Duncan v. Carter, 17529.
| Decision Date | 22 January 1962 |
| Docket Number | No. 17529.,17529. |
| Citation | 299 F.2d 179 |
| Parties | Elizabeth Ann DUNCAN, Appellant, v. Iverne E. CARTER, Superintendent of the California Institution for Women at Corona, California, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ward Sullivan and Arthur Warner, Beverly Hills, Cal., Frank Duncan, Leonard Nasatir, Los Angeles, Cal., for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., for appellee.
Before CHAMBERS, HAMLEY and HAMLIN, Circuit Judges.
Elizabeth Ann Duncan appeals to this court from a district court order denying her application for a writ of habeas corpus. Having been convicted of murder in the first degree in the Superior Court, Ventura County, State of California, and being under a sentence of death, she is presently in the custody of the state.1
The Superior Court judgment and sentence came before the Supreme Court of California for review and was affirmed. People v. Duncan, 53 Cal.2d 803, 3 Cal. Rptr. 351, 350 P.2d 103.
Mrs. Duncan then petitioned the United States Supreme Court for a writ of certiorari. The petition was granted, limited to the two questions set out below. Baldonado v. California (Duncan v. California), 363 U.S. 840, 80 S.Ct. 1639, 4 L.Ed.2d 1735.2
On May 22, 1961, that court entered a per curiam opinion, sub nom. Baldonado v. California, 366 U.S. 417, 81 S.Ct. 1355, 6 L.Ed.2d 380, reading as follows:
"After hearing oral argument and on due examination of the records, we conclude that the totality of circumstances disclosed fails to support the substantial due process issues tendered in the petitions for certiorari, and so we dismiss the writs."
Mrs. Duncan thereafter filed in the district court the instant application for a writ of habeas corpus. An order to show cause was issued, in response to which the Superintendent of the California penal institution in which Mrs. Duncan is incarcerated filed a return and a motion to dismiss the petition.
Shortly thereafter argument was had on the motion to dismiss. Resisting this motion, counsel for Mrs. Duncan requested that a hearing be held at which evidence could be submitted. It was also requested that, before acting on the motion to dismiss, the district court examine the state court trial record which had not yet been returned from the United States Supreme Court. Argument was also advanced in support of the grounds relied upon in the petition. During the course of this argument a motion was made on behalf of Mrs. Duncan to amend the petition for the purpose of adding additional allegations of fact.
The requests and motions made on behalf of Mrs. Duncan were resisted by appellee and counter arguments were advanced on the merits. The court denied the request that a hearing be had at which evidence could be presented and refused to examine the state court record. The district court also denied the motion to amend the petition, and denied the petition. This appeal followed.
Appellant contends that the district court erred in refusing to hold a hearing at which evidence could be presented, and in failing to examine the state court record, before ordering dismissal of the application.
It was not necessary for the district court to hold a hearing at which evidence could be presented or, in substitution therefor, examine the state court record, unless the application and the return thereto raised an issue of fact which, if resolved in favor of the applicant, would entitle her to relief. See Chavez v. Dickson, 9 Cir., 280 F.2d 727.
The first ground for relief, as alleged in the application, was that extensive adverse publicity prior to, and perhaps during, the trial deprived her of due process under the Fourteenth Amendment. In appellee's return the facts pertaining to such publicity were not controverted, but it was contended that the point had been adjudicated against appellant and was not open to reexamination in this habeas corpus proceeding. The district court agreed.
If the district court was correct in reaching this conclusion, there was no need for a hearing or an examination of the state court record, and it was not error to deny these requests.
The United States Supreme Court, after granting the petition for a writ of certiorari as to the publicity issue, examined the state court record pertinent thereto, considered briefs, and heard oral argument. It then stated, in a unanimous per curiam opinion, its conclusion of law that "the totality of circumstances disclosed" failed to support this substantial due process issue. While the action taken was to dismiss the writ rather than to affirm the state judgment, it was in practical effect an adjudication that the facts presented did not support the claim of deprivation of a constitutional right.
Res judicata does not apply to applications for habeas corpus and appellant was entitled to seek such relief in a federal district court despite this Supreme Court pronouncement.3 Nevertheless, where a question of law is actually adjudicated by the Supreme Court, and where no newly-discovered facts are alleged which would cast that legal question in a new light a district or circuit judge is bound thereby, as in the case of any other adjudication of a question of law by the Supreme Court.4
In her application for a writ of habeas corpus, appellant did not allege newly-discovered facts pertaining to adverse publicity before and during the trial. In effect, then, she was presenting to the district court the same question of law which had been resolved against her by the United States Supreme Court. The district court correctly determined that under the circumstances the contention was not open for reconsideration by the district court. It therefore did not err in refusing to accept evidence or to examine the state court record as to the publicity issue.
The second ground for relief, as alleged in the application, was that in refusing to exclude four constitutionally unqualified jurors for cause, thereby requiring appellant to exercise four of the twenty peremptory challenges allowed to her by state law, the court in effect limited her to sixteen peremptory challenges, in violation of the equal protection and due process clauses of the Fourteenth Amendment.
The facts pertaining to the voir dire examination of these four jurors were presented in the state Supreme Court in connection with the automatic appeal, it being argued that the trial court erred, to appellant's prejudice, in failing to exclude these jurors for cause, and that the result was to deprive her of due process of law. That court rejected the contention, holding that the trial court did not abuse its discretion or otherwise err in this regard.
This point, however, was not presented to the United States Supreme Court in appellant's petition for a writ of certiorari. The failure to petition for a writ of certiorari with respect to that contention precluded district court consideration thereof in this subsequent habeas corpus proceeding, absent special circumstances justifying departure from that requirement. See Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587. No such special circumstances were shown here.
The district court was therefore without jurisdiction to consider this particular contention and did not err in refusing to receive evidence or to examine the state court record in an effort to determine the merits of this point.5
The third ground for relief, as alleged in the application, was that three constitutionally disqualified jurors were permitted to stay in the jury box after appellant had exhausted her peremptory challenges, thereby depriving appellant of equal protection and due process under the Fourteenth Amendment.
This was the second point concerning which the United States Supreme Court granted certiorari, and thereafter dismissed the writ because of the insufficiency of the facts to support the constitutional contention. No new facts were alleged in the instant petition. It follows that, for the reasons stated above, the district court was not required to receive evidence or examine the state court record and, as to this point, properly dismissed the application.6
The fourth ground for relief, as alleged in the application, has to do with the asserted misconduct of the prosecution in bringing before the jury information concerning unrelated acts of misconduct.
Appellant failed to raise this point in her petition for a writ of certiorari,...
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...a writ may nonetheless have res judicata effect if the circumstances reveal that the court has dismissed on the merits, see Duncan v. Carter, 299 F.2d 179 (9th Cir.), cert. denied, 370 U.S. 952, 82 S.Ct. 1602, 8 L.Ed.2d 818 (1962). In that case a defendant's criminal conviction had been aff......
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...petition raises issues of fact, which if resolved in favor of the petitioner would entitle the petitioner to relief. See Duncan v. Carter, 299 F.2d 179, 181 (9th Cir.), cert. denied, 370 U.S. 952, 82 S.Ct. 1602, 8 L.Ed.2d 818 Chaney's claim that the Arizona death penalty statute is unconsti......
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Miller v. Carter
...it merely dismissed the writ of certiorari, an action indistinguishable, in this instance, from a denial of certiorari. Duncan v. Carter, 299 F.2d 179 (9th Cir. 1962), relied upon by the court below, is distinguishable. There the Supreme Court's per curiam opinion dismissing the writs expre......
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Bradley v. Ciccone
...1963), cert. denied, 377 U.S. 1006, 84 S.Ct. 1930, 12 L.Ed.2d 1055 (1964); Queen v. Page, 362 F.2d 543 (10th Cir. 1966); Duncan v. Carter, 299 F.2d 179 (9th Cir. 1962), cert. denied, 370 U.S. 952, 82 S.Ct. 1602, 8 L.Ed.2d 818 (1962). For more recent cases, see Dixon v. Rhay, 396 F.2d 760, 7......