Walker v. Loggins

• Decision Date: 01 February 1979
• Docket Number: No. 77-3603,77-3603
• Citation: 608 F.2d 731
• Parties: Paul Manning WALKER, Petitioner-Appellant, v. O. A. LOGGINS, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 731

608 F.2d 731

Paul Manning WALKER, Petitioner-Appellant, v. O. A. LOGGINS, Superintendent, Respondent-Appellee.

No. 77-3603.

United States Court of Appeals, Ninth Circuit.

Feb. 1, 1979.

Rehearing Denied June 12, 1979.

Dennis Roberts (argued), Oakland, Cal., for petitioner-appellant.

Ramon M. de la Guardia (argued), Sacramento, Cal., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before BROWNING, CARTER and ANDERSON, Circuit Judges.

PER CURIAM:

This is an appeal from the district court's denial of Paul Manning Walker's petition for habeas corpus relief from a California conviction. Walker makes two arguments: (1) his conviction for both manslaughter and assault with a deadly weapon for the same act violated his Fifth Amendment right not to be twice placed in jeopardy; and (2) the trial court's denial of his request to represent himself violated his constitutional right to self-representation under the Sixth Amendment.

Walker's first contention is without merit. The recent decision of another panel in Bittaker v. Enomoto, 587 F.2d 400 (9th Cir. 1978), requires that we vacate and remand for reconsideration of Walker's claim of denial of his right to self-representation.

I. FACTS

On August 8, 1974, appellant Walker was convicted by a jury in the Superior Court of the State of California for the County of Solano of voluntary manslaughter, assault with a deadly weapon, three counts of selling cocaine, and one count of conspiracy to sell cocaine. He had shot and killed an undercover narcotics agent during a bungled narcotics bust. The trial judge merged Walker's sentences for manslaughter and assault with a deadly weapon and ran them consecutive to the drug conviction sentences.

On appeal to the California Court of Appeal, First Appellate District, Division Three, the conviction was affirmed on all counts. However, while California law permits a defendant to be Convicted of both manslaughter and assault with a deadly weapon for the same act, it does not permit Punishment for both offenses. The California Court of Appeal noted that "(t)he usual procedure in such situations is to leave standing the sentence for the most serious offense of which the defendant was convicted. While manslaughter is more serious from the standpoint of the consequences to the victim, the legislature has imposed the greater penalty for the offense of assault with a deadly weapon." People v. Walker, 1 Crim. 13861 (1976) (Unpublished). Therefore, Walker's sentence was modified to stay the execution of his manslaughter sentence pending service of the assault sentence, the stay to become permanent upon completion of the assault sentence. People v. Walker, supra.

On March 28, 1977, Walker filed a petition for habeas corpus in the United States District Court, Northern District of California. The petition was transferred to the United States District Court, Eastern District of California. Walker raised, Inter alia, the self-representation and the double jeopardy issues, but both were decided against him by the district court. Counsel for Walker filed a petition for reconsideration which failed to convince the district court to grant his petition, but did convince the court that a justiciable question exists regarding the petitioner's self-representation claim. Accordingly the district court issued Walker a certificate of probable cause to appeal, as required by 28 U.S.C. § 2253 and Rule 22(b) of the Federal Rules of Appellate Procedure.

II. DOUBLE JEOPARDY

Walker contends his conviction of both assault with a deadly weapon and voluntary manslaughter arising from the same act committed against the same person constitutes double jeopardy. Allegedly, if an indictment for murder names the weapon used, then the evidence needed to prove the murder charge (or any lesser included offense such as manslaughter, as here) is identical to that needed to prove assault with a deadly weapon. This arguably makes the assault itself a lesser included offense of the murder charge. ¹

Where the same act constitutes a violation of two distinct statutory provisions, the test laid down in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), for determining whether there are two offenses or only one is "whether each provision requires proof of an additional fact which the other does not." See Gore v. United States, 357 U.S. 386, 388-93, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Pereira v. United States, 347 U.S. 1, 9, 74 S.Ct. 358, 98 L.Ed. 435 (1954); United States v. Kearney, 560 F.2d 1358, 1366 (9th Cir. 1977), Cert. denied, 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460 (1977). Cf. United States v. Raborn, 575 F.2d 688 (9th Cir. 1978); United States v. Stolarz, 550 F.2d 488, 491 (9th Cir. 1977), Cert. denied, 434 U.S. 851, 98 S.Ct. 162, 54 L.Ed.2d 119 (1977); Olais-Castro v. United States, 416 F.2d 1155, 1157 (9th Cir. 1969).

The application of this test focuses on the statutory elements of the offense charged, not the particular manner in which the offense was committed or described in the indictment. ² Iannelli v. United States,420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). Thus, it is irrelevant that the use of a pistol was charged in Walker's indictment for murder. See generally People v. Wilson, 62 Cal.App.3d 370, 132 Cal.Rptr. 813 (1976).

Here neither murder nor manslaughter need be committed with a deadly weapon, as is required in the assault charge. And the death of a human being is not an element of assault with a deadly weapon, as it is in the murder or manslaughter charge. Under Federal law Walker constitutionally could have been convicted and sentenced for both offenses. Therefore, there is no error in California's more lenient rule which permits a defendant to be convicted for two distinct offenses arising out of the same act, but prohibits punishment for both offenses.

III. SELF-REPRESENTATION

On January 16, 1974, at his state trial, Walker made the following unsuccessful request to represent himself DEFENDANT WALKER: I would like to have it noted that I do not recognize this person as my attorney.

THE COURT: All right. Let the record so indicate.

DEFENDANT WALKER: I'd like to represent myself

THE COURT: Well

DEFENDANT WALKER: is what I'm saying.

THE COURT: The court is not going to allow you to defend yourself. It is going to appoint the Public Defender to represent you.

At the time of this request, the Supreme Court had not ruled definitively whether state defendants have a Sixth Amendment right to represent themselves. That question was answered in the affirmative in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The State contends that it was under no obligation prior to Faretta to permit defendants to represent themselves, and that its refusal to do so at Walker's trial cannot provide a basis for habeas relief.

The recent decision in Bittaker v. Enomoto, 587 F.2d 400 (9th Cir. 1978), is controlling. As the court said:

(T)he law of this circuit at the time of (defendant's) state court trial (1974) had already been established in a fashion consistent with the Supreme Court's statement of the law in Faretta. Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir. 1969), Cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970); Bayless v. United States, 381 F.2d 67, 71 (9th Cir. 1967). This circuit had stated in federal cases that self-representation was a corollary of the Sixth Amendment right to counsel. Because the defendant could waive his Sixth Amendment right, we said he could also insist on self-representation as a constitutional, as well as a statutory, right. Until now, we have had no occasion to apply the federal constitutional right to state habeas petitioners. . . .

There can be little doubt, however, that, if squarely faced with the issue, we would have applied the right to self-representation to a state habeas petitioner.

Id., at 401-402. Thus, under the law of this circuit when Walker was tried, Walker had a federal constitutional right to represent himself. Denial of that right would entitle him to habeas relief.

The record does not clearly show, however, whether Walker's right to represent himself was in fact denied. We have only a partial excerpt from the transcript of the proceedings in state court. We cannot be sure that the whole record will establish that Walker's demand for self-representation was sufficiently "unequivocal" to trigger constitutional protection, See Meeks v. Craven, 482 F.2d 465, 467 (9th Cir. 1973).

We therefore vacate the judgment denying Walker's habeas petition and remand to the district court for full consideration of the self-representation claim.

REMANDED.

JAMES M. CARTER, Circuit Judge, dissenting:

One of my colleagues responded to a proposed opinion in another case as follows: "The burden (of preparing a dissent) overcomes my outrage (at the holding of the opinion). I concur."

Although I have let this case simmer for a considerable time, I cannot say I concur.

The dissent is directed to the failure of my colleagues to ask for an en banc but instead merely following Bittaker v. Enomoto (9 Cir. 1978), 587 F.2d 400.

The following material is submitted in an attempt to demonstrate that the decisions in Bittaker v. Enomoto, supra, and in this case, which follows Bittaker, are not compelled by precedent; and to show that the panels could have chosen other alternatives for a contrary holding.

The cases held that a state prisoner who had been denied the right to represent himself by a state court before the Supreme Court decided Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 on June 30, 1975, has a constitutional right of self-representation and is entitled to relief by habeas corpus in the federal courts.

Bittaker did not consider the impact of its decision on cases in the state courts when, before Faretta, def...