Gallegos v. Turner

• Decision Date: 26 July 1966
• Docket Number: No. C 1-66.,C 1-66.
• Citation: 256 F. Supp. 670
• Parties: Anastacio GALLEGOS and Rellis Gallegos, Petitioners, v. John W. TURNER, Warden, Utah State Prison, Respondent.
• Court: U.S. District Court — District of Utah

256 F. Supp. 670

Anastacio GALLEGOS and Rellis Gallegos, Petitioners, v. John W. TURNER, Warden, Utah State Prison, Respondent.

No. C 1-66.

United States District Court D. Utah, Central Division.

July 26, 1966.

COPYRIGHT MATERIAL OMITTED

R. J. Rimensberger, and Gordon Hoxsie, Salt Lake City, Utah, for petitioners.

Ronald N. Boyce, Asst. Atty. Gen. of Utah, for respondent.

MEMORANDUM DECISION

CHRISTENSEN, District Judge.

This is a habeas corpus proceeding. The petitioners are state prisoners. They are now serving terms of imprisonment at the Utah State Prison for second degree murder. The convictions were affirmed by the Supreme Court of the State of Utah in State v. Gallegos, 16 Utah 2d 102, 396 P.2d 414 (1964). Petitioners' application for a writ of habeas corpus after hearing was denied by the state district court, and on appeal that denial also was affirmed. Gallegos v. Turner, Warden, 17 Utah 2d 273, 409 P. 2d 386 (1965).

The petitioners contend here that they are restrained of their liberty by state authority in violation of their constitutional rights by reason of the knowing employment of false testimony by the prosecuting attorney in the state court. It is also asserted in substance that petitioners were refused the aid of counsel on appeal of the denial of their habeas corpus petition in the state court in violation of their constitutional right to counsel, due process and the equal protection of the law.

Petitioners have exhausted their state remedies, 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). It is true that petitioners did not expressly direct the attention of the State Supreme Court to their present contention that its denial of new counsel, in view of the private representations to the court by counsel who had been appointed that their appeal was without merit, amounted also to a denial of due process and the equal protection of the laws. But it would be unrealistic to suppose that any related rights were not foreclosed effectually by that court, wrongly or rightly, in deciding the case without appointing new counsel.

This court, heedful of the teachings of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and the cases from this circuit applying its doctrine, appointed counsel for the petitioners and granted a hearing. The state district attorney, as well as the attorney who represented the petitioners in that proceeding, testified. The witness Hoopiana, whose testimony it was charged had been perjured, also testified, and the transcripts of evidence in the state criminal prosecution and the habeas corpus proceeding were received in evidence. Upon the basis alone of the testimony of the witnesses appearing before me, as well as in consideration of the record before the state court, I find that petitioners failed to discharge their burden of proving that the state prosecutor knowingly utilized perjured testimony. Indeed, I agree with the comment of Mr. Justice Crockett speaking for the court in Gallegos v. Turner, Warden, supra, 409 P.2d 386, 387:

"There is no proof that Mr. Hoopiana lied at the trial, only that there was some inconsistency between his then testimony and that which he gave at the preliminary hearing. The mere fact of inconsistency does not constitute proof that the testimony he gave at the trial was false. Much less does it support the charge that the prosecutor knew of perjured testimony but nevertheless wilfully and intentionally used it * * *"

This ordinarily would end inquiry by a federal court in such a case were it not for a problem injected into the record at the appellate level which is deemed to require further notice.

Following the habeas corpus hearing before the lower state court, an appeal was duly taken to the Utah Supreme Court by counsel who theretofore had been assigned, petitioners being impecunious. By agreement with their counsel, petitioners actually wrote the brief filed in support of this appeal. It having then come to their attention that counsel did not intend to argue the appeal orally before the Supreme Court, petitioners on October 4, 1965, addressed a letter to Mr. L. M. Cummings, Clerk of that court in which it was stated:

"* * * We have been informed, indirectly * * * that his (the assigned attorney's) office will not argue our appeal now pending before the State Supreme Court, and that if we wish to have our briefs argued, we must obtain other counsel outside his office.

"Therefore, inasmuch as we are proceeding in Forma Pauperis we are hereby requested that you as Clerk, bring to the attention of the Chief Justice the fact that we wish to have counsel appointed for the purpose of arguing our case before said Court, and that such counsel as may be appointed by the court be requested to contact us personally here at the Utah State Prison with respect to our cause.

"Please be advised that we wish to avoid any unnecessary delay in this matter, and your attention to this matter is appreciated.

"Thank you for your indulgence."

The following response was received by petitioners under date of October 5, 1965, from the Supreme Court Clerk:

"I have your letter of October 4 requesting this Court to appoint an attorney for you to argue your appeal from a denial of a Writ of Habeas Corpus.

"I submitted your letter to the Chief Justice and I am directed to advise you that * * * (the attorney) applied for a writ and tried it for you in the District Court. When you took the appeal and the record was received, he came down and got it and after reviewing it carefully, came to the conclusion that there was no error which would lead him to believe that a reversal could be secured and he notified us of this fact. Notwithstanding this advice, you filed a brief and the case is now pending awaiting submission to the court.

"You have been represented by competent counsel and the Court does not feel that it should appoint an attorney just to present arguments on the appeal when they have been fully covered in the brief which you filed."

No other counsel was appointed for the petitioners, and they had no opportunity through counsel or in person to present oral argument on appeal. The Supreme Court considered the briefs and filed its opinion and decision in the case on December 27, 1965, sustaining denial of the writ of habeas corpus as hereinabove noted. (17 Utah 2d 273, 409 P.2d 386, supra.)

In another case I have held that the denial of counsel in a state habeas corpus proceeding amounted as to an indigent defendant to an unconstitutional denial of the equal protection of the laws, particularly when this precluded an effective appeal which the state accords to persons of means. La Faver v. Turner, 231 F. Supp. 895 (D.C.Utah 1964); see also La Faver v. Turner, 345 F.2d 519 (10th Cir. 1965). Despite the state's argument that the Tenth Circuit has not regarded habeas corpus proceedings collaterally attacking a judgment of conviction as one in which counsel is demandable as of right, I find nothing in any controlling decision which leads me to change the views expressed in La Faver, and hence I shall proceed on the basis of the principles therein accepted to consider the extension of the problem of that case as presented by the case at bar.

We are here concerned not only with an alleged deprivation of the right of counsel, but of oral argument before the appellate tribunal and, beyond these, with a claimed frustration of effective appeal by an informal confession of the alleged lack of merit by former counsel, in magnification of the possible prejudice resulting in the refusal of the appointment of new counsel.

In this context, guide lines are badly needed by counsel as well as litigants.¹ The Canons of Professional Ethics of the American Bar Association furnish but limited practical guides in the twilight zone with which we are confronted.²

There are practical difficulties and pressures which make procedural shortcuts attractive.³ Such problems not only beset the courts, but pose difficult dilemmas for counsel.⁴

I believe that these dilemmas and practical difficulties must be resolved consistently with our adversary system in order to avoid grave problems of due process and the equal protection of the laws.⁵ And I believe that they best can be settled as a practical matter by steady adherence to established principles of our adversary system and due process.⁶

In light of controlling principles of constitutional law already sufficiently delineated in the cases and the less clearly defined responsibilities of counsel in relation to our adversary system and the adjudicative process, my views being indicated in the margin, it remains to be determined whether the facts here disclose any departures of constitutional significance.

The area of inquiry in this connection is quite limited to be sure. Assigned counsel did perfect an appeal. Petitioners prepared their own brief with their eye singly upon the federal court because they wished to expedite a final state ruling which apparently they assumed would be adverse.⁷ Assigned counsel was, indeed, faced with a situation which well could have tried his patience if not his self respect—the necessity of arguing upon the basis of his clients' inartful brief, before a high court of perceptive and distinguished judges, propositions to which he could not personally subscribe. That he chose to informally represent to the court that he could see no merit in his clients' contentions rather than to present those contentions regularly in open court in their best possible light without personally vouching for them as in Wood v. United States, 357 F.2d 425 (10th Cir. 1966), or, after notice to his clients, to apply for leave to withdraw as in Ellis v. United States, supra, presents the narrow peg upon which any constitutional contention must be hung.

In this case, unlike the situation indicated in State of Utah v. Montez, 17 Utah 2d 299, 410 P.2d 764 (1966), a...