Ex parte Wells

• Decision Date: 18 June 1951
• Docket Number: No. 29448.,29448.
• Citation: 99 F. Supp. 320
• Parties: Ex parte WELLS.
• Court: U.S. District Court — Northern District of California

99 F. Supp. 320

Ex parte WELLS.

No. 29448.

United States District Court N. D. California, S. D.

June 18, 1951.

C. K. Curtright, Philip C. Wilkins, Sacramento, Cal., Charles R. Garry, San Francisco, Cal., for petitioner.

Clarence A. Linn, Deputy Atty. Gen. of the State of California, for State of California.

GOODMAN, District Judge.

Petitioner is imprisoned in the California State Penitentiary at San Quentin under sentence of death pursuant to a judgment and commitment of the Superior Court of the State of California in and for the County of Sacramento. On January 27, 1950, he filed in this court a petition for the writ of habeas corpus, in which he alleged that the death sentence had been imposed in violation of federally guaranteed rights. We stayed execution of the sentence and retained jurisdiction of the cause to enable petitioner to pursue available state remedies. 28 U.S.C. § 2254; D.C., 90 F.Supp. 855. This he did. On September 13, 1950, his application to the Supreme Court of California for a writ of habeas corpus was denied by a divided court. 35 Cal.2d 889, 221 P.2d 947. On February 26, 1951, the United States Supreme Court, without opinion, denied certiorari. Wells v. California, 340 U.S. 937, 71 S.Ct. 483.

Petitioner now presses for decision on his petition for the writ of habeas corpus, alleging that he has fully pursued his state remedies. Consequently the Warden of the California State Penitentiary at San Quentin was ordered to show cause why a writ of habeas corpus should not issue. The order to show cause came on for hearing on April 10, 1951. It was agreed that the hearing upon the order to show cause should be considered a hearing on the merits as if the writ had issued. There is therefore now presented for determination the federal question tendered by the petition.

At the outset, the court is confronted with the serious question as to whether it should, in this posture of the case, exercise its powers and grant relief to the petitioner. This is indeed a troublesome question for all district judges in cases where the writ is sought because of alleged constitutional infirmities in state court criminal proceedings or judgments. Up to the time of the decision in Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761, district judges had no clear or unequivocal precedent to guide their actions in proceedings of this kind. But Darr v. Burford has precisely stated that, as a matter of comity between federal and state systems, a lower federal court should not intervene, via habeas corpus, in state criminal proceedings until the United States Supreme Court has been first asked to review the final state court decision. It is for that reason that the law now requires a petition for certiorari in the United States Supreme Court as the final step in the process of exhausting state court remedies before an application for a writ may be made to the federal district court. In my opinion, there is no doubt now that the lower federal courts have power to act upon an application for a writ after declination of the United States Supreme Court to review a state court judgment by denial of certiorari.¹ Darr v. Burford, supra. See Ex parte Royall, 1886, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868. But the problem remains as to whether this power of the district court should be exercised in a case where the precise constitutional question presented in the petition for the writ has been passed upon and adjudicated by the highest court of the state and the final step by petition for writ of certiorari to the United States Supreme Court has been taken.

The Supreme Court of the State of California is a competent tribunal composed of able and experienced judges. They have interpreted the California statute here under attack and have held that its application in the instant cause is not constitutionally infirm under the due process provisions of the 14th amendment. Under these circumstances, consideration of the complaint of the petitioner must be undertaken with diffidence and great care. It would be unseemly to willy-nilly reach a conclusion at variance with that of the highest court of the State of California. But since the plea of the petitioner rests squarely upon infirmities alleged to be violative of the provisions of the 14th amendment to the Constitution and since this court is specially vested with the power and entrusted with the duty of resolving questions of federal law, we must adjudicate this question in the light of our own view of the federal question involved.

At the time that the order staying petitioner's execution was issued, this court stated, as one of the reasons for staying the impending execution, that the imposition of the death penalty violated the due process clause of the 14th amendment to the Constitution of the United States. We are still of the same opinion. But, petitioner's unsuccessful effort to obtain relief via state process warrants clarification and amplification of the basis for this conclusion.

Petitioner has a long prison record. In March of 1925, at the age of 16, he began a term at the Preston School of Industry for larceny of an automobile. In 1927 he was again committed to Preston for driving an automobile without the consent of the owner. In 1931 while imprisoned at the State prison at Folsom for receiving stolen property, he stabbed and killed another inmate, and was subsequently convicted of manslaughter. He was released from Folsom in January 1941 and was received at the State prison at San Quentin in March of 1942 for driving an automobile without the owner's consent.

In September of 1944, petitioner was convicted of the crime of possessing a prohibited weapon while in prison. A conviction of this offense carries a statutory penalty of imprisonment for a term of not less than five years. Penal Code, § 4502. Under California law, the term of imprisonment is not fixed by the sentencing court. Penal Code, § 1168. It is fixed, between the statutory minimum and maximum, by an administrative body known as the Adult Authority. Penal Code, §§ 3020 and 5077.

On April 10, 1947, petitioner was still in custody upon the commitment for possessing a prohibited weapon while in prison, no term of imprisonment having yet been fixed by the Adult Authority. On that day, he threw a crockery cuspidor at and hit a prison guard. For this act, petitioner was subsequently convicted of violating Section 4500 of the Penal Code of California. Section 4500 makes mandatory the death penalty for any "person undergoing a life sentence in a State prison of this State, who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury". (Emphasis added.)

This code section, enacted in 1901, Stats. 1901, p. 6, was designed to protect prison officials and inmates from life-termers whose relatively hopeless position might move them to desperate acts of violence. People v. Finley, 1908, 153 Cal. 59, 61, 94 P. 248. At the time of its enactment, Section 4500, then Section 246, necessarily applied only to prisoners whose terms had been definitely fixed at life, since all sentences were then imposed by the courts. That it was reasonable and proper to apply this stringent disciplinary measure to this class of prisoners alone, was recognized by the United States Supreme Court. Finley v. People of State of California, 1911, 222 U.S. 28, 32 S.Ct. 13, 56 L.Ed. 75. Later, after the passage in 1917 of the California Indeterminate Sentence Act, Stats.1917, p. 665, the California Supreme Court held that Section 4500 also applied to those prisoners who were imprisoned for offenses for which the Adult Authority (then the Board of Prison Terms and Paroles) might prescribe a life sentence, if the Authority had not prescribed a lesser term. People v. McNabb, 1935, 3 Cal.2d 441, 45 P.2d 334. This holding was reaffirmed upon petitioner's appeal from his conviction. People v. Wells, 1949, 33 Cal.2d 330, at page 334, 202 P.2d 53.

Whatever may be thought of the correctness of this construction of Section 4500, it must be accepted by this court. We are bound by the State Court's construction of the State statute. State of Minnesota ex rel. Pearson v. Probate Court, 1940, 309 U.S. 270, 273, 60 S.Ct. 523, 84 L.Ed. 744; Neblett v. Carpenter, 1938, 305 U.S. 297, 302, 59 S.Ct. 170, 83 L.Ed. 182; Standard Oil Co. of Indiana v. State of Missouri, 1912, 224 U.S. 270, 287, 32 S.Ct. 406, 56 L.Ed. 760; West v. State of Louisiana, 1904, 194 U.S. 258, 261, 24 S.Ct. 650, 48 L.Ed. 965; Central Land Co. v. Laidley, 1895, 159 U.S. 103, 112, 16 S.Ct. 80, 40 L.Ed. 91; Iowa Central Ry. Co. v. State of Iowa, 1896, 160 U.S. 389, 393, 16 S.Ct. 344, 40 L.Ed. 467.

The constitutional issue here tendered therefore must be resolved as if Section 4500 imposed the death penalty upon any "person in a state prison of this state, sentenced to life imprisonment and any person, where the statute authorizes a maximum of life, whose maximum sentence has not yet been fixed by the Adult Authority, who with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily harm."

The question therefore is: Does the selection, as a class, of state prisoners, whose maximum sentence has not been administratively fixed, for the exceptional penalty of Section 4500, violate the federal guaranty of due process and equal protection of the law?

It is well settled that a classification, to be valid under the due process and equal protection clause of the 14th amendment, must be neither arbitrary nor capricious. It must reasonably relate to a legitimate legislative purpose. Schlesinger v. State of Wisconsin, 1926, 270 U.S. 230, 46 S.Ct. 260, 70 L.Ed. 557; Weaver v. Palmer Brothers Co., 1926, 270 U.S. 402, 46 S.Ct. 320, 70 L.Ed. 654. Likewise, such...