Thomas v. Teets

• Decision Date: 27 June 1953
• Docket Number: No. 13134.,13134.
• Citation: 205 F.2d 236
• Parties: THOMAS v. TEETS.
• Court: U.S. Court of Appeals — Ninth Circuit

205 F.2d 236 (1953)

THOMAS v. TEETS.

No. 13134.

United States Court of Appeals, Ninth Circuit.

April 27, 1953.

As Amended on Denial of Rehearing June 27, 1953.

COPYRIGHT MATERIAL OMITTED

A. J. Zirpoli, San Francisco, Cal., for appellant.

Edmund G. Brown, Atty. Gen., State of California, Clarence A. Linn, Asst. Atty. Gen., State of California, Wallace G. Colthurst, San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, MATHEWS, STEPHENS, HEALY, BONE, ORR and POPE, Circuit Judges.

DENMAN, Chief Judge.

Thomas appeals from an order denying his application for a writ of habeas corpus without issuing the writ or an order to show cause and the first question before us is whether his application states a ground which, if true, warrants the issuance of the writ or show cause order.

Thomas, a negro, is not a lawyer and alleges he has had no prior experience in criminal litigation. His application is written in his longhand. Its language is clear but without the citation of any cases or the professional quality of the flood of applications from expert pleaders of both state and federal penitentiaries. It does not question the fact that he shot and killed Mrs. Ainsworth, a white woman, in a manner which constituted one of the degrees of murder under section 189 of the California Penal Code though he alleges that his pistol was discharged accidentally. Thomas' application being drawn by an inexperienced layman is to be construed to give its allegations effect, though inartificially drawn. Darr v. Burford, 339 U.S. 200, 203, 70 S.Ct. 587, 94 L.Ed. 761; Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 92 L.Ed. 1356.

We are required to assume these allegations are true. White v. Ragen, 324 U. S. 760, 763, 65 S.Ct. 978, 89 L.Ed. 1348. So far as they concern the sheriff and Thomas' attorney, it must be remembered they are unproved allegations.

A. The application alleges a violation of the due process clause of the Fourteenth Amendment.

Thomas' application for the writ shows he was denied due process of law by the conduct of the state officers who had him in custody and by the conduct of his attorney, an officer of the state court. He was persuaded to give up his right to trial by jury, by the threat of his custodian, the sheriff,¹ that if he sought a jury trial instead of "keeping his mouth shut" and pleading guilty, the sheriff "might let word get around" that he had not so pleaded to the people of a county "all worked up" over a negro killing a white woman and that some of these people "might come and string me up." If Thomas kept "his mouth shut" and so pleaded guilty, the sheriff advised him, it would be to a judge who in the sheriff's eleven years' experience had not imposed the death sentence. His jailor also told him he had better do what the sheriff said. Thomas kept his mouth shut about the lynching threat.

An attorney appointed by the court also advised him to plead guilty, saying "He knew the Judge real well and he would talk to the Judge and the Judge would sure give me life if I plead guilty and save everybody a lot of trouble and County the expense of a Jury trial." Thomas pled guilty and the judge sentenced him to death.

It was not until after the mandatory appeal on such death sentences had been decided against him that he obtained a copy of the transcript of the proceedings of his trial. From this he then first discovered that the trial judge in chambers, where Thomas was not present but his attorney was, had warned his attorney he would give Thomas gas if he pleaded guilty.² Had his attorney not concealed from him the judge's statement, Thomas certainly would have pleaded not guilty and would have had his trial by jury. Such alleged wrongful conduct of the attorney may not be an act of a state officer in violation of the due process clause of the Fourteenth Amendment. However, this allegation if proved is an answer to the possible contention that the act of the sheriff was not the proximate cause of Thomas' plea of guilty because his attorney had advised him before his plea of the judge's intention if he pled guilty.

The Warden contends that Thomas could not have been frightened by the threat of the sheriff because "never in the history of California has there been a threat of lynching arising from the fact that the object of the mob was of the Negro race. This is common knowledge and an historical fact of which the court must take notice. Code of Civ.Proc.California, § 2102." (Emphasis supplied). The Warden offers no evidence of it. To ascribe to the negro Thomas on the application before us, whose allegations must be regarded as true, the possession of such common knowledge would be cruelly unjust.

Again going outside the record, the Warden seeks to have us not consider the wrong alleged to have been done Thomas by his attorney's concealment from him of the judge's statement in chambers by stating that Thomas' attorney did advise him that the judge was inclined to inflict the death penalty whether he pleaded guilty or not guilty. This, although as stated, is contrary to Thomas' allegation that his attorney concealed from him the judge's intent.

The alleged coercive and wrongful conduct of the sheriff in so frightening Thomas brings the case within those of similar wrongdoings by federal and state officers in the course of criminal prosecutions held to deprive those accused of the due process of the Fourteenth and Fifth Amendments, such as Mooney v. Holohan, 294 U.S. 103, 110, 55 S.Ct. 340, 79 L.Ed. 791; White v. Texas, 310 U.S. 530, 532, 60 S.Ct. 1032, 84 L.Ed. 1342; Chambers v. Florida, 309 U.S. 227, 230, 60 S.Ct. 472, 84 L.Ed. 716; Brown v. Mississippi, 297 U.S. 278, 281, 56 S.Ct. 461, 80 L.Ed. 682; cf. Wan v. United States, 266 U.S. 1, 3; Wilson v. United States, 162 U.S. 613, 616, 16 S.Ct. 895, 40 L.Ed. 1090.

It is obvious that if Thomas had been tried by a jury, any one of the twelve opposed to the death sentence could have caused a mistrial or could have persuaded his co-jurors to determine that Thomas should receive life imprisonment, section 190 of the Penal Code providing that "Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury trying the same; * * *."

B. Thomas exhausted his state remedies though he did not petition for certiorari and have it denied until after he filed his application below.

Since the violation of due process was a matter dehors the record, the supreme court on the mandatory appeal could not give them consideration. Thomas' attorney in his criminal prosecution continued so to represent him from the death sentence to the supreme court's affirmance. It is obvious that if there had been a method of presenting that counsel's concealment of the trial judge's statement, he would not so have disclosed his wrongdoing.

The only remedy under the California law left to Thomas was to seek a writ of habeas corpus from one of the California courts. The supreme court of California has recently held in People v. Adamson, 34 Cal.2d 320, 327, 210 P.2d 13, 16:

"With expansion of the function of habeas corpus in this state, an application for that writ has become the proper remedy to attack collaterally a judgment of conviction which has been obtained in violation of fundamental constitutional rights. Thus, the appropriate writ to secure relief from a judgment of conviction obtained by the use of false testimony known by the prosecution to be false is not coram nobis but habeas corpus. * * *"

This is followed in People v. Sorenson, 111 Cal.App.2d 404, 244 P.2d 734, 735, a decision rendered May 28, 1952, by the California District Court of Appeal, First District, holding that coram nobis sought there was not a proper method of collateral attack on "a judgment of conviction which has been obtained in violation of fundamental constitutional rights", but that the proper remedy is by habeas corpus.

Thomas chose to apply to the California Supreme Court where his application is identical with his application to the district court below. Since the application alleged a violation of due process which was dehors the record of the state criminal proceeding, the supreme court was required to issue the writ. Cal.Penal Code, § 1476, § 1483. Here again Thomas was denied due process — that of the state. The California Supreme Court did not issue the writ. Without opinion it merely entered a bald order that Thomas' application was denied.

Thomas did not seek certiorari on this denial of the writ before he filed his application in the district court below. We do not agree with the Warden's contention that this deprives the district court of jurisdiction to consider it. This is not the "ordinary" case of Darr v. Burford, 339 U.S. 200, 207, 70 S.Ct. 587, 94 L.Ed. 761 and Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 88 L.Ed. 572. Here there exist the special circumstances of Darr v. Burford and 28 U.S.C. § 2254, rendering the "process of certiorari ineffective to protect the rights of the prisoner."

Thomas was sentenced to be gassed on August 31, 1951. His plea to the Governor for executive clemency was made on August 6th but not denied until August 20th. On that day he filed his application for the writ with the California Supreme Court which denied it on August 28th. On that day Thomas sought a stay from a Justice of the Supreme Court of the United States which was denied on August 30, 1951. On August 29, 1951, two days before he was to be gassed, he filed his application below, alleging inter alia that he had sought the stay from the Supreme Court Justice.

Since but two days could elapse before his execution, there was not time for this layman to seek for and secure from the Supreme Court in Washington a consideration of a petition for a writ of certiorari. Here the two days before death for the seeking of action upon a petition for certiorari is a "circumstances rendering such...