Kates v. Nelson
Decision Date | 25 November 1970 |
Docket Number | No. 23688.,23688. |
Citation | 435 F.2d 1085 |
Parties | Danny KATES, Plaintiff-Appellant, v. Louis NELSON, Warden, Defendant-Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Kristina M. Hanson (argued), of Morrison, Foerster, Holloway, Clinton & Clark, San Francisco, Cal., for plaintiff-appellant.
Timothy G. Laddish (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, Cal., for defendant-appellee.
Before CHAMBERS and MERRILL, Circuit Judges, and POWELL, District Judge.*
Appellant, Danny Kates, appeals from an order of the United States District Court denying his petition for a writ of habeas corpus. This Court has jurisdiction under 28 U.S.C. § 2253.
Appellant was charged with grand theft. He appeared with retained counsel during his preliminary hearing. Probable cause was established and the case was set for trial in state court. The attorney who had represented Appellant at the preliminary examination was permitted to withdraw from the case and another attorney was appointed.
On the first day of the trial, after several witnesses had been cross-examined, Appellant expressed dissatisfaction with the way in which he was being represented.1 The next day in the trial judge's chambers an exchange took place with regard to Appellant's representation:
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Now, if you don't want to consent to Mr. Helm representing you, and proceeding with this case, without further interruption from you, I will then give you the choice of permitting Mr. Helm to retire as your attorney, and you can act as your own attorney.
Do you wish to do this, Mr. Kates?
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"THE COURT: Mr. Kates, no Court permits a Defendant to cross-examine when he has an attorney there. Either the attorney runs the case, or the client runs the case — and I'm going to give you that choice now. * * * And if you discharge Mr. Helm as your attorney, then you must handle your own case — and you will be treated in this courtroom the same as any attorney is treated * * *
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"THE COURT: * * * If you're not satisfied with Mr. Helm, you may speak now — otherwise, Mr. Helm will continue to represent you. If you're not satisfied with Mr. Helm — I, at your request, will permit him to withdraw as your attorney — but you will then proceed with this trial as your own attorney.
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"THE DEFENDANT: I want it to be known that he (Mr. Helm) doesn't have to represent me any more — and I wasn't satisfied with him — * * *.
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"THE DEFENDANT: I want it to be known that I don't want anyone out there representing me — and I am not going to represent myself.
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Partial Transcript of Proceedings (Superior Court, Contra Costa County, California), January 29, 1964, pp. 35-41, 43-45, 47 Exhibit D in the proceedings below.
During the remainder of the trial witnesses were called by the prosecution and by Appellant, representing himself in propria persona. Appellant was found guilty of grand theft as charged and subsequently sentenced; no appeal was taken from the judgment of conviction. Some two years following his sentence Appellant began filing a series of error coram nobis and habeas corpus petitions in various counties in the California judicial system, alleging essentially that he had been denied his right to counsel; these petitions were successively denied. On a previous habeas corpus petition filed in the United States District Court, an order issued holding that Appellant's claim respecting his right to counsel was premature in that he had not exhausted his state remedies.
The instant petition was filed on March 18, 1968; the district court, having considered all of the claims, found that there were no constitutional infirmities which would entitle Appellant to the relief sought and thus denied the petition. On this appeal Appellant contends that he has exhausted his state remedies and that he was deprived of his constitutional right to the assistance of counsel at the trial which resulted in his conviction and sentence.
In its order the district court did not discuss exhaustion of state remedies; nor do we regard the question as being material for the reason that the matters argued have substantially been before the state judiciary prior to the filing of the instant petition. Congress did not intend "to require repetitious applications to state courts" and we therefore decline to discuss exhaustion. See Brown v. Allen, 344 U.S. 443, 449, n. 3, 73 S.Ct. 397, 403, 97 L.Ed. 469 (1953); Roberts v. LaVallee, 389 U.S. 40, 42, 88 S.Ct. 194, 19 L. Ed.2d 41 (1967). See also, United States ex rel. Gockley v. Myers, 411 F.2d 216 (3rd Cir. 1969).
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), established the right of an indigent defendant in a state criminal trial to have the assistance of counsel. This Court, in Beasley v. Wilson, 370 F.2d 320, 322 (9th Cir. 1966), has held:
"While the courts are bound to recognize and protect the right to counsel provided by the Sixth and Fourteenth Amendments to the Constitution, this right is not absolute in the sense that it may not be waived."
Quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the Court continued:
370 F.2d at 322.
The above definition of waiver was reiterated in the recent case of Groves v. Prickett, 420 F.2d 1119, 1125 (9th Cir. 1970). To constitute a waiver the record or evidence must show that the accused was offered counsel but intelligently and understandingly rejected the offer. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969); Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). The Court of Appeals for the Fifth Circuit, in McConnell v. United States, 375 F.2d 905, 910 (5th Cir. 1967), laid down the following...
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