Egan v. Teets

• Decision Date: 26 December 1957
• Docket Number: No. 15478.,15478.
• Citation: 251 F.2d 571
• Parties: Frank EGAN, Appellant, v. Harley O. TEETS, Warden, San Quentin, California, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

251 F.2d 571 (1957)

Frank EGAN, Appellant, v. Harley O. TEETS, Warden, San Quentin, California, Appellee.

No. 15478.

United States Court of Appeals Ninth Circuit.

December 26, 1957.

COPYRIGHT MATERIAL OMITTED

Frank Egan, San Francisco, Cal., in pro. per.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., for appellee.

Before LEMMON, FEE, and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

This is an appeal by Frank Egan from an order denying his application for a writ of habeas corpus.

In 1932, Egan was tried and convicted in the Superior Court of the City and County of San Francisco, California, on a charge of first degree murder. On September 14, 1932, that court imposed a sentence of life imprisonment, which Egan began serving on October 1 of that year. Since that time, and until October 1, 1957, he was incarcerated in the California state prison at San Quentin. During his imprisonment, Egan made numerous attempts to gain his freedom by means of court action of one kind or another. In all of these previous efforts he was unsuccessful.¹

The instant application was filed in the district court on November 1, 1956. It was denied on that court's own motion, without issuance of a writ or an order to show cause, and without hearing, on November 7, 1956. On November 23, 1956, the district court denied Egan's petition for rehearing, and, on December 5, 1956, denied his application for a certificate of probable cause. Such a certificate was granted by a judge of this court on December 28, 1956, thus enabling Egan to maintain this appeal. See 28 U.S.C.A. § 2253.

On October 1, 1957, after having served twenty-five years in prison, Egan was released on parole. The terms of the parole specify conditions restricting his conduct in certain particulars. The violation of such conditions could result in his detention or return to prison. He also remains under supervision, and is required to make written monthly reports to the Division of Adult Paroles.

Appellee has suggested that Egan's release on parole during the pendency of this appeal renders the appeal moot. We hold that it does not. Dickson v. Castle, 9 Cir., 244 F.2d 665.

In dismissing the instant application without issuance of a writ of habeas corpus or an order to show cause, and without hearing, the district court apparently invoked a provision of 28 U.S. C.A. § 2243. This statute provides among other things, that a court, justice, or judge entertaining an application for such a writ shall forthwith award the writ or issue an order to show cause why the writ should not be granted, "unless it appears from the application that the applicant or person detained is not entitled thereto."

On appeal, Egan contends, in effect, that one or more of the grounds stated in his application are meritorious, and that it was therefore error to dismiss his application without issuance of an order to show cause, and without a hearing.

The ground advanced in Egan's application which led to issuance of the certificate of probable cause is that (to quote from his application) "he was denied of his rights to appeal from his conviction. * * *" This allegation has reference to the fact that Egan's original appeal to the California District Court of Appeal, following his conviction and sentencing, was dismissed by that court for the reason that, after timely filing of his notice of appeal, he took no steps whatever to obtain a record on appeal. People v. Egan, 135 Cal.App. 479, 27 P.2d 412, decided November 28, 1933.

After quoting the applicable court rule,² the California District Court of Appeal said:

"* * * As indicated, no such application was ever filed or presented by appellant; nor was any attempt made otherwise to obtain a record on appeal; and it has been repeatedly held that the provisions of the foregoing rule are mandatory, and that, upon failure to comply with the requirements thereof, the appeal must be dismissed. * * *"

In the order here under review, the United States District Court did not separately discuss the several grounds set out in the application. It was there stated, however, that the only grounds asserted in the application which are supported by specific factual allegations were previously presented and, after hearing, determined adversely to Egan, on April 11, 1947, in the prior proceedings (Civ. No. 26700-Y) in the same court.³ The ground now under discussion — denial of the right to appeal — was not presented and adjudicated in these prior proceedings. It follows that this particular ground must have been rejected because, in the view of the district court, it was not supported by specific factual allegations.

It is true that the application for a writ of habeas corpus does not, itself, contain any specific factual allegations in support of the asserted ground under discussion. Attached to the application, however, are a number of exhibits, one of which contains some recitals which were thought sufficiently pertinent to this particular charge to warrant issuance of a certificate of probable cause. The exhibit in question is a copy of the application for a writ of habeas corpus, dated March 5, 1956, which Egan filed in the Supreme Court of California in Egan v. Teets, Crim. No. 5863, referred to in footnote 1.

In this exhibit, it is stated, in effect, that Egan's handwritten notice of appeal, prepared and delivered to the clerk of the trial court immediately after sentence was pronounced, was delivered to, but suppressed by, the trial judge. This further statement is then made:

"This notice of appeal was set up from your petitioner\'s access to daily transcripts, of the hearing setting out in details of all deprivals, of his rights, threats of and against counsel, about stopping this hearing, Etc. The Arbitrary dismissal of Mrs. Rand a Juriour * * * `Without asking the juriour.\' sic"

The statement just quoted is subject to varying interpretations. It seems to us, however, that its intended purport may have been that the described handwritten document was, in effect, an application and designation of the kind referred to in the quoted court rule, and that, had it been filed at the time it was delivered to the judge, there would have been substantial compliance with such rule. This interpretation of the quoted recital finds confirmation in this statement in Egan's opening brief on appeal:

"* * * He solemnly swears that he submitted portions of the Trial Transcript and a memorandum of legal points to the Trial Judge, in compliance with Rules of the Supreme Court and the District Court of Appeal, effective September 1st, 1928 * * *"⁴

We will therefore regard the quoted recital in the exhibit attached to Egan's application as a specific factual allegation that a document, timely delivered to the trial judge in an attempt to comply, substantially, with the court rule in question, was suppressed by that judge.⁵

The fact that this recital is contained in an exhibit attached to the application, rather than in the application itself, is of no moment in proceedings of this kind. The application must meet the statutory test of alleging facts which entitle the applicant to relief. Brown v. Allen, 344 U.S. 443, 461, 73 S. Ct. 437, 97 L.Ed. 469. It meets this test if the application or any of the supporting documents filed with it recite the required facts. Thus, in Sisk v. Overlade, 7 Cir., 220 F.2d 68, certiorari denied 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774, allegations of fact contained in a brief attached to a verified application were held to be appropriate for consideration.⁶

It is unquestioned that the suppression, by government officials, of papers which would have enabled a prison inmate to perfect his appeal is a violation of the equal protection clause of the Fourteenth Amendment.⁷

It follows from what has been said that, with regard to the allegation that he had been denied a right to appeal, Egan's application should not have been dismissed, without show cause proceedings or hearing, on the ground that the allegation was not supported by specific factual allegations.

Appellee contends, however, that there is another reason why, with regard to this particular ground stated in the application, the district court acted properly in dismissing the application on its own motion. This asserted reason is that Egan has waived his constitutional right to the equal protection of the laws in connection with his appeal, because he did not stand on this right at the time the motion to dismiss his appeal was under consideration by the California District Court of Appeal.⁸

It is a rule of appellate adjudication that, if the order or judgment under review is not sustainable on the ground relied upon by the trial judge, but is sustainable on another ground which could be and was fairly presented on appeal, there should be an affirmance. We therefore turn to a consideration of this additional reason advanced by appellee for sustaining the order.

That Egan did not make the contention concerning suppression of his appeal papers on the proceedings to dismiss his appeal, is shown by the recitals in his reply brief on this appeal. He there states that, in resisting the motion to dismiss the original appeal, he advanced two contentions. One of these was that the record on appeal perfected by his codefendant, Albert J. Tinnin, was available as Egan's record on appeal. The other was that Egan had relied upon his attorney, Vincent W. Hallinan, to perfect his appeal after notice of appeal was filed, but that, through an error in Hallinan's office, this was not done.

But nonassertion of a constitutional right in court proceedings in which it would be appropriate to make such assertion is not necessarily a waiver of such right. As appellee himself concedes, a constitutional question may be raised at any time if the matter appears on the face of the record, or if it is of such nature that it could not have been...