Robert Mata v. George W. Sumner, Warden of the California State Prison at San Quentin
649 F.2d 713
9th Cir.
1981
Check Treatment

*1 713 Obviously, dealing id. when with body a case in of Guam law which would suggest which determinations of local law are sub- this well requirement established stantially left to another as in mat- an equitable mortgage should not ap- be ters of local Guam must be cautious plied Therefore, in this case. we affirm the by invoking theory not to affirm which district court’s impose refusal to equita- an might reject. the local courts themselves ble mortgage based on the negative pledge When, however, is a there body substantial agreement. legal authority under which affirmance AFFIRMED. indicated, and in the absence any indi-

cation that the local reject courts would authority, affirmance on a basis other adopted by

than that the district court is

appropriately employed. We follow that

course in this case and affirm.

Ill MATA, Petitioner-Appellant, Robert Our review of the record reveals v. finding by no courts Guam SUMNER, George W. Warden of the parties negative pledge agreement California State Prison San any mortgage intended create or lien on Quentin, Respondent-Appellee. property.2 Gem’s Case law in American No. 78-2636. jurisdictions that property indicates will not subjected equitable mortgage be to an un Appeals, States Court equity less the parties court finds Ninth Circuit. legal mortgage intended to create a but 15, Aug. and Argued Submitted 1979. See, Equitable were g., unsuccessful. e. Alesi, 249, 96, Trust Co. v. 287 Md. 412 A.2d Decided June (1980) (and therein). 99-100 cases cited It Rehearing Rehearing and En Banc apparent jurisdictions is also that American 6,1981.* August Denied generally negative will not construe a pledge agreement, case, such as in this establishing parties

evidence in to create mortgage.3

tended No

independent parties’ evidence of the inten mortgage present

tion to create a in this

record. We have not been any directed to Pace, superior findings, Savings 2. The tee & Loan court’s which were Federal Assoc. 378 adopted by (Fla.App.1979); the district included a deter- So.2d Bankers Trust Co. v. 95 purpose negative Co., Chicago Ill.App.3d mination that “the Title & Trust 89 pledge agreement prom- (1980); Equita was to secure the said 45 412 N.E.2d 660 Ill.Dec. ” issory say negative Alesi, notes .... Yet to that the supra; Knott v. Manu ble Trust Co. facturing pledge security say Co., for the debt is not to 30 W.Va. 5 S.E. 266 See, mortgage. g., that it was intended as a e. Minderhout, compare 61 Coast Bank v. Cal.2d Phillips, Tahoe National Bank v. Cal.3d (1964) (dis Cal.Rptr. P.2d Cal.Rptr. (1971). 480 P.2d There tinguished limited California’s are no in the record before us Bank). in Tahoe National See also G. Court Osborne, suggest parties would intended to cre- (2d Mortgages The Law of ed. mortgage property by ate a on Gem’s virtue of Gilmore, Security 1970); Interests in Per 2 G. negative pledge. (1965); Coogan, Kripke Property sonal 38.4 & Weiss, Fringes of Article 9: Subordi Outer Obispo 3. See Browne v. San Luis National Agreements, Security Interests in Mon nation Bank, 1972) (applying 462 F.2d 129 Clauses, Negative Pledge ey Deposits, law); City California Weaver v. Tri Credit Bu- Agreements, Participation 79 Harv.L.Rev. reau, Ariz.App. 557 P.2d 1072 Phillips, supra; Tahoe National Bank v. Mana- * SNEED, Judge, dissenting. *2 Stein, Francisco, Cal., pe- for

Lennie San Riordan, titioner-appellant; Dennis P. San Francisco, Cal., on brief. Gen., Atty. Jacobs-May, Deputy
Jamie Cal, Francisco, respondent-appel- for San lee. SNEED, Judges, ELY and Circuit

Before TAKASUGI,* Judge. District ELY, Judge: Circuit us, again previous This case is before our and re disposition having been vacated Supreme manded the United States proceedings for further consistent Court F.2d 754 opinion. with its See 611 stayed, mandate U.S. (1980) (Rehn 64 L.Ed.2d - Justice), granted, quist, cert. U.S. -, 3055, 65 L.Ed.2d 1139 - remanded, (1980), vacated and -, L.Ed.2d 722 Supreme quarrel did not As the Court decision, prior see with the merits of our adopt we therefore opinion all of that insofar as it dis herein controversy. merits of the cussed the only basis for the Court’s action failing neglect explicitly our in statute, corpus the federal habeas 28 U.S.C. 2254(d),1 requires which § agent parties, Takasugi, thereof were a evidenced *The Honorable Robert M. Judge, finding, opinion, of Cali- District District written written or other reli- States Central fornia, by designation. indicia, sitting adequate written shall be able presumed correct, to be unless the 2254(d) provides: 1. 28 U.S.C. appear, or shall establish or it shall otherwise any proceeding in a Federal In instituted respondent admit— shall application a writ of habeas court corpus by an of the factual that the merits custody person pursuant a in the State court hear- were not resolved ing; judgment determina- of a State the tion after issue, hearing merits of a factual on the competent by a State court of made ap- jurisdiction to which the in a plicant or an officer writ and the State for the . a habeas court .. include its

granting reasoning (1980),2 the writ the again led we have reviewed the state any it to conclude that of the first seven court record as a whole and have made our 2254(d)] independent factors were own determination. [contained present, reasoning or the which led it to In “full awareness” of con finding conclude that the state was “not *3 original clude that our conclusions3 fairly supported by the record.” were correct. We do not the state 101 at 771. S.Ct. per se. Thus, court’s factual record the

Having briefing by received additional explicit presumption of correctness of state fact parties, the we now seek to fulfill the “con court of embodied in- gressional 2254(d), 2254(d), mandate” of 28 U.S.C. by § absent a conclusion § review essential the functioning” ing (a) to “smooth of our federal court that one of the seven system exists, (b) and the alleviation of “fric enumerated factors “such factual tion between state and federal courts.” is fairly supported determination not by the admonition, record,”4 Mindful of the Court’s and (c) the or that the habeas [state court] Lombard, Taylor v. example applicant of 606 F.2d has established by “convincing denied, cert. 371, 372, (2d 1979), 375 proof Cir. 445 the factual by determination the (2) factfinding procedure determination, the em- such factual the burden shall ployed by adequate upon the State court was not applicant by rest the to establish con- hearing; to afford a full and fair vincing evidence that the factual determina- (3) that the material facts were not ade- by tion the State court was erroneous. quately developed at the State court hear- ing; 2. See 101 at 769. See S.Ct. also Reardon v. (4) jurisdiction Manson, that the State court lacked 122, (2d 1981); 644 F.2d 127-30 Cir. subject person of the matter or over the Harris, 86, (2d Rivera v. 643 F.2d 97-98 Cir. applicant proceeding; the (5) in the State court 1981). applicant indigent that the was an and deprivation the State in of his consti- earlier, remand, 3. We concluded as we do on right, appoint tutional failed to counsel to that, circumstances, totality in the the represent proceed- him in the State court photographic procedures identification were so ing; impermissibly suggestive “that there was a (6) full, applicant did not receive a grave irreparable likelihood of misidentifica fair, adequate hearing and in the State tion,” 758, 611 F.2d at and that the admission proceeding; court (7) or of the in-court identifications Government the was de- otherwise Allen, Rigoberto Almengor Jay witnesses process nied due of law in the State court predicated photographic display, on the was a proceeding; process protected by violation of due of law (8) part unless that of the record Fourteenth Amendment. See 611 F.2d at 759- State court in which the deter- Accord, Fowler, 60 & n.3. United States v. 439 made, mination of such factual issue was 133, (9th 1971). generally F.2d 134 Cir. See pertinent to a determination of the suffi- Brathwaite, 98, 113-14, Manson v. 432 U.S. 97 ciency support of the evidence to such fac- 2243, 2252-2253, (1977); S.Ct. 53 L.Ed.2d 140 determination, produced provided tual is States, 377, 384, Simmons v. United 390 U.S. hereinafter, and the Federal court on a 967, 971, (1968); 88 S.Ct. 19 1247 L.Ed.2d Unit part consideration of such of the record as Crawford, 794, ed States v. 576 F.2d 797-98 a whole concludes that such factual deter- (9th Cir.) denied, (per curiam), cert. 439 U.S. fairly supported by mination is not the rec- 851, 157, (1978); 99 S.Ct. 58 L.Ed.2d 155 Unit ord: Pheaster, 353, (9th ed States v. 544 F.2d 369-71 evidentiary hearing proceed- And in an 1976), denied, 1099, Cir. cert. 429 U.S. 97 S.Ct. ing proof in the Federal when due 1118, United States v. made, such factual determination has been Calhoun, 1094, (9th 542 F.2d 1104-05 Cir. unless the existence of one or more 1976), Stephenson cert. denied sub nom. v. respectively para- circumstances graphs set forth in States, 1064, 429 97 U.S. 50 (1) (7), inclusive, numbered Valdivia, L.Ed.2d 781 United States v. applicant, appears, shown otherwise 492 F.2d 209-10 cert. de respondent, or is admitted or unless nied, 416 U.S. 94 S.Ct. 40 L.Ed.2d pursuant provi- the court concludes 292 paragraph (8) sions of numbered proceeding, record in the State court con- whole, fairly support 2254(d)(8). sidered as a does not 4. 28 § U.S.C. 716 2254(d) holding not fall within erroneous,”5 does is not invoked court attack in on collateral open to review with the state disagree We this case. Sain, v. Townsend court); sig a federal constitutional court over n.6, 310-18, 83 U.S. facts. nificance of certain (1963);6 Brown 755-760, n.6, 9 L.Ed.2d 497-508, amendments the 1966

Neither 73 S.Ct. v. 344 U.S. Court’s 2254(d) opin 441-447, (separate nor 97 L.Ed. 469 indeed, funda generally See Frankfurter, J.).7 this case alters ion basic — between court Mata, - U.S. -, mental —distinction Sumner fact, presumed (1981) (Bren cor 764, 773-74, which are findings of 66 L.Ed.2d Janis, Brookhart v. nan, J., and conclusions dissenting); under rect Sullivan, 1245, 1246-1247, Cuyler 1, 4, which are not. See 1714-1715, (1966); Baumgartner v. United L.Ed.2d 314 *4 670-71, States, (1980) (state holding court S.Ct. 64 L.Ed.2d 333 Ju Jaffe, “multiple 1243-1244, L.Ed. 1525 undertaken lawyers that had not Law, Question of “basic, primary, dicial Review: 69 Harv.L. is not a representation” Strong, The 246-47, fact,” determination Rev. but a mixed historical Persistent Doctrine of “Constitutional applica the requires of law and fact Fact”, 46 N.C.L.Rev. 223 facts”; to “historical legal principles of tion proceed- 2254(d). record the State court When the of 5. Id. § court, may ings appear is the it before Sain, which the 6. In Townsend the turns on basic facts and issue Cuyler precursor was “the of noted Court § Chief Justice Warren (in the sense of a recital of external facts 2254(d),” at 446 U.S. at 100 S.Ct. narrators) credibility their events and the of majority stated for the adjudicated against the tried and have been questions fact and mixed of that “[s]o-called applicant. the Unless a vital flaw be found in legal require application a the of ascertaining process such facts in the of determinations, the standard to historical-fact Judge may accept the District State Allen, Brown v. 344 U.S. are not facts in [the their determination in the State 397, 446, 97 L.Ed. 469 73 S.Ct. hand, deny application. other On the Frankfurter, J.)] (separate opinion sense.” adjudication questions of law can- Later, n.6, 755 n.6. at 309 83 S.Ct. at 372 U.S. not, statute, corpus be ac- under the habeas majority that a in Townsend held precisely ques- cepted binding. these It is “may reviewing not defer to [the federal court judge is to that the federal commanded findings tions It is the of law. [federal] state court’s] duty applicable judge’s law decide. independently. findings fact to the state court given may of law not be 318, The state conclusions of the historical Where the ascertainment binding weight Id. at 83 S.Ct. on habeas." dispose calls facts not of the claim but does added). (emphasis at 759-760 legal significance interpretation facts, Judge exercise the District must such history rendition of the 7. Justice Frankfurter’s judgment his on this blend of facts and own corpus action demonstrates of concerns for federalism habeas Thus, so-called mixed their values. are more than a centu- questions application of constitutional or the ry old: duty principles as found leave the to the facts the Act of 1867 that It was not until power adjudication judge. with the federal to issue the writ federal courts] [of Although for the federal .. . there is no need to an under sentence was extended could, eyes judge, if he shut his It is not for us to determine of a State court. whether this in the federal with his usual issues, binding of such no State consideration power have been vested should weight is to be attached to the State determi- Bradley, courts. As Mr. Justice requirement congressional nation. acuteness, not commented greater. have the last Act, The State court cannot “although long passage after the of that it, say though prisonér, consideration and may appear unseemly when on fair after that a it fairness, may procedurally be deemed in a should be set what conviction judge corpus, liberty by single may on habeas misconceived a federal constitu- have escape from the law.” right. there seems to be no tional (5th Cir.), Bridges parte 2 Woods (citation Ex at 446-447 Id. at omitted). footnote (separate opin- at 397 344 U.S. at ion of Frankfurter, J.). “impermissible the federal totality We believe Constitution —to the pretrial photograph Thus, suggestiveness” of the the circumstances of this case. we in this procedure used case reject ic identification conclusion of the state court fact, question freely is a mixed of law circumstances ... indicate the “[t]he by a federal court on habeas. reviewable [pretrial photo- inherent fairness of the Williams, Cf. Brewer v. 403- graphic procedure, and we identification] 1232, 1241-1242, 04, 97 51 L.Ed.2d 424 find no error in the admission of the identi- (1977) (the question of waiver of defend fication evidence.” rights “was Amendment not a ant’s Sixth orig For the reasons set forth in our fact, which, of historical but one question opinion8 supplemental opin-. inal and in this Frankfurter, the words of Mr. Justice re ion, begin we conclude —as did quires ‘application princi of constitutional ’ ning Mata is entitled to a new trial the facts as found . . .. Brown v. ples to —that without the introduction of constitutionally 443, 507, 397, 446, 97 344 U.S. impermissible against evidence him. Ac (separate opinion)”); Big Neil v. L.Ed. cordingly, challenged Order of the Dis 188, 193n.3, 375, 379, gers, 409 U.S. remand, Upon trict Court is reversed. (1972) (due process claim in District action; Court will hold the Petition in to low customary habeas deference abeyance period ninety for a days, within “inapplicable er court’s of fact prosecutors which time California’s ifmay, parties here where the between the choose, they against so initiate new trial is not so much over the elemental facts as *5 appellant, prosecutorial a trial in which significance over the constitutional to be by the them”); attached to Brown v. 344 evidence barred federal Constitution (“the question at 446 will not be introduced. primary underly whether established facts REMANDED, REVERSED and with di- ing prove a confession the confession rections. voluntary rest on was coerced or cannot decision”). SNEED, Judge, dissenting: important Cognizant of the intent and For the second I respect- time in this case 2254(d) system, function of in our federal fully, degree and to some sorrowfully, dis- reasoning we nonetheless adhere to the sent. prior conclusion of our decision. As we Cardwell, Taylor stated in 579 F.2d It majority obvious to me that Mata, - U.S. -, federal courts in Sumner v. “[w]hile (1981), proper defer the of historical treated fact, the federal court itself must determine photographic the issue whether the identifi facts, impermissibly suggestive effect of these and it must cation was as a “ proper finding ‘presumption standard in entitled to the doing reviewing by so.” Lest the court “be correctness’ which is mandated the stat guess” granting 2254(d)] left to as to our reasons for ute to the U.S.C. factual [28 notwithstanding the provi- habeas relief determinations made the California state at-, we reiterate: As our sions of courts.” -U.S. at 769. indicates, original analysis equally see 611 F.2d at It is obvious that Justice Brennan’s Mata, substantially agree dissenting opinion with the in Sumner v. su pra, “historical” or “basic” facts adduced treated the same issue as not entitled Appeal, Appellate presumption Fifth to the afforded section California Court District, 2254(d) pages August 2-4 of its because it was not one of fact but however, opinion. disagree, concerning We with the rather one the “constitutional -U.S.-, significance application of standard— of the facts.” Simmons grounded process protections in the due 101 S.Ct. at 774. 757-60; supra.

8. See 611 F.2d at note 3 majority for the Ely, speaking

Judge Brennan’s adopted has Justice

this impermissi- of the issue of

characterizations join in this I cannot suggestiveness.

ble authority. Supreme Court’s

disregard of I would remand this case

On the merits permit Mata another court to district presumption

opportunity to rebut finding of the California

correctness respect impermissi- with Appeal

Court presently As the record suggestiveness.

ble presumption has not been re-

stands Presumably Court

butted. because to

also considered it unrebutted is to characterize their

conclude otherwise hortatory essay and their

opinion as but an join as a futile act. I cannot

remand

such characterizations. SLAPPY, Petitioner-Appellant,

Joseph D. MORRIS, Warden, John

Paul

Respondent-Appellee.

No. 79-2519. *6 Appeals,

United States Court of Circuit.

Ninth May 1980.

Argued and Submitted

Decided June 1981. Rehearing and

As Amended on Denial of

Rehearing En Banc Oct.