Hughes v. Heinze

• Decision Date: 29 June 1959
• Docket Number: No. 16242.,16242.
• Citation: 268 F.2d 864
• Parties: Henry HUGHES, Appellant, v. Robert A. HEINZE, Warden, Folsom State Prison, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

268 F.2d 864 (1959)

Henry HUGHES, Appellant, v. Robert A. HEINZE, Warden, Folsom State Prison, Appellee.

No. 16242.

United States Court of Appeals Ninth Circuit.

June 29, 1959.

Henry Hughes, in pro. per., Robert W. Gibbs, San Francisco, Cal., for appellant.

Stanley Mosk, Atty. Gen., G. A. Strader, Doris H. Maier, Deputy Attys. Gen., State of California, for appellee.

Before HEALY, ORR and HAMLIN, Circuit Judges.

HAMLIN, Circuit Judge.

Appellant, Henry Hughes, was convicted in 1952 of the crime of burglary before the Superior Court of the State of California in Orange County, California. He admitted four prior convictions and sentences. The Court found him to be an habitual criminal under the provisions of California law, and sentenced him accordingly. No appeal was taken by appellant from the judgment of conviction and he is now confined in the California State Prison at Folsom.

The question presented by this appeal is whether appellant's petition for habeas corpus filed in the District Court on June 9, 1958, was properly denied by that Court.

On application therefor, this court (1) granted Hughes' motion to proceed upon this appeal in forma pauperis, (2) appointed counsel to represent him on the appeal, and (3) set aside a certificate of the District Court that the appeal was not taken in good faith.

In his petition to the District Court appellant asserted eight reasons why the writ should issue. The warden's uncontroverted return shows that all but three of these were reasons which had never before been presented to a State Court. Our independent examination of appellant's petition filed with the California Supreme Court in 1957 verifies this. Appellant, therefore, has not exhausted his State remedies as to the five contentions not previously advanced in a State Court proceeding. Nor has he alleged any facts which would bring him within any of the statutory exceptions to this requirement, 28 U.S.C.A. § 2254.

The three grounds stated in appellant's petition which have been previously presented to the State Court are: (1) that appellant was denied the right to trial by jury and that he did not waive such right; (2) that appellant was denied the right to a speedy trial; and (3) that the trial Court erred in admitting evidence of similar offenses allegedly committed by the petitioner and not charged in the information.

At the outset, we must emphasize the fundamental restrictions on this federal court in reviewing habeas corpus petitions of state prisoners. This court will review a state court decision only if a federal question was presented to the highest court of a state having jurisdiction and it clearly appears that its decision was based on that federal question. Williams v. Kaiser, 1945, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Irvin v. Dowd, 1959, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900.

The California Supreme Court, in denying appellant's petition, did not write an opinion. With this, and the above mentioned consideration in mind, we now deal with appellant's contentions.

The record showed that the appellant was brought to trial within 60 days after the filing of the information. This was within the time provided by West's Ann.California Penal Code, § 1382. Thus, he was not denied the right to a speedy trial under California law. Certainly, appellant in his second point has not shown such an unreasonable "delay" as to contravene his federal constitutional rights. Sawyer's Petition, 7 Cir., 1956, 229 F.2d 805.

The third contention of appellant, as set out above, presents no federal question. Lisenba v. People of State of California, 1941, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166. See also, Hoag v. State of New Jersey, 1958, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913, and Ciucci v. State of Illinois, 1958, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983.

We deal now with appellant's first contention as set forth above.

In 1957, as referred to above, appellant filed a petition for a writ of habeas corpus in the Supreme Court of the State of California. This was denied by that Court without an opinion. Thereafter, appellant sought certiorari from the United States Supreme Court, which petition was also denied.

As indicated above, in appellant's petition to the Supreme Court of the State of California, he contended that he had not waived his right to a trial by jury. His detailed claims in this regard are set forth in the margin.¹

The California Constitution, Article I, Section 7, West's Ann., provides:

"A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel * * *."

California courts applying this constitutional provision leave little doubt as to its meaning. Thus, in People v. Pechar, 1955, 130 Cal.App.2d 616, 279 P.2d 570, the Court there said:

"This has been construed repeatedly to require an express as distinguished from an implied consent to the waiver by the defendant personally, as well as by his counsel."

Citing People v. Garcia, 1929, 98 Cal. App. 702, 277 P. 747; People v. Wilkerson, 1929, 99 Cal.App. 123, 278 P. 466; People v. Washington, 1949, 95 Cal.App. 2d 454, 213 P.2d 70, the Court continued:

"The right to trial by jury in a criminal case is a sacred one and accordingly the method of waiver provided in the constitution must be strictly followed. For this reason `it is necessary that the defendant personally express in open court that he consents to a waiver of a trial by jury.\'"

In the case of In re Adams, 1958, 160 Cal.App.2d 454, 325 P.2d 107, 108, the California court, in considering this question said:

"At the trial on November 8, 1957, the public defender, not the petitioner, entered a plea of not guilty, waived a jury trial and submitted the case on the police report.

* * * * * *

"The record here does not show a waiver of jury trial in the manner required by Article I, Section 7, of our state Constitution."

The Court there set aside the defendant's conviction.

In People v. Barnum, 1957, 147 Cal. App.2d 803, 305 P.2d 986, 989, the Court stated the facts as follows:

"The remaining contention of the defendants concerns the effect of the proceedings at the time the jury was dismissed and the case proceeded to trial before the court. The attorney for defendants advised the court that they waived a trial by jury. The district attorney joined in this waiver. Thereupon, the court ordered a roll call of the prospective jurors present and advised them that they were excused, as the defendants had waived a trial by jury. The defendants were present during all of this time; they made no statement; were not asked personally whether they joined in the waiver; and at no time made any objection to proceeding to trial before the court without a jury."

The Court there, after citing a long line of cases, stated as follows:

"In the case at bar, the attorney general, on behalf of respondent, urges the same contention which he urged in the cited case, i. e., that consent may be `expressed\' by conduct as well as by words, and asks this court to reappraise the rule. In the light of the consistent adherence to this rule, over a period of 27 years, by the appellate courts of this state, and the refusal of the Supreme Court to grant a hearing in any case applying it, we do not feel that such a reappraisal is within our province.

"The judgment * * * is reversed."

When the instant case was in the District Court there is contained in the petition for the writ the unqualified statement of the petitioner that he had not waived a jury trial.

On May 12, 1952, the reporter's transcript shows the following proceedings before Judge Gardner in the California Superior Court:

"Honorable Robert Gardner, presiding.

"The Court: People v. Hughes. Mr. Caruthers.

"Mr. Caruthers: Ready, Your Honor.

"Mr. Steiner: Ready, Your Honor.

"The Court: This is put down for a jury trial. Has the jury been waived in Department Two?

"Mr. Caruthers: Yes, sir, we waived jury.

"The Court: Does anyone have an opening statement, or do you want to just start calling witnesses?

"Mr. Caruthers: I don\'t have any.

"Mr. Steiner: I don\'t believe any opening statement is in order, Your Honor.

"The Court: Call your first witness.

(At this time trial was had, the Court finding the defendant guilty of the crime of burglary as set forth in the information.)"

In the clerk's transcript of the proceedings on May 12, before Judge Gardner in Department Four, the following appears:

"People v. Hughes. Defendant in court represented by L. King Caruthers. The People were represented by the District Attorney. Lecil Slaback, Official Reporter The defendant waived trial by jury. Florence Blehyl was sworn and testified. * * *"

Suffice it to say, that despite the above-quoted excerpt from the clerk's transcript in Department Four, there is no affirmative proof in the record that appellant did in fact personally waive his jury trial in Department Two — the record is silent on this point. Thus, the record before the District Court did not clearly contradict the appellant's contention that he did not personally waive his right to a jury trial — a right guaranteed him by the California Constitution.

Assuming, arguendo, that it cannot be established that appellant expressly waived his right to a jury trial, we now reach the question of whether this is sufficient ground to grant appellant's petition for habeas corpus

For the reasons that will appear below, we hold this is not a sufficient ground.

Appellant concedes that the Fourteenth Amendment due process clause does not guarantee the right to a jury trial in state criminal proceedings. Maxwell v. Dow, 1900, 176 U.S. 581, 20 S.Ct. 494, 44 L.Ed. 597; Jordan v. Commonwealth of Mass., 1912, 225 U.S. 167, 32 S.Ct. 651, 56 L.Ed. 1038; Fay v. People of State of New York, 1947, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043. Thus, it has been said that a...