Gardella v. Field

• Decision Date: 31 July 1968
• Docket Number: No. 68-596.,68-596.
• Court: U.S. District Court — Central District of California
• Parties: Robert GARDELLA, A-91217, Petitioner, v. H. V. FIELD, Respondent.

291 F. Supp. 107

Robert GARDELLA, A-91217, Petitioner, v. H. V. FIELD, Respondent.

No. 68-596.

United States District Court C. D. California.

July 31, 1968.

COPYRIGHT MATERIAL OMITTED

Robert Gardella, petitioner, in pro per.

MEMORANDUM ORDER

REAL, District Judge.

Petitioner, Robert Gardella, filed his Petition For Writ Of Habeas Corpus By A Person In State Custody¹ on April 15, 1968, and thereafter submitted a Motion For Appointment of Legal Counsel dated April 18, 1968.

BACKGROUND

Petitioner was convicted in the Superior Court of Santa Cruz County upon his plea of guilty to a violation of Cal. Pen.Code § 261.1 (statutory rape). Petitioner was then sentenced by said court to the term prescribed by law on July 15, 1965. By this federal petition for a writ of habeas corpus, petitioner questions the legality of his present incarceration at the California Men's Colony—East Facility, Los Padres, San Luis Obispo County, California.

Petitioner has previously filed two petitions for writ of habeas corpus in the state courts. One was directed to the state superior court of San Luis Obispo County and the other to the state supreme court. In those petitions, petitioner alleged, as he does here, that his "plea of guilty to the crime of `statutory rape' was entered because of certain promises and threats made to him by his defense counsel prior to trial" with the knowledge and agreement thereto of the prosecutor and trial judge.

Both state petitions were summarily denied. On January 24, 1968, the Superior Court of the State of California in and for the County of San Luis Obispo entered its "Order Denying Petition" upon the ground that "there are no facts alleged from which it can be determined what `promises' and/or `threats' were made, nor how or in what manner the District Attorney and/or Trial Court `tacitly' agreed thereto." Subsequently, on April 4, 1968, the Supreme Court of California entered an order described by petitioner as a "post card denial."²

The present petition raises two pertinent issues which must be preliminarily determined by this court:

1. The sufficiency of the petition; and

2. Petitioner's exhaustion of state remedies.

SUFFICIENCY OF THE PETITION

Petitioner sets forth no facts in his present petition which suggest the availability of federal habeas corpus relief. If this were the only deficiency disclosed by the present petition, leave to amend would be granted to petitioner in order to afford him a full opportunity to present his claims. This procedure, however, is unnecessary herein since petitioner has failed to exhaust state remedies.

EXHAUSTION OF STATE REMEDIES

Exhaustion of state remedies is a condition precedent to consideration of federal petitions for habeas corpus by state prisoners. 28 U.S.C. § 2254.³ This statutory requisite merely codifies the doctrine of the appropriate exercise of power by federal courts rather than a lack of jurisdiction. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). See Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944).

In order to exhaust state remedies, a state prisoner does not necessarily have to resort to every available state remedy. The retionale underlying exhaustion of state remedies reflects principles of comity. Fay v. Noia, supra. Once a state prisoner has fully presented his claim to the state courts it is unnecessary for him to exhaust other available state procedures regarding such a claim. Brown v. Allen, 344 U.S. 443, 447-450, 73 S.Ct. 397, 97 L.Ed. 469 (1953). Therefore, the inquiry as to exhaustion of state remedies should focus upon whether or not the state courts have had the initial opportunity to pass upon the claims raised in a federal habeas corpus petition. If the state courts have not been presented with such an opportunity, and a state procedure exists whereby the particular claims may still be raised, federal habeas corpus is inappropriate. E. g. Conway v. Wilson, 368 F.2d 485 (9 Cir. 1966), cert. denied, 386 U.S. 925, 87 S.Ct. 897, 17 L.Ed.2d 798 (1967); Rose v. Dickson, 327 F.2d 27 (9 Cir. 1964).

1. Present Availability of Direct Appellate Review

Petitioner has never attempted to obtain appellate review of his conviction. His reasons for this failure are that "he was of the opinion that his guilty plea precluded an appeal" and that "petitioner was also unlearned in matters of law and, in particular, the niceties of perfecting a notice of appeal."⁴

The mere fact that petitioner did not file a timely notice of appeal does not necessarily foreclose petitioner from ever obtaining such review. The appellate procedure of California authorizes relief for an excusable failure to file a timely notice of appeal. Rule 31(a), Cal.Rules of Court.⁵ See, e. g., People v. Davis, 62 Cal.2d 806, 44 Cal.Rptr. 441, 402 P.2d 129 (1965). If the reasons for petitioner's failure to obtain appellate review are unwarranted, it is manifest that petitioner may still seek such review.

Focusing on petitioner's first reason, the statutory law of California authorizes appellate review of a conviction based upon a plea of guilty. Cal. Pen.Code § 1237.5.⁶ See Rule 31(d), Cal. Rules of Court.⁷ However, since this statute became effective on September 17, 1965, it was inapplicable to petitioner because judgment on his guilty pleas was entered on July 15, 1965. People v. Laudermilk, 67 A.C. 269, 278 fn. 8, 61 Cal.Rptr. 644, 650-651, 431 P.2d 228, 234-235 (1967); People v. Brotherton, 239 Cal.App.2d 195, 197, 48 Cal.Rptr. 513 (1966). Therefore, former rules for such appellate review are controlling. People v. Laudermilk, supra.

Prior to the enactment of Cal. Pen.Code § 1237.5 an appeal from a judgment based upon a guilty plea would not lie unless there was "an irregularity going to the jurisdiction or legality of the proceedings." E. g., Stephens v. Toomey, 51 Cal.2d 864, 870, 338 P.2d 182 (1959). The particular claims of error considered pursuant to this exception were substantially equivalent to fundamental constitutional deficiencies which would nullify a plea of guilty. See People v. Laudermilk, supra at 278-279, 61 Cal. Rptr. at 651, 431 P.2d at 235 (insanity at time of plea); People v. O'Neill, 64 Cal. 2d 666, 671-672, 51 Cal.Rptr. 250, 414 P.2d 378 (1966) (ineffective assistance of counsel); People v. Navarro, 243 Cal. App.2d 755, 758, 52 Cal.Rptr. 686 (1966) (ineffective waiver of constitutional rights); People v. Natividad, 222 Cal. App.2d 438, 441, 35 Cal.Rptr. 237 (1963) (ineffective assistance of counsel); People v. Plummer, 222 Cal.App.2d 280, 282, 35 Cal.Rptr. 53 (1963) (plea obtained by misrepresentation or coercion). People v. McDowell, 204 Cal.App.2d 734, 736, 22 Cal.Rptr. 646 (plea obtained by duress); People v. Rose, 171 Cal.App.2d 171, 339 P.2d 954 (plea obtained by misrepresentation). Also see People v. Rosalez, 201 Cal.App.2d 643, 20 Cal.Rptr. 80 (1962).⁸ Consequently, the grounds for appeal enumerated by Cal.Pen.Code § 1237.5(a) may be fairly characterized as merely a codification of prior case law. See People v. Ward, 66 Cal.2d 571, 575, 58 Cal.Rptr. 313, 426 P.2d 881 (1967).⁹

Clearly, petitioner could have raised on appeal the issue of an involuntary plea of guilty. See, e. g., People v. Plummer, supra; People v. McDowell, supra. Pursuant to this conclusion, petitioner's alleged previous lack of knowledge regarding the procedure for perfecting a notice of appeal becomes immaterial because petitioner has never attempted to obtain relief under Rule 31(a) from his failure to file a timely notice of appeal.

Until petitioner invokes Rule 31 (a), it cannot be determined with any degree of certainty that petitioner may not still obtain state appellate review. Several factors perpetuate this uncertainty. First, there is no fixed time limitation upon seeking relief under Rule 31(a). People v. Garcia, 63 Cal.2d 265, 269, 46 Cal.Rptr. 324, 405 P.2d 148 (1965). Second, the power of state appellate courts under Rule 31(a) is to be liberally exercised to provide the right to appeal whenever reasonably possible. E. g., People v. Garcia, supra at 266, 46 Cal.Rptr. 324, 405 P.2d 148. Consequently, the grant or denial of relief turns upon the facts of each case. Finally, if an application for relief is denied by the appropriate Court of Appeal, relief may still be available because the denial is reviewable by the Supreme Court of California. E. g., In Re Notz, 62 Cal.2d 423, 424, 42 Cal.Rptr. 321, 398 P.2d 593 (1965). Under these circumstances, it is appropriate to summarily dismiss the present petition unless petitioner has in some other manner exhausted available state remedies. E. g., Lembke v. Field, 380 F.2d 383 (9 Cir. 1967).

2. Substantive Inadequacy of Petitioner's Resort To State Habeas Corpus

Prior to his federal petition for habeas corpus, petitioner's only attacks upon his conviction have taken the form of state petitions for habeas corpus. Under California post-conviction procedure, habeas corpus cannot serve as a substitute for an appeal nor, in the absence of special circumstances, as a second appeal. Compare In Re Shipp, 62 Cal.2d 547, 43 Cal.Rptr. 3, 399 P.2d 571 (1965) and In Re Dixon, 41 Cal.2d 756, 264 P.2d 513 (1953) with In Re Jackson, 61 Cal.2d 500, 39 Cal.Rptr. 220, 393 P.2d 420 (1964).¹⁰ Since petitioner failed to appeal his conviction and presents no special circumstances excusing his failure to appeal, it is manifest that petitioner's resort to state habeas corpus was patently inappropriate. In fact, petitioner's failure to seek relief pursuant to Rule 31(a) from his failure to file timely notice of appeal seems sufficient to preclude the availability of state habeas corpus. See In Re Fields, 62 Cal.2d 900, 42 Cal.Rptr. 836, 399 P.2d 372 (1965); In Re Brown, 62 Cal.2d 902, 42 Cal.Rptr. 838, 399 P.2d 374 (1965); Cf. In Re Jackson, supra. Also see, In Re Sandell, 64 Cal.2d 412, 413-414 fn. 1, 50 Cal.Rptr. 462, 412 P.2d 806 (1966). Furthermore, if other state remedies are...