Nunn v. Wilson, 20726.

• Decision Date: 17 January 1967
• Docket Number: No. 20726.,20726.
• Parties: James William NUNN, Appellant, v. L. E. WILSON, Warden, California State Prison, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

371 F.2d 113 (1967)

James William NUNN, Appellant, v. L. E. WILSON, Warden, California State Prison, Appellee.

No. 20726.

United States Court of Appeals Ninth Circuit.

January 17, 1967.

James William Nunn, in pro. per.

Thomas C. Lynch, Atty. Gen., of California, Robert R. Granucci, Paul N. Halvonik, Deputy Attys. Gen., San Francisco, Cal., for appellee.

Before BARNES, DUNIWAY and ELY, Circuit Judges.

DUNIWAY, Circuit Judge.

Nunn appeals from the denial of his petition for a writ of habeas corpus. He is in state custody following his conviction in California Superior Court of the crime of burglary (Cal.Pen.Code § 459). He contends that his trial was infected with an incurable constitutional defect in that the trial court refused to appoint counsel for him, although he was unable to employ counsel. He made the same contention on appeal to the California District Court of Appeal. That court rejected it, People v. Nunn, 1963, 223 Cal. App.2d 658, 35 Cal.Rptr. 884.

The United States District Court held an evidentiary hearing at which Nunn testified. He was represented by counsel. In addition to Nunn's testimony, the court received in evidence transcripts of the proceedings in the California court and copies of the brief filed on Nunn's behalf on his appeal and of his petition for a hearing in the California Supreme Court.

The California records disclose the following:

Preliminary hearing: Nunn was represented by Attorney Shaffer, whom he had retained, but with whom he had not made final arrangements.

August 16, 1962 arraignment: Before Judge Noble of the Superior Court, Nunn was without counsel; public defender appointed to represent him, at his request, and to represent a co-defendant, Field. Nunn's bail fixed at $2500. On motion of the public defender, case continued for one week for plea.

August 23, 1962: Public defender asked to be relieved as Nunn's counsel because of a conflict of interest between Nunn and Field. He stated that Nunn had been represented by Shaffer at the preliminary hearing and that Nunn would like a week's continuance and would be in a position to retain his own counsel. Nunn agreed and said "I just realized — signed a settlement in an insurance case, and the check will be coming in within the next day or two," and that he expected to receive about $750. Arraignment continued one week for plea. Public defender's motion to be relieved as counsel for Nunn granted.

August 30, 1962: Nunn appeared with Attorney Shaffer. A motion was made to set aside the information under Cal. Pen.Code § 995, and for severance; both continued to September 6.

September 6, 1962: Nunn appeared with Attorney Shaffer. Motion under section 995 withdrawn, motion for severance denied, Nunn pleaded not guilty. Trial set for October 1.

September 27, 1962: Nunn appeared with Attorney Shaffer before Judge Fox. Shaffer stated that Nunn desired to retain other counsel to represent him at trial and that a continuance of two or three weeks would be adequate time for him to make the arrangements. The District Attorney consented to the continuance and asked Nunn if he was asking that his counsel be relieved. Nunn said that he was, but the judge said "I am not going to relieve him. It is not that simple." Shaffer stated that if relieved he would be willing to refund any moneys that he had received. The court, however, said "It doesn't make any difference, sir, you are counsel of record until other counsel comes in here with you and accepts the substitution. The court is not going to relieve you. You are going to be ready for trial on October 15 unless he procures other counsel." Continued to October 15.

October 15, 1962: Nunn appeared with Attorney Shaffer, before Judge Noble. Shaffer said that Nunn had filed a motion that morning, asking that Shaffer be relieved as counsel and stated that he joined in the motion. The following colloquy then occurred:

"THE COURT: Mr. Nunn, this matter has been pending in this court since August. The Public Defender was appointed for you once and he was relieved, and now your present attorney is asking to be relieved. We are not going to continue this course of conduct much longer. You are going to have to be represented by counsel here pretty soon and be ready to go to trial.

DEFENDANT NUNN: Yes. Your Honor, the one time that the Public Defender represented me, that was just on one day when Mr. Shaffer wasn\'t able to appear.

THE COURT: I will give you one more continuance for the purpose of employing counsel and coming in here ready for trial. How long will you need?

DEFENDANT NUNN: I would like to have at least three weeks, your Honor."

* * * * * *

"THE COURT: This case is continued until * * * November 13 at 9:30 and I want you to come in here ready to go to trial and be represented by counsel.

MR. SHAFFER: Your Honor, am I relieved?

THE COURT: The motion to relieve counsel is granted."

November 13, 1962: The following colloquy occurred:

"THE COURT: Are you represented by counsel, Mr. Nunn?

DEFENDANT NUNN: No, your Honor. Although I have been working night and day every day taking care of all my other financial obligations, it still left me a little short of the money that I need.

THE COURT: Mr. Nunn, how many times do you think I am going to continue this case for that reason? This is about the third time that I have continued it now for you to get a lawyer.

DEFENDANT NUNN: In all truthfulness, I realized that, but I have had a difficult time.

THE COURT: I guess you will have to try your own case, sir.

Give me a trial date.

This case has been pending here since August. Give me the earliest date that you have. Let\'s get this case tried."

* * * * * *

"THE COURT: I am not going to continue it any further, Mr. Nunn, for the reason that you have been given ample opportunity to hire a lawyer. If you can\'t, you will just have to represent yourself, that is all.

DEFENDANT NUNN: Yes, your Honor. In all sincerity, I realize I have caused some difficulty but I have had a difficult time."

* * * * * *

"THE COURT: Why haven\'t you been able to employ counsel, Mr. Nunn?

DEFENDANT NUNN: There is quite a large sum of money involved, your Honor, and I am still a little bit short of it.

THE COURT: What do you mean by `a large sum of money involved\'?

DEFENDANT NUNN: Well, $1,000.

THE COURT: You can get somebody to represent you for less than $1,000.

DEFENDANT NUNN: I guess I could, your Honor.

THE COURT: You are not talking to the right person.

DEFENDANT NUNN: I am not familiar with just walking into any attorney\'s office.

THE COURT: You can get somebody to represent you for less than $1,000 in this case, any number of them. What kind of work do you do?

DEFENDANT NUNN: I am a roofer.

THE COURT: How much do you make a week?

DEFENDANT NUNN: I have been averaging $165 a week.

THE COURT: $165 a week. That is why I didn\'t appoint a lawyer for you. You can hire a lawyer if you are making that kind of money.

DEFENDANT NUNN: Yes, I could, but in this particular case I have to have it all in advance.

THE COURT: You had better talk to somebody else. There are plenty of lawyers who will handle it for you for less than that and make some arrangement for payment.

DEFENDANT NUNN: All right, your Honor."

Matter continued to January 7. The court said:

"January 7th. Now we are going to go to trial on that date. I don\'t want you to wait until the last minute to get a lawyer because he will come in and say he isn\'t prepared and I am not going to continue it any further. I want you to get a lawyer now and have him come in and be prepared to try this case on January 7th."

January 7, 1963: NUNN appeared without counsel, and the following colloquy occurred:

"THE COURT: Mr. Nunn, are you represented by counsel?

DEFENDANT NUNN: I have been unable to obtain counsel.

THE COURT: You remember what I told you the last time you were here, that you were going to try your own case today if you were not represented by counsel?

DEFENDANT NUNN: Yes, I do, your Honor. I had good and serious intentions but the family finances wouldn\'t permit it.

THE COURT: Are you still employed?

DEFENDANT NUNN: I was going to ask the Court to appoint one.

THE COURT: Not at this time, Mr. Nunn. I warned you the last time. Do you want me to read back what I told you the last time? I had the Reporter read it to me this morning. This is the fourth time that this case has been continued.

DEFENDANT NUNN: I know what you told me the last time.

THE COURT: I warned you that if you did not come in with counsel, that you should be prepared to try it yourself; do you recall that?

DEFENDANT NUNN: Yes.

THE COURT: On all of these occasions that it has been continued, I warned you that we couldn\'t appoint the public defender for you because of the money that you are making. You have had private counsel once, and he has been relieved. This case has been pending since August and it is going to have to be tried, Mr. Nunn.

DEFENDANT NUNN: I realize that, and for quite awhile I was doing pretty well financially, but then this slack season came up and a few financial crises arose.

THE COURT: As I recall, you were making $165 a week and I can\'t furnish a lawyer to anybody who is making $165 a week.

DEFENDANT NUNN: I was averaging that at the time I told you that.

THE COURT: We will hold it for trial. You will have to try your own case."

Both parties then waived jury trial. In that connection Nunn stated:

"Yes, I don\'t feel capable of trying a case in front of a jury, and I believe that the Court is capable of fully deciding the matter satisfactorily."

The court then re-emphasized the right to trial by jury, but Nunn repeatedly stated that ...