Moran v. Morris

Citation478 F. Supp. 145
Decision Date05 September 1979
Docket NumberNo. CV 78-9753-RMT(S).,CV 78-9753-RMT(S).
CourtU.S. District Court — Central District of California
PartiesKenneth MORAN, Petitioner, v. Paul J. MORRIS, Warden, Respondent.

COPYRIGHT MATERIAL OMITTED

Leslie H. Abramson, Beverly Hills, Cal., for petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz, Dixie Moe, Deputy Attys. Gen., Los Angeles, Cal., for respondent.

ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS

TAKASUGI, District Judge.

Pursuant to 28 U.S.C. § 636(b)(3), attached is the Report and Recommendation of the United States Magistrate who has reviewed the petition filed herein for issuance of a writ of habeas corpus.

The Court has reviewed the petition, the return, the records submitted therewith, the traverse, the other points and authorities filed by the parties, and the attached Report and Recommendation, and concurs with and adopts the findings and conclusions of the United States Magistrate.

IT IS ADJUDGED as follows:

1. That petitioner was convicted in violation of the Constitution of the United States.

2. That petitioner is entitled to issuance of a writ of habeas corpus from this Court.

IT IS ORDERED that a writ of habeas corpus issue discharging petitioner from custody unless the respondent and the State of California shall, within sixty days from the date the Court's judgment becomes final, permit petitioner to file a motion, pursuant to Penal Code § 1538.5, in the Los Angeles Superior Court to suppress the physical evidence referred to in the Magistrate's Report and Recommendation.

IT IS FURTHER ORDERED that the Clerk of the Court shall service copies of this Order, the Judgment, and the Report and Recommendation of the United States Magistrate, by United States mail, on the petitioner, petitioner's counsel, the Attorney General of the State of California and the Presiding Judge of the Superior Court of the State of California for the County of Los Angeles.

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

HARVEY A. SCHNEIDER, United States Magistrate.

This Report and Recommendation is submitted to the Honorable Robert M. Takasugi, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(3) and General Order No. 194 of the United States District Court for the Central District of California.

Statement of Facts and Proceedings

On February 27, 1978 petitioner filed his Petition for Writ of Habeas Corpus. The petition alleges that on February 6, 1975 petitioner was sentenced to state prison for the term prescribed by law following his convictions of violating California Penal Code §§ 209 (kidnapping for the purpose of robbery—two counts); 211 (robbery—two counts); 459 (burglary—three counts); and 182 subd. 1 (conspiracy to commit robbery, kidnapping and burglary).1 Petitioner's conviction was sustained in the Los Angeles Superior Court. The petition further alleges that the judgment of conviction was affirmed by the California Court of Appeal (on December 3, 1975) and that a subsequently filed petition for hearing was denied by the California Supreme Court.

The petition also alleges that petitioner previously filed petitions for writ of habeas corpus in the Sacramento County Superior Court, the California Court of Appeal and the California Supreme Court. Petitioner asserts that in each of these petitions there were raised the same issues as are presented in the present petition and that each of such petitions was denied.

On April 21, 1978 respondent filed his Return to Petition for Writ of Habeas Corpus. On June 14, 1978 petitioner filed his traverse to the return.

On June 22, 1978 Leslie Abramson, Esq. was appointed to represent petitioner and the matter was set down for a status conference on June 26, 1978. On the latter date the cause was set down for an evidentiary hearing to be held on September 12, 1978. The evidentiary hearing was subsequently continued to September 26, 1978 and again to October 24, 1978 and January 26, 1979.

On January 23, 1979 pursuant to the Magistrate's order, petitioner, through counsel, filed his Specifications of Incompetence of Trial Counsel Claimed by Petitioner Moran and Points and Authorities.

On January 26, 1979 the cause came on for an evidentiary hearing. The hearing was required to be continued to February 7, 1979 due to the fact petitioner had inadvertently not been ordered out for the hearing. On February 7, 1979 the hearing was continued to February 9. On the latter date the evidentiary hearing commenced and, at the conclusion of the day's proceedings, was continued to February 13, 1979. The hearing resumed on the latter date and was then continued to February 14, on which date the hearing was completed. The parties were then given time within which to file additional points and authorities with the Court. On March 15 and March 20, 1979 respondent and petitioner, respectively, filed supplemental points and authorities.

Following the submission of the last referred to points and authorities, counsel for the parties and the Magistrate embarked upon the somewhat tedious task of crystalizing the issues which petitioner desired to present to the Court and determining whether petitioner had exhausted state remedies with respect to each of those issues. Counsel and the Magistrate also spent considerable time discussing, during several status conferences, the impact, if any, on this case of such recent decisions as Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); and Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978). These discussions were augmented by additional points and authorities filed by counsel.

Petitioner's Contentions

As the result of the many proceedings held in this case and the documents submitted by the parties, petitioner abandoned a number of issues which he had at one time or another presented to this Court for determination in connection with the instant case. As a result of the abandonment by petitioner of certain issues it now appears petitioner is attacking his multiple convictions on the following grounds and no others:

1. That petitioner's trial counsel did not afford petitioner competent representation prior to the commencement of trial in that:

a. Counsel failed to research the applicable law on search and seizure relative to petitioner's standing to object to the introduction of property seized from the Cusick premises.

b. Counsel failed to notice or conduct a Penal Code § 1538.5 motion prior to trial aimed at the suppression of the briefcases and contents seized from the Cusick premises.

c. Although urged by petitioner to do so, trial counsel failed to subpoena petitioner's jail records from the Costa Mesa City Jail and the Orange County Jail in order to determine if petitioner was incarcerated at the time that a crucial meeting allegedly occurred between petitioner and the chief witness against him.

d. Trial counsel failed to obtain the police reports concerning a complaint by the witness Timmons of a burglary occurring at his premises in 1974, which burglary may have been the basis for the witness' revenge motive in attributing a damaging statement to petitioner.

2. That petitioner's trial counsel did not afford petitioner competent representation during trial in that when, during the examination of the accomplice and chief witness Hayward, the prosecutor indicated his intent to introduce evidence seized from the Cusick premises, trial counsel failed to move to suppress the evidence pursuant to Penal Code § 1538.5 based on the erroneous belief that petitioner lacked standing to challenge that search.

3. That evidence was introduced against petitioner at his trial which was obtained in violation of the Fourth Amendment to the United States Constitution.

4. That the state trial court erroneously denied petitioner's motion to dismiss the information in that petitioner was held to answer on insufficient evidence, i. e., the uncorroborated testimony of an accomplice.

5. That the trial court erred in not instructing the jury that petitioner's oral admission was required to be viewed with caution.

Discussion
The Issues Relating to the Trial Court's Alleged Errors in Failing to Dismiss the Information and in Erroneously Instructing the Jury

As indicated above, petitioner has presented a number of issues to this Court for determination. Two of these issues may be disposed of summarily.

Petitioner's contention that the trial court erroneously denied his motion to dismiss the information in that he was held to answer on insufficient evidence, i. e., the uncorroborated testimony of an accomplice, is clearly without merit. It is well established in this Circuit that a conviction may be based on the uncorroborated testimony of an accomplice, provided that testimony is not incredible or unsubstantial on its face. See, e. g., U. S. v. Sigal, 572 F.2d 1320 (9th Cir. 1978). Since no federal constitutional question is presented when a conviction rests upon the uncorroborated testimony of an accomplice, a fortiori no such question is presented when a state criminal defendant is held to answer in state court based upon such testimony.

Petitioner's claim that the trial court erred in failing to instruct the jury that petitioner's oral admission was required to be viewed with caution is equally without merit. It must first be noted that no such instruction was requested by petitioner. Beyond this, it is well established that the failure of a state judge to give a particular instruction does not raise a federal constitutional question unless the error rendered...

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5 cases
  • U.S. v. Ross
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 13 Octubre 1981
    ...283 N.W.2d 846 (1979) (exigent circumstances).(2) Briefcase: United States v. Presler, 610 F.2d 1206 (4th Cir. 1979); Moran v. Morris, 478 F.Supp. 145 (C.D.Cal.1979) (dictum); In re B.K.C., 413 A.2d 894 (D.C.1980); Webb v. State, 373 So.2d 400 (Fla.App.1979); Araj v. State, 592 S.W.2d 603 (......
  • People v. Maldonado
    • United States
    • New York Supreme Court Appellate Division
    • 2 Septiembre 1980
    ...similar expectation of privacy. Thus, warrantless searches of briefcases (United States v. Presler, 4th Cir., 610 F.2d 1206; Moran v. Morris, D.C., 478 F.Supp. 145; Webb v. State, 373 So.2d 400 (Fla.App.); Araj v. State, 592 S.W.2d 603 (Tex.Cr.App.); State v. Daniel, 589 P.2d 408 (Alaska, c......
  • Satchell v. Cardwell
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 10 Agosto 1981
    ...recently followed the Fourth Circuit's view, but a decision on the appeal, heard late last year, is still pending. Moran v. Morris, 478 F.Supp. 145, 150-152 (C.D.Cal.1979), appeal heard No. 79-2655 (9th Cir. Nov. 7, 1980).7 If Satchell had shown counsel did not act in a reasonably competent......
  • Morrison v. Kimmelman
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 18 Enero 1985
    ...Id. at 604 n. 32. The court determined that Stone did not apply to a violation of the Miranda rules. Id. at 604. And in Moran v. Morris, 478 F.Supp. 145 (C.D.Ca.1979), vacated on other grounds, 665 F.2d 900 (9th Cir.1981), the court was careful to differentiate between the rationale for gra......
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