Burall v. Johnston
| Decision Date | 12 December 1944 |
| Docket Number | No. 10724.,10724. |
| Citation | 146 F.2d 230 |
| Parties | BURALL v. JOHNSTON. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. W. Ehrlich, of San Francisco, Cal., for appellant.
Frank J. Hennessy, U. S. Atty., and A. J. Zirpoli, Joseph Karesh, and R. B. McMillan, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.
Before GARRECHT, HEALY, and BONE, Circuit Judges.
The appellant here is imprisoned in the United States Penitentiary at Alcatraz for the crime of mail robbery.
His petition for a writ of habeas corpus was denied by the lower court. On this appeal two questions are raised:
1. Whether the deprival of counsel at the examination before the Commissioner constitutes such error as to be grounds for granting habeas corpus;
2. Whether it is mandatory that a petition of habeas corpus addressed to a specific judge of the district court must be heard and determined by that judge to the exclusion of any other judge of the same court.
The appellant states that he was taken before the Commissioner after his arrest, that "petitioner then demanded counsel to represent him, but instead of counsel he was told to plead; he plead not guilty, he was remanded to jail." He herein insists that he was entitled to have counsel assigned to assist him in the hearing before the Commissioner without cost, and he now contends that because of this the court had no jurisdiction to try him upon the indictment subsequently returned.
The preliminary hearing is not a trial within the meaning of the Constitution but is an ex parte proceeding. In fact, this court has held that the accused is not entitled to the issuance of a writ because he had no preliminary examination. Garrison v. Johnston, 9 Cir., 104 F.2d 128, 130. See also Clarke v. Huff, 73 App.D.C., 351, 119 F.2d 204.
While it may not be necessary for this court in the disposition of this case to decide whether or not a petition for habeas corpus presented to an individual judge of the District Court must in all cases be determined by that judge, this question continues to rise on appeal Cecil Snow v. Michael J. Roche, 9 Cir., 143 F.2d 718; Frank Rutkowski v. A. F. St. Sure, 9 Cir., 143 F.2d 715; and Charles O'Keith v. James A. Johnston, 9 Cir., 146 F.2d 231; it is therefore desirable that this court here give expression to its opinion in regard thereto.
The reason the question has been presented continually is that a judge of this court in Rutkowski v. Johnston, D.C., 52 F.Supp. 430, held that a petition addressed to one judge of the District Court must be heard by that particular judge and could not be transferred to another judge of the same court. This statement of law we feel was made in error. The correct statement of the law and an historical analysis of the statutory law on this point is accurately and ably set forth in Wright v. Johnston, D.C., 49 F.Supp. 748, 749.
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