Application of Hodge, Misc. No. 809.

• Decision Date: 15 December 1958
• Docket Number: Misc. No. 809.
• Citation: 262 F.2d 778
• Parties: Application of Raymond C. HODGE For Certificate of Probable Cause.
• Court: U.S. Court of Appeals — Ninth Circuit

262 F.2d 778 (1958)

Application of Raymond C. HODGE For Certificate of Probable Cause.

Misc. No. 809.

United States Court of Appeals Ninth Circuit.

December 15, 1958.

Raymond C. Hodge, petitioner, in pro. per.

POPE, Circuit Judge.

Hodge has applied to me for a certificate of probable cause. He wants to appeal from an order of the District Court for the Northern District of California, Northern Division, denying his petition for a writ of habeas corpus. In 1953 he was indicted and charged with first degree murder. He pleaded guilty and was sentenced to life imprisonment. No appeal was taken.

This is the second application of this character which has been made by Hodge. His first was denied on the ground that he had not exhausted his remedies in the state courts. See Application of Hodge, 9 Cir., 248 F.2d 843. Following that he filed a new petition for writ of habeas corpus in the Supreme Court of California on November 13, 1957. His petition there, designated No. 6171, was denied on November 26, 1957. His petition to the Supreme Court of the United States for writ of certiorari was denied, Hodge v. People of State of Cal., 356 U.S. 942, 78 S.Ct. 789, 2 L.Ed.2d 818. Thereafter he again petitioned for a writ of habeas corpus in the federal court. An order to show cause was issued and the respondent Heinze, Warden of the State Penitentiary at Folsom, filed a return to the order to show cause and a motion to dismiss. Following argument before the court, the petitioner's application was dismissed and the district court denied a certificate of probable cause.

The petition for the writ of habeas corpus in the district court was substantially identical with the application to the Supreme Court of California. It alleges that petitioner and one Hall were arrested in the State of Oregon charged with a murder in Marin County, California; that they were returned to California and there committed to San Quentin Prison and confined there upon request of the Marin County sheriff pursuant to § 4007 of California Penal Code; that he was there confined in a "punishment cell" in an isolation ward and treated as if he had been already condemned, and while there was forced to witness a condemned prisoner being lead to execution. He complains of the diminutive size of his cell, the limitation upon his opportunity to exercise; his being required to strip for physical inspection and denial of access to the prison library.

I cannot find that these allegations as to the circumstances of petitioner's pre-conviction confinement presents any federal question. § 4007, mentioned above, provides that a sheriff may remove a prisoner for safekeeping to the California State Prison "When there is any reasonable grounds to believe that a prisoner may be forcibly removed from a county jail." A federal court is not equipped to try the question of compliance with that statute.

The briefs which petitioner presented with his application show that he claimed that this confinement amounted to "an imposition of involuntary servitude" forbidden by the Thirteenth Amendment. For this reason he says that § 4007 is unconstitutional. Of course the claim that an indicted prisoner being held for trial cannot be confined in such prison as the state directs lacks substance. It is not the function of habeas corpus to correct cruelties and indignities imposed by guards upon prison inmates. See Williams v. Steele, 8 Cir., 194 F.2d 917.

It is next alleged that the attorneys who were appointed by the court to defend petitioner in the state courts made demands on petitioner that he plead guilty and that they threatened to quit his case if he would not do so. These attorneys represented him at the preliminary hearing before he was held to answer. He alleges that he begged these attorneys to make an investigation of their own; that they refused to do so, avowing their belief in the materiality and legality of the state's evidence against him. He further states that on November 2, 1953, at a conference attended by the District Attorney and by petitioner and his attorneys, he avowed his innocence but stated he agreed to plead guilty for the sole purpose of saving his life; "That he was indeed innocent of the crime if the truth were known but that the truth would be of no usefulness to the petitioner if in the meantime he were executed." He continues that in addition to the pressure of his court appointed attorneys, a factor that induced him to plead guilty was the knowledge that the prosecution was prejudicing defense witnesses by telling them false tales about having eye witnesses as to the homicide; that he then knew that his only chance of escape from punishment by death was to accede to the demands made on him to accept the proposal that he plead guilty in exchange for a life sentence.

All these allegations add up primarily to the proposition that petitioner was induced to plead guilty by the urging and other actions of his lawyers. In the brief which he presented to the court below petitioner asserted that this was a case in which he was denied the effective aid and assistance of counsel. However, the facts alleged fall short of presenting a case disclosing denial of a right under the federal Constitution. Because of the seriousness of the offense, petitioner was entitled to have representation of counsel under the rule of Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. This requirement stems from the due process provisions of the Fourteenth Amendment which is directed to the States. Even in cases involving the right to counsel in the federal courts under the Sixth Amendment it is often held in proceedings under Title 28 § 2255 that a mere allegation of mistakes and errors on the part of counsel will not disclose a denial of proper representation. The statement in that connection most commonly made is "Nor will allegations of incompetence or inefficiency on the part of his counsel ordinarily suffice, unless counsel's purported representation `was such as to make the trial a farce and a mockery of justice.'" Taylor v. United States, 9 Cir., 238 F.2d 409, 413, and cases cited.

Here petitioner, a state prisoner, cannot make a case for a federal court without disclosing that the conduct charged to his attorneys was something for which the State of California was responsible. He would have to demonstrate that there has been a breach of the Fourteenth Amendment's provision: "Nor shall any State deprive any person of life, liberty or property without due process of law." (Emphasis mine.) Nothing in the petition would tend to show that the State of California, either in the person of the judge who accepted his plea of guilty, or otherwise, knew of or was responsible for the alleged improper conduct of his attorneys.¹

Petitioner also complains that neither the prosecution nor the defense attorneys apprised the trial court of the fact that when he agreed to plead guilty, he had nevertheless "avowed his innocence". So far as this is a charge against the defense attorneys, it states no ground for relief, for the reasons just stated. I am unable to perceive any denial of due process in the failure of a prosecuting attorney to apprise the court that a defendant who is pleading guilty had previously avowed his innocence. It would be difficult to find a case in which a defendant who pleaded guilty had not at some stage of the prosecution asserted his innocence. I know of no rule that would require the prosecutor to make a statement of that character, particularly where, as here, the court before accepting the guilty plea, addressed appropriate inquiries to the accused himself,...