Brown v. Craven
| Decision Date | 17 February 1971 |
| Docket Number | No. 23812.,23812. |
| Citation | 438 F.2d 334 |
| Parties | Benjamin Jerrel BROWN, Petitioner-Appellant, v. Walter E. CRAVEN, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Fernando V. Hernandez (argued), San Jose, Cal., for petitioner appellant.
John T. Murphy (argued), Deputy Atty. Gen., Evelle J. Younger, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., San Francisco, Cal., for respondent appellee.
Before BROWNING and DUNIWAY, Circuit Judges, and TAYLOR,* District Judge.
Petitioner was convicted of grand theft in Superior Court of the State of California for San Francisco County. The federal district court dismissed his petition for habeas corpus without an evidentiary hearing. He appealed.
As indicated by respondent, this petition was premature since it was processed while petitioner's direct appeal was still pending in the California District Court of Appeal. Martinez v. Craven, 397 F.2d 256 (9th Cir. 1968). The District Court of Appeal affirmed petitioner's conviction while this appeal was pending before us, but so far as appears, petitioner has not sought review by the California Supreme Court. Moreover, although petitioner stated in a document submitted to the court below that he had filed a petition for habeas corpus in the California Supreme Court, the precise questions raised are not disclosed, and, in any event, the denial was in all probability not on the merits but on the ground that the petition was premature. Witkin, California Criminal Procedure, § 796 at 768 (1963).
To avoid further delay, however, we have considered those issues decided on the merits by the federal district court.
Several of petitioner's claims rest ultimately upon the premise that he was denied the right to counsel at preliminary examination. The district court rejected these claims on the basis of Wilson v. Harris, 351 F.2d 840 (9th Cir. 1965). There, we held that the California preliminary examination was not in and of itself a critical stage of a criminal proceeding, and therefore the burden rested upon the petitioner to allege and prove that in his particular case failure to appoint counsel resulted in a likelihood of prejudice in later proceedings. In this case, petitioner failed to allege facts indicating such a likelihood of prejudice though repeatedly invited to do so by the district court.
Subsequent to the decision below, the Supreme Court held in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L. Ed.2d 387 (...
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...26 L.Ed.2d 387. We have held, however, that Coleman is not retroactive. Vizzard v. Procunier, 9 Cir., 1971, 439 F.2d 94; Brown v. Craven, 9 Cir., 1971, 438 F.2d 334; Olsen v. Ellsworth, 9 Cir., 1971, 438 F.2d 630. We find nothing in the Nevada statutes dealing with preliminary hearings that......
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Wells v. Nelson, 26872.
...stage" of the proceedings. This circuit has concluded that the rule of Coleman is to be applied prospectively only. Brown v. Craven, 438 F.2d 334 (9th Cir. 1971); Olsen v. Ellsworth, 438 F.2d 630 (9th Cir. When appellant took the stand in his own behalf at trial, he had already discharged h......
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Moses v. Eyman
...stage" of a criminal proceeding, is to be applied prospectively only. Olsen v. Ellsworth, 438 F.2d 630 (9th Cir. 1971); Brown v. Craven, 438 F.2d 334 (9th Cir. 1971). The district court opinion herein, reported in 328 F. Supp. 1227, correctly states the applicable law as it existed prior to......