Alexander v. Fogliani
Decision Date | 05 April 1967 |
Docket Number | No. 21358.,21358. |
Citation | 375 F.2d 733 |
Parties | William B. ALEXANDER, Appellant, v. Jack FOGLIANI, Appellee. |
Court | U.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.
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:
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:
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