s may presented confession to the “nothing order as more than a remand * jury which must be instructed that it urges with directions.” It under should determine the voluntariness proper standards of federalism and disregard the confession should it prompted by considerations of mutual they find and non- voluntariness respect of state and federal courts stated, coercion. As these rules of law dignity independence of each Unsworth, are retroactive. Gladden other, the order should be 1968). 396 F.2d Cir. Even beyond power held to be a federal properly if the voluntariness issue was court. presented jury, to the if the record does make clear that declaring We find no basis required preliminary made the nation, determi the trial court’s order to be one which court, acting a federal on a principles good violates federalism corpus petition, must return the beyond power. is precedents ample There are case to the state courts with an order in habeas situations for release of the unless such for the issuance of an alternative form finding by presently by of order whereby a federal court Stevenson, 43, made. Boles v. 379 U.S. given state is various alternatives which 174, (1964). 85 S.Ct. 13 L.Ed.2d 109 petitioner include release of the as one of In the alternatives or which case, instant the clerk’s petitioner transcript release of the if none of the indicates there were proceedings alternatives is presence met. In Boles outside v. Steven of son, 43, jury concerning 174, L.Ed. voluntariness of (1964), (R. 55) 2d 109 54, a ques confession District had or Court and that the dered release apparently tion of of the habeas voluntariness was unless the jury state court re-tried him ap submitted pears with under what in a reasonable proper time. The order was af to have a instruction.4 by by firmed Court what with the But is not revealed the clerk’s transcript addition judge of another alternative to release is whether the trial hearing petitioner, namely, a preliminary finding made the of volun the state court required by as to whether the trial tariness the cases cited judge prelimi had by made the can That be determined above. nary reporter’s determination of the transcript transcript a voluntariness or a transpired a confession under Denno. Jackson v. substitute. Until what supra, Unsworth, In finding, Gladden v. any, trial court and what if court, disposing peti judge made, by the habeas trial shown means of is tion, issued an form order alternative or a question substitute, much like the one in here. federal unable provided perform This court’s proper that within unable function and pending reasonable time the court should decide the case before it. grant either a new trial or conduct Under the facts of this burden * Eyman, F.Supp. jury 5. In v. Carter Presentation to a is not a constitu- (D.Ariz.1967), requirement. Lego Twomey, a different 477, in haec involv verba “remanded” a case 30 L.Ed.2d 618 U.S. ing a similar coerced confes Superior sion to the Arizona Court. apparently appealed order was 4. No. trans- See handwritten Instruction by accepted Ari and acted from the mitted letter Eyman, Septem- zona See Carter dated Arizona General courts. F.Supp. (D.Ariz.1968). ber concerning power jurisdiction in the present evidentiary corpus. field at is- of habeas confession voluntariness of the provide that The order went on sue. argues apparently Arizona even one undertake if the state court did juris if the order lies instant time those alternatives within Court, power diction and District re- specified, should be teaching should be reversed under the Sain, 372 U.S. Townsend v. In leased. supra. Sain, Townsend v. (1963), 9 L.Ed.2d 770 83 S.Ct. following particularly upon the relies heavily Arizo- on herein relied a case language: point, another na dispute, are in “Where the facts grant- Court order affirmed must federal court petitioner unless release of a habeas evidentiary hearing the ha- if granted him new trial applicant a full beas did not receive forthwith. evidentiary a state and fair court, either trial at the time Teets, Chessman proceeding. or in a collateral other 1127, 1 L.Ed.2d words a federal interesting precedent perhaps most the state-court trier There, reporter at the state of all. hearing reliably fact after a has full transcribing died after found the relevant facts. portion of the trial and there small reading great difficulty notes. course, Of if because no court undertook The state record can be obtained the purported for the creation others determining way no rep- transcript. The defendant was not a full whether and fair during procedure and chal- resented findings fact resulted in of relevant lenged purported accuracy of vouchsafed, one.” must hold exhausting transcript. his state After at at 313 and 83 S.Ct. U.S. remedies, applied federal court to the 757, 760. corpus. The Su- for a writ of habeas think Arizona Townsend We misreads court preme held that state the language. quoted the Sain above creating purported the the Townsend concerned with itself requirements transcript the lacked question of when the federal court must process the case to due and remanded hearing on its own conduct with instructions to the District Court forego may matters and factual when it prescribed by the Su- enter order as hearing such a factual own opinion. pre- The preme Court in its ground proper fac- that there has been a permitted courts the state scribed order hearing, meeting tual federal constitu- com- within which to reasonable time a requirements, in the court state requirements ply with constitutional proceedings. lan- We and, believe that fail- with the connection guage to em- meant action, that ordered phasize where be cannot deter- discharged. it at tioner be U.S. mined from the record of state proceedings there factual a cannot The order instant require- all the standards met the state as a remand to characterized Townsend, fed- enunciated in ments a hear an order conduct court with to con- eral no alternative to court has providing ing. order It is a conditional own duct its factual court, to state various alternatives including type re- of re of a which is sanction The the eventual quired transcript other to a substitute if one create lease of the type dealt complied factual with. We is not the alternatives is not hearing neces- proper exercise of a with in Townsend. view order as petitioner his transcript undoubted to afford sary is a substitute to create rights interven- actually occurred determine what one to If the state tion of the federal courts. the facts Under court trial. at state provide reporter’s tran- acted to case, is federal instant requested, script or one when first require state entitled to so, re- do first ordered to necessary even when steps inform the take the might porter’s then initially, the feder- court and thereafter majority in of the case. this court, petitioner’s fed- al to determine if original application a for Petitioner’s infringed. rights eral were corpus writ asserted of ground Underlying appeal release, and the this entire for the introduction it, against preceded we a in criminal trial events which detect him his state asperity rela- al- note of tionships and in the murder confession which was conflict coercion, leged and federal have been obtained between to incompre- court courts in Arizona. seems fraud and threats. The district It respondent produce a record the us that on ordered hensible to this legitimately petitioner’s trial, the acts of state can attack but do herein as unable to General was orders of State dignity independ- defendant who the federal dures to be followed part, upon receipt his take an of failed to of for writ a day prescribed by sixty period corpus. nothing the Rule to do It has habeas constitutionality 348 of the Rules of Criminal Procedure Arizona with the by supported by may, Supreme petitioner’s motion written of denial Court’s affidavit, apply fact, by an or- delayed appeal. to this court for In motion permitting der to a hearing him take failing the to hold a directed appeal. notify forthwith The clerk shall held whether issue respond attorney general rights the who shall of his constitutional violation days.” by five such motion within Arizona action of the Court, follow failed to the district court 2243. the of 28 § mandate U.S.C. 342 hearing duty at would re of district to hold a 757. This the

clines purpose ha- of tran derives from the sult in the creation a of per se, corpus, not, remedy script. of failure a vio beas “detentions That is by illegality” providing fundamental a lation of “trial-type by way proceeding” judgment of an of the pre “original proceeding.” civil Id. at Court carries with a regularity, sumption 83 further of S.Ct. The Court stated: Johnson 458, 468, Zerbst, 58 S.Ct. prisoners relief are entitled to “State allega (1938), mere 82 1461 and L.Ed. only upon on federal habeas petition are insuffi in the habeas tions proving detention violates their writ, grant justify the cient the of per- the the fundamental liberties of Dee ex rel. Williams v. United States safeguarded against son, state action (S.D.N.Y.1967). gan, F.Supp. 53, at the Federal Constitution.” Id. peti proof of the burden 312, 83 at 756. Johnson tioner to claim. establish discussing “proper application” supra; Smith, Zerbst, Williams v. outlined, the tests it consid- of (5th 1970); v. Peri F.2d Allen Cir. indispensibility complete ered the denied, Cir.), ni, F.2d 134 cert. determining state record in whether L.Ed.2d 91 S.Ct. U.S. writ of habeas issue. should end, To the district sitting and determine must “hear “A District Court compel facts, dispose clearly power law as the matter has require.” production justice complete § U.S.C. Ordinarily record —in- record. such Supreme Court, Townsend cluding testimo- L.Ed. Sain, ny (or adequate if unavailable right ato dealt with the 2d 770 substitute, narrative plenary cor- in federal habeas opinions, record), pleadings, court pus, instances down six when set pertinent in- and other documents —is required to be the district determining dispensible whether hearings: hold such applicant received full evidentiary hear- and fair state-court (1) factual dis- merits of the “If findings, resulting ing in reliable pute not resolved (citation course, omitted). be- (2) hearing; deter- state factual Of if fairly cause no record can obtained supported mination is way judge determin- has no whole; (3) district fact- the record as whether a finding employed full fair which, findings relevant resulted adequate afford state court was vouchsafed, he hold must hearing; (4) there is and fair fact full also, may there be cases allegation newly one. So discov- substantial is more evidence; (5) which it convenient facts material ered evidentiary an to hold developed district adequately at were not compel any hearing; forthwith rather than (6) state-court production clear record. It appears trier reason it power ap- to do so.” did not afford the habeas fact (emphasis add- hearing.” 319, 83 at 760 plicant a full and fair fact ed). at 757. Id. at lit- Under rationale and indeed summarily, “a Stated Townsend, language eral state- duty had a this case time of fact [either court trier hearing, evidentiary make relevant proceeding] to a collateral the trial findings petitioner’s claim on reliably the fact found after full has dur- confession 312-313, the admission that at facts.” Id. S.Ct. relevant judgment respondent’s ing Four- trial the file his criminal violated failure to ordering timely Amendment, the return teenth before to the district court’s release, conditionally or oth- show cause The court held order. power district the did have erwise. the district court not the Because record, grant to hold to it had to of an obtain the writ in absence unable evidentiary To release and until a full factual prisoner and unless doing petition without so be the averments competent derogation proved by principle This of the evidence. reading holding prisoners when are entitled to relief on court’s was based language proved Townsend, they their of 28 detentions are of and on the constitutionally 2241(c) (3) infirm. and 2243. U.S.C. §§ distinguish majority attempts “The to that he is in to burden show custody applicable only when the Townsend as violation the Constitu has the record tion of the United federal district court States prisoner. proceeding Russell, before it Jones 396 F.2d the state v. Gray Johnson, (6th Cir.); record determine v. cannot (6th Cir.). and fair The failure there been a full F.2d 986 whether findings supported timely hearing resulting return officials file a State above, prisoner But, pointed does relieve of his as out of fact. judgments proof. explicitly considered burden of Default in Townsend corpus proceedings can are not where record situation “no 745, 319, empty obtained,” available as evidentiary prisons . . . was the case here. “[I]f obtained[,] hearings. dis fail that the no record can be We conclude judge evi [an trict dentiary hearing]. . . . must ure of the Office of the Gen majority’s timely return Id. The eral of Ohio to file a reading the case’s instanter of Townsend narrows does afford a basis facts, Despite delinquency application while of the to its own relief. obligat expressly State, intention stated its District Court was categorization, “open-ended” merits. an ed to decide the case on establish anticipate Turner, F.Supp. McGuffey all “we cannot here because (D. Utah); Taylor de the situations wherein v. United cf. Cir.). States, at 759. manded.” Id. F.2d 23-24 spite un We conclude that duty then, Townsend, Under return, timeliness the State’s enable the create a record sufficient power to would have no District Court district whether decide grant corpus in writ of habeas the writ of habeas should issue of an absence courts, only upon devolves not until the averments asserts, majority as the compe proved have been federal district court as well. Without at 138. tent evidence.” F.2d holding evidentiary hearing, an power did to or- district not have attempts support majority petitioner. der He the release court as a condi- order of has not determined that the releases are Conditional order. derogation of his federal held in power of the district remedy law appropriate “as fashion require.” justice 28 U.S.C. support my § I find additional read Rogers Richmond, Perini, Townsend in Allen Jus- (6th Cir.), denied, 5 L.Ed.2d 760 F.2d 134 400 U. cert. rationale discussed the Frankfurter 143 tice 27 L.Ed.2d S. deter- In, After conditional behind orders. the court dis mining petition- that the writ of cussed whether a applied the murder had not er’s trial for on a default could issue 344 (1959); Wingo, deter- proper Conner 409 F.2d 21 constitutional standard v. (6th 1969); Patterson, mining petitioner’s confession was Cir. Maes v. 401 that 1968); Thompson

voluntary admissible, (10th the Court re- F.2d v. 200 Cir. give 1968); White, (5th be held 391 F.2d 724 manded case to Cir. (10th retry Oklahoma, opportunity Dentis 376 590 v. F.2d state an time; 1967), denied, 927, in de- 89 a reasonable Cir. cert. 393 U.S. tioner within 261, (1968); thereof, petitioner was to be S.Ct. 21 263 Eles fault L.Ed.2d discharged. perman Wainwright, F.2d 259 v. 358 (5th 1966). Cir. might conceivably “The of de on the issue cited novo “conditional order” cases prelimi procedure majority But likewise involved coercion. protect petitioner nary adequately the federal determinations that was neither being rights of criminal defendants held in his violation of constitu large rights. Stevenson, duly lee- nor account of the Boles v. 379 take 43, 174, way left to the States U.S. 85 13 L.Ed.2d 109 which must be S.Ct. (1964) (state procedures own of their to determine their administration justice.” 547, 81 confession constitu criminal 365 U.S. voluntariness of tionally adequate); v. Uns Gladden S.Ct. 1968) worth, ( F.2d 396 373 9th Cir. Ro Justice Frankfurter’s concern (constitutionally procedure gers respect courts is that the federal determine voluntariness of confession federal the constitutional institution complied with).3 Since the right ism which affords states independ district court below made no procedures appropriate fashion preliminary ent determination Further vindication of rights petitioner’s had constitutional more, release conditional of his violated the admission predicated initial deter was on a correct confession, sanctioning condi the cases mination the district a federal tional order release after in fact held in der inapposite do not are ogation rights be constitutional support majority’s conclusion that applied the had not cause the trial proper. court’s order district to deter proper standard admissibility 156, Teets, confession. v. of his 354 77 mine the Chessman U.S. us, 1127, case before S.Ct. 1 L.Ed.2d 1253 at- majority prior no determination tracts the attention has made improperly interesting precedent of confession was “the all.” most admitted, standpoint so have done public nor he From a could and historic scrutinizing carefully may repetitively record be, case falls trial, category record a substitute or- criminal within the of “conditional thereof, holding hear already der” discussed. Su- cases 293, ing. Sain, preme 372 U.S. Townsend v. held (1963); 745, United process procedural 9 L.Ed.2d 770 been denied due be- Jennings Ragen, attorney U. ex rel. v. cause nor his States neither 321, during present pro- permitted 3 L.Ed.2d 276, 79 S.Ct. S. 375, Robinson, Accord, Cook, 383 U.S. Pate rel. 71 S.Ct. (1966) (1951) (unconstitutional 15 L.Ed.2d denial L.Ed. 215 inquire (failure Swenson, right appeal); trial court Bosler v. aff’d, competency 1966), trial violated to stand into F.2d 154 Cir. Denno, trial); right Jackson to fair L.Ed.2d procedure provision (1967) (state 12 L.Ed.2d (1964) (state indigent to deter criminal defend- counsel unconstitutional). uncon confession mine voluntariness ants on stitutional) ; States ex Dowd United ceedings appropriate a substitute tran- would be in such to create cases. Un- fortunately, many courts, script. The directed Court the district lower state order, subject conditional enter a allow- whose decisions not to re- Court, Supreme view a reasonable time within the Illinois con- State proceedings deny petitions adversary to hold tinued habeas grounds. accuracy procedural old determine the On certi- orari, failing Supreme which the was to be vacated discharged. denying order This order based the state court the writ proper preliminary and remanded it for determination consideration light that the recent Illinois held viola- case, tion of our decisions. Constitution. General argued that there has no such determination. the denial of habeas Furthermore, provided adequate ground, rested on an California nonfederal law appeal for an but the Court refused to automatic consider ade- Chessman’s quate procedure required a state that the entire record which denied right. prepared. consideration of denial of a the action be Id. at rule, The state must 1127. Given this California procedural whereby process due of course can raise would his claims regarding require rights. that be accurate of federal denials participate person defendant argued us, In the case before is not by’ hearings counsel at to reconstruct any post-con- that Arizona does have the record of his trial. There is no Ari- procedures viction to consider claims of appeal zona statute which an auto- denials of federal constitutional matically taken, nor did Hart Furthermore, Young the direct order in sixty days, required conviction within was issued on direct review the state 348(A). Ariz.R.Crim.P. There is no through proceedings certiorari, rule Arizona which pursuant petition and not to a ha- prepare case Hart’s an entire corpus. beas record. argues majority attempts support majority also courts have fulfilled mandate of propriety of the order aas “direct Young they because could not con- Young under order” rationale of sidered claims re- without Ragen, constructing transcript. What case, peti- L.Ed. 1333 In that majority recognize Young fails is that tioner had filed for a writ of habeas any procedural does not disallow sentencing ground which ain refusal con- results raising questions “substantial under the claims, sider process due clause.” 337 U.S. at systematically whose which and unwar- His denied rantedly exclude such consideration. No hearing. time, At under respect such contention is raised with law, Illinois an was not the Arizona courts here. appropriate remedy for denials due process. reasons, However, For these then I vacate since the Illi- nois de- court and remand Court had handed down indicating cisions case for notes lost. are fed- propriety of an sider judge in such a case which eral district gives (1) the state the alternatives hearings holding of a reasona- state court for the creation (2) for a trial ble granting appeal in petitioner a court, releasing (3) him from setting custody, (4) convic- aside re-trying him. tion and Hart, herein, was con- in an Arizona state victed murder life im- and sentenced to trial, repre- prisonment. At his he by court-appointed No sented counsel. perfected because, ae- ever * Irving Hill, Judge California, Honorable for the District of United States District Central sitting by designation. directing cording Hart, to of that court he was transferred produced provided immediately be by prison sen- trial court. the Arizona “did know how tenced where a motion filed March appeal” coun- Such and was without start an (R. immediately 276) denied made and was or law Hart sel books.

Notes

hinted at notes throughout Attorney prevalent ord, the American court concern was the General’s er the District Court’s first order At the November transcript. production reporter’s of a Arizona conceded General 353), 22) (R.T. appealed (R. an estab- In the order that Arizona has gave respondent procedure (in the na- lished War- agreed of facts four alter- den and of Arizona ture of the State statement natives, prepared attorneys, one of which exer- was to be hearing) parties sixty days date of other interested after a cised within from the speci- above, for use when a As stated order. produced. informed fied But he alternatives cannot him, grant the District that under are: release him a (which, appeal by under availa- this could not be made the state courts procedure, apparently except connection auto- ble to delayed appeal matically preparation Arizona Su- with a in the result in

notes occurred at federal what re-trying illus- releasing The facts of this case or available. penalty of trial on Bren- the wisdom of Mr. Justice trate petitioner. concurring opin- statement nan’s Although a di- instant order is not 336, 85 Nebraska, ion in Case conduct the state to rect order to (1965), in L.Ed.2d creation of for the said: which he substitute, if it were con- even might order, “None can view with satisfaction well direct it strued to be channeling large part holding state would be be valid. Such logical criminal business extension of natural and procedures, adequate If state courts. presently principle enunciated scarce, generally all Young Ragen, too Court in adopted, much done re- In would be 93 L.Ed. 1333 every participation move the irritant case, the Court held crimi- courts state was procedure.” 345, 346, clearly nal which state defined method prisoners raise, struc- could courts, claims of their ture long Arizona has much too instant denial of federal doing obligated do what should and is whether be determined it cannot to do in connection ha- with the instant his consti- has been afforded corpus proceeding. beas The order judicial right preliminary tutional is affirmed. of his of the voluntariness determination sixty-day mandate will issue now. confession unless and until a period referred to in the District Court’s therefor shall commence run with the obligation provided. think the filing We opinion. date of the of this providing or the other devolves one Judge (dissenting): TRASK, Until it the state and the alone. Circuit way fulfilled, for the state there no respectfully opinion I dissent

notes to the affront so because contrary, judge then de- of To the The ence throughout courts. its lost. long history petition of mat- on until this ferred action judge appears to file Arizona state ter the federal District tioner could in the acting, temporized delayed appeal and a motion a transcript abstained from stayed effect, acts, as to their so to create a substitute. give every opportunity possible appropriate motion before Petitioner’s However, denied the Arizona Court was The district court without writ “The of habeas shall propriety then filed the order the extend to a unless— appeal. which is this gave That order four alterna- the State “(3) custody He is in violation (1) necessary tives: or or Constitution laws treaties (2) transcript; create a substitute States; the United . . .” 28 U.S.C. grant petitioner appeal in 2241(c) (3). § process which a substitute The district court’s order states that created; (3) release “petitioner been denied his [has] custody; (4) petition- or set aside right process equal protec due retry er’s conviction and him. tion of the laws under the Fourteenth The vice I find in district court’s Amendment to Constitution of requires the alternative which granted States, in United that he was prisoner if none the state to release the any [by no kind the Arizo The of the alternatives is elected. other na dealt was 2243, with Court] already petition denied state has delayed appeal. summarily, 28 U.S.C. . . .” § its It has indicated The district relevant au- court cites no applications for habeas denial of thority determination,1 for its and ad- correctly (three number) in- or duced no evidence correctly the con- has determined that supports finding. Likewise, according respects in all viction was opinion majority tells us that “[u]nder in violation of law and that it was not pro- facts of burden of the United the Constitution and laws ducing record to enable It of Arizona. the State States the federal case is to decide the clearly that it indicated rather also clearly Again on the no cita- state.” no further action. intends take support tions are made assertion. remaining alternative is release. 16(a), Ariz.Sup.Ct. (Crim.) 17 A. R. one present ad- R.S., provides in a defendant of the dressed to the District Court criminal action who has failed to take an juris- That court has United States. appeal sixty-day statutory pe within the diction may apply riod the court for an order application for a entertain an “[t]o permitting delayed appeal, him take a behalf writ of habeas if the failure to has been person custody pursuant part.2 Su fault on his judgment preme Court denied motion ground custody viola is in under this Rule. or laws or tion of the Constitution corpus may A not be writ U. States.” treaties United granted just court de- 2254(a). because the state S.C. § “16(a) Delayed Appeal. proce Motion to Take out 1. 28 2243 sets § U.S.C. has, A fault

Case Details

Case Name: Charles E. Hart v. Frank Eyman, Warden, Arizona State Prison, State of Arizona

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 12, 1972

Citation: 458 F.2d 334

Docket Number: 26347

Court Abbreviation: 9th Cir.