Hines v. Enomoto
| Citation | 658 F.2d 667 |
| Decision Date | 05 October 1981 |
| Docket Number | No. 80-4311,80-4311 |
| Parties | James Earl HINES, Petitioner-Appellant, v. J. J. ENOMOTO, Director, California Department of Corrections, Respondent- Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Baron L. Miller, San Francisco, Cal., for petitioner-appellant.
Ronald E. Niver, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.
Appeal from the United States District Court for the Northern District of California.
Before ANDERSON and NORRIS, Circuit Judges, and TAKASUGI, * district judge.
James Earl Hines, currently incarcerated in a California state prison, appeals the judgment and order of the district court dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm in part and reverse and remand in part for an evidentiary hearing.
Hines was convicted in 1976 in a California state court on charges of kidnapping for the purpose of robbery, assault with a deadly weapon, and attempted robbery. The convictions arose out of a robbery allegedly attempted by Hines and an unidentified confederate during which a delivery truck was hijacked and its driver forced at gunpoint to accompany Hines for several blocks. On direct appeal, the California Court of Appeal reversed the attempted robbery conviction, but affirmed the other convictions. Hines subsequently filed a number of unsuccessful state habeas petitions, the most recent of which was denied by the California Supreme Court on February 25, 1981.
Hines filed his § 2254 petition with the district court on March 28, 1978. He alleged five grounds for relief: (1) a lack of subject matter jurisdiction; (2) a denial of his right to exercise peremptory challenges during voir dire; (3) the refusal to give several requested jury instructions; (4) the suppression of material evidence and subornation of perjury by the prosecution; and (5) ineffective assistance of counsel. Included in certain of the five broader claims were more specific claims of error. In its Order to Show Cause, the district court found that Hines had properly exhausted his state remedies as to each claim, summarily dismissed claims of "secreting" a witness at the preliminary hearing, denial of jury instructions, and suppression of evidence, and noted that the remaining claims were not so obviously lacking in merit as to be dismissable at that stage of the proceedings. After some procedural maneuvering by the parties, the district court denied the writ.
The court rejected the contention that the writ should issue on the basis of the alleged denial of the right to exercise peremptory challenges, because Hines' counsel had failed to object to the state trial court's cutoff of peremptories. The court dismissed the claims of perjured testimony and impermissibly suggestive identification procedures because it deemed Hines to have waived each by failing to object at trial. Finally, the district court dismissed the various claims of incompetent representation as being either unfounded or insufficient to justify relief.
Hines filed a motion to reconsider in which he alleged three additional grounds for relief: (1) The denial of access to certain records on his state court appeal; (2) The state appellate court's failure to apply the reasonable doubt standard in judging the sufficiency of the evidence; and (3) The state appellate court's denial of his right to self-representation by appointing counsel over his objection. The district court rejected each of the additional grounds, and reiterated its rejections of the claims originally presented. At no time did the district court hold an evidentiary hearing on any of Hines' claims. This court granted Hines' application for a certificate of probable cause, and he now appeals in propria persona. Facts pertinent to each of the individual claims will be developed in the course of this opinion.
Hines has raised the following issues in his brief:
(1) Denial of his right to exercise all of the peremptory challenges to which he was entitled under California law (2) Ineffective assistance of counsel;
(3) Subornation of perjury;
(4) The sufficiency of the evidence to prove intent to rob;
(5) The refusal to provide him with a free preliminary hearing transcript on his state appeal;
(6) Violation of his right to self-representation on appeal; and
(7) The dismissal of his federal habeas petition without an evidentiary hearing.
Under California law in effect at the time of Hines' trial, by jury, a defendant in a criminal case was normally entitled to make 13 peremptory challenges during the voir dire examination of potential jurors. A defendant charged with an offense punishable by life imprisonment, however, was entitled to make 26 peremptory challenges under California Penal Code § 1070(a). Hines' counsel at his state trial exercised only 13 peremptory challenges during voir dire under circumstances which at least suggest either that the attorney was unaware of his right to exercise twice as many peremptories in cases involving potential life sentences, that he was satisfied with the panel as constituted, or that the rule had simply slipped his mind temporarily. According to a transcript of the voir dire session, the following took place toward the end of the selection process:
(emphasis added) (C.R. 11, Appendix A)
It is clear from the transcript that the court clerk mistakenly announced that Hines' thirteenth challenge was the last one available to him. It is also clear that Hines' counsel did not bring the error to the attention of the court, and that he did not thereafter attempt to exercise any further peremptories. Hines argues that the state court's erroneous limitation on the number of challenges available to him deprived him of his right to an impartial jury.
The district court denied Hines' peremptory challenge claim both on the ground that it failed to state a claim for federal habeas relief, and because Hines' state trial counsel had failed to object at the time of the alleged error. We consider each of these issues in turn.
Nowhere does the U. S. Constitution explicitly guarantee a criminal defendant the right to exercise peremptory challenges. The importance of the peremptory challenge as a device for assuring a fair and impartial jury has been emphasized repeatedly. As the Supreme Court noted several decades ago:
Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894). More recently, the Court has recognized the "long and widely held belief that peremptory challenge is a necessary part of trial of jury." Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965). See also Rosales-Lopez v. United States, --- U.S. ----, ----, n.6, 101 S.Ct. 1629, 1634, n.6, 68 L.Ed.2d 22 (1981).
Our circuit has condemned curtailment of the right to exercise peremptory challenges in the context of direct appeals from federal criminal convictions. In United States v. Allsup, 566 F.2d 68 (9th Cir. 1977), we held that it was error for a trial court to improperly refuse to dismiss two jurors for cause because the defendant was thereby forced to exercise two of his allotted peremptory challenges. In United States v. Turner, 558 F.2d 535 (9th Cir. 1977), we also found error where the district court failed to explain clearly the procedure for exercising peremptories, and the defendant unwittingly "waived" his right to some of his challenges. While each of these decisions is perhaps distinguishable on its facts, they clearly apply the principle that a criminal defendant may not be denied the full number of peremptory challenges available, and that any curtailment on the exercise of challenges is reversible error.
We have located only one case dealing with an alleged denial of the full number of challenges afforded by state law in the context of a federal habeas petition. In Workman v. Cardwell, 338 F.Supp. 893 (N.D.Ohio), affirmed, 471 F.2d 909 (6th Cir. 1972), cert. denied, 412 U.S. 932, 93 S.Ct. 2748, 37 L.Ed.2d 161 and 412 U.S. 932, 93 S.Ct. 2762, 37 L.Ed.2d 161 (1973), relief was denied where the petitioner claimed that he was forced to exercise a peremptory after the state trial court improperly denied a challenge for cause. The Workman court reasoned that because limitations on the exercise of peremptory challenges are "a matter of state law," 338 F.Supp. at 896, no federal habeas relief could issue.
To the extent that Workman suggests...
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