Alexander v. Fogliani

Decision Date05 April 1967
Docket NumberNo. 21358.,21358.
Citation375 F.2d 733
PartiesWilliam B. ALEXANDER, Appellant, v. Jack FOGLIANI, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

William B. Alexander, Carson City, Nev., for appellant, in pro. per.

Harvey Dickerson, Atty. Gen., of State of Nevada, Carson City, Nev., for appellee.

Before JERTBERG and MERRILL, Circuit Judges, and MATHES, District Judge.

MERRILL, Circuit Judge:

Appellant, in Nevada penal custody following a plea of guilty to a charge of second-degree murder and conviction thereon, appeals from orders of the United States District Court for the District of Nevada denying his application for writ of habeas corpus and his motion for reconsideration of the application. The District Court did not issue an order to show cause, nor did the court hold a hearing.

Appellant raises two issues in his application below and on appeal.

1. He contends that his rights under the due process and equal protection clauses of the Fourteenth Amendment were violated when an indictment was returned against him at a time when his trial upon an information had been halted by a writ of prohibition from the Nevada Supreme Court.

It has not yet been determined that the Fourteenth Amendment incorporates the double jeopardy standards of the Fifth Amendment, but in any case it affords some protection against multiple vexation. Barnett v. Gladden, 375 F.2d 235 (9th Cir. 1967). However, we find no violation here under either view. At the time the indictment was issued, trial upon the information had proceeded only to the point of selecting some of the jurors. Jeopardy attaches no earlier than when the jury has been sworn. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Himmelfarb v. United States, 175 F.2d 924 (9th Cir. 1949), cert. denied 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527 (1949); Crawford v. United States, 109 U.S.App.D.C. 219, 285 F.2d 661 (D.C. Cir. 1960).

Independent of the double jeopardy claim, appellant asserts that state law was violated in several respects. Assuming such error, however, we find no federal questions presented since no deprivation of that fundamental fairness essential to due process appears. Symons v. Klinger, 372 F.2d 47 (9th Cir. 1967). Further we find no basis for appellant's contention that he was denied equal protection of the laws.

On this claim the District Court is affirmed.

2. Appellant contends that his guilty plea was the result of coercion and duress, the nature of which is specifically alleged in his petition. As to this claim the District Court ruled that appellant had failed to show exhaustion of state remedies.

The petition shows that appellant had applied to the Nevada Supreme Court for habeas corpus and had been denied, the court stating:

"The court has read the petition for release on habeas corpus and finds from the face of the petition and attached documents that petitioner\'s present confinement is in all respects legal.
"Therefore it is ordered that the petition for habeas corpus be and the same is denied."

Appellant did not make his petition to the Nevada court a part of his petition below, and we do not know from the federal petition the manner in which this contention was presented to the state court, if at all. In his "Petition for Reconsideration," however, he states:

"This petitioner placed this petition "contention of coercion and duress" before the Nevada Supreme Court and the same was denied summarily."

Reconsideration was denied by the District Court upon the ground that appellant's Petition for Writ of Habeas Corpus does not affirmatively and specifically disclose that state court remedies have been exhausted by presentation to the proper state courts of all the same grounds...

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9 cases
  • Bretz v. Crist
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 18 Noviembre 1976
    ...the first prosecution and their second trial a fortiori could not have contravened the constitutional command. See Alexander v. Fogliani, 375 F.2d 733, 734 (9th Cir. 1967) (no double jeopardy violation where, because jury had not been impaneled, jeopardy could not have attached). But if the......
  • Koenig v. State
    • United States
    • Florida District Court of Appeals
    • 28 Enero 1986
    ...333 (7th Cir.1967), cert. denied sub nom. Mastro v. United States, 390 U.S. 945, 88 S.Ct. 1029, 19 L.Ed.2d 1133 (1968); Alexander v. Fogliani, 375 F.2d 733 (9th Cir.1967); McMorris v. State, 394 So.2d 392 (Ala.Crim.App.1980), cert. denied, 394 So.2d 404 (Ala.1981), cert. denied, 452 U.S. 97......
  • Chambers v. McDaniel
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 9 Diciembre 2008
    ...for a writ of habeas corpus by the Nevada Supreme Court is also instructive in construing the instant order. In Alexander v. Fogliani, 375 F.2d 733, 735 (9th Cir.1967), the Ninth Circuit found a denial of a writ of habeas corpus petition filed directly with the Nevada Supreme Court to be "c......
  • Cancino v. Craven
    • United States
    • U.S. District Court — Central District of California
    • 17 Octubre 1969
    ...facts do not demonstrate a deprivation of "fundamental rights" which would constitute a denial of "due process". Alexander v. Fogliani, 375 F. 2d 733 (9th Cir., 1967). The allegation that Petitioner was denied "due process" because he was not advised of the specific Code title and section o......
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