Schlette v. People of State of California

• Decision Date: 22 December 1960
• Docket Number: No. 16934.,16934.
• Citation: 284 F.2d 827
• Parties: Malcolm R. SCHLETTE, Appellant, v. PEOPLE OF the STATE OF CALIFORNIA, Robert A. Heinze, Warden, California Prison for Men at Represa, et al., and Richard A. McGee, Director, California Department of Corrections, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

284 F.2d 827 (1960)

Malcolm R. SCHLETTE, Appellant, v. PEOPLE OF the STATE OF CALIFORNIA, Robert A. Heinze, Warden, California Prison for Men at Represa, et al., and Richard A. McGee, Director, California Department of Corrections, et al., Appellees.

No. 16934.

United States Court of Appeals Ninth Circuit.

December 1, 1960.

Rehearing Denied December 22, 1960.

COPYRIGHT MATERIAL OMITTED

Malcolm R. Schlette, in pro. per.

Stanley Mosk, Atty. Gen. of California, Doris H. Maier, Raymond M. Momboisse, Deputy Attys. Gen., for appellees.

Before HAMLEY, JERTBERG and KOELSCH, Circuit Judges.

JERTBERG, Circuit Judge.

Appellant was indicted on March 28, 1955 by the grand jury in the Superior Court of the State of California, in and for the County of Marin, on two counts of arson Section 447a of the California Penal Code. The first count related to a fire on September 9, 1954 of the premises being described "as the dwelling house and shop of Frances M. Schlette". The second count related to a fire of the same premises on February 23, 1955. Frances M. Schlette was at that time the wife of the appellant. Following trial by a jury, appellant was found guilty of the offense charged in count one of the indictment, but the jury was unable to reach a verdict on the second count. Subsequently the second count was dismissed. Thereafter appellant moved for an inquiry into his sanity pursuant to Section 1368 of the Penal Code of the State of California. Following a hearing, appellant was found to be sane. Thereafter judgment was pronounced against the appellant, and appellant is presently confined under the judgment by prison officials of the State of California.

The judgment of conviction was affirmed by the District Court of Appeal of the State of California, in and for the First Appellate District, People v. Schlette, 139 Cal.App.2d 165, 293 P.2d 79. The point urged by the appellant on that appeal was that the trial court committed prejudicial error in permitting, over appellant's objection, appellant's wife to testify against him, contrary to the provisions of Section 1332 of the Penal Code of the State of California. The District Court of Appeal held that the wife of appellant was eligible to testify. No petition for rehearing in the District Court of Appeal or hearing in the California Supreme Court was sought. Appellant did not file a petition for certiorari with the United States Supreme Court to review this decision. While appellant had made numerous applications to the State courts for various kinds of relief¹ prior to the filing of a petition for a writ of habeas corpus in the United States District Court, on only one occasion had petitioner sought a writ of certiorari to the United States Supreme Court in connection with a State court proceeding.² On that particular occasion appellant's petition for a writ of habeas corpus to the California Supreme Court contained the following allegations: (1) that his wife was improperly permitted to testify over appellant's objection; (2) that the property involved in the arson charge was neither community property nor the separate property of his wife, but rather the property of the Firpo Estate. This petition was denied without opinion by the Supreme Court of California, and a petition for writ of certiorari was denied by the United States Supreme Court, 352 U.S. 1012, 77 S.Ct. 584, 1 L.Ed.2d 559.

In May 1958 appellant filed a petition for habeas corpus with the United States District Court for the Northern District of California. In said petition appellant alleged:

1. That the property upon which the fire occurred was not community property of appellant and his wife, but the property of the Firpo Estate; that his wife committed perjury when she testified that it was her property and that his counsel misrepresented the fact when he stipulated in court that it was community property.

2. That the district attorney knew the property was not that of his wife and misrepresented this fact in order that appellant's wife could testify against him perjuriously.

3. That the trial was a sham, and hence appellant was denied due process of law.

4. That appellant's attorney and the district attorney were guilty of collusion.

5. That the district attorney made inflammatory and untrue statements at the trial which denied appellant due process of law.

6. That the action of the California courts in denying appellant hearings on the various habeas corpus and coram nobis proceedings brought by him denied him due process of law.

Upon filing of the petition the district court issued an order to show cause, ordering the respondents therein to show why writ of habeas corpus should not be issued. A return to the order to show cause was made, as well as a motion to dismiss. Appellant filed a traverse to the respondents' return and the motion to dismiss. While this petition was pending in the district court, the appellant presented to this Court a "Motion for the issuance of a petition for a writ of mandate in aid of an appealable order of denial by the United States District Court." This Court stated "The document, like its title, is largely unintelligible, but appears to be a motion for leave to file a petition for writ of mandamus or prohibition to require the district judge to refrain from acting or proceeding further in a case pending before him in which an affidavit charging bias or prejudice of the judge had been filed." This Court held that the affidavit filed failed to state any facts to show bias or prejudice, and that "It is wholly insufficient." A petition for writ of certiorari to the United States Supreme Court to review the action of this Court was denied on May 18, 1959, Schlette v. Halbert, 359 U.S. 998, 79 S. Ct. 1125, 3 L.Ed.2d 986.

The district court held that the only point properly before it was No. 1 above, since appellant had failed to exhaust his state remedies in respect to the other points mentioned above. The district court held that no federal question was presented under point 1 above, and dismissed appellant's petition.

The district court denied appellant's application for a certificate of probable cause, and likewise denied appellant's motion for appointment of counsel and his motion to prosecute an appeal in forma pauperis. Appellant then petitioned this Court to issue a certificate of probable cause and to permit him to appeal in forma pauperis. This Court directed the appointment of counsel "to aid appellant in presenting his petition for the issuance of the certificate of probable cause and for the privilege of prosecuting his appeal in forma pauperis should the certificate be granted," Schlette v. King, 9 Cir., 258 F.2d 561, 562, and thereafter Mr. Richard N. Frisk, attorney at law, was appointed as counsel for appellant. Subsequently appellant requested that he be permitted to proceed in propria persona, and withdrew his petition for a certificate of probable cause and his request to proceed in forma pauperis. Thereafter appellant petitioned one or more of the Judges of this Court for the issuance of a certificate of probable cause. Three Judges of this Court joined in an opinion in which it is stated:

"The habeas corpus petition presented to the District Court was based upon several grounds which had been unsuccessfully taken to the State Supreme Court, but only one of which had been taken to the United States Supreme Court by a petition for certiorari. Those grounds, other than the exception, could not be considered as the basis for the issuance of the certificate of probable cause. They were not within the jurisdiction of this Court for any purpose, and the District Court so ruled. The one ground alleged in the habeas corpus petition which went to the United States Supreme Court on a certiorari petition (unsuccessfully) was that Schlette\'s wife was allowed to testify against him in the state court trial. As to this point or ground, the District Court held that it does not present a federal question and could not be a basis for the certificate.

"Each of the three undersigned Judges thinks the District Court was right in holding that no issue within the jurisdiction of the judge or the Court was tendered by the petition in habeas corpus; hence there was no basis for the issuance of the requested probable cause certificate, and each refuses to issue it. There being no issue alleged in the petition for habeas corpus within the jurisdiction of the District Court or of this Court, the United States Court of Appeals, consisting of the undersigned judges, hereby orders the case and all pending motions in the case dismissed."

A petition for writ of certiorari to review the action of this Court was denied by the United States Supreme Court in Miscellaneous 359, October Term 1958, on December 15, 1958, in Schlette v. Heinze, 358 U.S. 921, 79 S.Ct. 296, 3 L.Ed.2d 241.

In October 1958, appellant filed a petition for a writ of habeas corpus with the California Supreme Court, No. 6349. In said petition appellant alleged:

1. That the trial court lacked jurisdiction to try appellant because the indictment under which he was tried was based upon perjured testimony of his wife in regard to her interest in the property burned.

2. That fraud was perpetrated at the time of trial because of the false testimony of appellant's wife in regard to her ownership of the property burned.

3. That the district attorney knowingly used the perjurious testimony of appellant's wife in regard to her interest in the property burned, and knowingly suppressed evidence by re-arranging and falsifying the position of a gasoline can for purposes of taking photographs to be introduced into evidence.

4. That there was collusion between appellant's attorney and the district attorney.

5. That the district attorney made inflammatory statements to the press against the appellant and made a fair trial impossible.

6. That the Supreme Court and the District Court of Appeal of the State of...