Daugharty v. Gladden
| Decision Date | 20 June 1958 |
| Docket Number | No. 15672.,15672. |
| Citation | 257 F.2d 750 |
| Parties | Clifford DAUGHARTY, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Clifford Daugharty, in pro. per.
Quentin L. Kopp, San Francisco, Cal., for appellant.
Robert Y. Thornton, Atty. Gen., Peter S. Herman, Asst. Atty. Gen., State of Oregon, for appellee.
Before POPE, CHAMBERS, and HAMLEY, Circuit Judges.
This is an appeal by Clifford Daugharty from an order denying his application for a writ of habeas corpus.
In November, 1951, Daugharty was tried and convicted in the circuit court of the state of Oregon for Deschutes county, on a charge of uttering and publishing a forged bank check. He was sentenced to a maximum term of fifteen years in the Oregon state penitentiary, where he is now incarcerated.
This application for a writ of habeas corpus was filed in the United States District Court for the district of Oregon on March 27, 1957.1 It was denied on the court's own motion, without issuance of a writ or an order to show cause. This action was taken on the ground that Daugharty had not, as required by 28 U.S.C.A. § 2254, exhausted the remedies available to him in the courts of the state of Oregon. Daugharty v. Gladden, D.C., 150 F.Supp. 887.2
Daugharty filed notice of appeal, and appeared in this court in propria persona. A judge of this court granted a certificate of probable cause. After initial briefs were filed in this court, we appointed Quentin L. Kopp, of the San Francisco bar, to represent Daugharty. Supplemental briefs were then filed by both parties prior to oral argument.
The first question presented for determination here is whether the trial court erred in holding that Daugharty had not exhausted his state remedies. The applicable statute is 28 U.S.C.A. § 2254, quoted in the margin.3
The following facts,4 referred to in the opinion of the trial court, provide the basis for its conclusion that Daugharty had not exhausted his state remedies: On December 9, 1954, Daugharty filed an application for a writ of habeas corpus in the circuit court of the state of Oregon for Marion county.5 The grounds alleged in this application were that the statute under which he was convicted was unconstitutional, and that other rights of the applicant under the Oregon constitution had been abridged during the course of his trial. This application was denied on July 11, 1956.
On July 24, 1956, Daugharty filed a notice of appeal to the supreme court of Oregon. On August 20, 1956, the latter court granted Daugharty's motion to prosecute his appeal in forma pauperis without the payment of filing fees or the posting of an appeal bond. On September 26, 1956, Daugharty filed a motion in the supreme court of Oregon, seeking an order commanding the clerk of the Marion county court to prepare, certify, and deliver to the supreme court of Oregon, without cost to Daugharty, a transcript of record on appeal.6 This motion was denied on October 3, 1956.
The attorney general of Oregon, on November 21, 1956, filed a motion in the Oregon Supreme Court to dismiss the appeal. On November 25, 1956, Daugharty filed in the United States Supreme Court a petition for a writ of certiorari to review the Oregon Supreme Court order of October 3, 1956. On December 28, 1956, the supreme court of Oregon granted the motion of the state attorney general, and dismissed the appeal. On February 25, 1957, the United States Supreme Court denied the petition for a writ of certiorari filed by Daugharty on November 25, 1956. Daugharty v. Gladden, 352 U.S. 1009, 77 S.Ct. 574, 1 L.Ed. 2d 554.
On these facts, the trial court held that the remedy Daugharty had pursued in the Oregon courts was not adequate, within the meaning of 28 U.S.C.A. § 2254. It was not adequate, the court held, because dismissal of his appeal in the supreme court of Oregon, under the indicated circumstances, deprived Daugharty of the equal protection of the laws, as guaranteed by the Fourteenth Amendment. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L. Ed. 891, and Barber v. Gladden, 210 Or. 46, 298 P.2d 986, 309 P.2d 192, were cited as authority for this ruling.
The trial court further held 150 F. Supp. 892, however, that Daugharty had not "`exhausted the remedies available to him in the courts of the State Oregon'," within the meaning of § 2254. This was true, the court said, because Daugharty could still obtain a final state court adjudication, without cost to himself, by instituting an original habeas corpus proceeding, in forma pauperis, in the supreme court of Oregon.7
If a defendant in state criminal proceedings loses, on the merits, an appeal to the state supreme court, and certiorari is denied, he is not required to seek collateral relief through state habeas corpus proceedings in order to establish exhaustion of state remedies. Brown v. Allen, 344 U.S. 443, 447-449, 73 S.Ct. 397, 97 L.Ed. 469. As stated in that decision, § 2254 does not contemplate repetitious applications to state courts.
We think the same rule must also apply where an appeal is dismissed because of the appellant's financial inability to proceed, for this too, constitutes exhaustion of state remedies.8 We also believe that the same rule applies with regard to any appropriate state proceeding which is pursued. In Brown v. Allen, the remedy exhausted was an appeal from a judgment of conviction in the criminal proceedings. Here, the remedy exhausted was an appeal from an adverse judgment in a habeas corpus proceeding.9
For the reasons stated above, we are not in agreement with the conclusion of the trial court that there has not been exhaustion of state remedies because Daugharty could still institute an original habeas corpus proceeding in the Oregon Supreme Court.10
In denying Daugharty's petition for rehearing, the trial court advanced another reason why it must be held that Daugharty did not exhaust his state remedies. The right to apply to the United States Supreme Court for a writ of certiorari, the court stated, was a part of Daugharty's state remedies. He did not apply for such a writ. Failure to pursue this remedy could not now be excused, the court held, merely because Daugharty had delayed commencement of this federal proceeding past the time permitted for filing a petition for a writ of certiorari.
While the trial court did not specify the proceeding in which Daugharty should have petitioned for a writ of certiorari, there were apparently only two in which this could have been done. One of these was the original proceeding in the Oregon Supreme Court for a writ of habeas corpus, referred to in footnote 10. Since, however, Daugharty thereafter appealed to the Oregon Supreme Court from the Marion county circuit court denying a similar application, the failure to exhaust the previously-pursued remedy is now unimportant.
We therefore assume that what concerned the trial court was Daugharty's failure to seek certiorari to review the Oregon Supreme Court order of December 28, 1956, dismissing Daugharty's appeal.
Ordinarily, application for and denial of a writ of certiorari, following a final state court adjudication of a federal question on the merits, is necessary to establish exhaustion of state remedies, within the meaning of § 2254.11
Special circumstances, however, may justify departure from this rule, which is designed to regulate the usual case. Darr v. Burford, supra, page 210. We believe that such circumstances exist in this case. Daugharty petitioned for a writ of certiorari to obtain a review of the Oregon Supreme Court order of October 3, 1956. In this order, that court had denied Daugharty's motion that, because of his poverty, the transcript be supplied without cost to him.
This petition was pending before the Supreme Court when the Oregon Supreme Court ordered dismissal of the appeal on December 28, 1956. Daugharty, unassisted by counsel, unquestionably supposed that the petition for a writ of certiorari already on file with the Supreme Court and undisposed of fulfilled the requirements for exhaustion of state remedies. As a matter of fact, except for the possible question of prematurity, the petition for certiorari then on file did raise, in essence, the same point which could have been raised had another such a petition been filed following dismissal of the appeal.
The Supreme Court, on February 25, 1957, denied the petition for writ of certiorari directed against the October 3, 1956, order. Daugharty v. Gladden, 352 U.S. 1009, 77 S.Ct. 574, 1 L.Ed.2d 554. In our view, the facts just recited constitute special circumstances warranting the conclusion that exhaustion of state remedies did not require Daugharty to file another petition for a writ of certiorari.
In all that is said above with regard to the exhaustion of state remedies, it has been assumed that Daugharty's appeal to the Oregon Supreme Court was dismissed because he had failed, through lack of funds, to provide a required record on appeal. Appellee argues, however, that this is not true. What really happened, appellee contends, is that Daugharty failed to follow prescribed state appellate procedure available to him, and thus abandoned his appeal, thereby requiring its dismissal.
The rule which appellee invokes here is that state remedies will not be deemed to have been exhausted if the failure to obtain a final state adjudication was due to inexcusable nonconformity with state procedural requirements.12
The Oregon procedural requirement which Daugharty did not fulfill, according to appellee, is that an appellant must resist a motion made to dismiss his appeal, or he will be deemed to have abandoned the appeal. Appellee's motion in the Oregon Supreme Court to dismiss Daugharty's appeal was made on November 21, 1956. This motion was made on the ground that Daugharty had not filed a transcript consisting of...
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