Application of Burwell

• Decision Date: 06 August 1956
• Docket Number: 462.,Misc. No. 461
• Citation: 236 F.2d 770
• Parties: Application of Eugene BURWELL, For a Writ of Habeas Corpus. Application of James A. ROGERS, For a Writ of Habeas Corpus.
• Court: U.S. Court of Appeals — Ninth Circuit

236 F.2d 770 (1956)

Application of Eugene BURWELL, For a Writ of Habeas Corpus.

Application of James A. ROGERS, For a Writ of Habeas Corpus.

Misc. Nos. 461, 462.

United States Court of Appeals Ninth Circuit.

August 6, 1956.

POPE, Circuit Judge.

Burwell and Rogers have each presented petitions for certificate of probable cause pursuant to Title 28 U.S.C.A. § 2253, to permit them to appeal from an order of the District Court for the Northern District of California, Southern Division, denying their separate petitions for writs of habeas corpus. Both petitioners were convicted of first degree murder in a California Superior Court and sentenced to death. Upon their automatic appeals to the Supreme Court of California the judgments were affirmed. People v. Burwell, 44 Cal.2d 16, 279 P.2d 744. Certiorari to review that decision was denied by the United States Supreme Court. 349 U.S. 936, 75 S.Ct. 788, 99 L.Ed. 1265.

In May, 1955, when they made their applications for writs of habeas corpus, petitioners obtained from the district court a stay of execution for a period of time sufficient to permit the district court to hear such applications. After an extended hearing, that court denied the petitions for writs of habeas corpus and denied certificates of probable cause. They then sought certificates of probable cause from this court which denied them because the petitions were addressed to the court rather than to an individual judge of the court, the court holding that it had no power, as a court to grant such a certificate. Application of Burwell, 9 Cir., 226 F.2d 309; Application of Rogers, 9 Cir., 229 F.2d 754. The Supreme Court granted certiorari and reversed that ruling, and remanded the cases to permit the applications to be heard on their merits. Burwell v. Teets, 350 U.S. 808, 76 S.Ct. 98; Rogers v. Teets, 350 U.S. 809, 76 S.Ct. 98.

An effort by the same division of this court to get the Supreme Court to change its ruling by issuing a certificate to that court was rejected. In re Burwell, 350 U.S. 521, 76 S.Ct. 539, 540. In dismissing the certificate the Supreme Court stated: "It is for the Court of Appeals to determine whether such an application to the court is to be considered by a panel of the Court of Appeals, by one of its judges, or in some other way deemed appropriate by the Court of Appeals within the scope of its powers." Thereafter the court adopted a rule whereby the Clerk of the court was authorized to transmit such petitions to an individual judge. Pursuant to that rule these petitions have come into my hands for action.

After an extended examination of the very voluminous record which was before the district court and which formed the basis for its action, I am frank to say that if I were a member of a division of this court hearing these actions on appeal, I would find no clear reason to reverse the judgments denying habeas corpus if I then had before me no more than what has now been presented with these applications.

Each of these petitioners alleges in his application for habeas corpus several grounds for claim of denial of constitutional rights in the course of his trial. All of such grounds were urged in the state courts. Each court considered them with great care taking evidence in respect to these claims wherever that was appropriate. In every case the trial court and the Supreme Court of the State of California found the facts against the petitioners. There was nothing perfunctory about the manner in which the California courts dealt with the various claims of denial of constitutional right made by these petitioners. The proceedings in the state courts fully measure up to what Mr. Justice Frankfurter for the Court described in Brown v. Allen, 344 U.S. 443, 504, 73 S.Ct. 397, 445, 97 L.Ed 469, as follows: "In some cases the State court has held a hearing and rendered a decision based on specific findings of fact; there may have been review by a higher State court which had before it the pleadings, the testimony, opinions and briefs on appeal. It certainly would make only for burdensome and useless repetition of effort if the federal courts were to rehear the facts in such cases." I am unable to find any "vital flaw" in the processes of ascertaining the facts and the law in the state courts.

The entire record of the state court proceedings was before the district court. This included some 18 volumes of the transcript of the petitioners' trial, (they were tried together), and included all of the briefs and papers filed in the California Supreme Court. Under such circumstances it would be hard for me to perceive why this would not be a case where, in the language of Mr. Justice Frankfurter, in Brown v. Allen, supra, 344 U.S. at page 506, 73 S.Ct. at page 446: "* * * the District Judge may accept their the state court determination in the State proceeding and deny the application." As Mr. Justice Reed put it in the same case, 344 U.S. at page 463, 73 S.Ct. at page 410: "Applications to district courts on grounds determined adversely to the applicant by state courts should follow the same principle — a refusal of the writ without more, if the court is satisfied, by the record, that the state process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion. Where the record of the application affords an adequate opportunity to weigh the sufficiency of the allegations and the evidence, and no unusual circumstances calling for a hearing are presented a repetition of the trial is not required."

But what I am now called upon to decide is not the disposition I would make of this case on the basis of the record now before me if I were sitting upon a final appeal. What I am now called upon to say is whether in my judgment the proposed appeal presents a question or questions of sufficient substance so that these petitioners ought to be given an opportunity to argue their cases before a division of this court.

Burwell has urged several alleged denials of his constitutional rights.¹ It seems to me that his claim with respect to certain oral confessions which were taken immediately after the homicides and which he says were coerced and involuntary, is at least something he should be permitted to argue upon appeal. These petitioners were at the time of the homicides inmates of California State Prison at San Quentin. At their trial upon the murder charges it was shown that in attempting to escape from the prison, Burwell and Rogers killed two guards and attacked and seriously injured and mangled two others. There was substantial evidence of the killings and of their participation therein sufficient to warrant a conviction wholly apart from the confessions which were obtained from Burwell immediately after he was apprehended following his unsuccessful effort to escape.

These men were apprehended while they were in a projection booth located in a prison yard. They had carried weapons concealed in their clothing into the booth. Their clothing was heavily covered with blood. In the prison yard between the projection booth and the office of the captain of the guards to which the prisoners were taken after their capture, there were some 250 other inmates where a basketball game had been in progress. It was necessary to take the two men from the place where they were apprehended to the office of the captain and to march them in the vicinity of the area where the other inmates were located. Burwell and Rogers were ordered to take off all their clothing; they were then marched naked across this yard to the captain's office. On the way Burwell lagged and looked behind; he was told to move faster and replied he was in no hurry...