Gingrich v. Oberhauser

• Decision Date: 07 October 1969
• Docket Number: Civ. No. 68-2072.
• Citation: 305 F. Supp. 738
• Court: U.S. District Court — Central District of California
• Parties: Galen L. GINGRICH, Petitioner, v. E. J. OBERHAUSER, Respondent.

305 F. Supp. 738

Galen L. GINGRICH, Petitioner, v. E. J. OBERHAUSER, Respondent.

Civ. No. 68-2072.

United States District Court C. D. California.

October 7, 1969.

Galen L. Gingrich, in pro. per.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Lawrence K. Keethe, Deputy Atty. Gen., Los Angeles, Cal., for respondent.

ORDER DENYING WRIT OF HABEAS CORPUS

HAUK, District Judge.

Petitioner was convicted of a violation of the California Health and Safety Code, Section 11500, illegal possession of narcotics. He was sentenced to a term of two to ten years March 8, 1966, failed to appeal the conviction and sentence, and is currently confined at the California Institution for Men, Chino, California.

During 1967 petitioner filed three petitions for writ of habeas corpus successively in three California Courts: the Superior Court for San Bernardino County; the Court of Appeal, Fourth Appellate District, San Diego; and the State Supreme Court. Subsequently, a writ of error coram nobis was sought in the California Superior Court for Riverside County, Indio, California. Each of these petitions has been denied by the California Court in question.

Petitioner contends that he was denied due process of law for the following reasons: he was falsely arrested; he was not allowed to call an attorney at the time of his arrest and was coerced by the arresting officer; his plea of guilty was coerced by his counsel; his counsel was inefficient; he was denied his right to a trial by jury; the arresting officer committed perjury; the hospital and physicians violated Health and Safety Code, Section 11331.5 and his automobile was illegally confiscated; and, finally, his civil rights were violated on all the above grounds.

After reviewing the Petition for Writ of Habeas Corpus, the Amendment to Petition for Habeas Corpus and the Motion for Evidentiary Hearing, the Response, petitioner's Traverse to the Response, and the arguments and authorities set forth by the parties, this Court is fully advised in the premises and thus determines that the Petition for Writ of Habeas Corpus should be denied for the reasons set forth hereafter.

A. THIS PETITION FOR WRIT OF HABEAS CORPUS IS NOT PROPERLY BEFORE THE COURT.

Because petitioner failed to appeal on the points raised in his petition, he should not be permitted to raise these points on habeas corpus. Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1962); Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed. 2d 837 (1962); In re Sterling, 63 Cal.2d 486, 489-490, 47 Cal.Rptr. 205, 407 P.2d 5 (1965); In re Shipp, 62 Cal.2d 547, 555, 43 Cal.Rptr. 3, 399 P.2d 571 (1965); In re Lessard, 62 Cal.2d 497, 503, 42 Cal.Rptr. 583, 399 P.2d 39 (1965); In re Dixon, 41 Cal.2d 756, 760-761, 264 P.2d 513 (1953); In re Domingo, 268 A.C.A. 698, 701, 74 Cal. Rptr. 161 (1969). However, it is recognized that under the federal habeas corpus statute, 28 U.S.C. § 2254, the federal courts may grant relief despite petitioner's failure to pursue a state remedy no longer available at the time of his application. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822 (1962). But this relief may be denied if a petitioner has deliberately by-passed the orderly procedure of the state courts, and in so doing has forfeited his state court remedies. Id. at 438, 83 S.Ct. 822; In re Shipp, supra. The burden of establishing the absence of a deliberate by-pass of state appellate remedies is on petitioner. Nash v. United States, 342 F.2d 366, 368 (5th Cir., 1965); Brinlee v. White, 401 F.2d 763-764 (5th Cir., 1968).

The record is barren of and petitioner offers no satisfactory explanation as to why he failed to appeal from his conviction. This petition is barred, because of petitioner's unexplained default in not complying with State procedure. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1962).

The power to grant late appeals is liberally exercised in California. People v. Garcia, 63 Cal.2d 265, 46 Cal.Rptr. 324, 405 P.2d 148 (1965); People v. Davis, 62 Cal.2d 806, 44 Cal.Rptr. 441, 402 P.2d 129 (1965). The Federal courts should permit the state court to determine whether petitioner has a meritorious case for filing a late appeal. Lembke v. Field, 380 F.2d 383 (9th Cir., 1967).

Furthermore, petitioner has not exhausted his State remedy of habeas corpus. The three California courts in which petitioner filed a petition for Writ of Habeas Corpus were not presented with adequate averments of specific facts, and therefore the petitions stated no ground for issuance of the writs. Conway v. Wilson, 368 F.2d 485, 486-487 (9th Cir., 1966). Such specific averments are especially necessary where petitioner did not appeal from the judgment of conviction. In re Swain, 34 Cal.2d 300, 302, 209 P.2d 793 (1949).

In addition, petitioner did not confront any State court with five of the grounds he now urges. Although petitioner's contentions are somewhat vague and general, it is clear that he did not urge upon any State court the contentions that the arresting officer committed perjury, that he was coerced by the arresting officer, that the hospital and physicians violated Health and Safety Code, § 11331.5, that his counsel was inefficient, and that his civil rights were violated. (See Response herein, Ex. 2, p. 37; Ex. 3, p. 47; Ex. 4, p. 56; Ex. 5, p. 62. See also Petition, p. 6.) These represent petitioner's contentions 2, 4, 5, 7 and 8 in the present petition. (Petition, p. 3.)

Therefore, as to those contentions, petitioner has not exhausted his State remedies. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1962); Conway v. Wilson, 368 F.2d 485, 487 (9th Cir., 1966); Schiers v. People of State of California, 333 F.2d 173 (9th Cir., 1964).

Moreover, one of petitioner's contentions was raised for the first time in a petition for habeas corpus filed in the California Supreme Court. There petitioner contended that he was not allowed to call an attorney at the time of his arrest (Petition p. 3.) As to this contention, the proper procedure would have been to file a petition in the Superior Court of the county in which he was detained. In re Hillery, 202 Cal. App.2d 293, 294, 20 Cal.Rptr. 759 (1962). Thus, as to this single contention, the California Supreme Court was justified in denying the petition on that ground alone. Additionally, petitioner has not filed a petition for a Writ of Habeas Corpus in the California Court of Appeal.

Furthermore, petitioner should not be allowed to split-up or piecemeal his writ in the instant case. He indicates that all the contentions are linked together and, therefore, should stand or fall together in that he argues in his eighth contention that his civil rights were violated on the grounds of the other seven. (Petition p. 4h.) Since most of his contentions have not been presented to the State courts, including the all inclusive civil rights argument, petitioner has not exhausted his state remedies, and his petition should be denied. Schiers v. People of State of California supra; Rose v. Dickson, 327 F.2d 27, 29-30 (9th Cir., 1964).

Nevertheless, and to obviate the necessity of reviewing the entire matter again in the future, this Court has considered all of petitioner's contentions on the merits.

B. PETITIONER'S CONTENTIONS ARE WITHOUT MERIT.

(1) Petitioner's contention that he was falsely arrested.

The record of the preliminary hearing clearly indicates that "defendant had been falsifying narcotics records" (Response, Exhibit 1, p. 15) and that "defendant had in fact obtained narcotics or had withdrawn narcotics, had signed for them * * *. But the patients had not in fact received the narcotics" (Response, Exhibit 1, p. 16). Consequently there was probable cause to believe that petitioner had committed a felony and was still doing so by taking narcotics out of the hospital on his person.

So a stake-out surveillance was placed on petitioner at the parking lot of Valley Memorial Hospital in Indio, California, at 5:00 a. m. on the morning of the 24th of February, 1965. (Response, Exhibit 1, p. 14) Petitioner was not seen at this stake-out until approximately 7:10 a. m. when he left the hospital and walked across the parking lot to enter his vehicle. (Response, Exhibit 1, p. 17). It was at this time that the arrest for unlawful possession of a narcotic was made. Petitioner admits that he normally went off duty at 7:00 a. m.; however, he contends the time of arrest was in fact 5:45 a. m. and not 7:10 a. m. (Petition for Writ of Habeas Corpus, p. 4).

Petitioner's contention is a mere allegation unsupported by facts sufficient to establish by convincing evidence that the factual determination by the California State court at the preliminary hearing was erroneous. The written record made by the State court of competent jurisdiction in the Preliminary Transcript (Response, Ex. 4), must be presumed to be correct unless the petitioner proves by convincing evidence that it is not. 28 U.S.C. § 2254(d). Petitioner has failed to carry this burden of proof.

(2) Petitioner's contention that he was not allowed to call an attorney at the time of his arrest and was coerced by the arresting officer.

This contention is clearly without merit since the record of the preliminary hearing indicates that he was advised of his constitutional right to counsel immediately after the narcotics agent approached petitioner's vehicle and identified himself. (Response, Exhibit 1, p. 17).

Furthermore, there is no evidence in the record to indicate that petitioner was in the back seat of the officer's vehicle for over an hour or that petitioner was coerced into incriminating himself. Petitioner's allegation is contradicted by the written record of the preliminary hearing which fails to indicate any coercive conduct on the part of the arresting officer. Indeed, since petitioner must have had knowledge of the circumstances of this alleged coercion by the narcotics agent...