Linden v. Dickson

• Decision Date: 24 March 1960
• Docket Number: No. 16561.,16561.
• Citation: 278 F.2d 755
• Parties: Marion James LINDEN, Appellant, v. Fred R. DICKSON, Warden, California State Prison, San Quentin, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

278 F.2d 755 (1960)

Marion James LINDEN, Appellant, v. Fred R. DICKSON, Warden, California State Prison, San Quentin, Appellee.

No. 16561.

United States Court of Appeals Ninth Circuit.

March 24, 1960.

William L. Blaine, San Francisco, Cal., for appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Deputy Atty. Gen., State of California, for appellee.

Before BONE, HAMLIN and KOELSCH, Circuit Judges.

HAMLIN, Circuit Judge.

Appellant, Marion James Linden, applied to the District Court for the Northern District of California, Southern Division, on August 5, 1959, for a writ of habeas corpus.¹ The petition for the writ alleged that the judgment and commitment under which the petitioner was being held were void. The petition alleged that on his trial, while being represented by court-appointed counsel, he requested that such counsel be removed and that he be allowed to conduct his own defense. The petition further alleged that the trial court granted his request and then alleged that at the time of his trial appellant was, by reason of insanity, incompetent to waive counsel, and that consequently he was deprived of his liberty without due process.

The petition further showed that appellant had been convicted of murder in the first degree and sentenced to death, the execution being scheduled for 10 a. m., August 7, 1959. It also appeared that appellant's conviction had been affirmed by the Supreme Court of California and that his petition for certiorari to the Supreme Court of the United States had been denied, and that appellant had exhausted his state remedies.² It was stipulated by counsel at the time of argument before this court that when counsel for appellant presented the petition for the writ of habeas corpus to the District Judge that he also presented to him at the same time a copy of the opinion of the Supreme Court of California affirming appellant's conviction. Under California law, after conviction in capital cases, there is an automatic appeal to the Supreme Court of California. The appellant in such appeal is furnished with a transcript of all the proceedings of the trial in the lower court, including the testimony of witnesses. There is no contention this record was not available to appellant and his counsel at the time of the application for the writ, but no part of the transcript was presented to the District Judge, who, after considering the documents handed to him and without granting an order to show cause, denied appellant's application. The District Judge did not call for or examine the transcript and did not hold a hearing.

This appeal followed and it is conceded this court has jurisdiction of the appeal.

The appellant in his brief raises two questions: (1) whether the District Court upon application for a writ of habeas corpus by a prisoner convicted of a capital offense in a state court, who alleges a deprivation of due process under the Fourteenth Amendment to the United States Constitution, can deny the writ without granting a hearing or reviewing the record of the trial; and (2) assuming that this question is answered in the affirmative, whether the District Court erred in denying the application for a writ of habeas corpus.

Appellant first submits that a District Judge cannot refuse an application for a writ of habeas corpus without either holding a hearing or examining the transcript of the trial proceedings. This is obviously too broad. "If the claim is frivolous, the judge should deny the application without more." Brown v. Allen, 344 U.S. 443, 504, 73 S.Ct. 397, 445, 97 L.Ed. 469 (opinion of Justice Frankfurter). Appellant next relies on United States ex rel. De Vita v. McCorkle, 3 Cir., 1954, 216 F.2d 743, 745, apparently for the proposition that unless the application is denied as frivolous the District Judge cannot refuse an application for a writ of habeas corpus without either holding a hearing or examining the transcript of the trial proceedings, and that where, as here, he goes beyond the face of the petition and considers the state court opinion affirming the petitioner's conviction, he is committed to either holding a hearing or examining the transcript.

While it is true that the Court in McCorkle held that in that case the District Judge should have either examined the transcript of the trial or held a hearing, we believe the case may be distinguished from this.

There it was plain the District Judge "thought it necessary to inquire into the merits of the application but apparently felt himself so circumscribed by the time element that he rendered his decision on the basis of what he had then before him of the state court proceedings, namely, the state court opinion alone," which he accepted as the state court record or a substitute therefor. In McCorkle the Court pointed out that the District Judge stated, "I shall have to deny the writ peremptorily" and stated in referring to his power to grant a stay of execution "he may have mistakenly assumed that he was under a duty of disposing of the issue immediately." From the opinion in McCorkle it seems the District Court wanted to fully investigate the merits of the application, but failed to do so as he felt himself circumscribed by time. That situation is not present here. There is nothing to indicate the District Judge thought it necessary to inquire into the merits of the application beyond the fact he considered the state court opinion which counsel handed to him, or that he felt it was necessary for him to act "peremptorily." Had he felt it necessary to further investigate the merits of the application, the able District Judge, with many years of experience in these matters on the District Court, unquestionably knew of his power to grant a stay.

In McCorkle, the Court pointed out that the District Judge regarded the petition as raising a substantial question "by his certification of the action as possessing probable cause for appeal." In this case, on the contrary, the District Judge certified there did not exist probable cause for appeal.³

In this case the petition for the writ contained no allegations of facts purporting to show appellant was incompetent to waive counsel. This petition may be contrasted with that in McCorkle, where the facts of the alleged unfairness of the trial were set out with particularity and in detail in the petition for the writ.⁴

Appellant's counsel had represented him for approximately six months prior to the filing or presentation of the application for a writ of habeas corpus on August 5, 1959, and with the full record available to appellant and his counsel, facts, if they existed, could have been set out in detail to establish the contention that appellant was, at his trial, incompetent to waive counsel.

The District Court read the opinion of the Supreme Court of California, which counsel handed to him. This opinion, which covers some nineteen printed pages (People v. Linden, 52 Cal.2d 1, 338 P.2d 397-416), exhaustively covered all the points raised by appellant on his appeal.

This opinion sets out in detail the proceedings surrounding the waiver of counsel by appellant during the trial. It appears from the opinion that counsel represented appellant without objection until the fifth day of the trial. Appellant then twice interrupted the proceedings with requests to personally make motions and to cross-examine. When the appellant asked "to appear and defend myself in person", the Court excused the jury. Appellant explained that counsel "did not want to go on with the case the way I wish," and asked that his attorney be relieved. In making this request, the appellant incidentally stated of his counsel that he "has been very fair with me and he has been a very good attorney," to which the trial judge responded, "Yes, he has." The opinion then sets out that thereafter, following considerable colloquy, the Court, with appellant's assent, reserved rulings on the questions of relieving appellant's counsel and his further representation until The People had concluded their case. The jury was then recalled and The People presented a little more evidence, after which they rested.

The Court then, out of the presence of the jury, fully and correctly advised appellant concerning his right to counsel. He then ruled that he would not appoint new counsel at the late stage in the proceeding. He, however, relieved appellant's trial counsel as attorney of record and, with his consent and express recognition of the difficult position in which he was placed, appointed him as legal advisor. There is then set out in detail the substance of considerable discussion between appellant and the Court and the prosecutor as to what evidence appellant was going to produce. The process of the court was offered to him for subpoenaing witnesses, and appellant's advisor offered to prepare the subpoenas and give them to the sheriff for a particular witness. However, when court reconvened, in response to a question from the Judge, "Do you wish to call your witness now?" appellant, without suggesting that he wished to offer any evidence, replied, "The defense rests."

On appeal to the Supreme Court of California appellant's new court-appointed counsel raised the question for the first time as to whether appellant understood the issues and available defenses and had the capacity to effectively waive counsel as required by Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

The Supreme Court of California in its opinion exhaustively discussed this contention and after setting out the proceedings and evidence in great detail, stated:

"Before the trial Court allowed defendant to represent himself, it held lengthy discussions with him and had ample opportunity to observe his abilities and disabilities. As in People v. Mattson (1959), supra, at pages 788, 793 of 51 Cal.2d, 336 P.2d at pages 945, 949, `* * * the entire record establishes that defendant was fully aware of his situation when he

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