Thompson v. Johnston

• Decision Date: 16 June 1947
• Docket Number: No. 11358.,11358.
• Citation: 160 F.2d 374
• Parties: THOMPSON v. JOHNSTON, Warden.
• Court: U.S. Court of Appeals — Ninth Circuit

160 F.2d 374 (1947)

THOMPSON v. JOHNSTON, Warden.

No. 11358.

Circuit Court of Appeals, Ninth Circuit.

February 28, 1947.

Writ of Certiorari Denied June 16, 1947.

Walter Thompson, in pro. per., for appellant.

Frank J. Hennessy, U. S. Atty., and Joseph Karesh, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before DENMAN, HEALY, and BONE, Circuit Judges.

Writ of Certiorari Denied June 16, 1947. See 67 S.Ct. 1738.

HEALY, Circuit Judge.

Appellant, an inmate of Alcatraz prison, petitioned for discharge on habeas corpus and his petition was dismissed on motion of the warden. The question is whether the writ should have been issued and an inquiry into the facts pursued.

The petition discloses that in June 1941 appellant was tried and convicted in the United States Court for the Eastern District of Tennessee on a charge of kidnapping in violation of 18 U.S.C.A. § 408a, and was sentenced to serve twenty-five years. According to the petition, the question presented is "whether the petitioner was deprived of the rights to have the effective assistance of his counsel for the purpose of direct appeal." The allegations are that petitioner was desirous of appealing to the United States Circuit Court for the Sixth Circuit but was prevented from doing so "in that he was deprived to have access to his attorney for the purpose of perfecting such appeal, and that the United States Marshal immediately within fifteen hours conveyed Petitioner to the United States Penitentiary at Atlanta, Georgia, where Petitioner was deprived of his rights to contact his attorney, and that by such unlawfully acts of the United States Marshal and the Prison Authorities, Petitioner was denied Due Process of Law within the meaning of the Fifth Amendment to the United States Constitution, and that the Judgment and Sentence is ineffective and void, in violation of the Fifth and Sixth Amendments to the United States Constitution."

In the absence of an appeal or at least of some intimation to the court of the desire to take one, no impropriety is suggested by the circumstance that appellant was conveyed to the penitentiary within fifteen hours after the imposition of sentence. The impropriety resides in the asserted misconduct of the prison authorities in suppressing appellant's right to contact his counsel, thereby, it is to be assumed, making it impossible for him to take an appeal within the period of five days then prescribed by the rule. This is a very generous interpretation of the vague language of the petition, but for the purpose of decision we so construe it. Would the misconduct described, if established as a fact, entitle appellant to the discharge he seeks? That we deem to be the question here.

This court in Lovvorn v. Johnston, 9 Cir., 118 F.2d 704, affirmed a denial of the writ on a petition containing similar allegations, it being held that the right to assistance of counsel in a criminal case, as guaranteed by the Sixth Amendment, has reference to the court of first instance only. Later decisions, notably Cochran v. Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L. Ed. 1453, and Boykin v. Huff, 73 App.D. C. 378, 121 F.2d 865, 872, may be thought to throw doubt on the question whether the statutory right of appeal is not a part of due process as guaranteed by the Fifth Amendment. In the Cochran case the petition alleged that officials of the state penitentiary had suppressed appeal documents prepared by the petitioner, thereby making it impossible for him to perfect his appeal during the period allowed by state statute. On the state's concession that if the facts alleged were disclosed as being true there would be no question but that there was a violation of the equal protection clause of the Fourteenth Amendment, the Supreme Court remanded the case for further proceedings. And the opinion in Boykin v. Huff, supra, intimates that unless the wrong done a convicted party in frustrating his appeal can be righted by now affording it, as was done in that case, discharge on habeas corpus may perhaps be resorted to.

The petition here shows no lack of evidence of guilt, no error in the conduct of the trial, nor any other circumstance which might have warranted a reversal had an appeal been taken, that is to say, there is an entire absence of any showing of prejudice. In this posture of affairs the dismissal was proper. Cf. Miller v. Sanford, D.C., 59 F.Supp. 812, and same case on appeal, 5 Cir., 150 F.2d 637, certiorari denied 326 U.S. 787, 66 S.Ct. 472. We do not mean to intimate that if there had been a showing of probable cause for an appeal habeas corpus would afford an appropriate corrective.¹ We express no opinion as to that.

Affirmed.

DENMAN, Circuit Judge (dissenting).

I dissent. The court's opinion decides an important question of constitutional law contrary to the decisions of the Supreme Court in Cochran v. Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, and McCandless v. United States, 298 U.S. 342, 56 S.Ct. 764, 80 L.Ed. 1205.

It further decides a question of constitutional law in conflict with the law as stated by the Court of Appeals for the District of Columbia in Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865. It also overrules sub silentio the decision of this court in Wilfong v. Johnston, 156 F.2d 507.

This court's opinion holds that though a sentenced man, desiring to exercise his constitutional right to access to counsel and to file a notice of appeal, has been prevented from exercising such rights by the wrongful acts of the Attorney General's agents and thereby lost his appeal, his petition for a writ of habeas corpus must be denied if it do not show the errors in his trial he would have relied upon if he had taken the appeal.²

That is to say, though Thompson show his constitutional right to due process has been denied, in addition he must show affirmatively that the denial has been prejudicial. The law is exactly the contrary. 28 U.S.C.A. § 391 provides

"* * * On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties."

Construing this provision in a civil case (hence, a fortiori, applicable here,) the Supreme Court in McCandless v. United States, 298 U.S. 342, 347, 56 S.Ct. 764, 766, 80 L.Ed. 1205, states

"* * * That section simply requires that judgment on review shall be given after an examination of the entire record `without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.' This, as the language plainly shows, does not change the well-settled rule that an erroneous ruling which relates to the substantial rights of a party is ground for reversal unless it affirmatively appears from the whole record that it was not prejudicial. United States v. River Rouge Co., 269 U.S. 411, 421, 46 S.Ct. 144, 70 L.Ed. 339; Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 82, 39 S.Ct. 435, 63 L.Ed. 853; Williams v. Great Southern Lumber Co., 277 U.S. 19, 26, 48 S.Ct. 417, 72 L.Ed. 761." (The italics are in the opinion.)

Citing to the above from the McCandless case, the Supreme Court, in Glasser v. United States, 315 U.S. 60, at page 76, 62 S.Ct. 457, 467, 86 L.Ed. 680, in reversing a conviction because of the denial of the assistance of counsel, states

"* * * The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial."

The case of Cochran v. Kansas, supra, reversing Cochran v. Amrine, 153 Kan. 177, 113 P.2d 1048, also holds to the contrary of this court's opinion. The petition for the writ there stated no more than that the state prison authorities had prevented the petitioner's appeal from his conviction. The Kansas supreme court held that the record of his prosecution showed he had no ground of appeal, stating at page 1049 of 113 P.2d:

"* * * There is nothing in the record of the proceedings in the court below to indicate any irregularity in the petitioner's trial and conviction, and certainly nothing to indicate that his commitment was void for any reason."

Nevertheless, because Cochran was denied access to counsel and his appeal thus frustrated, the case was returned to the Kansas supreme court for the determination of the issue whether he was refused the privilege of an appeal, the Supreme Court stating, at page 258 of 316 U.S., at page 1070 of 62 S.Ct. "* * * However inept Cochran's choice of words, he has set out allegations supported by affidavits and nowhere denied that Kansas refused him privileges of appeal which it afforded to others. Since no determination of the verity of these allegations appears to have been made, the cause must be remanded for further proceedings."

In the habeas corpus proceeding of Boykin v. Huff, cited in the court's opinion, the record shows at page 869 of 121 F.2d that Boykin's petition stated no error in his trial and no more than "I wish to prosecute an appeal, inasmuch as there is an admitted possibility, however remote, of a reversal of a decision." (The italics are in the opinion.)

In our recent decision of Wilfong v. Johnston, 156 F.2d 507, Wilfong was sentenced...