Elizabeth Ann Duncan v. Iverne E. Carter, Superintendent of the California Institution for Women at Corona, California
299 F.2d 179
9th Cir.
1962
Check Treatment

*2 CHAMBERS, Before HAMLEY and Judges. HAMLIN, Circuit Judge. HAMLEY, Circuit appeals Ann Duncan Elizabeth to this denying from district order application for a writ habeas Having corpus. been convicted mur- degree Superior first der Court, County, Ventura State of Cali- fornia, being under a sentence of yet custody of not United death, presently in the been returned from the she is Argument States the state.1 grounds also advanced in judgment Superior and sen- upon petition. During *3 relied the the Supreme of came before the tence course of was a motion affirmed. and was California for review made on amend behalf Mrs. Duncan to of 803, Duncan, People 3 Cal. 53 Cal.2d adding purpose the for the of Rptr. 351, 350 P.2d allegations additional of fact. petitioned the then Mrs. Duncan requests The and be- motions made for a writ United States by ap- half of Mrs. Duncan were resisted granted, of certiorari. The pellee arguments and ad- counter questions out be to the set limited two vanced on the merits. The court denied (Duncan v. low. Baldonado v. California request hearing the at had be California), 840, 80 S.Ct. 363 U.S. presented which evidence could be and 4 L.Ed.2d 1735.2 refused examine court rec- the state May 22, entered On that court ord. The district court also denied the per Baldonado curiam sub nom. petition, motion to amend and denied the California, 81 S.Ct. petition. appeal the followed. reading follows: L.Ed.2d as Appellant the district contends hearing argument and “After oral hearing refusing court erred in to hold a records, on due examination of the presented, at which evidence could be totality cir- of we conclude that the failing to examine the state court fails disclosed cumstances ordering record, before dismissal of the process issues the substantial due application. petitions for certio- tendered the rari, the writs.” and we dismiss so necessary It was not for the dis hearing trict court to hold at which evi in the filed Mrs. Duncan thereafter presented or, dence could be in substitu application for district court instant therefor, tion record, examine the state court corpus. An order a writ of habeas application unless re response issued, show cause was turn thereto raised an issue of fact Superintendent the Cali- which the which, appli if resolved in favor of the penal Mrs. in which fornia institution cant, would entitle her to relief. See a return and Duncan is incarcerated filed Dickson, Cir., Chavez 280 F.2d 727. petition. a motion to dismiss the Shortly argument was had thereafter The first as Resisting this on the motion to dismiss. was that exten request- motion, counsel for Mrs. Duncan publicity per prior to, sive adverse hearing which evi- ed that a held haps during, deprived the trial her of due dence could It was also submitted. process under Fourteenth Amend acting requested that, before on the mo- appellee’s per ment. return the facts dismiss, tion to the district court exam- taining publicity not contro such ine the state trial court record which had verted, but was contended probable having 1. A petition- certificate cause a violation of “2. Was there by judge by right trial, guaranteed been issued the district who ren- er’s to a fair as order, dered the we have XIV the Due Process Clause appeal under 28 § U.S.O. We Amendment of the Constitution stayed pending have America, the execution dis- United where in a trial States position appeal. capital by jury, trial offense permitted jury box to remain petitioner’s right 2. “1. Was trial judgment, three who had and sit guaranteed by the Due Process Clause opinion with fixed box entered XIV Amendment violated in view of petitioner’s guilt, and retained Attorney, the conduct of the District being on voir resulting while examined publicity, and the other circum- stances under which the trial was held? dire?” against appel- law adjudicated district court the same which had open been resolved lant to reexamination and was not proceeding. The the United States in this habeas correctly agreed. district determined district court under the the contention correct If the court was district open for reconsideration reaching conclusion, there was court. It therefore did not hearing an examination need accept to exam- evidence or record, and it was the state court pub- ine court record the state as to deny requests. error to licity issue. Court, aft- *4 The United States ground granting as- The second for petition for a writ er alleged application, in in- publicity issue, exam- was certiorari as to constitutionally pertinent to four exclude record ined the state court jurors thereby unqualified cause, briefs, thereto, for re heard oral and considered quiring appellant argument. stated, unani- in a to exercise four It then twenty challenges peremptory per allowed to mous curiam conclusion its by law, totality iler limit state court in effect of law that “the of circumstances challenges, peremptory ed her support to sixteen failed to this substan- disclosed” equal protection in process violation of and action issue. While the tial due process than due clauses Fourteenth to the writ rather taken was dismiss judgment, in Amendment. to affirm the state it was adjudication practical effect an pertaining The the voir dire facts to presented claim facts did not jurors examination of these four right. deprivation of a constitutional presented Supreme the state judicata applica- apply appeal, Res to connection with the automatic it does being argued erred, appellant and tions for habeas the trial court failing appellant’s prejudice, relief in a fed- entitled to seek such ex- was Supreme despite cause, eral district court clude these for and Nevertheless, pronouncement.3 deprive proc- the result her of due was actually question rejected ad- of law is ess tention, holding where of law. That court the con- judicated by Supreme Court, did that the trial court al- where no facts are not abuse its discretion or otherwise legal leged regard. ques- in this would east light in a a district or circuit point, however, presented judge thereby, in the case of is bound Supreme the United States Court in adjudication other of a appellant’s petition for a writ certio- Supreme law the Court.4 rari. failure to for a writ The application respect of habeas In her for writ of certiorari con- allege newly- appellant precluded corpus, tention district court consid- pertaining subsequent in this discovered adverse eration thereof habeas facts during publicity corpus proceeding, special trial. In before and absent circum- presenting justifying then, departure effect, she was to the stances from that Burford, 200, 214, 3. 339 U.S. Darr v. 70 there must be for certiorari judgment his dis from the state court before a S.Ct. L.Ed. case, prisoner may apply senting opinion pago 224, in this at federal state page discussing corpus, at was that it S.Ct. habeas was unseem- to, ly court not in dis for a federal district court in ef- agreement, fect, Justice Frankfurter said: reverse a state Court. “ * * * granted unseemly t]le petition How much more would be for court, effect, view of claim is district to re- the State’s his federal a federal may here, still a writ state Court and he sue out verse both the sustained ” * ** in the District Court. the United States given Burford, in Darr v. The reason 212, 216, why pages 70 S.Ct. 587. failing Burford, 339 court did err in to receive evi- requirement. Darr v. See special per- dence or examine the state record 587. No S.Ct. taining thereto. here. were shown with- therefore The district court was disposes appel- What is said above partic- consider this out arguments dealing lant’s cessity ne- with the refus- did not err ular contention and holding hearing to receive to examine to receive evidence examining evidence and of the state to deter- in an effort state record court record, arguments all also with point.5 mine the merits regard advanced her with merits, concerning grounds four relief, as The third for relief. three was that constitutionally disqualified One to be remains stay permitted after box Appellant considered. contends that the peremptory had exhausted denying erred her mo challenges, thereby depriving appellant application tion to amend two re process equal protection under and due spects. proposal allega towas add *5 Amendment. Fourteenth fhe bringing tions to the effect in to the concerning point jury concerning second This was the information unrelated misconduct, prosecution which the United States acts of the acted .granted certiorari, dis- jurors thereafter faith, in bad and that the remem insuffi- they missed the writ because ciency bered this information when were jury considering the con- facts in the to the room their ver No new facts stitutional contention. dict. alleged petition. It in the instant already that, We have held with re- that, above, for the reasons stated follows original allegations spect to the concern- required to the district court misconduct, apply such failure to state or examine the receive evidence precluded for certiorari district court and, point, prop- record to this court erly as proceeding. consideration in instant the application.6 dismissed the appellant question Even if raised had the petition misconduct in her for certio- The fourth for rari, however, she could not have re- has to do with prosecu ferred to these matters faith of bad misconduct the the asserted memory jury. bringing jury is the tion in before the informa appellant concerning true because had advanced unrelated mis tion acts of appeal these in her contentions conduct. California Court. point Appellant failed raise in certiorari, al- points for writ .her she failed to raise Since though appeal, it had been raised and decided state she has exhausted adversely remedies, special the California her state unless circum- being .Supreme excusing No stances exist such failure. See departure 2254; Dowd, which warrant shown Irvin 28 U.S.C. § Burford, 394, 404, Darr the district court rule 79 S.Ct. 3 L.Ed.2d consider Dickson, was without we As stated Chavez v. Cir., follows that the contention. It 280 F.2d state remedies gave adjudica- the 5. The fact district court Court decision the status of an issue, represents different reason these re- tion as to that it also respect quests non-compliance with to this im- with the rule of Darr Burford, concerning necessity material. the applying special for certiorari. No cir- petition for a writ of certiorari as In its excusing failure to cumstances invoke the point, appellant express did not equal protection clause its ly equal protection invoke the clause. were here asserted. if denies the certiorari But this omission deprive will not have been exhaust- was of such a nature as to the deemed meaning process, question ed within “if defendant of § due adjudica- whether failure final to obtain a state occurrence was of a kind presumed preju- which nonconform- must was due inexcusable to have ity requisites.” despite procedural diced with state defendant instructions and other action taken the trial court allega- newly-tendered Regarding the to cure the error. prosecution in bad tion that faith, acted resolving the court prove counsel that he would stated assumption starts Attorney the District who tried jurors intelligent enough to re- law, case was well-educated member the occurrence. Evidence acting good faith therefore he were prove tends to that some of the change he of mind had not have improper did fact remember the con- night. over here is reference nothing duct other occurrence does morning following the fact that on the assumption more than corroborate the day on which unrelated acts of mis- already which the court has made. brought conduct were to the attention of what, prosecution jury, moved to strike Since the tendered evidence toas questions nothing all the appellant’s and answers remembered added to- point, dis- acts and to instruct the case on the misconduct regard granted. them, jurisdic- motion was she is still confronted with the difficulty, already noted, tional that this Thus, evidence point was not raised certiorari.7 only legal argu- upon, was relied but deny The district proceedings *6 ment based on trial of record application.8 the motion amend the fact, and the which argument, purposes assume for the Affirmed. prosecutor was well-educated Judge (concur- CHAMBERS, Circuit nothing prevent in the law. There was ring) . making argument from Judge Hamley’s While I concur and, the State if resolved ought say right I think we urging her, contention approve now that we would not ever petition for certiorari. proposed impeach jury’s effort allegation newly-tendered by testimony verdict as to what that the remembered the informa remembered riving or said room in ar- imparted by such misconduct when foregoing at their verdict. The they jury room, presents opinion were in the just question. not reach the does substantial of fact anyone justified I do not think that newly-discovered believing opinion evidence could that the mat- dealing considered. contention differently* ter could be framed little improper that an things trial court occurrence and then such could be searched. accordingly alleged newly-discovered We need decide wheth- tended that her (1) tending impeach er: ju- evidence evidence would effect actually disobeyed verdict state criminal trial rors the court’s in- disregard ever admissible in a federal habeas structions the asserted mis- proceeding, (2) if evi- conduct. If a contention might made, gauntlet dence tendered affect to run would have reached, inquiry suggested the conclusion to be it should of the three lines presented in first have been a state ha- above. corpus proceeding in beas order to ex- remedies, (3) 8. Prior the oral haust state fail- we called newly-dis- ure to asserted discover received the entire state court court, covered evidence time move in trial record. member No of this however, state court for a trial in- constitutes has examined that record and nonconformity judi- excusable with state hence our herein has been procedures. Appellant availability cial has not con- affected of that record.