In re Mooney, 7557.

• Decision Date: 25 July 1934
• Docket Number: No. 7557.,7557.
• Citation: 72 F.2d 503
• Parties: In re MOONEY.
• Court: U.S. Court of Appeals — Ninth Circuit

72 F.2d 503 (1934)

In re MOONEY.

No. 7557.

Circuit Court of Appeals, Ninth Circuit.

July 25, 1934.

Frank P. Walsh and John F. Finerty, both of New York City, and George Thomas Davis, of San Francisco, Cal., for petitioner Mooney.

Before SAWTELLE, Circuit Judge.

SAWTELLE, Circuit Judge.

On May 7, 1934, Thomas J. Mooney presented his petition for a writ of habeas corpus to the District Court of the United States for the Northern District of California, Southern Division, upon the ground that he was in custody in violation of the Constitution of the United States and particularly the Fourteenth Amendment thereof. Petitioner alleges:

"That your petitioner is now and for the past eighteen years has been actually unjustly and unlawfully in prison and restrained of his liberty and detained under color of the authority of the State of California, in the custody of James B. Holohan, Warden of San Quentin Penitentiary, Marin County, California, in said District, and has never before made application for a writ of Habeas Corpus in any United States Court.

"That the sole claim and authority by which the said James B. Holohan, Warden of San Quentin Penitentiary, so restrains and retains your petitioner, is a commitment of the Superior Court of the State of California, in and for the City and County of San Francisco, a copy of which commitment is attached hereto, and hereinafter referred to by exhibit number.

"That such commitment was based upon an indictment, judgment of conviction of murder in the first degree, and sentence of death upon such judgment of conviction, said sentence of death being subsequently commuted to life imprisonment, and other legal proceedings arising out of the trial of your petitioner; that true and correct copies of the papers filed as a part of the legal proceedings above referred to, viz.: indictment, verdict of the jury, judgment of conviction and sentence of death upon such judgment of conviction, motion for new trial, order denying motion for new trial, notice of appeal to the Supreme Court of the State of California, statement in general terms of the grounds of appeal to the Supreme Court of the State of California, opinion of the Supreme Court of the State of California affirming said judgment of conviction, remittitur, commitment and commutation of sentence, are attached hereto and by reference made a part of the petition. * * *

"That the verdict of the jury, judgment of conviction, and sentence of death thereon, commitment, imprisonment, and restraint of your petitioner are, and each of them is, without due process of law, and in violation of the Fourteenth Amendment of the Constitution of the United States by reason of the following facts:

"A. That said verdict of the jury, judgment of conviction, sentence, commitment, imprisonment and restraint of your petitioner were obtained by the State of California by the presentation against your petitioner by the State of California, through its then District Attorney and his assistants, of the perjured testimony of certain witnesses hereinafter more particularly specified, which testimony your petitioner alleges was known by said District Attorney and his assistants to be perjured at the time it was offered in the trial of your petitioner, upon which said conviction was had. * * * "Your petitioner further alleges that while he knew that such testimony when presented to the trial court was untrue, and suspected it was perjured, he was taken completely by surprise, and could not by any reasonable diligence have discovered prior to the denial of his motion for a new trial and his appeal to the Supreme Court of the State of California, the evidence subsequently developed impeaching and refuting such testimony and proving it perjured. * * *

"In support of the foregoing grounds for the issuance of the writ, your petitioner makes the following allegations of fact, in support of which reference will be made to certain documentary and testimonial evidence. Where such reference is made, true and accurate copies of such documents and testimony as are referred to will be attached and made a part of this petition as exhibits and will be referred to by exhibit number."

The "allegations of fact," referred to above, cover 95 typewritten pages, and the exhibits referred to in the petition contain approximately 600 pages additional.

The District Court was of the opinion that petitioner had not exhausted his remedy in the state court, and that he should apply to the Supreme Court of California for relief; and, further, that the petition on its face showed that petitioner was not entitled to the writ. The petition was denied and ordered dismissed.

The court likewise denied petitioner's application for an appeal to the United States Circuit Court of Appeals for the Ninth Circuit, being of the opinion that no probable cause existed therefor.

Thereupon a petition for a certificate of probable cause and for an appeal was presented to the writer.

Section 466, title 28 USCA, provides: "Appeal to circuit court of appeals; certificate of probable cause. From a final decision by a court of the United States in a proceeding in habeas corpus where the detention complained of is by virtue of process issued out of a State court no appeal to the circuit court of appeals shall be allowed unless the United States court by which the final decision was rendered or a judge of the circuit court of appeals shall be of opinion that there exists probable cause for an appeal, in which event, on allowing the same, the said court or judge shall certify that there is probable cause for such allowance."

The question to be determined therefore is whether there exists probable cause for an appeal. The material recitals of the petition must be accepted for the purposes of this proceeding only as true. Glasgow v. Moyer, 225 U. S. 420, 428, 32 S. Ct. 753, 56 L. Ed. 1147. In the case of Frank v. Mangum, 237 U. S. 309, 332, 35 S. Ct. 582, 589, 59 L. Ed. 969, the Supreme Court of the United States said: "It was the duty of the court to refuse the writ if it appeared from the petition itself that appellant (petitioner) was not entitled to it"; and in Re Terry, 128 U. S. 289, 301, 9 S. Ct. 77, 78, 32 L. Ed. 405: "The writ need not * * * be awarded, if it appear upon the showing made by the petitioner that, if brought into court, and the cause of his commitment inquired into, he would be remanded to prison."

The same principles govern upon application for a certificate of probable cause.

Approximately eighteen years have passed since the judgment of the state court became final. During all of these years petitioner has suffered imprisonment in the state penitentiary.

The record discloses that petitioner appealed from the judgment of conviction and from the order of the trial court denying a motion for a new trial to the Supreme Court of the state of California, where the judgment and order were affirmed. The case of People v. Mooney, on appeal, is reported in 175 Cal. 666, 166 P. 999; 176 Cal. 105, 167 P. 696; 177 Cal. 642, 171 P. 690; 178 Cal. 525, 174 P. 325, and also in 248 U. S. 579, 39 S. Ct. 21, 63 L. Ed. 430, where the Supreme Court of the United States refused to grant certiorari to review the proceeding of the Supreme Court of California as reported in 178 Cal. 525, 174 P. 325.

Petitioner contends that by reason of certain constitutional and statutory limitations the state courts are powerless to grant him any relief, and that petitioner's only remedy is in the federal courts.

The fact that petitioner did not learn of the alleged perjured testimony and of the alleged misconduct of the District Attorney who prosecuted him until it was too late to assign same as grounds for a new trial, is indeed unfortunate. Nevertheless, "The state has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights, or conflict with specific and applicable provisions of the Federal Constitution." Brown v. New Jersey, 175 U. S. 172, 175, 20 S. Ct. 77, 78, 44 L. Ed. 119. See, also, cases cited to note 81, USCA Const., part 3, p. 63. The state may therefore fix the time within which a motion for a new trial must be filed and the time within which the Supreme Court may review a judgment of conviction.

In Twining v. New Jersey, 211 U. S. 78, 110, 29 S. Ct. 14, 24, 53 L. Ed. 97, the Supreme Court said: "The decisions of this court, though they are silent on the precise question before us, ought to be searched to discover if they present any analogies which are helpful in its decision. The essential elements of due process of law, already established by them, are singularly few, though of wide application and deep significance. We are not here concerned with the effect of due process in restraining substantive laws, as, for example, that which forbids the taking of private property for public use without compensation. We need notice now only those cases which deal with the principles which must be observed in the trial of criminal and civil causes. Due process requires that the court which assumes to determine the rights of parties shall have jurisdiction cases cited; and that there shall be notice and opportunity for hearing given the parties cases cited; and see case cited. Subject to these two fundamental conditions, which seem to be universally prescribed in all systems of law established by civilized countries, this court has, up to this time, sustained all state laws, statutory or judicially declared, regulating procedure, evidence, and methods of trial, and held them to be consistent with due process of law. Cases cited."

Again, in Jordan v. Massachusetts, 225 U. S. 167, 176, 32 S. Ct. 651, 652, 56 L. Ed. 1038: "It is no longer open to contention that the due process clause of the 14th Amendment to the Constitution of the United States does not control mere forms of...