Fernandez v. Meier
Decision Date | 16 May 1969 |
Docket Number | No. 22442.,22442. |
Parties | Anthony (Tony) FERNANDEZ, Appellant, v. Raymond W. MEIER, Warden, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Anthony (Tony) Fernandez, pro se.
Eugene G. Cushing, U. S. Atty., John S. Obenour, Asst. U. S. Atty., Tacoma, Wash., for appellee.
Before POPE, HAMLEY and MERRILL, Circuit Judges.
The appellant here was convicted under various counts of two indictments charging interstate frauds in violation of 18 U.S.C. § 2314. His conviction was affirmed, Fernandez v. United States, 329 F.2d 899. He was sentenced to a term of imprisonment which he is now serving in a federal penitentiary. Thereafter he filed in the court below, which is the court in which he was originally convicted, two petitions to set aside and nullify his sentence. These petitions were by him denominated "Petitions for Writ of Habeas Corpus." The petitions were joined together and heard by a Judge sitting in that court and denied. Obviously, since appellant is a federal prisoner, his application for post-conviction remedy should have been founded upon the provisions of 28 U.S.C. § 2255, but inasmuch as the court below passed upon these petitions on the merits, and in the same manner as it would have done had they been denominated petitions under the last named section, we think it is appropriate that we should disregard the misnomer used by the appellant and consider the appeal upon the merits.
Appellant's main contention is that the grand and petit juries, which indicted and convicted him in 1962, were "illegally and unlawfully founded, arranged and constituted" in that "Spanish-American persons legally qualified and eligible for jury service and commissioner selection, residing in the counties * * * which comprise the federal district for Western State of Washington, of the Southern division (in which he was convicted), were systematically and purposely excluded: from original jury roll list, from jury panel, from serving on sitting grand and petit juries. * * *" Petitioner alleges that he is a Spanish-American person, born in the United States, from American naturalized Spanish parents.1
The substantive question thus sought to be raised by the appellant upon this appeal is whether, in systematically and purposely excluding from the jury rolls or lists members of a class to which appellant belong, there had been an unconstitutional discrimination against the petitioner. We assume that under the decisions of the Supreme Court in Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866, and Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991, such a systematic exclusion of members of a class to which petitioner belonged would constitute a denial of due process. Cf. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884.
It is conceded that the appellant made no such claim or objection when he was tried. This suggests the question whether, because of the provisions of Rule 12(b) of the Federal Rules of Criminal Procedure, appellant has waived his right to complain of the constitution of the grand and petit juries arrays. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 361-363, 83 S.Ct. 448, 461, 9 L.Ed.2d 357. The decision in the Shotwell case was upon appeal from conviction of the jury trial. The Court said: 2
The Shotwell case makes it plain that if the appellant here had endeavored to raise these questions upon a direct appeal from the judgment of conviction, he could not have done so. Criminal Rule 12(b) (2), supra, would require us to hold that failure to present his claim as therein required "constitutes a waiver thereof". The question now presented is whether notwithstanding this, appellant can now raise the question by collateral attack on the judgment pursuant to Title 28 § 2255?
We have the impression that generally a collateral attack on a judgment cannot succeed when review cannot be had on direct appeal. What gives us pause here is language used by the Court in Sanders v. United States, 373 U.S. 1, at p. 18, 83 S.Ct. 1068, at p. 1078, 10 L.Ed.2d 148. The Sanders case involved a collateral attack under § 2255, supra. The Court said:
It is noted that Fay v. Noia and Townsend v. Sain dealt with the rights of state prisoners. There was no occasion to construe or deal with Criminal Rule 12, supra. In Fay v. Noia the question was whether petitioner had waived the right now claimed. The Court said: ...
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