Hernandez v. Nelson

• Decision Date: 28 May 1968
• Docket Number: No. 47616.,47616.
• Citation: 298 F. Supp. 682
• Court: U.S. District Court — Northern District of California
• Parties: Guadalupe Rocha HERNANDEZ, Petitioner, v. Louis S. NELSON, Warden, California State Prison, Tamal, California, Respondent.

298 F. Supp. 682

Guadalupe Rocha HERNANDEZ, Petitioner, v. Louis S. NELSON, Warden, California State Prison, Tamal, California, Respondent.

No. 47616.

United States District Court N. D. California.

May 28, 1968.

David B. Frohnmayer, San Francisco, Cal., for plaintiff.

Thomas C. Lynch, Atty. Gen., State of California, San Francisco, Cal., for defendant.

ORDER GRANTING PETITION FOR A WRIT OF HABEAS CORPUS

ZIRPOLI, District Judge.

PROCEEDINGS IN THE DISTRICT COURT PRIOR TO EVIDENTIARY HEARING

On August 8, 1967, petitioner filed a petition for a writ of habeas corpus. The court issued an order to show cause and respondent filed his return on August 25, 1967. The court, on October 20, 1967, ordered respondent to make a further return and to produce supporting documents relevant to what at the time appeared to be a serious McNally v. Hill¹ question², see Smith v. Wilson, 371 F.2d 681 (9th Cir. 1967). Respondent filed his further return on November 3, 1967. Petitioner submitted his traverse which the court received on November 28, 1967. On December 22, 1967, the court appointed counsel to represent the petitioner and set the matter for an evidentiary hearing.

Respondent, on March 22, 1968, made a "Motion to Rescind Order Granting Evidentiary Hearing and to Discharge Order to Show Cause". Respondent contended (1) that McNally barred relief because parole was revoked for reasons other than the 1965 conviction, and (2) that state remedies had not been exhausted. Petitioner contended (1) that McNally was no longer good law; (2) that McNally did not bar relief because petitioner was in custody pursuant to the challenged conviction, Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968); (3) that even under the pre-Walker v. Wainwright interpretation of McNally in this circuit a factual issue existed³ which rendered respondent's motion untimely; and (4) that the Arketa v. Wilson, 373 F.2d 582 (9th Cir. 1967), exception to McNally applied, without reference to any factual issues. The court found that petitioner had exhausted his state remedies sufficiently to enable him to raise at least some of his contentions in the federal courts. Petitioner had presented a petition for a writ of habeas corpus to the California Supreme Court (Exh. A⁴), see Castro v. Klinger, 373 F.2d 847 (9th Cir. 1967). The court also concluded that concerning McNally v. Hill, petitioner's second or third argument disposed of the motion and the court denied respondent's motion.

FACTS

On May 17, 1968 and May 23, 1968, an evidentiary hearing was conducted in this court. Petitioner was present on the former date with his court-appointed counsel and respondent was represented by counsel. Counsel returned on the latter date for further argument and to file certain documents. Also present on May 17 on behalf of respondent was Forrest Jones, a California narcotics officer who may be fairly described as the state's chief witness against petitioner in his 1965 trial which led to the conviction being questioned in the present habeas corpus proceeding. Both petitioner and Jones testified. Also lodged with the court and part of the record here is a two volume reporter's transcript of the 1965 trial RT, a one volume reporter's transcript of proceedings had in connection with a post-conviction motion for a new trial RTN, and a one volume clerk's transcript CT. In addition, counsel have stipulated to the admission into evidence of the declaration (Exh. 2) of George H. Chula, petitioner's counsel at trial. A letter (Exh. 1) to petitioner from a California Department of Corrections officer is in evidence, as is petitioner's state court habeas corpus petition (Exh. A). Finally, a tape recording of the interrogation of petitioner on October 7, 1964—the day of his arrest—has also been lodged with the court.

On October 6, 1964, petitioner was indicted by an Orange County, California, grand jury. The indictment was in three counts, each charging a violation of Cal. Health & Safety Code § 11501 (sale of heroin). At petitioner's first trial, on December 14, 1964, defendant's motion for a mistrial was granted (CT 12-13) after agent Jones testified concerning the defendant's prior record. At petitioner's second trial, on December 21, 1964, defendant's motion for a mistrial was granted (CT 15-16) after agent Jones again testified concerning the defendant's prior record. Petitioner's third trial commenced on December 22, 1964. On December 28, 1964, the court declared a mistrial when the jury was unable to reach a verdict (CT 22). The fourth trial commenced on January 13, 1965. Testimony was heard beginning on January 18, 1965. On February 15, 1965, the jury returned verdicts of guilty on two counts charging heroin sales (RT 545; CT 52). Further facts are presented below in connection with the specific arguments to which they are relevant.

PETITIONER'S CONTENTIONS

1. Prosecutor's Opening Statement

At the fourth trial, petitioner alleges that the prosecutor referred to certain evidence in his opening statement which evidence he never sought to introduce. Petitioner contends that he was thereby prejudiced and denied a fair trial. Petitioner does not allege that a proper instruction to the jury was omitted which might have instructed the jury to consider only evidence and that statements of counsel were not evidence. Petitioner has not established any prejudice.

2. Suppression of Evidence—Informer

The evidentiary hearing established that in 1964, Forrest Jones had been working with an informer named Robert Godoy. Godoy had been responsible for twelve to eighteen narcotics arrests. As of the date of petitioner's arrest, Godoy was himself under indictment and either in custody or available to the prosecution. Petitioner, from his initial interrogation the day of his arrest to the present, denies that he was the man who made the heroin sales of which agent Jones testified. Petitioner contends that his was a case of mistaken identity. He says that another person named Hernandez, having approximately the same physical description as petitioner, had lived at petitioner's home at the time of the heroin sales. Agent Jones identified petitioner as the guilty party. Godoy's role in the transactions was that he introduced the man who made the sales to Jones. One of the sales took place at Godoy's house. Godoy was present at both sales. Petitioner, at his original interrogation, denied ever seeing Godoy with Jones.

The tape reflects that petitioner accused Jones of error or an attempted frame-up. Jones then called petitioner a "punk hood", obviously angered by petitioner's accusation.

During the fourth trial, the following colloquy occurred between petitioner's counsel and the court:

MR. CHULA: * * * I think that the man, the other man was available up to a point and he was released by the authorities * * *.

THE COURT: Mr. Chula, the court has personal knowledge * * I can recall as Judge of this Court granting a motion to dismiss some particular prosecution against Robert Godoy at the request of the Deputy District Attorney. * * * The People moved to dismiss, and I can further remember that the Deputy said to me that Mr. Godoy had been the informant to the Grand Jury in a recent series of indictments and that he, Godoy, intended to leave the jurisdiction because he feared for his life. At any rate, it was something like that or words to that effect. (RT 40-41)

Agent Jones' testimony on May 17, 1968, establishes that Godoy was available to the state on October 7, 1964. Jones testified that petitioner was confronted with Godoy at the interrogation. The tape reflects the confrontation of petitioner with an unnamed informer— presumably Godoy—whom petitioner denied ever having seen with Jones before. Mr. Chula's declaration (Exh. 2) reflects that he made numerous efforts to locate Godoy. The declaration is consistent with the colloquy above; namely, Mr. Chula states that the District Attorney told him (Chula) that Godoy's intentions to leave the area were known to the prosecution. Petitioner at all times sought the testimony of the informer because petitioner contended that the informer could exculpate him.

This court concludes that Robert Godoy was a material witness on the issue of petitioner's guilt, that his materiality was known to the district attorney's office prior to the petitioner's first trial and at the time it dismissed its case against Godoy on October 9, 1964, that the prosecutor knew that Godoy would flee the area upon his case being dismissed, and that the prosecutor allowed Godoy to leave the area when by other conduct Godoy's availability could have been insured.

Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), holds that the identity of an informer who is a material witness on the issue of guilt must be disclosed to a defendant. See also Lopez-Hernandez v. United States, 394 F.2d 820 (9th Cir. 1968). Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), collectively stand for the proposition that the prosecutor may not knowingly engage in conduct which causes evidence which might be favorable to the defendant to be unavailable to him. Circumstances strikingly similar to those of the case at bar were discussed in Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965). The court said:

We know of no rule that the Government is under any general obligation to produce an informer. 354 F.2d at 12.

And

If it were made to appear that the Government, through reasonable effort, could have produced * * * the informer and yet failed to do so when defendant demanded such production, there should be a new trial. On the other hand, if the Government was actually unable by reasonable effort to produce him, we cannot hold that such inability would require a

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