Gardner v. California, 73

• Decision Date: 20 January 1969
• Docket Number: No. 73,73
• Citation: 21 L.Ed.2d 601,89 S.Ct. 580,393 U.S. 367
• Parties: Robert Newton GARDNER, Jr., Petitioner, v. State of CALIFORNIA
• Court: U.S. Supreme Court

393 U.S. 367

89 S.Ct. 580

21 L.Ed.2d 601

Robert Newton GARDNER, Jr., Petitioner,

v State of CALIFORNIA.

No. 73.

Argued Nov. 20, 1968.

Decided Jan. 20, 1969.

Charles E. Rickershauser, Jr., Los Angeles, Cal., for petitioner.

Jack K. Weber, Los Angeles, Cal., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Petitioner is a California state prisoner who filed pro se various papers with the State Superior Court alleging state action that interfered with h § access to the courts for determination of his claims. The Superior Court, which granted a hearing and designated the Public Defender's office to represent petitioner at that hearing, treated the papers as requests for habeas corpus relief. After hearing, it made findings and held that the State had not impaired petitioner's rights of access to the courts.

Under California law, while the State has an appeal from an order discharging a prisoner in a habeas corpus proceeding,¹ the prisoner has no appeal where his petition is denied. See Loustalot v. Superior Court, 30 Cal.2d 905, 913, 186 P.2d 673, 677—678. But he may file a petition for habeas corpus either in the intermediate Court of Appeal or in the Supreme Court.² As petitioner in the instant case desired to pursue his remedy in the higher courts, he asked for a free transcript of the evidentiary hearing before the Superior Court. His motion was denied and he sought review of that denial by certiorari to the District Court of Appeal. It was denied, as was a timely petition for a hearing in the Supreme Court. We granted the petition for a writ of certiorari, 391 U.S. 902, 88 S.Ct. 1656, 20 L.Ed.2d 417, to consider whether the rulings below squared with our decisions in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, and Long v. District Court, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290.

We reverse the judgment below. If this involved an appeal from the Superior Court's denial of habeas corpus, the rule of the Griffin case would prevent California from not allowing petitioner, an indigent, access to the record which makes any appellate review meaningful, while according full review to all who have the money to pay their own why. This, however, is not an appeal but the drafting of a new original petition for habeas corpus to the higher court. That new petition must reflect what had transpired in the Superior Court. The statute provides:³

'Every application for a writ of habeas corpus must be verified, and shall state whether any prior application or applications have been made for a writ in regard to the same detention or restraint complained of in the application, and if any such prior application or applications have been made the later application must contain a brief statement of all proceedings had therein, or in any of them, to and including the final order or orders made therein, or in any of them, on appeal or otherwise.'

It is argued that since petitioner attended the hearing in the Superior Court, he can draw on his memory in preparing his application to the appellate court. And that court, if troubled, can always obtain the transcript from the lower court.⁴ But we deal with an adversary system where the initiative rests with the moving party. Without a transcript the petitioner, as he prepared his application to the appellate court, would have only his own lay memory⁵ of what transpired before the Superior Court. For an effective presentation of his case he would need the findings of the Superior Court and the evidence that had been weighed and rejected in order to present his case in the most favorable light. Certainly a lawyer, accustomed to precise points of law and nuances in testimony, would be lost without such a transcript, save perhaps for the unusual and exceptional case. The lawyer, having lost below, would be con- scious of the skepticism that prevails above when a second hearing is sought and would as sorely need the transcript in petitioning for a hearing before the appellate court as he would if the merits of an appeal were at stake. A layman hence needs the transcript even more.

It is said that the appellate court may send for the transcript and deduce from it whether there is merit in this new application for another hearing. That philosophy would make the appellate tribunal parens patriae of the indigent habeas corpus litigant. If that would suffice for appellate hearings in habeas corpus, why not in review of cases on appeal? Since our system is an adversary one, a petitioner carries the burden of convincing the appellate court that the hearing before the lower court was either inadequate or that the legal conclusions from the facts deduced were erroneous. A transcript is therefore the obvious starting point for those who try to make out a case for a second hearing. The State can hardly contend that a transcript is irrelevant to the second hearing, where it specifically provides one, upon request, to the appellate court and the State attorney. So long as this system of repeated hearings exists and so long as transcripts are available for preparation of appellate hearings in habeas corpus cases, they may not be furnished those who can afford them and denied those who are paupers.

There is no suggestion that in the present case there is any adequate substitute⁶ for a full stenographic transcript. We conclude that in the context of California's habeas corpus procedure denial of a transcript to an indigent marks the same invidious discrimination which we held impermissible in the Griffin and Long cases where a State granted appeals in criminal cases but in practical effect denied effective appellate review to indigents.

Reversed.

Mr. Justice BLACK concurs in the judgment of reversal and all of the Court's opinion except the statement at 370 that a full stenographic transcript is required here. He is of the opinion that, as stated in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, there may be no necessity for a full stenographic transcript in state habeas corpus cases, and for that reason he would not automatically require the State to supply one in cases like this case.

Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.

The Court holds today that petitioner, whose application for a writ of habeas corpus was denied in the California Superior Court, is automatically entitled to a free transcript of that proceeding, to aid him in 'preparing' and 'presenting' an entirely new application in the State Supreme Court. In so holding, the Court not only misconceives the nature of California's post-conviction procedure, but it imposes on the State a financial burden which is not offset by any appreciable benefit to the petitioner.

Under § 1475 of the California Penal Code, an applicant denied habeas corpus relief in a lower state court may file an application de novo in a higher court. As the Superior Court below noted, the petition is self-contained and independent of the prior proceeding. (Appendix 43.) The applicant is neither required nor requested to assign errors, or refer to testimony, in the prior proceeding. He must only inform the court that such a proceeding took place and supply collateral data, such as the court in which it was held, the disposition, etc.¹ The initial question for the second court—as it is for any court examining an application for post-conviction relief is whether, taking the factual allegations...