Price v. Johnston

Decision Date23 June 1947
Docket NumberNo. 11334.,11334.
Citation161 F.2d 705
PartiesPRICE v. JOHNSTON.
CourtU.S. Court of Appeals — Ninth Circuit

Homer C. Price, of Alcatraz, Cal., 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 GARRECHT, DENMAN, MATHEWS, STEPHENS, HEALY, BONE, and ORR, Circuit Judges.

Writ of Certiorari Granted June 23, 1947. See 67 S.Ct. 1757.

HEALY, Circuit Judge.

This appeal challenges the discretionary power of the court to deny a habeas corpus petition because of an abusive use of the privilege of the writ through the filing of successive petitions presenting seriatim grounds at all times within the knowledge of the applicant. Panels of this court have repeatedly affirmed the existence of such authority,1 but in view of the importance of the question and the possible bearing upon it of recent Supreme Court decisions the appeal has been set down for hearing before the full bench.

Appellant is serving a sentence of 65 years on a general verdict of guilty under an indictment charging violations of 12 U.S.C.A. §§ 588b(a) and (b) and 588c, relating to bank robbery and assault and kidnapping incidental thereto. The present is his fourth petition for the writ, all of them having been presented to the United States district court for the northern district of California.2 On appeal from the first refusal to discharge we affirmed the judgment, Price v. Johnston, 125 F.2d 806, certiorari denied 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750 and a like result was reached on appeal in the second proceeding, Price v. Johnston, 9 Cir., 144 F.2d 260. No appeal was taken from the denial of the third petition.

The instant petition, as originally filed, raised questions concerning the validity of the sentence and the giving of an instruction commenting on evidence of the commission of a collateral offense. Substantially the same questions, among others, had been raised in the district court in the proceeding on the second application.3 Accordingly, if this were all, the judgment of dismissal would appropriately be subject to affirmance on the basis of the court's refusal to discharge in the second proceeding. Ex Parte Hawk, 321 U. S. 114, 118, 64 S.Ct. 448, 88 L.Ed. 572; Salinger v. Loisel, 265 U.S. 224, 230-232, 44 S.Ct. 519, 68 L.Ed. 989.4 However, by way of amendment to his petition the appellant interposed a wholly new ground for discharge, namely, "that the government knowingly employed false testimony on the trial, to obtain conviction." The specific circumstances of this claim are not further developed in the petition or in the traverse to the warden's return,5 but in his brief here the appellant has enlarged upon the point by stating that the United States attorney, in the course of the trial, "did take the one and only witness, Donner, that testified that there had been a crime committed, from the witness stand after he had testified that he could not see any guns or pistols during the robbery, to the district attorney's office, and talked about the evidence and put the witness Donner back on the witness stand to testify that he did see the pistols, and described them, when he could not do so at first." Since the general allegation may be supported by specific proof we treat this statement as though it had been incorporated in the petition, Hawk v. Olson, 326 U.S. 271, 273, 66 S.Ct. 116. So construing the petition, it remains to determine whether the court erred in refusing to inquire into the claim of the knowing employment of false testimony. Cf. Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406. The court's refusal to inquire was concededly predicated on our holding in Swihart v. Johnston, supra note 1, and cases therein cited.

The records in these several proceedings disclose that throughout his trial appellant was represented by counsel of his own choosing. And since he was himself present at all times he could hardly have been unaware of the described incident or of its implications, nor does he make any such claim. On the face of his showing it is apparent he knew as much about the misconduct at the time it is said to have occurred as he knows now. Yet no reason or excuse is attempted to be advanced for his failure to set it up in one or the other of his prior petitions.

The decision in Swihart v. Johnston, holding that such reservation of grounds amounts to an abusive use of the writ, announced no novel doctrine. That case and those which came after it proceeded upon the authority of Salinger v. Loisel, supra, and Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 525, 68 L.Ed. 999. In these latter decisions, handed down simultaneously, the Court elaborately considered certain principles applicable to habeas corpus. The Wong Doo case, involving a petition by a Chinese in custody under a deportation order, is closely analogous to the present. The applicant had presented an earlier petition in which the validity of the order was assailed on two grounds, one of which was that the hearing on which the deportation order rested was not adequate or fair but essentially arbitrary. In the hearing the petitioner had offered no proof in support of this ground, and the district court did not rule upon it, holding merely that the other ground asserted was not good. In his second petition the applicant relied entirely on the ground earlier asserted but not pressed, namely, that the hearing had been unfair. The district court held that the doctrine of res judicata applied and remanded the petitioner, the circuit court of appeals affirming. The Supreme Court held the doctrine inapplicable but nevertheless affirmed the judgment, saying that the situation was plainly one where "according to a sound judicial discretion, controlling weight must have been given to the prior refusal." It observed that the petitioner had full opportunity to offer proof of the ground in the hearing on his first petition and that good faith required that he produce the proof then. Said the Court: "To reserve the proof for use in attempting to support a later petition, if the first failed, was to make an abusive use of the writ of habeas corpus. No reason for not presenting the proof at the outset is offered. It has not been embodied in the record, but what is said of it there and in the briefs shows that it was accessible all the time."

In none of the more recent decisions of the Supreme Court are the principles announced in Salinger v. Loisel or Wong Doo v. United States, supra, overruled or modified. Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302, and Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, reaffirm the rule there stated that the doctrine of res judicata is not applicable in habeas corpus cases, but neither decision casts doubt upon the power of the court, in the exercise of a sound discretion, to decline to consider repeated petitions where it appears that the privilege of the writ is being abused. Practical considerations as well as reason and justice support the exercise of such power. In an earlier opinion in the present proceeding, Price v. Johnston, 9 Cir., 159 F.2d 234, we noted the tendency of prison inmates in this circuit to multiply petitions, with the result that unnecessary and increasingly heavy burdens are thrown on the courts in districts where federal penitentiaries are located; and in Dorsey v. Gill, App.D.C., 148 F.2d 857, the court of appeals of the District of Columbia has amassed figures evidencing the occurrence of a like phenomenon in its jurisdiction. Our opinion last above cited comments on the dubious nature of the objectives that seem in many instances to inspire these recurring applications for the writ.

The command of the statute, 28 U.S.C.A. § 461, is that the courts and judges make such disposition of habeas corpus petitions "as law and justice require." A petitioner is entitled to an opportunity to prove his claim of unlawful imprisonment, Hawk v. Olson, supra, 326 U.S. 271 page 279, 66 S.Ct. 116, but good faith requires that he make fair use of the opportunity afforded. Where there have been repeated petitions with an apparent husbanding of grounds the onus may properly be cast on the applicant of satisfying the court that an abusive use is not being made of the writ. Conversely, no matter if there have been a multiplicity of petitions, grounds newly asserted and seemingly valid must be inquired into if circumstances appear or are fairly shown to excuse the prior failure to assert them. It should be unnecessary to add that even in the absence of such a showing the court may issue the writ and proceed to inquire if in a particular case it is thought that the ends of justice dictate that course. We are not here concerned with a compulsive principle analogous to res judicata, nor with some empty formula to be applied without reflection or as a matter of course. We are speaking rather of a discretionary power resting in the conscience of the judge, to be exercised in light of the circumstances of the particular case and on grounds which square with reason and justice.

In this instance there was no abuse of discretion in the dismissal of the petition.

Judgment affirmed.

DENMAN, Circuit Judge (dissenting).

Under the pressure of the large number of habeas corpus petitions filed in this circuit, this decision establishes a principle hamstringing a wrongfully imprisoned man. It plainly makes it the law for this circuit that a man convicted on perjured testimony procured by a United States attorney, but who does not discover the facts until after he has filed a petition for the writ on another ground, must serve his sentence — here for 65 years.1

In so narrowing the relief afforded by the writ, this court is but following a continued line of decisions since the increase of such petitions in this court, in which the Supreme Court...

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8 cases
  • Price v. Johnston
    • United States
    • U.S. Supreme Court
    • May 24, 1948
    ...order of the District Court denying the fourth petition without a hearing was affirmed, two judges dissenting in separate opinions. 9 Cir., 161 F.2d 705, 706. The majority opinion of the Circuit Court of Appeals pointed out that, by amending his fourth petition to allege 'That the governmen......
  • Western Pac. RR Corp. v. Western Pac. R. Co.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 9, 1952
    ...525; Los Angeles Building & Construction Trades Council v. LeBaron, 9 Cir., 185 F.2d 405; Price v. Johnston, 9 Cir., 159 F.2d 234, Id., 9 Cir., 161 F.2d 705. 6 This was the course followed in Hopper v. United States, 9 Cir., 142 F.2d 181; Southern Pacific Co. v. Guthrie, 9 Cir., 180 F.2d 29......
  • United States v. Fay
    • United States
    • U.S. District Court — Southern District of New York
    • June 23, 1964
    ...U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Pyle v. Kansas, 317 U.S. 213, 214-215, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Price v. Johnston, 161 F.2d 705, 706 (9 Cir. 1947), rev'd without deciding whether expanded allegation was sufficient, 334 U.S. 266, 286-287, 68 S.Ct. 1049, 92 L.Ed. 1356 (19......
  • Ekberg v. United States
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 25, 1948
    ...v. Wright, 9 Cir., 1943, 137 F.2d 914; United States ex rel. Gregoire v. Watkins, 2 Cir., 1947, 164 F.2d 137, 138. See Price v. Johnston, 9 Cir., 1947, 161 F.2d 705, certiorari granted, 1947, 331 U.S. 804, 67 S.Ct. 1757. A fortiori a ruling by the trial judge, at an earlier stage of the sam......
  • Request a trial to view additional results

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