McGee v. Eyman
| Decision Date | 16 November 1962 |
| Docket Number | Misc. No. 1486. |
| Parties | Patrick Mahon McGEE, Petitioner, v. Frank EYMAN, Superintendent, Arizona State Prison, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John H. Grace, Flagstaff, Ariz., for petitioner.
No counsel for respondent.
Upon direction of the Chief Judge of this court, I have undertaken to consider and act upon this application for a stay of execution made on behalf of petitioner who, it is stated, has been ordered executed by the respondent on the 30th day of November, 1962, pursuant to judgment and order of the Supreme Court of Arizona which has affirmed petitioner's sentence of death. The petition recites that petitioner desires to appeal to this court from the decision of the United States District Court for the District of Arizona which has denied his petition for a writ of habeas corpus.
At the outset I note that the petition here present merely prays for an order staying petitioner's execution. I am of the opinion that I have no jurisdiction to entertain such a petition in the absence of a certificate of probable cause or an application for such certificate as that is a condition precedent to petitioner's right to appeal. See U.S.C. Title 28, § 2253. However, since petitioner recites that he desires to appeal, I disregard this formal insufficiency in the petition and treat the petition as one both for a certificate of probable cause and for a stay of execution. Such disregard of formal irregularities is proper and appropriate under the decisions of this court. Cutting v. Bullerdick, 9 Cir., 178 F.2d 774, 12 Alaska 528, appears to be directly in point. See also the discussion of formal irregularities in notices of appeal in Yanow v. Weyerhaeuser Steamship Co., 9 Cir., 274 F.2d 274, 282.
Proceeding to the merits of petitioner's application. I find it defective in substance and wholly insufficient to present a case which this court may entertain.
Following petitioner's conviction in a Superior Court of Arizona, petitioner appealed to the Supreme Court of Arizona, State v. McGee, 91 Ariz. 101, 370 P.2d 261. Petitioner's conviction and sentence of death was affirmed. Petitioner then sought a writ of certiorari from the Supreme Court of the United States to review that decision. Certiorari was denied and petitioner then filed a petition for writ of habeas corpus in the United States District Court. The petition stated no specific grounds for the issuance of a writ of habeas corpus but incorporated by reference a copy of petitioner's motion for a rehearing in the Arizona court and a copy of the certificate of stay of execution which he obtained from the Supreme Court of Arizona pending his application for certiorari in the United States Supreme Court. The petition for writ of habeas corpus recites that "The specific facts supporting this contention are stated in" the exhibits mentioned. Neither of those exhibits contains any statement of fact which would support or warrant the issuance of a writ of habeas corpus.
It further appears that petitioner attached to his petition for a writ of habeas corpus a copy of his petition for writ of certiorari filed in the Supreme Court of the United States which contains a so-called "Summary Statement Of The Matter Involved". In this are listed, under the headings "A" to "G" inclusive, what are called "The principal questions involved on said appeal" to the Supreme Court of Arizona. Here are listed certain alleged errors of the trial court which were not corrected by the Arizona Supreme Court. These include alleged errors in permitting the case to be tried by the wrong Superior Court judge; denial of inspection of certain documents and statements of the defendant; denial of a change of venue due to alleged bias and prejudice in the community; denial of the defendant's challenge to the panel; denial of a new trial on the ground that the verdict was contrary to the weight of the evidence; denial of a new trial on the ground that the facts did not warrant the death penalty; errors in the court's instructions respecting defendant's confession. None of these relate to any denial of any constitutional or other federal right of the petitioner.1
In his petition for the writ of certiorari, petitioner recited that of these claimed errors "two are notably outstanding". One of these was the...
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Cramer v. Fahner
...correct state-court errors; the state's administration should not be interfered with unless a federal right is violated. McGee v. Eyman, 310 F.2d 230, 232 (9th Cir.), motion to file petition for writ denied, 371 U.S. 917, 83 S.Ct. 230, 9 L.Ed.2d 267 (1962). Unless the claimed error amounted......
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Fitzsimmons v. Yeager
...consideration of the merits of the appeal. See Gay v. Graham, 269 F.2d 482 (1959); Ramsey v. Hand, 309 F.2d 947 (1962). 16 McGee v. Eyman, 310 F.2d 230 (9 Cir.), motion for leave to file cert. denied, 371 U.S. 917, 83 S.Ct. 230, 9 L.Ed. 2d 267 (1962), treating petition for stay of execution......
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US ex rel. Walker v. O'LEARY
...entitled to habeas corpus relief, however, we must be satisfied that this error rises to a constitutional magnitude. See McGee v. Eyman, 310 F.2d 230, 232 (9th Cir.1962). There is no general requirement that a sentencing statute be applied retroactively to prisoners sentenced under prior la......
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Sechrest v. Ignacio, CV-N-92-0536-ECR.
...therefore treats his notice of appeal as also constituting an application for a certificate of probable cause to appeal. McGee v. Eyman, 310 F.2d 230, 231 (9th Cir.1962); see also Blango v. Thornburgh, 942 F.2d 1487, 1488 n. 1 (10th Cir.1991); Newby v. Johnson, 81 F.3d 567 (5th Cir.1996); F......