458 F.2d 334 (9th Cir. 1972), 26347, Hart v. Eyman

Docket Nº:26347.
Citation:458 F.2d 334
Party Name:Charles E. HART, Petitioner-Appellee, v. Frank EYMAN, Warden, Arizona State Prison, State of Arizona, et al., Respondents-Appellants.
Case Date:March 22, 1972
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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458 F.2d 334 (9th Cir. 1972)

Charles E. HART, Petitioner-Appellee,

v.

Frank EYMAN, Warden, Arizona State Prison, State of Arizona, et al., Respondents-Appellants.

No. 26347.

United States Court of Appeals, Ninth Circuit.

March 22, 1972

As Modified April 21, 1972.

Certiorari Denied June 12, 1972.

See 92 S.Ct. 2441.

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Roderick A. Dietz (argued), Gary K. Nelson, Ariz. Atty. Gen., William P. Dixon, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellants.

Richard A. Miller (argued), Philip F. Schneider, of Fennemore, Craig, Von Ammon & Udall, Phoenix, Ariz., for petitioner-appellee.

Before HUFSTEDLER and TRASK, Circuit Judges, and HILL, [*] District Judge:

IRVING HILL, District Judge:

In this opinion, we consider the extent of the obligation of a state to provide to an incarcerated prisoner who has filed a habeas corpus petition in the federal court a reasonable substitute for the transcript of his trial when the court reporter's notes are lost. And we also consider the propriety of an order of a federal district judge in such a case which gives the state the alternatives of (1) holding the necessary hearings in the state court for the creation of a reasonable substitute for a trial transcript, (2) granting petitioner a delayed appeal in the state court, (3) releasing him from custody, or (4) setting aside his conviction and re-trying him.

Hart, the petitioner herein, was convicted of murder in an Arizona state court in 1961 and sentenced to life imprisonment. At his trial, he was represented by court-appointed counsel. No appeal was ever perfected because, according

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to Hart, he was transferred to state prison immediately upon being sentenced where he "did not know how to start an appeal" and was without counsel or law books. In 1966, Hart made his first application for post-conviction relief, an application for habeas corpus filed in the Superior Court of Pinal County, Arizona, in which his trial was held. Thereafter, habeas corpus petitions were filed in the Arizona Court of Appeals and in the Arizona Supreme Court. All were denied without a hearing and without opinion. 1 The District Court held that these various applications to the state courts constituted an exhaustion of state remedies. Before seeking the aid of the federal courts, petitioner in June 1967 filed a motion in the state trial court to obtain a copy of his trial transcript. His motion was immediately denied.

After this history, the instant petition for habeas corpus was filed in the federal District Court in November 1968. The filing was in pro per and in forma pauperis, as was the case in his state petitions. The principal ground asserted for relief is the introduction against petitioner of a confession which was alleged to have been obtained by coercion, fraud and threats. The District Court appointed counsel for petitioner who has served throughout without fee.

On motion of petitioner's counsel, the District Court on March 5, 1969, ordered the state to produce a transcript of the petitioner's trial for use by the petitioner and his counsel (R. 253). For some reason, the Arizona Attorney General, despite this unequivocal order from the federal court for the production of a transcript, felt it necessary to move in the Arizona Supreme Court for an order of that court directing that a reporter's transcript be produced and provided to petitioner by the Arizona trial court. 2 Such a motion was filed March 16, 1969 (R. 276) and was immediately denied by the Arizona Supreme Court on the ground that it had no jurisdiction to order the Arizona trial court to furnish a transcript for the purpose of fulfilling the federal court order (R. 278). Petitioner informed the federal court of Arizona's refusal to provide the reporter's transcript and was permitted to add to his federal habeas petition, as an additional ground for relief, the state's refusal to provide the transcript.

On August 7, 1969, the District Court entered an order granting the writ of habeas corpus unless a reporter's transcript was produced within ninety days from that date or good cause was shown why the transcript could not be made available within said period (R. 310). The ninety-day period apparently expired without any transcript being furnished and the District Court apparently entered an order on November 6, 1969, for release of petitioner although a copy of that order does not appear in the Clerk's transcript furnished to us. On November 7, 1969, Arizona moved in the District Court for a temporary stay of the order of release, alleging that the court reporter had been under a "misunderstanding" concerning the preparation of the transcripts which had now been straightened out and that the transcript would "be prepared forthwith." A temporary stay of the release order was granted and a hearing was noticed for November 12, 1969, in the federal court. On that date, for the first time, the State Attorney General revealed to the petitioner and to the federal court that the reporter's notes were lost. 3

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At the hearing on November 12, 1969, the Arizona Attorney General conceded (R.T. 22) that Arizona has an established substitute procedure (in the nature of an agreed statement of facts prepared by the attorneys, judge and other interested parties after a hearing) for use when a reporter's transcript cannot be produced. But he informed the District Court that under Arizona procedure this could not be made available to petitioner except in connection with a delayed appeal in the Arizona Supreme Court and petitioner had never sought a delayed appeal therein.

In an obvious effort to accommodate the state, the district judge followed the suggestion of the Arizona Attorney General and by order of December 19, 1969, deferred further action until petitioner could file in the Arizona courts his motion for a delayed appeal and for a hearing (which the district judge called a "Norvell v. Illinois" hearing [373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456]) for the creation of a transcript substitute. The petitioner followed the district judge's suggestion and made the appropriate motion for delayed appeal in the Arizona Supreme Court. His counsel apprised that court of the District Court's order of December 19, 1969. But the Arizona Supreme Court, to the obvious embarrassment of the Arizona Attorney General, denied the motion without a hearing.

This led to the District Court's order filed June 8, 1970, the order appealed from herein. That order came almost three years after petitioner's first formal effort to obtain a reporter's trial transcript, almost two years after his habeas corpus petition was first filed in the federal court and fifteen months after the District Court's first order for the production of a reporter's transcript. In the order appealed from (R. 353), the District Court gave the respondent Warden and the State of Arizona four alternatives, one of which was to be exercised within sixty days from the date of the order. As stated above, the specified alternatives as to the petitioner are: release him, grant him a delayed appeal by the state courts (which, under state procedure, would apparently automatically result in the preparation of a transcript substitute), afford him a "Norvell v. Illinois" hearing (another method whereby the federal court would have a transcript substitute upon which to act), or set aside his conviction and re-try him.

Arizona challenges this Order as being beyond the power of the District Court. In effect, Arizona contends that if the District Judge desires to have a transcript substitute prepared, he should himself hold the hearing necessary for its preparation and he cannot order the state courts to hold such a hearing, either directly or as an alternative to the granting of a writ of habeas corpus and release of petitioner.

The substantive law and the procedural requirements for criminal trials involving allegedly coerced confessions have now been well established. The landmark cases were decided after this petitioner's trial but the requirements are retroactive. When the state seeks to use a confession which the defendant claims was coerced, a hearing outside the presence of the jury must be held as to the circumstances surrounding the confession and the trial judge must make a preliminary finding of voluntariness and non-coercion. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) .

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Thereafter, if such a finding is made, the same testimony of the surrounding circumstances and the confession may be presented to the jury [*] which must be instructed that it should determine the voluntariness of the confession and should disregard it unless they find voluntariness and noncoercion. As stated, these rules of law are retroactive. Gladden v. Unsworth, 396 F.2d 373, 376 (9th Cir. 1968). Even if the voluntariness issue was properly presented to the jury, if the record does not make it clear that the trial judge made the required preliminary determination, a federal court, acting on a habeas corpus petition, must return the case to the state courts with an order for release of the petitioner unless such a finding by the judge is presently made. Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964).

In the instant case, the clerk's transcript indicates that there were some proceedings outside the presence of the jury concerning voluntariness of the confession (R. 54, 55) and that the question of voluntariness was apparently submitted to the jury under what appears to have been a proper instruction. 4 But what is not revealed by the clerk's transcript is whether the trial judge made the preliminary finding of voluntariness required by the cases cited above. That can only be determined...

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