Ingle v. Fitzharris

• Citation: 283 F. Supp. 205
• Decision Date: 11 April 1968
• Docket Number: No. 44336.,44336.
• Court: U.S. District Court — Northern District of California
• Parties: Richard Lee INGLE, Petitioner, v. Cletus J. FITZHARRIS, Respondent.

283 F. Supp. 205

Richard Lee INGLE, Petitioner, v. Cletus J. FITZHARRIS, Respondent.

No. 44336.

United States District Court N. D. California.

April 11, 1968.

Murphy & Patterson, by John J. Murray, San Francisco, Cal., for petitioner.

Thomas C. Lynch, Atty. Gen., by Ronald H. Kearney, Deputy Atty. Gen., San Francisco, Cal., for respondent.

MEMORANDUM OPINION AND ORDER

GEORGE B. HARRIS, District Judge.

Petitioner, Richard Ingle, is presently on parole, having been released from the correctional facility at Soledad, California. The several questions presented, therefore, are not moot or academic. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285.

This court denied the petition for writ of habeas corpus after consideration of the views of the Supreme Court of California in People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577, and after an independent examination of the trial record.

In disposing of the issues tendered, we said:

"As for petitioner's remaining contentions, this court, after an independent examination of the record, finds itself in agreement with the views expressed by the Supreme Court of California. Peo. v. Ingle, 53 Cal.2d 407, 2 Cal. Rptr. 14 348 P.2d 577 (1960). Petitioner was not denied his right to counsel for the reason that he made a knowing and voluntary waiver of such right. Nor was he denied compulsory process for obtaining witnesses. As stated by the California Supreme Court: `The record is devoid of anything to show that the trial court was at any time cognizant of or refused to honor the request for process.' 53 Cal.2d at 417 2 Cal. Rptr. 14, 348 P.2d 577."

Thereafter, the United States Court of Appeals for the Ninth Circuit reversed and remanded for an evidentiary hearing. Ingle v. Fitzharris, 375 F.2d 398. In view of this mandate witnesses were called before this court^* and the matter was argued orally. Judge Gregory P. Maushart, the trial judge, died before the hearing.

The United States Court of Appeals required the re-examination of several issues and held in effect:

(a) "Appellant alleged facts outside the state trial record implicating the prosecuting attorney in the denial to appellant of a reasonable opportunity to obtain trial witnesses. * * *"

(b) "The issue of waiver could not be resolved against appellant on the basis of the state trial record alone."

A. The testimony developed during the course of the evidentiary hearing disclosed affirmatively that the Clerk of the Superior Court and the District Attorney made available the processes of the court. The testimony was convincing to the extent that trial counsel representing petitioner withdrew this charge, as it was demonstrated to be without factual foundation and was obviously injected by petitioner in order to assure an evidentiary hearing.

This practice on the part of inmates has been commented upon on several occasions. Needless to say, the practice involves the district courts in an endless legal charade.

B. After the lapse of approximately ten years this court is asked to review the propriety of judicial conduct and the tactics of defense counsel. Defense counsel had earned a rather enviable reputation in the criminal field, according to the testimony elicited. Although there was bickering between petitioner Ingle and counsel, formal dissatisfaction was not expressed nor otherwise made known to the trial judge until the very morning of trial, with a jury in attendance. It is fairly manifest that several prior occasions were available to petitioner wherein he could have presented his dissatisfaction to the trial judge and requested other counsel,—this well in advance of trial. However, as already disclosed, it was not until the jury was drawn and the case ready to proceed that the trial judge was confronted with the procedural problem. Defense counsel was perhaps dogmatic in his approach and dealings with petitioner. This is quite understandable in view of the impractical and improvident suggestions made by his client.

Petitioner saw fit to dismiss his appointed counsel with full knowledge that he would have to undertake the defense himself. The able trial judge was clear, explicit and firm in his explanation to the defendant of all of the dangers inherent in self-representation. Conceivably, in the light of a tenuous defense, or no defense at all, the injection of possible reviewable error no doubt proved inviting to petitioner.

Petitioner had the burden of proving that the decision to represent himself did not constitute a voluntary waiver of his right to counsel. The material allegations of the petition have been clearly contradicted by sound testimony to the contrary. Redd v. Peyton, D.C., 270 F.Supp. 757; Beasley v. Wilson, 9 Cir., 370 F.2d 320 at 322; Cost v. Boles, D.C., 272 F.Supp. 39.

Petitioner's...