Hillery v. Pulley, 83-2017
Decision Date | 14 May 1984 |
Docket Number | No. 83-2017,83-2017 |
Citation | 733 F.2d 644 |
Parties | Booker T. HILLERY, Jr., Petitioner-Appellee, v. Reginald PULLEY, Warden, Respondent-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Clifford Tedmon, Sacramento, Cal., for petitioner-appellee.
Willard F. Jones, William George Prahl, Deputy Attys. Gen., Sacramento, Cal., for respondent-appellant.
Appeal from the United States District Court For the Eastern District of California; Lawrence K. Karlton, Chief Judge.
Before ANDERSON and SCHROEDER, Circuit Judges, and EAST, * District Judge.
In this matter, petitioner Booker T. Hillery, Jr., successfully challenged the constitutionality of his 1962 Kings County Superior Court judgment of conviction and sentence for the stabbing murder of a fifteen-year-old girl, in violation of California Penal Code Sec. 187, by applying for a writ of habeas corpus in the District Court. The District Court granted the writ upon concluding that petitioner's conviction resulted from a denial of equal protection because black persons had been systematically excluded from selection to the Kings County grand jury for the years preceding his 1962 indictment.
We affirm upon the basis and for the reasons set forth in the excellent and extensive District Court opinion granting the application. Hillery v. Pulley, 563 F.Supp. 1228 (E.D.Cal.1983). See also Hillery v. Pulley, 533 F.Supp. 1189 (E.D.Cal.1982) ( ); Hillery v. Sumner, 496 F.Supp. 632 (E.D.Cal.1980) ( ).
The judgment of the United States District Court granting petitioner's application for writ of habeas corpus is AFFIRMED.
The matter is REMANDED to the District Court for issuance of the writ and other appropriate order.
The state may seek to recharge and try petitioner again by the procedure which conforms to constitutional requirements.
I respectfully dissent from the court's order affirming the district court.
In my view, petitioner has failed to exhaust his state remedies as required by 28 U.S.C. Sec. 2254(b), Picard v. Conner, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971), and Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The testimony of an expert "forensic actuary" presenting a new theory of statistical analysis is, in spite of the characterization by petitioner, new evidence that has not been presented to the state courts. This "new method" is new evidence...
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...not transform the claim and thus do not require exhaustion. Hillery v. Pulley, 533 F. Supp. 1189, 1200-02 (E.D. Cal. 1982), aff'd, 733 F.2d 644 (9th Cir. 1984), aff'd, 474 U.S. 254 (1986). See also Weaver, 197 F.3d at 364 (acknowledging that although the "precise factual predicate" for a cl......
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...ensures that the law will not merely change erratically but will develop in a principled and intelligible fashion. Pp. 265-266. 733 F.2d 644 (CA9 1984), MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, and in all but the sixth paragraph......
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Pronouncements of the U.s. Supreme Court Relating to the Criminal Law Field: 1985-1986
...the district court granted the writ. Hillery v. Pulley, 563 F. Supp. 1228 (E.D. Cal. 1983). The Ninth Circuit affirmed. Hillery v. Pulley, 733 F.2d 644 (9th Cir. 1984). In an opinion by Justice Marshall, the Supreme Court affirmed. The Court first held that the exhaustion doctrine was not u......
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