Allen v. Schneckloth, 23972.
Decision Date | 16 September 1970 |
Docket Number | No. 23972.,23972. |
Citation | 431 F.2d 635 |
Parties | Wendell Dean ALLEN, Appellant, v. M. R. SCHNECKLOTH, Superintendent, California Conservation Center, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
LeRue Grim (argued), San Francisco, Cal., Wendell Dean Allen, in pro. per., for appellant.
John T. Oakes (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, Cal., for appellee.
Before KILKENNY and TRASK, Circuit Judges, and FERGUSON,* District Judge.
This is an appeal from the denial of a petition for a writ of habeas corpus. Petitioner was convicted of grand theft following jury trial in the California Superior Court for the County of San Francisco and was sentenced to a term of imprisonment. His conviction was affirmed by the California District Court of Appeal and an application for hearing in the California Supreme Court was denied.
Petitioner then filed this petition for habeas corpus in the federal district court. It contained four allegations, as follows: (1) He was denied his right to a speedy trial under the Sixth and Fourteenth Amendments; (2) California Penal Code § 1387 is unconstitutional; (3) he was denied his right to a fair trial under the due process clause of the Fourteenth Amendment; and (4) he was denied his Sixth and Fourteenth Amendment right to effective representation by counsel at trial.1
The district court, relying on the petition and the facts set out in it, denied it, stating as follows:
"Considering the petition as a whole, and assuming the truth of the factual allegations contained therein, the court finds that petitioner has not alleged facts which indicate that he is in custody in violation of the Constitution, laws, or treaties of the United States."
We agree with the result reached by the district court as to all of petitioner's contentions but the third.
Petitioner alleged that he was denied due process when the trial court summarily denied his request, made immediately prior to the impanelling of the jury, for appointment of new counsel. Although a transcript of the trial was not before the district court and is not now before us, petitioner represents that the following colloquy took place:
Petitioner contends that the trial court's disposition of the matter violated People v. Marsden, 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44 (1970), which was decided subsequent to the date of the district court's order and therefore was not considered by either the state court or the district court. In Marsden, defendant's motion for substitution of counsel at the end of the prosecution's case was summarily denied. The California Supreme Court held that the trial court's denial without allowing defendant an opportunity to explain and if possible to document the basis of his contention of inadequate representation deprived defendant of his constitutional right to effective assistance of counsel.
Without the trial transcript before us, it would be inappropriate to decide whether the trial court's disposition of the matter violated the principle announced in People v. Marsden, supra, the extent to which, if at all, Marsden is retroactive, and the extent to which, if at all, the Marsden result is constitutionally compelled. Cf. Martinez v. Craven, 429 F.2d 18 (9th Cir. 1970).
We reverse and remand the cause to the district court with directions to defer action on the petition for ninety days to permit petitioner to present the Marsden question to the California courts and for such longer period as may be required for the California courts to reach a final determination. Thereafter, the district court shall act upon the pending petition and, if...
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U.S. v. Rubier
...from asserting any such objection on appeal. United States v. O'Brien, 601 F.2d 1067, 1071 (9th Cir. 1979); Allen v. Schneckloth, 431 F.2d 635, 637 (9th Cir. 1970). C. The letters in question contain the full terms of the immunity-for-testimony agreement and, hence, clarified and rebutted t......