Wright v. Dickson

• Decision Date: 30 October 1964
• Docket Number: No. 19234.,19234.
• Citation: 336 F.2d 878
• Parties: Billy Joe WRIGHT, Appellant, v. Fred R. DICKSON, Warden, California State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.2d 878 (1964)

Billy Joe WRIGHT, Appellant, v. Fred R. DICKSON, Warden, California State Penitentiary, Appellee.

No. 19234.

United States Court of Appeals Ninth Circuit.

September 11, 1964.

Rehearing Denied October 30, 1964.

Billy Joe Wright, in pro per.

Stanley Mosk, Atty. Gen. of California, Robert R. Granucci, Deputy Atty. Gen. of California, San Francisco, Cal., for appellee.

Before HAMLEY, HAMLIN, and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

I

Appellant is serving a prison sentence imposed by a California Superior Court following his plea of guilty to a charge of burglary. After exhausting state remedies, he petitioned the district court for a writ of habeas corpus. The petition alleged that he had not had counsel and had not knowingly and intelligently waived counsel. He alleged that he had lacked "the intelligence and competency" to waive an attorney; that at the time of his conviction he was "an ignorant and illiterate young man, unversed in Legal Procedure, with no record."

The district court issued an order to show cause. In its return the State contended that appellant "was not denied the right to counsel" and that this was "demonstrated" by four exhibits attached to the return.

The first exhibit was a certified copy of entries made by the Clerk of the Justice Court of Trinity County on June 4 and June 10, 1954. The June 4 entry recited that appellant and one Berkeley "were brought into this court and advised of their rights. They expressed their desire to counsel. Defendants were allowed time prescribed by law to secure same." The June 10 entry stated that appellant and Berkeley "appeared in this court this day having entirely exonerated Gordon Wallace Annis on all charges except the charge of petty theft," and "were bound over to the Superior Court of Trinity County to answer the charge of burglary — a felony."

The second exhibit was a certified copy of the notes of the Clerk of the Superior Court of Trinity County, recording the arraignment of appellant and Berkeley on June 16, 1954. These notes included the following recitals: "The court informs the defendants of their right to counsel at all stages of the proceedings against them. The defendants waive the right to an attorney and are willing to proceed at this time"; and "The court asks Billie Joe Wright how he pleads and he pleads guilty to count one * * *."

The third exhibit was a certified copy of two pages of a transcript of appellant's sentencing in the Superior Court on June 28, 1954. The transcript disclosed that the sentencing Judge had recited the contents of the Clerk's notes of the June 16 hearing regarding appellant's waiver of counsel, and asked appellant if he had legal cause why judgment should not be pronounced against him; that appellant had answered "No, sir," and was then sentenced.

The fourth exhibit was an affidavit of the District Attorney for Trinity County stating that prior to the entry of appellant's plea he told appellant that he "had the right to be represented by counsel," and that appellant "was properly advised of his legal rights and entered his plea of guilty to the offense charged of his own free will and volition."

The district court dismissed the petition and discharged the order to show cause without holding an evidentiary hearing. The court's order reads: "The Court having reviewed the exhibits which we have decribed * * * finds that petitioner was accorded his constitutional rights, including the opportunity of having the court appoint counsel to represent him; that he waived such right for the appointment of counsel knowingly and in an intelligent manner and thereafter entered his plea of guilty. Thus, the facts disclose that petitioner was not denied the right to counsel as alleged in his petition."

In a verified motion for a certificate of probable cause thereafter filed with the district court, appellant asserted that although he had asked for counsel on June 4, on June 10 "a plea of guilty was obtained in the Justice Court, at a time when petitioner was without counsel, and petitioner was bound over to the Superior Court." In this document appellant also noted that although the Superior Court records recited that in that court appellant had been informed of his right to counsel and had waived the right, there was nothing in the record to show that he "understood his rights, or a waiver"; that in fact he was a first offender; could neither read nor write; "did not know his `rights'"; and that, in any event, "due process had already been denied by that time and it could not be cured by an offer of counsel in the Superior Court, after a plea of guilty had been obtained."

In his brief in this court appellant states that he "was a first offender, with a second grade education, knowing nothing of Court procedure. He was 21 years of age at the time of trial, and could neither read nor write." He asserts that although he asked for counsel at the June 4 appearance before the Justice Court, and was "allowed time prescribed by law to secure same," he was not advised of his right to the aid of counsel, nor was counsel provided. He also states that "on June 10, without the aid of counsel, and without being advised of his rights, he was `examined' by the prosecutor, and he went into detail on the facts." As to the district court's finding that appellant was advised of his right to counsel in the Superior Court and had waived counsel, appellant claims that he "can prove that he knew nothing of courtroom procedure, or of any `rights.' He did not know the meaning of the word `waiver.'"

The allegations made in the various pro se documents filed by appellant may be summarized as follows: Appellant asserts that he expressed his desire for counsel at his June 4 appearance before the Justice Court; that he was not provided counsel but was brought again before the Justice Court six days later, and was then questioned by the prosecuting officer as to the details of the offense. He characterizes the June 10 hearing as one in which his own guilty plea was obtained, rendering the offer of counsel at the subsequent formal arraignment meaningless. Appellant further asserts that he was not provided counsel when formally arraigned and sentenced in the Superior Court on June 16 and June 28, and that he did not, and because of his illiteracy, ignorance and youth could not, knowingly and intelligently waive the assistance of counsel.

II

Unless a petition for habeas corpus reveals on its face that as a matter of law the petitioner is not entitled to the writ, the writ or an order to show cause must issue. 28 U.S.C.A. § 2243. The usual practice is for the petitioned court to issue an order to show cause.

It is not the purpose of the show cause proceeding to resolve disputed issues of fact, but only to determine whether such issues exist. If the show cause proceeding discloses the existence of substantial¹ issues of fact, which if resolved in accordance with the petitioner's contentions would entitle him to relief, then the district court must hold an evidentiary hearing to determine those issues. Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830 (1941). Only if it appears from undisputed facts disclosed by the petition, the response to the order, and the answer, if any, that as a matter of law petitioner is entitled to discharge, or that as a matter of law he is not, may an evidentiary hearing be avoided.

There is an exception. If a "state-court trier of fact has after a full hearing reliably found the relevant facts," the district court may, after calling for and examining the record of the state court evidentiary hearing, accept that court's resolution of the factual issues. Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The present case does not fall within the Townsend exception. So far as appears, the factual issues raised by the appellant were never the subject matter of an evidentiary hearing in a state court. In any event, no record of such a hearing was presented to the district court.

Reading appellant's documents² with the required "measure of tolerance" (Pike v. Dickson, 323 F.2d 856, 857 (9th Cir. 1963)),³ and in the light of the exhibits attached to the State's return, we think a number of factual issues are raised which, if decided in appellant's favor, would entitle him to relief.

Under the rule of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758 (1964), appellant was denied his constitutional right to assistance of counsel at the June 10 hearing if the investigation was then no longer a general inquiry but had focused on appellant (which seems incontrovertible, interrogation was conducted leading to incriminatory statements, appellant had requested and been denied counsel and appellant had not been effectively warned of his absolute constitutional right to remain silent.⁴ As Justice White pointed out in dissent,⁵ it makes no difference whether appellant asked to consult retained counsel or to be provided with the assistance of appointed counsel, nor, indeed, whether he requested counsel at all, except as the latter fact might bear upon waiver.⁶ If appellant's subsequent plea of guilty was induced by incriminating statements obtained by such an interrogation, it could not stand.⁷

Under the rule of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), appellant's constitutional rights were likewise violated if, as he alleges, he was not accorded and did not waive assistance of counsel at his arraignment and sentencing.⁸ It would make no difference whether appellant requested counsel or that he pleaded guilty except, again, as these facts might be relevant to the issue of waiver.⁹

However, the State argues that the affidavit of the District Attorney and the court records attached to the State's return establish that appellant was advised of his right to counsel and waived that right.

The only proper function of...