Mason v. Webb, 10431.

• Decision Date: 08 May 1944
• Docket Number: No. 10431.,10431.
• Citation: 142 F.2d 584
• Parties: MASON v. WEBB.
• Court: U.S. Court of Appeals — Ninth Circuit

142 F.2d 584 (1944)

MASON v. WEBB.

No. 10431.

Circuit Court of Appeals, Ninth Circuit.

April 14, 1944.

On Motion to Vacate Decree May 8, 1944.

Ben F. Mason, of Walla Walla, Wash., in pro. per.

Smith Troy, Atty. Gen., R. Max Etter, Simon Wampold, Jr., and George Downer, Asst. Attys. Gen., for appellee.

Cameron Sherwood, of Walla Walla, Wash., amicus curiae.

Before GARRECHT, STEPHENS, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

Only such of the facts as relate to the question of jurisdiction will be stated.

On June 12, 1939, the appellant was committed to the state penitentiary at Walla Walla, Washington, by the Superior Court of King County, at Seattle. In his brief before this Court, the appellant states that the commitment was "for the alleged crime of `receiving stolen property' * * * upon a so-called `plea of guilty,' obtained by coercion, trick and deception." The record before us, however, shows that the information specifically charged the appellant with the crime of grand larceny, but set forth particulars relative to receiving stolen property. The sentence of the court imposed a "term of not less than to be set by the Parole Board and not more than fifteen years."

On October 10, 1941, the appellant attempted to prosecute a writ of error coram nobis in the Superior Court of King County, but on November 12, 1941, the trial judge denied the petition on the ground that "the facts alleged * * * were known to the defendant prior to his entry of a plea of guilty."

On January 29, 1942, the appellant filed in the Supreme Court of the State of Washington an application for a writ of habeas corpus, "in which he alleged that he was being illegally deprived of his liberty under a judgment of a court and a sentence of an administrative board, rendered in violation of procedural guaranties protected against state invasion through the Fourteenth Amendment to the Constitution of the United States." The appellant's brief contains the following further allegations: "Since the Washington court had heretofore ruled resort must be had first to the superior court in habeas corpus matters before that court would exercise its discretionary power in such proceedings, the petitioner moved that the writ be made returnable to the King County Superior Court, where the matter could be determined. * * * Accordingly a show cause order was made returnable on February 27, 1942, before the King County Court. On March 6, 1942, a demurrer was sustained in that court, and subsequently an amended petition was mailed to the clerk of the State Supreme Court, in which it was asserted that since the petitioner alleged that his imprisonment was illegal under the Federal Constitution, and since the Supreme Court of the United States had held that a state prisoner could have his asserted Federally protected rights determined in habeas corpus, it was his right to have a `judicial inquiry' into the very truth and substance of the cause of his detention. * * * The appellant was advised by the clerk of the Washington court that he had been directed by the Chief Justice to inform the petitioner that no further action would be taken in the case."

The appellee concedes that "although it does not clearly appear in the record that the Supreme Court of the State of Washington has entered its final Order denying the appellant's Petition, it seems obvious that the Court's direction to the appellant that it would not issue any further Show Cause Order on his Amended Petition is a final order of refusal of that Court to entertain any further Petitions of the appellant."

Be that as it may, for the purposes of this decision we are assuming that the appellant has exhausted all his remedies in the state courts.

On June 1, 1942, the appellant instituted habeas corpus proceedings in the court below, "on the grounds that the Washington courts had failed to observe that fundamental fairness essential to the very concept of justice," etc. He once again invoked the Fourteenth Amendment.

The District Court denied the petition and the present appeal ensued.

At the request of this Court, the appellee submitted a memorandum of authorities on the question of whether or not it was proper for the appellant to have filed his application for a writ of habeas corpus in the United States District Court, instead of appealing directly to the Supreme Court of the United States. In a motion for the appointment of an amicus curiae to present a memorandum on this point, the appellant complained that "the question of jurisdiction of this Honorable Court in the instant matter is an afterthought of the learned State Assistant Attorney General, as that official has heretofore had ample opportunity before the present time to raise that question in this appeal, but neglected to do so." In a brief replying to the appellee's memorandum of authorities, filed some days later, however, the appellant conceded that "on the return to the show cause order, July 27, 1942, the assistant attorney general of Washington raised the question of jurisdiction of the Federal court, the same as he is now doing in the present Court."

In any event, a question such as this, which involves the delicate relationship between the state courts and the Federal courts, may be raised at any time. Indeed, the point could have been considered by this Court of its own accord.

In the celebrated case of Frank v. Mangum, 237 U.S. 309, 328, 329, 35 S.Ct. 582, 587, 59 L.Ed. 969, involving the sensational murder of an Atlanta factory girl three decades ago, the Supreme Court said: "It is, indeed, settled by repeated decisions of this court that where it is made to appear to a court of the United States that an applicant for habeas corpus is in the custody of a state officer in the ordinary course of a criminal prosecution, under a law of the state not in itself repugnant to the Federal Constitution, the writ, in the absence of very special circumstances, ought not to be issued until the state prosecution has reached its conclusion, and not even then until the Federal questions arising upon the record have been brought before this court upon writ of error. Many cases cited." Emphasis added. See also Whitten v. Tomlinson, 160 U.S. 231, 242, 16 S.Ct. 297, 40 L.Ed. 406; Baker v. Grice, 169 U.S. 284, 290, 291, 18 S.Ct. 323, 42 L. Ed. 748; Tinsley v. Anderson, 171 U.S. 101, 104, 105, 18 S.Ct. 805, 43 L.Ed. 91; Markuson v. Boucher, 175 U.S. 184, 186, 20 S.Ct. 76, 44 L.Ed. 124; Drury v. Lewis, 200 U.S. 1, 6, 7, 26 S.Ct. 229, 50 L.Ed. 343.

This Court has repeatedly held that in a case of this kind, the prisoner should take an appeal directly to the Supreme Court of the United States, instead of invoking the jurisdiction of a lower Federal court. In Ex parte Melendez, 9 Cir., 98 F.2d 791, 792, we said: "* * * The question of whether or not a writ of habeas corpus shall be issued by a federal court to release a prisoner held under a commitment from a state court, is one of discretion. That discretion should be exercised in the light of the principles announced by the Supreme Court in Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760, wherein it is held that the appropriate way to raise questions involving the validity of a commitment under a state law is by application to the state courts and to seek a review of the decision of the highest court in the state by writ of error directed to that court by the Supreme Court of the United States." See also Ex parte Hammond, 9 Cir., 98 F.2d 794; Ex parte Penney, 9 Cir., 103 F.2d 27, 28; Palmer v. McCauley, 9 Cir., 103 F.2d 300, 301; Groseclose v. Plummer, 9 Cir., 106 F.2d 311, 312, certiorari denied 308 U.S. 614, 60 S.Ct. 264, 84 L.Ed. 513; Ex parte Jefferson, 9 Cir., 106 F.2d 471, 472; Frach v. Mass, 9 Cir., 106 F.2d 820, 821; In re Anderson,...