Groseclose v. Plummer

• Decision Date: 28 August 1939
• Docket Number: No. 9085.,9085.
• Citation: 106 F.2d 311
• Parties: GROSECLOSE v. PLUMMER, Warden, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

106 F.2d 311 (1939)

GROSECLOSE v. PLUMMER, Warden, et al.

No. 9085.

Circuit Court of Appeals, Ninth Circuit.

August 28, 1939.

Morris Lavine, of Los Angeles, Cal., for petitioner.

Earl Warren, Atty. Gen., State of California and William F. Cleary, Deputy Atty. Gen., for respondents.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

The petition for rehearing is denied. However, since petitioner has stressed certain claims in his petition for rehearing which we did not treat at length in our opinion affirming the decision of the district court, we now withdraw and strike the original opinion and substitute therefor the following:

Petitioner is confined in a California penitentiary under the authority of a commitment from the Superior Court of the State of California based upon petitioner's conviction in such court of three offenses of grand theft (Calif.Penal Code § 487) and of being an habitual criminal (Calif. Penal Code § 644). After incarceration he has claimed that the detention is illegal and has unsuccessfully prosecuted his contentions through the State courts, including the State Supreme Court, by the writ of habeas corpus, but no appeal was taken from the decision of the latter court. He followed such efforts by applying to the United States District Court for the issue of the writ of habeas corpus in substantially the same form as in the State court. The District Court denied the application, and we now have petitioner's appeal from such order before us for determination.

We used the following language in a recent opinion (Palmer v. McCauley, 9 Cir., 103 F.2d 300, April 18, 1939), and believe that it exactly fits this case: "We need not go into the merits of the controversy for it is well settled that whether or not a federal court will issue a writ of habeas corpus to release a prisoner held under a commitment from a state court is one of discretion. Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868; Ex parte Fonda, 117 U.S. 516, 6 S.Ct. 848, 29 L.Ed. 994; Wood v. Brush, 140 U.S. 278, 11 S.Ct. 738, 35 L.Ed. 505. That discretion should be exercised in the light of the principles announced by the Supreme Court in Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760, wherein it is held that the appropriate way to raise questions involving the validity of a commitment under a state law is by application to the state courts, and if denied by appeal to the Supreme Court of the United States. Ex parte Melendez, 9 Cir., 1938, 98 F.2d 791; Ex parte Penney, 9 Cir., 103 F.2d 27, March 24, 1939. There are no exceptional circumstances involved in the instant case which would justify the interposition of the District Court."

The doctrine of Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760, was reaffirmed by the Supreme Court in Ex parte Howard Lee, 303 U.S. 624, 58 S. Ct. 742, 82 L.Ed. 1086.

Petitioner asserts, however, that the trial court was without jurisdiction to sentence petitioner under the California habitual criminal act, and that, therefore, the trial court should have granted the writ.

Applying the Urquhart case to the situation confronting us, we are of the opinion that the factual basis of this case does not bring it within the principle of the exceptions in which federal courts will take original jurisdiction of petitions for writs of habeas corpus. But even if this were not so we are unable to agree with petitioner that in denying him his liberty the State of California has refused to give full faith and credit to the laws of the State of Texas, or that petitioner has been denied the equal protection of the law.

Prior to his trial in California, the petitioner had been twice convicted of felonies in Texas, and judgment thereon having become final, he had been incarcerated in a penitentiary under each of such convictions. In each instance, however, the Governor had pardoned him before the expiration of the sentence imposed. Neither pardon was based upon a finding of innocence. Notwithstanding the pardons, evidence of the Texas convictions was admitted in the California court and, indeed, was essential to the verdict reached therein that he was an habitual criminal. California Penal Code § 644.

It is petitioner's contention that these pardons under Texas law wiped out the convictions as thoroughly as though they had never occurred, and that, therefore, giving full faith and credit to the law, no fact as to prior convictions existed.

This is the same as saying that executive clemency clears the boards as thoroughly as the granting of a new trial and subsequent acquittal would do. It is true that some expressions are to be found in judicial opinions and in legal text-books which would seem to support this idea. See People v. Biggs and Groseclose, 9 Cal.2d 561, 71 P.2d 214, 116 A.L.R. 205. However, we see the great weight of authority supporting the more realistic view that a pardon, to the extent of its terms, does nothing more than to abolish all restrictions upon the liberty of the pardoned one, and upon his civil rights that follow a felony conviction and sentence. As to what effect a pardon would have based upon the discovery of absolute innocence of crime we need not here consider, for the text of each pardon in this case assumes the guilt of the petitioner.

It may be true (we do not so hold) that the Texas pardon law goes all the way and prohibits the Texas courts from giving any consideration to a pardoned offense. Yet such a law could not turn back the hand of time long enough to delete an actuality from its long course. It still remains true that petitioner was the subject of two prior final convictions when the law of California overtook him in the commission of another felony. Notwithstanding the Texas pardons, the stubborn fact remains that the habit of crime was upon him. The executive clemency of one state could not, under any law of such state, prevent a sister state from taking cognizance of plain facts, and from applying its police laws to them.

These principles are conclusively established in the case of Carlesi v. People of New York, 233 U.S. 51, 34 S.Ct. 576, 578, 58 L.Ed. 843, wherein the authorities are collated. The following quotation from McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542, is cited with approval in the Carlesi case and it is apropos here:

"The fundamental mistake of the plaintiff in error is his assumption that the judgment below imposes an additional punishment on crimes for which he had already been...