Brown v. Heinze

• Decision Date: 14 December 1965
• Docket Number: Civ. No. 9161.
• Parties: Benjamin Jerrel BROWN, Petitioner, v. Robert A. HEINZE, Respondent.
• Court: U.S. District Court — Northern District of California

248 F. Supp. 293

Benjamin Jerrel BROWN, Petitioner, v. Robert A. HEINZE, Respondent.

Civ. No. 9161.

United States District Court N. D. California, N. D.

December 14, 1965.

Benjamin Jerrel Brown, in pro. per.

Thomas C. Lynch, Atty. Gen., Sacramento, Cal., for respondent.

HALBERT, District Judge.

Petitioner has filed with this Court a petition for a writ of habeas corpus, challenging his custody by the Warden of the California State Prison at Folsom, pursuant to a commitment issued out of the Superior Court of the State of California in and for the City and County of San Francisco. The record discloses that petitioner has exhausted his available state remedies within the meaning of Title 28 U.S.C. § 2254. Respondent was ordered to show cause why a writ of habeas corpus should not issue from this Court. The return to that order has been filed, and petitioner has filed his traverse thereto. The matter is now ready for the Court's consideration.

The operative facts in this case are not in dispute. Petitioner was arrested and charged with Grand Theft with two prior felony convictions. On June 27, 1960, petitioner, with counsel, entered a plea of not guilty to the theft charge and denied the two prior convictions. When the case came on for trial on August 10, 1960, petitioner appeared without counsel. At that time he informed the Court that his lawyer had withdrawn from the case because petitioner was unable to pay his fee. He stated, however, that he had discussed the case with the District Attorney and that he had decided to proceed without counsel on a changed plea of guilty. The following colloquy ensued:

"MR. DEAN: Do you recall yesterday Mr. Eschwig wanted to withdraw, your Honor, from the case, because he had not been —

"THE COURT: We had better have the record clear, hadn't we? If there is any question about Mr. Eschwig representing you, why, we should continue the case until he appears.

"THE DEFENDANT: Well, sir, I had to call Mr. Dean up and talked to him yesterday.

"THE COURT: You talked to Mr. Dean?

"THE DEFENDANT: Yes, sir, so I'd say that the time Mr. Eschwig was here his attitude was somewhat reluctant to represent me because I didn't have finance, so I thought perhaps I'd see if I could talk to Mr. Dean here and get this matter over with as soon as possible.

"THE COURT: Are you willing or do you wish to proceed here?

"THE DEFENDANT: Yes.

"THE COURT: Now, without counsel?

"THE DEFENDANT: Yes, sir.

"THE COURT: You have not formally employed Mr. Eschwig to handle this matter, is that right?

"THE DEFENDANT: That's right.

"THE COURT: And it is your wish now to proceed without any counsel, is that correct?

"THE DEFENDANT: Yes, that's right.

"THE COURT: I don't wish it to be said at some later time that you didn't receive fair treatment because you weren't given the opportunity to employ counsel. You know you have that opportunity and we are willing to put the case over, if you wish to employ other counsel; but if you wish to proceed, I will allow you to do so.

"THE DEFENDANT: Well, the proposition Mr. Dean and I had yesterday, as he told you this morning, whatever consideration the Court gives me I'm willing to accept.

"THE COURT: All right, take the defendant's plea.

"THE CLERK: Benjamin Jerrel Brown, you are charged in an Information filed by the District Attorney with the crime of grand theft. You entered a plea of not guilty, and today, by permission of the Court, you are allowed to withdraw that plea and enter a new plea. What is your plea at this time?

"THE DEFENDANT: Guilty.

"THE CLERK: Do you waive time?

"THE DEFENDANT: That's right.

"THE CLERK: Now is the time for judgment. Have you any legal cause to show why judgment should not be pronounced against you?

"THE DEFENDANT: No."

(Respondent's Return, pp. 14, 15 with emphasis added. See Title 28 U.S.C. § 2248)

The Court's judgment was that petitioner should be placed on probation for ten years. Petitioner violated the terms of his probation and on September 25, 1962, he was committed to prison for such violation. On appeal from that order, on the grounds, inter alia, of denial of counsel at the 1960 sentencing, the California District Court of Appeal, First Appellate District, affirmed the decision and denied petitioner's claim on the ground that he had waived counsel at the 1960 sentencing. The Court held:

"On August 10, 1960, he expressed a desire to change his plea and the trial court carefully explained to him his right to counsel. The appellant refused the services of the public defender and insisted on proceeding without counsel and entered his plea of guilty and consented to immediate sentencing. By electing to represent himself, defendant waived the services of counsel (People v. Mattson, 51 Cal.2d 777, 336 P.2d 937)"¹

(Unreported decision of July 31, 1964, docket No. 67-574, with emphasis added.)

The question thus presented is threefold, namely: (1) did the plea of guilty at the 1960 sentencing waive all possible defenses occurring prior to that plea; (2) if that question be answered in the negative, does the decision of the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 extending the right to counsel to all indigent defendants in state felony prosecutions, apply in this case; and (3) if the second question be answered in the affirmative, did the petitioner waive his right to counsel?

I

The general and well-established rule in regard to a plea of guilty was most recently stated by the Court of Appeals for the Second Circuit to be:

"A voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings * * *." (United States ex rel. Glenn v. McMann, 349 F.2d 1018, 1019, with emphasis added.)

Virtually every court that has considered the effect of a plea of guilty has indicated that the presence of counsel, or an effective waiver thereof, is an essential element to a finding of waiver of substantive rights by way of a guilty plea (See, e. g., Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; Brown v. Cox, 10 Cir., 347 F.2d 936; Broadus v. Lowry, 6 Cir., 245 F.2d 304; and United States ex rel. Hazen v. Maroney, D.C., 217 F.Supp. 328). Following that line of cases, the Court of Appeals for the Ninth Circuit has recently said that it is improper to find a waiver of the constitutional right to counsel by way of a plea of guilty entered by a defendant when he is without counsel (See: Wright v. Dickson, 9 Cir., 336 F.2d 878, 883). On the undisputed facts now before this Court, it is, in view of the state of the law, impossible to find a meaningful waiver by way of a plea of guilty.

II

When Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, was decided in 1963, a great debate was raised over its applicability to cases that preceded the Supreme Court's decision.² Some were of the view, as was this Court, that the protection of fundamental rights ought not depend upon the shifting sands of an hourglass. This Court has never been able to understand how a man can have a constitutional right today which he did not have yesterday. If in fact a man was not granted the fair trial to which he is constitutionally entitled, there was, in this Court's view, but one remedy, and that was a new trial. That position seemed sound until the Supreme Court of the United States handed down the decision in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601. In Linkletter, Mr. Justice Clark, speaking for seven members of the Court, held that the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, which extended the prohibitions of the Fourth Amendment to the States, was not applicable to decisions that became final prior to the decision in Mapp. In reaching that decision, the Court drew a distinction between rules intended to preserve a fair trial and those merely intended to control police conduct. The Court further made clear what had been little doubted, namely, that Gideon v. Wainwright is to be applied retroactively (381 U.S. at 628, note 13, 85 S. Ct. 1731). Though the matter which petitioner seeks to attack occurred prior to the Gideon decision, it is now clear that petitioner falls within the ambit of the protections afforded by that case.

III

Having determined that the petitioner in the case at bar was constitutionally entitled to have counsel for his defense, the question arises whether or not he effectively waived that right. The classic formulation of the waiver doctrine was made by the United States Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461:

"A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." (304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. 1461)

It is clear that the above standard is composed of two elements, namely: (1) the defendant must know what the right is, and (2) he must intelligently waive that known right. It follows that unless petitioner was aware of his right to counsel, he cannot be deemed to have waived that right. The first question to be answered, therefore, is: Did petitioner know what his legal rights were?

Johnson v. Zerbst, supra, indicates that the above question is to be answered by an inquiry into the facts and circumstances surrounding the purported waiver. The continued validity of that holding, however, is cast in doubt by such recent decisions of the United States Supreme Court as Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed. 2d 977, and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, both of which indicate that a more objective test is now in force. Those cases, and others...