Fernandez v. Meier

Decision Date16 May 1969
Docket NumberNo. 22442.,22442.
PartiesAnthony (Tony) FERNANDEZ, Appellant, v. Raymond W. MEIER, Warden, Appellee.
CourtU.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.

POPE, Circuit Judge:

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: "These motions, predicated on `newly discovered evidence,' alleged that both juries were illegally constituted * * *. We think, as the two lower courts did, that petitioners have lost these objections by years of inaction. Rule 12(b) (2) of the Federal Rules of Criminal Procedure provides: `Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. * * * Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.'2 Petitioners concede, as they must, that this Rule applies to their objection to the grand jury array, but deny that it applies to their objection to the petit jury array. On the latter point we do not agree. In Frazier v. United States, 335 U.S. 497, 503, 69 S.Ct. 201, 205, 93 L.Ed. 187, this Court stated that a challenge to the method of selecting the petit jury panel comes too late when not made before trial. And the lower federal courts have uniformly held that an objection to the petit jury array is not timely if it is first raised after verdict. (Citing cases.)"

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: "The Court's recent opinions in Fay v. Noia, supra,3 372 U.S. at 438-440, 83 S.Ct., at 848, 849, and Townsend v. Sain, supra, 372 U.S. at 317, 83 S.Ct., at 760, 761,4 deal at length with the circumstances under which a prisoner may be foreclosed from federal collateral relief. The principles developed in those decisions govern equally here."

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: "The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461`an intentional relinquishment or abandonment of a known right or privilege' — furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other...

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  • Weems v. United States
    • United States
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    • May 14, 1973
    ...claims. Terry v. Peyton, 433 F.2d 1016, 1021, n. 2 (4th Cir. 1970). 5 Davis, supra, apparently overrules such cases as Fernandez v. Meier, 408 F.2d 974 (9th Cir. 1969), cert. den., 404 U.S. 863, 92 S.Ct. 106, 30 L.Ed.2d 107 (1971), rehearing denied, 404 U.S. 961, 92 S.Ct. 308, 30 L.Ed.2d 28......
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    ...499, 74 S.Ct. 693, 98 L.Ed. 884; Schneider v. Rusk (1964), 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218; Fernandez v. Meier (CA 9, 1969), 408 F.2d 974; Miller v. United States (CA 9, 1967), 388 F.2d 973, 976, 977. See Earnest v. Willingham (CA 10, 1969), 406 F.2d 681, discussed 8 In Lawson v......
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    • May 10, 1972
    ...are lacking, and the issue is not foreclosed on collateral attack. (Cobb v. Balkcom (5th Cir. 1964) 339 F.2d 95; cf. Fernandez v. Meier (9th Cir. 1969) 408 F.2d 974.) For the purpose of testing the sufficiency of Carmical's averments, prima facie, to sustain his claim for habeas relief, the......
  • Thompson v. Mazo, 22268.
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    • January 12, 1970
    ...Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886) which is implied in the fifth amendment, Fernandez v. Meier, 408 F.2d 974 (9th Cir. 1969); United States v. Fallon, 407 F.2d 621 (7th Cir.), cert. denied, 395 U.S. 908, 89 S.Ct. 1749, 23 L.Ed.2d 220 (1968). Cf. B......
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