Hedberg v. Pitchess

• Decision Date: 06 June 1966
• Docket Number: No. 20058.,20058.
• Citation: 362 F.2d 511
• Parties: Robert B. HEDBERG, Appellant, v. Peter PITCHESS, Sheriff, California Adult Authority, State of California, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

362 F.2d 511 (1966)

Robert B. HEDBERG, Appellant, v. Peter PITCHESS, Sheriff, California Adult Authority, State of California, Appellees.

No. 20058.

United States Court of Appeals Ninth Circuit.

June 6, 1966.

Robert B. Hedberg, Jr., in pro. per.

Thomas C. Lynch, Atty. Gen. of California, Wm. E. James, Asst. Atty. Gen., Wm. L. Zessar, Deputy Atty. Gen., Los Angeles, Cal., for appellees.

Before JERTBERG and ELY, Circuit Judges, and JAMESON, District Judge.

JERTBERG, Circuit Judge:

Before us is an appeal from a judgment of the United States District Court for the Southern District of California, Central Division, denying appellant's Petition for a Writ of Habeas Corpus.

The record discloses that the appellant was charged by information filed by the District Attorney of Los Angeles County on December 15, 1957, with the crime of grand theft, to which appellant entered a plea of not guilty.

On May 23, 1958, appellant was adjudged to be a mentally ill person and was committed to the Department of Mental Hygiene for placement at Camarillo State Hospital.

On September 23, 1958, appellant was returned from the hospital to the trial court, and the criminal action was set for trial on October 6, 1958. On November 7, 1958, appellant withdrew his plea of not guilty to the grand theft charge and entered a plea of guilty thereto, and on November 28, 1958, appellant was sentenced to serve an indeterminate sentence of 6 months to 10 years for the offense of grand theft.

On June 2, 1960, the California Adult Authority fixed appellant's term at 4 years and granted him parole for the last 26 months of the sentence. While on parole the Adult Authority ordered that appellant be returned to prison for violating the terms of his parole, and on June 26, 1963, appellant's term was refixed at five and one-half years, with two years on parole. While on parole the Adult Authority ordered that appellant be returned to prison for violating the terms of his parole. On May 21, 1964, appellant's term was re-refixed at the maximum of 10 years.

In his petition filed with the District Court, appellant, inter alia, alleges in substance that he has completely served the sentence lawfully imposed upon him; that he has been denied due process of law, in that his parole in each instance was suspended or revoked and he was returned to prison without notice, and without a hearing, and that his sentence was refixed and re-refixed without notice and without a hearing; that the California Adult Authority, in re-refixing his sentence at the maximum, acted in excess of its authority, and was without power to do so; that once his sentence had been fixed at five and one-half years it could not be refixed at maximum; that the parole suspensions or revocations caused him to be placed twice in jeopardy; and that the indeterminate sentence law of California violates the Constitution of the United States.

On December 3, 1964, and before the appellees had filed their response to the Petition for Writ of Habeas Corpus, the District Court entered its order denying the petition for the writ, and stated in the order:

"In order for this court to have jurisdiction to hear the merits of the petition, it must appear that all remedies presently available in the Courts of the State have been exhausted. 28 U.S.C. § 2254. These remedies include appeal (28 U.S.C. 1257(2)) and petition for writ of certiorari (28 U.S.C. 1257(3)) to the United States Supreme Court following denial of habeas corpus relief by the California Courts, if the time within which a petition for certiorari could be filed has not expired. As an alternative, the petitioner must allege facts, including pertinent dates, sufficient to show that such remedies are no longer available to him. Fay v. Noia, 372 U.S. 291 sic 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Neither of the two alternatives appear applicable in the instant case."

On December 9, 1964, appellant delivered to the Clerk of the District Court his notice of appeal and application for certificate of probable cause. The Clerk apparently did not file the same.

On April 29, 1965, the District Court issued a certificate of probable cause stating:

"The Petition for Writ of Habeas Corpus in this case had been filed on November 20, 1964. The Supreme Court of the State of California had denied a similar petition without hearing or opinion on October 28, 1964. Thus, petitioner had ample time within which to petition the Supreme Court of the United States for certiorari under Rule 38½ of the Revised Rules of the Supreme Court of the United States and Title 28 U.S.C. § 210(c), sic to which Rule 38½ refers.

"The issue described above is squarely presented by this case. A Certificate of Probable Cause should, therefore, issue.

"IT IS HEREBY ORDERED pursuant to Title 28 U.S.C. § 2253, that probable cause exists for appeal as herein stated. Upon payment of the filing fee, the Clerk is directed to file the Notice of Appeal, nunc pro tunc, as of the date it was received, to wit, December 9, 1964, * * *."

In the same order the District Court stated:

"The Court\'s denial of the Petition for Habeas Corpus was based upon an interpretation of Fay vs. Noia, (1962) sic 372 U.S. 391, 435 83 S.Ct. 822, 9 L.Ed.2d 837, which is accepted by many United States District Judges, namely, that a petitioner has not exhausted his State remedies if he has not applied to the Supreme Court of the United States for certiorari and the time within which he might do so has not expired. A substantial question exists as to whether this is the correct interpretation of the opinion and the law.

"The Court never reached the merits of the petition either on the facts or the issues of law which petitioner claims are presented. The Court therefore has not determined whether a hearing would be required to properly consider the merits. No hearing was necessary to determine whether or not defendant had exhausted his State remedies."

The District Court noted in the order of April 29, 1965, that the appellant had, in addition to the filing of...