Conway v. Wilson

• Decision Date: 13 February 1967
• Docket Number: No. 20470.,20470.
• Citation: 368 F.2d 485
• Parties: James CONWAY, Appellant, v. Lawrence E. WILSON, Warden, San Quentin State Prison, and Kenneth N. Hastins, Attorney at Law, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

368 F.2d 485 (1966)

James CONWAY, Appellant, v. Lawrence E. WILSON, Warden, San Quentin State Prison, and Kenneth N. Hastins, Attorney at Law, Appellees.

No. 20470.

United States Court of Appeals Ninth Circuit.

October 28, 1966.

Certiorari Denied February 13, 1967.

James Conway, in pro. per.

Thomas C. Lynch, Atty. Gen., John T. Murphy, Deputy Atty. Gen., Lawrence R. Mansir, Deputy Atty. Gen., San Francisco, Cal., for appellees.

Before POPE, BARNES and MERRILL, Circuit Judges.

Certiorari Denied February 13, 1967. See 87 S.Ct. 897.

POPE, Circuit Judge.

The appellant is a prisoner confined in the California State Prison under a sentence imposed upon him by a Superior Court of California after conviction under an indictment charging two counts of robbery of the first degree. He was sentenced March 10, 1952, took no appeal, but on November 2, 1964 he filed in the Superior Court of the County wherein the prison is situated a petition for the writ of habeas corpus. The petition was denied. On November 16, he filed a substantially identical petition for the writ of habeas corpus in the Supreme Court of the State of California. It also was denied on December 17, 1964. On January 13, 1965, petitioner filed in the court below a petition for the writ of habeas corpus directed to the Warden of the State penitentiary seeking release at the hands of the federal court. After hearing upon the question which was raised in the court below, as to whether the appellant, as petitioner, had exhausted his state remedy, presently available to him, prior to the commencement of proceedings in the federal court, the court found and concluded that appellant had not fairly and clearly presented to the state courts any federal constitutional question sought to be presented to the court below, and upon the authority of Rose v. Dickson, 9 Cir., 327 F.2d 27, dismissed the proceedings. The petitioner below now appeals from that decision.

In his petition in the district court the appellant based his claim for relief upon two contentions. The first was that he was denied adequate representation of counsel in that the attorney appointed to represent him actually represented a conflicting interest without the petitioner's consent. He also asserted that the attorney failed to inform the court that petitioner was less than 21 years of age so that he might be committed to the Youth Authority pursuant to the provisions of the Welfare and Institutions Code.

The second contention made is that under the provisions of the Welfare and Institutions Code of the State of California, it was mandatory for the trial court to commit the petitioner to the State Youth Authority rather than to sentence him to a term in the penitentiary as was done by the court. It is plain that this second point raises a question of state law and does not present any constitutional question or any question sufficient to warrant the granting of habeas corpus relief.

Actually, at the time of the imposition of sentence upon appellant the applicable sections of the Welfare and Institutions Code provided that it was within the discretion of the court to refer a person in the position of this petitioner to the Authority rather than to impose a prison sentence upon him. See Statutes of California, 1951 Regular Session, Chapter 98, p. 355. In his petitions for habeas corpus in the State courts, petitioner alleged that the court in committing him to the Youth Authority abused its discretion. This would of course represent a question of state law and not a federal question appropriate for consideration by the court below.

With respect to the contention that the appellant was denied adequate representation of counsel, an examination of the record discloses that appellant did not adequately or fairly present to the state courts the contention which he sought to assert in the district court and upon this appeal. His allegations in the state courts were in substance no more than that contention raised in the petition to the Supreme Court of the State and which was as follows: "And in reviewing this record, the Court may observe that defendant did not have an attorney at any time during the trial. That is to say, Kenneth Hastings, who was appointed by the Court to represent both Conway (the instant petitioner) and Collins, represented a conflicting interest from the time he was appointed, to the rendition of the jury...