Jackson v. Nelson

Decision Date08 January 1969
Docket NumberNo. 22402.,22402.
Citation404 F.2d 1138
PartiesIrving JACKSON, Appellant, v. Louis S. NELSON, Warden, San Quentin Prison, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Irving Jackson, in pro. per.

Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Michael J. Kelly, Deputy Attys. Gen., San Francisco, Cal., for appellee.

Before CHAMBERS, JERTBERG and ELY, Circuit Judges.

PER CURIAM:

Appellant appeals from the order of the United States District Court for the Northern District of California denying his petition for a writ of habeas corpus. Appellant prosecutes this appeal in propria persona. The district court issued a certificate of probable cause and permitted appellant to appeal in forma pauperis.

Appellant is presently in State custody following his conviction, by a jury, of violating Sec. 209 of the Penal Code of the State of California kidnapping for the purpose of robbery, and two violations of Sec. 211 of the Penal Code of the State of California robbery of two different persons.

Appellant, together with one Wright and one Malone, was tried in the Superior Court of the State of California in and for the County of Los Angeles, and each of the three was represented by separate counsel. No appeal was taken by appellant from the judgment of conviction. Co-defendant Wright appealed from the judgment of conviction imposed upon him, and his conviction was affirmed by the California Court of Appeals for the Second Appellate District. People v. Wright, 216 Cal.App.2d 866, 31 Cal.Rptr. 432 (1963).

In his petition, appellant alleges that petitions for habeas corpus relief were denied by the Superior Court of the State of California in and for the County of Marin, and the California Court of Appeal, First Appellate District. It appears from the record that appellant filed a petition for writ of habeas corpus jointly with his co-defendant Wright in the Supreme Court of California, on the ground that appellant's conviction rests on evidence obtained by an illegal search and seizure incident to an unlawful arrest, in violation of the Fourth Amendment to the Constitution of the United States. The petition was denied by written opinion. In re Wright, et al., on habeas corpus, 65 Cal.2d 650, 56 Cal.Rptr. 110, 422 P.2d 998 (1967). The Supreme Court stated, at page 652, 56 Cal.Rptr. at page 111, 422 P.2d at page 999:

"Petitioners seek a writ of habeas corpus on the ground that the convictions rest upon evidence obtained by an illegal search and seizure incident to an unlawful arrest. The writ is not available to attack a final judgment on this ground. (In re Lessard (1965) 62 Cal.2d 497, 503, 42 Cal.Rptr. 583, 399 P.2d 39; In re Sterling (1965) 63 Cal.2d 486, 487, 47 Cal.Rptr. 205, 407 P.2d 5.)"

In his petition for writ of habeas corpus filed in the district court, petitioner contends that he was convicted in violation of the rights guaranteed to him by the Fourth Amendment to the Constitution of the United States because evidence was used against him at the trial that was the product of an unlawful search and seizure. Specifically, he contends that the search and seizure was incident to an arrest which was unlawful because the arresting officers had insufficient information on which to base the probable cause needed for an arrest without a warrant.

In the written order denying appellant's petition for the writ, the district court states:

"Regarding the circumstances of the arrest, the trial court record of the testimony of the arresting officers is not before the Court. Petitioner offers only a few details on this subject, but he refers several times to the fact that police made mental comparisons of a description, previously given them, with petitioner while peeking through a window of his home. Some additional information can be gathered from the opinion of the District Court of Appeal of California on the appeal by one of the defendants in the joint trial referred to above, Wilford Willie Wright, in People v. Wright, 216 C.A. 2d 866, 31 Cal.Rptr. 436 432 (1963)." (Emphasis ours.)

The written order describes the events preceding the arrest of appellant by summarizing such events as set forth in the opinion in People v. Wright, supra, and such written order then continues:

"In view of the fact that the above details of the arrest not only do not contradict, but in fact dovetail the information given in petitioner\'s allegations, and in view of the fact that the details were recited preceding a decision on the same question presented here,1 this Court feels that it is proper to base its decision on these details and to decide the matter without further hearing.
1. The Court of Appeal decided this question against appellant Wright and in favor of the State. People v. Wright, supra."

In People v. Wright, supra, the Court states at page 869, 31 Cal.Rptr. at page 434:

"The only defense presented by Wright was an alibi. He testified that he had never been in Brody\'s liquor store and that he was not in the company of the remaining defendants at the time of the robbery."

We have examined the only brief filed by counsel for Wright in the District Court of Appeal. The only reference to the claimed violation of the Fourth Amendment, in respect to Wright, appears in the specifications of error. This reference is as follows:

"The Court
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3 cases
  • United States ex rel. Montgomery v. Brierley, 17105.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 6, 1969
    ...also Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L. Ed.2d 770 (1963); Conner v. Wingo, 409 F.2d 21 (6th Cir.1969); Jackson v. Nelson, 404 F.2d 1138 (9th Cir.1968); Wright and Sofaer, Federal Habeas Corpus for State Prisoners: The Allocation of Fact-Finding Responsibility, 75 Yale L.J. 8......
  • United States v. School District 151 of Cook County, Illinois
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 27, 1969
  • Selz v. State of California, 23364.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 23, 1970
    ...v. Pate, 411 F.2d 972, 974 (7th Cir. 1969); United States ex rel. Thomas v. Maroney, 406 F.2d 992 (3d Cir. 1969); Jackson v. Nelson, 404 F.2d 1138, 1140-1141 (9th Cir. 1968); Maes v. Patterson, 401 F.2d 200 (10th Cir. 1968); Brown v. Crouse, 399 F.2d 311 (10th Cir. 1968). See also Canales v......

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