Moreno v. Nelson, 71-2160.
| Decision Date | 12 January 1973 |
| Docket Number | No. 71-2160.,71-2160. |
| Citation | 472 F.2d 570 |
| Parties | Charles Felix MORENO, Plaintiff-Appellant, v. L. S. NELSON, Warden, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jerome Fishkin (argued), San Francisco, Cal., for plaintiff-appellant.
Timothy A. Reardon, Deputy Atty. Gen. (argued), Gloria DeHart, Deputy Atty. Gen., William E. James, Asst. Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Evelle J. Younger, Atty. Gen., San Francisco, Cal., for defendant-appellee.
Before CARTER and WALLACE, Circuit Judges, and BYRNE, Sr.,* District Judge.
Following a plea of guilty to first degree robbery, appellant was sentenced in the California State Court on September 23, 1955, to the term prescribed by law, i. e., five years to life. He took no direct appeal and did not challenge the validity of his conviction and sentence for 13½ years.
After the denial of his petition for a writ of habeas corpus by the California Supreme Court, the appellant filed a petition for the writ in the District Court alleging the same constitutional claims as he did in the state court petitions, i. e., he was not represented by counsel at his preliminary hearing, his arraignment and plea of guilty or his sentencing and that he did not make an intelligent waiver of his right to appointment of counsel. Following the issuance of an order to show cause, appointment of counsel to represent appellant and briefing of the issues, the District Court ruled that in its discretion it would decline to entertain the petition because appellant had not exhausted his available state judicial remedies as required by 28 U.S.C. § 2254.1
The only issue on this appeal is: Did the District Court abuse its discretion when it declined to entertain the petition because the appellant had, and still has, an available state remedy for litigating his claims? We hold that the District Court did not abuse its discretion and affirm.
California law requires an applicant for habeas corpus, where there is substantial delay, to explain the reasons for the delay. In re Schneider, 35 Cal.2d 396, 217 P.2d 934 (1950); In re Swain, 34 Cal.2d 300, 209 P.2d 793 (1949).
The record shows that although 13½ years had elapsed from the time of sentence to the first attack upon the judgment of conviction, the appellant made no attempt to explain the long delay in seeking collateral relief in the state courts. While the state court petitions for the writ were denied...
To continue reading
Request your trial
-
Harris v. Superior Court of State of Cal., Los Angeles County
...exhausted his remedies on the ground that the California Supreme Court may have based its denial on procedural grounds: Moreno v. Nelson, 9 Cir., 1973, 472 F.2d 570; Baskerville v. Nelson, 9 Cir., 1972, 455 F.2d 430; Turner v. Lloyd, 9 Cir., 1971, 439 F.2d 138; Conway v. Wilson, 9 Cir., 196......
-
Pugh v. Leverette, 15366
...afford.3 Some jurisdictions require that the petitioner explain a substantial delay in filing for post-conviction relief. Moreno v. Nelson, 472 F.2d 570 (9th Cir. 1973); Garland v. Cox, 472 F.2d 875 (4th Cir.), cert. denied Slayton v. Garland, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (197......
-
Bellew v. Gunn
...in the (Trial) Court must carry a heavy burden if he is to overcome the regularity of his conviction." See also Moreno v. Nelson, 472 F.2d 570, 571 (9th Cir. 1973). The investigatory problems created by such a lengthy delay are well illustrated in this action. Both the petitioner's defense ......
-
Van Geldern v. Field, 72-1475.
...failed to reapply to the California Supreme Court, his application for federal habeas corpus relief would be premature. Moreno v. Nelson, 472 F.2d 570 (9th Cir. 1973). However, his second attempt, in which he stated his reasons for the lateness for his desired post-conviction relief and att......