Harris v. Superior Court of State of Cal., Los Angeles County

Decision Date12 July 1974
Docket Number72-2852,Nos. 72-2849,s. 72-2849
PartiesPaul HARRIS, Petitioner-Appellant, v. SUPERIOR COURT OF the STATE OF CALIFORNIA For the COUNTY OF LOS ANGELES, andPeter Petchess, Sheriff of Los Angeles County, Co-Respondents, The STATE OFCALIFORNIA, Real Party in Interest, Appellees. Fawn HARRIS, Petitioner-Appellant, v. SUPERIOR COURT OF the STATE OF CALIFORNIA For the COUNTY OF LOS ANGELES, andPeter Pitchess, Sheriff of Los Angeles, County, Co-Respondents, The PEOPLE ofthe State of California, Real Party in Interest, Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Michael Korn (argued), Sherman Oaks, Cal., for petitioners-appellants.

Michael Buzzell, Deputy Atty.Gen. (argued), Los Angeles, Cal., for real party in interest, appellees.

Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges:

OPINION

DUNIWAY, Circuit Judge:

It is the practice of the Supreme Court of California, when it denies a petition for a writ of habeas corpus, to enter a very brief order, usually, as in these cases, merely stating 'Petition for Writ of Habeas Corpus denied.' A postal card notice, reciting the denial, is then sent to the petitioner. Such orders are generally referred to as 'postcard denials.' 1 In many cases a California prisoner, after exhausting his remedies by direct appeal, seeks post conviction relief by filing a petition for a writ of habeas corpus with the Supreme Court of California. If he receives such a postcard denial, he turns to a Federal district court, seeking habeas corpus under 28 U.S.C. 2254. The California Attorney General then argues that the petitioner has not '. . . exhausted the remedies available in the courts of the State (of California) . . .' as is required by 2254(b).

On that question the decisions of this court are in disarry. In the following cases, we have held that the petitioner had exhausted his remedies: Wade v. State of California, 9 Cir., 1971, 450 F.2d 726, 728; Barquera v. People of the State of California, 9 Cir., 1967, 374 F.2d 177, 180; Castro v. Klinger, 9 Cir., 1967, 373 F.2d 847, 850. On the other hand, in other cases we have held that the petitioner had not exhausted his remedies on the ground that the California Supreme Court may have based its denial on procedural grounds: Moreno v. Nelson, 9 Cir., 1973, 472 F.2d 570; Baskerville v. Nelson, 9 Cir., 1972, 455 F.2d 430; Turner v. Lloyd, 9 Cir., 1971, 439 F.2d 138; Conway v. Wilson, 9 Cir., 1966, 368 F.2d 485.

Not surprisingly, decisions of the district courts are also in disarray. In Hamilton v. Craven, N.D.Cal., 1971, 350 F.Supp. 1251, 1254, aff'd, 9 Cir., 1972, 469 F.2d 1394, the court held that the petitioner had exhausted his remedies, and our affirmance was 'for the reasons stated in the opinion of the district judge.' (469 F.2d at 1394) In contrast, several district court opinions hold or say that the petitioner has not exhausted his remedies: Rawlins v. Craven, C.D.Cal., 1971, 329 F.Supp. 40 (dictum); Gingrich v. Oberhauser, C.D.Cal., 1969, 305 F.Supp. 738, 741 (dictum); Rogers v. Nelson, N.D.Cal., 1969, 300 F.Supp. 421, 422; Gardella v. Field, C.D.Cal., 1968, 291 F.Supp. 107, 114-117.

At the suggestion of the panel that heard the appeals at bar, we have taken these cases in banc to settle the question.

The petitions in these cases are virtually identical. Petitioners Paul and Fawn Harris, husband and wife, were convicted on March 19, 1971, in a California Superior Court, of receiving stolen property. Their convictions were affirmed by the California Court of Appeal on May 23, 1972, but no petitioner for a hearing before the California Supreme Court was filed because, they allege, they were not notified of the appellate court's action by their attorney until the time for petitioning the California Supreme Court had expired. Petitioners next filed petitions for writs of habeas corpus in the California Supreme Court. They received a postcard denial, quoted above. They then petitioned the district court for writs of habeas corpus and that court dismissed the petitions on the ground that petitioners had not exhausted state remedies. 2 They then appealed to this court.

The district court cited our decision in Williams v. Nelson, 9 Cir., 1970, 431 F.2d 932, concluding that 'there has not been an exhaustion of state remedies in that the petitioner(s) . . . failed to request permission for filing a late appeal pursuant to California Court Rules 31a.' In his brief, the California Attorney General does not rely upon the rationale of the district court's opinion. The provision in California's Rule 31(a) on which the district judge relied, and on which this court relied in Williams v. Nelson, supra, was deleted from the California Rules of Court, effective January 1, 1972. 23 West's Ann.Cal.Codes, Court Rules, 1974 pocket part, p. 31. Moreover, our decision in Williams v. Nelson, supra, insofar as it relates to California Rule 31(a) as it then read, was wrong. The rule did not apply to a petition for a hearing by the Supreme Court after a decision by the Court of Appeal. In Re Wallace, 1970, 3 Cal.3d 289, 293, 90 Cal.Rptr. 176, 475 P.2d 208.

The California Attorney General argues that the petitioners failed to exhaust their state remedies because the California Supreme Court may have denied their habeas corpus petitions on procedural rather than on substantive grounds. He relies upon the fact that California appellate courts may refuse to entertain habeas corpus petitions where no previous application for such relief has been made in the Superior Court. See In Re Hillery, 1962, 202 Cal.App.2d 293, 294, 20 Cal.Rptr. 759. Thus, if the California Supreme Court denied the Harris' petitions because they did not first seek relief in a lower court, the denial would be procedural. As we have seen, some or our decisions have accepted this reasoning, while others have rejected it.

If a state court denies a petition for post conviction relief on procedural grounds, the petitioner has not exhausted his state remedies. He can still use the proper procedure, thus giving the state court the first opportunity to rule on the merits of his federal claims. This is what 28 U.S.C. 2254(b) requires. Wilwording v. Swenson, 1971, 404 U.S. 249, 250, 92 S.Ct. 407, 30 L.Ed.2d 418.

This doctrine, however, has its limits. As the Supreme Court has often said, the doctrine which requires the exhaustion of state court remedies before the federal court will entertain habeas corpus petitions is based upon comityand is not a limitation on the power or jurisdiction of the federal courts. 3

'Section 2254 does not erect insuperable or successive barriers to the invocation of federal habeas corpus. The exhaustion requirement is merely an accommodation of our federal system designed to give the State an initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights. Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963). Petitioners are not required to file 'repetitious applications' in the state courts. Brown v. Allen, 344 U.S. 443, 449 n.3, 73 S.Ct. 397, 403, 97 L.Ed. 469 (1953). Nor does the mere possibility of success in additional proceedings bar federal relief. Roberts v. LaVallee, 389 U.S. 40, 42-43, 88 S.Ct. 194, 196-197, 19 L.Ed.2d 41 (1967).' Wilwording v. Swenson, supra, 404 U.S. at 250, 92 S.Ct. at 408.

' Once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied,' Picard v. Connor, supra, 404 U.S. at 275, 92 S.Ct. at 512. No interest of comity is served by burdening the state and federal courts with repetitious applications for habeas corpus 'in the guise of requiring petitioners to exhaust state remedies.' Ross v. Craven, 9 Cir., 1973, 478 F.2d 240, 241; Wilwording v. Swenson, supra.

In the case of California petitioners, we have had difficulty in determining whether the California Supreme Court's denial of a petition for habeas corpus was on procedural grounds or was on the merits. The use by that Court of the postcard denial has been at the root of the problem. As we have noted before, 'from our standpoint, the failure of the California court to reveal the basis of its denial, whether substantive or procedural, is unfortunate.' Castro v. Klinger, supra, 373 F.2d at 850.

Much of the problem stems from the fact that the California Supreme Court, along with the courts of appeal and the superior court, has original jurisdiction over habeas corpus petitions, Cal.Const. Art. VI 10; In Re Hochberg, 1970, 2 Cal.3d 870, 87 Cal.Rptr. 681, 471 P.2d 1, 3. As a result, many California prisoners seeking post conviction relief file their petitions for writs of habeas corpus in the Supreme Court in the first instance.

The California Attorney General asserts that the California Supreme Court is likely to deny such a habeas corpus petition on the ground that the petitioner has failed to apply for the writ in the Superior Court or the Court of Appeal. There is no doubt that the California Supreme and appellate courts have the power to dismiss habeas corpus petitions on these grounds. In Re Hillery, supra; In re Elias, 1962, 209 Cal.App.2d 262, 25 Cal.Rptr. 739; B. Witkin, California Criminal Procedure 795 at 767-8 (1963). Moreover, there is little doubt that in the past the practice of the California appellate courts was to decline to entertain habeas corpus petitions when the petitioners had not filed in the lower courts in the first instance. In Re Trainor, 1935,5 Cal.App.2d 593, 594, 43 P.2d 579; In Re Brune, 1931, 113 Cal.App. 254, 298 P. 80; 24 Cal.Jur.2d Habeas Corpus 68 at 522-26, 76 at 541-2.

However, the California Supreme Court has changed its practice in this regard. In 1969, the Court slightly revised the form of its postcard denials. In denying habeas corpus petitions without opinion the Court now...

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