Lembke v. Field
| Decision Date | 28 June 1967 |
| Docket Number | No. 21486.,21486. |
| Citation | 380 F.2d 383 |
| Parties | Allen Beverley LEMBKE, Appellant, v. Harold V. FIELD, Superintendent, California Men's Colony, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Allen Beverley Lembke, in pro. per.
Thomas Lynch, Atty. Gen., Daniel J. Kremer, Edsel W. Haws, Deputy Attys. Gen., Sacramento, Cal., for appellee.
Before BARNES, HAMLIN and BROWNING, Circuit Judges.
Allen Beverley Lembke, appellant herein, filed a petition in the United States District Court for the Northern District of California, Northern Division (now Eastern District of California), for a writ of habeas corpus. The district court issued an order to show cause and upon the return thereof and a traverse of certain of its allegations by appellant, the district court denied appellant's petition for the writ. A timely appeal was filed to this court which has jurisdiction under 28 U.S.C. § 1291.
The indictment found against appellant on February 10, 1944, was in four counts: In Count One he was charged with the crime of murder; in Counts Two, Three and Four he was charged with violations of sections of the Penal Code describing respectively the crimes of rape (section 261), sodomy (section 286), and lewd and lascivious conduct (section 288). After a trial before the court, a jury having been waived, the clerk's records of March 23, 1944, show the following entry:
"Upon conclusion of arguments, THE COURT RENDERS THE FOLLOWING VERDICT, IT IS THE JUDGMENT OF THE COURT, That the defendant be and he is hereby found Guilty of Murder in the First Degree without Malice as to the Count One of the Indictment AND FURTHER FINDS that the defendant be and he is hereby found `Not Guilty\' as to Counts Two, Three and Four of the Indictment."
On March 27, 1944, appellant was sentenced to "be punished by imprisonment in the state prison of the state of California for life." No appeal was taken from this conviction and sentence. Appellant, however, later applied to the California state courts for habeas corpus relief and this was denied without opinion.
In his petition for habeas corpus received in the United States District Court on November 5, 1965, appellant alleges that he was not aware of his right to appeal and was never informed by his court-appointed counsel or any other state agent of his right to file a notice of appeal. He alleges that his conviction was obtained in violation of the due process clause of the Fourteenth Amendment in that he was denied a proper motion for a change of venue by the trial court, in that he was coerced to waive trial by jury, in that he was coerced to waive a public trial, and in that he was deprived of a fundamental fair trial by being denied adequate and effective representation by court-appointed counsel.
The district court in denying appellant's petition for a writ relied upon the fact that appellant had not...
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Gardella v. Field
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...courts should permit the state court to determine whether petitioner has a meritorious case for filing a late appeal. Lembke v. Field, 380 F.2d 383 (9th Cir., 1967). Furthermore, petitioner has not exhausted his State remedy of habeas corpus. The three California courts in which petitioner ......
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