Henderson v. Heinze

• Citation: 349 F.2d 67
• Decision Date: 14 July 1965
• Docket Number: No. 19855.,19855.
• Parties: Clarence HENDERSON, Appellant, v. Robert A. HEINZE, Warden, Folsom State Prison, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

349 F.2d 67 (1965)

Clarence HENDERSON, Appellant, v. Robert A. HEINZE, Warden, Folsom State Prison, Appellee.

No. 19855.

United States Court of Appeals Ninth Circuit.

July 14, 1965.

Clarence Henderson in pro. per.

Thomas C. Lynch, Atty. Gen., of Cal., Doris H. Maier, Asst. Atty. Gen., of Cal., Richard K. Turner, Deputy Atty. Gen., of Cal., Sacramento, Cal., for appellee.

Before MADDEN, Judge of the United States Court of Claims, and JERTBERG and BROWNING, Circuit Judges.

JERTBERG, Circuit Judge:

Petitioner, one Williams and one Auls, were convicted by a jury in the Superior Court of the State of California in and for the County of Yolo, of the offense denounced in § 591 of the Penal Code of the State of California.¹

On appeal from the judgment of conviction to the District Court of Appeal for the State of California, Third District, the judgment of conviction was affirmed. (People v. Henderson, 214 Cal. App.2d 290, 29 Cal.Rptr. 297). No petition for rehearing was filed. The petition of petitioner for a hearing by the Supreme Court of California was denied. (People v. Henderson, supra.)

Thereafter petitioner sought to file a petition for writ of habeas corpus in the United States District Court for the Northern District of California, Northern Division, in which he sought to raise the contention that he was convicted on the basis of evidence obtained through an illegal search and seizure in violation of the provisions of the Fourth Amendment to the Constitution of the United States. Permission to file this document was denied on the ground that the petition failed to show an exhaustion of available state remedies.

Petitioner then filed a petition for habeas corpus with the Supreme Court of the State of California alleging that his conviction was based upon evidence which was obtained by means of an illegal search and seizure. This petition was denied. Petitioner next filed a petition for habeas corpus which is the subject matter of the proceedings before us, raising again the search and seizure issue.

It is undisputed that the search and seizure issue was not raised at the trial in the Superior Court, nor was it raised on appeal to the District Court of Appeal for the State of California.

The District Court issued an order to show cause directed to the appellee. Appellee filed a return to the order and a motion to dismiss, contending: (1) that petitioner had intentionally by-passed the California procedure for raising the search and seizure question, and (2) that the evidence did not support appellant's claim of unlawful search. A traverse was filed by appellant. There was also filed with the District Court a record of the State Court proceedings.

Thereafter the District Court issued a memorandum and order which, in pertinent part, provides:

"Petitioner bases his application on the contention that the conviction pursuant to which he is presently confined was based on evidence obtained by an illegal search and seizure.

"It is undisputed that petitioner by-passed the California procedures for raising the question of illegal search and seizure. No objections were made at or before trial to the admission of the evidence alleged to have been illegally seized. The transcript of the proceedings at trial reveals that defense counsel specifically stated that he had no objection to the admission of the evidence.

"It is true, as respondents point out, that Fay v. Noia, 372 U.S. 391 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) establishes that `the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.\' 372 U.S. 439 83 S.Ct. 849.

"But Fay v. Noia also establishes that this may be done `only after the federal court has satisfied itself, by holding a hearing or by some other means of the facts bearing upon the applicant\'s default. (And a finding of `deliberate by-passing\' may be based only) on the considered choice of the petitioner. . . . A choice made by counsel not participated in by the petitioner does not automatically bar relief.\' 372 U.S. 439 83 S.Ct. 849.

"There is nothing in the present record from which this Court can `satisfy itself\' that the decision of counsel not to object to the admission of the evidence in question, and thus to forego the California procedures for raising the search and seizure question, was `participated in\' by petitioner.

"Thus, before ruling on respondents\' contention that petitioner `deliberately by-passed\' his state remedies, and before ruling on the other contentions made by respondents on the motion to dismiss, the Court must satisfy itself by a hearing or some other means of the facts bearing on petitioner\'s default.

"The Court, therefore, will withhold a decision on respondents\' motion and direct respondents to file additional materials pertinent to the question of `deliberate by-pass\' including, if possible, affidavits from the attorney who represented petitioner at trial, within twenty days from the date of this order. Petitioner then will be allowed twenty days after the filing of such papers by respondents to respond thereto or file additional materials of his own."

Pursuant to the order, the appellee submitted an affidavit of appellant's trial counsel in which said counsel alleges: (1) that prior to trial he consulted with the appellant and advised him of the legal effect of the evidence appellant now claims was unlawfully seized; (2) that he informed appellant that, in his opinion, the evidence was admissible and was not seized as a consequence of an illegal search and seizure; that in said counsel's opinion the police officers had probable cause to arrest appellant and his codefendants; and that appellant's codefendant had freely consented to the search; (3) that appellant was alert and attentive during all interviews with said counsel and during the trial and was able to comprehend the proceedings; (4) that appellant understood counsel's explanations with regard to the seized evidence and did not disagree with said counsel's view of the case or with his proposed conduct of the trial nor did appellant object at trial (to his counsel or the court) to the admission of the aforesaid evidence; and (5) that the appellant did not intend to object to the evidence in question but intended to and did rely upon the defense that the evidence was found by the road. Petitioner filed a reply to his counsel's affidavit. In such reply petitioner did not deny that he had consulted with and had been advised by counsel with regard to the search and seizure question but alleged he is an uneducated person and did not understand what his attorney explained to him.

Thereafter the District Court dismissed petitioner's application for writ of habeas corpus stating, in part:

"Counsel and petitioner discussed the question of admissibility of the evidence whereupon counsel advised petitioner of the legal effect of the evidence which was

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