Pembrook v. Wilson

• Decision Date: 07 December 1966
• Docket Number: No. 21017.,21017.
• Citation: 370 F.2d 37
• Parties: Eddie W. PEMBROOK, Petitioner-Appellant, v. Lawrence E. WILSON, Warden, California State Prison, San Quentin, California, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

370 F.2d 37 (1966)

Eddie W. PEMBROOK, Petitioner-Appellant, v. Lawrence E. WILSON, Warden, California State Prison, San Quentin, California, Respondent-Appellee.

No. 21017.

United States Court of Appeals Ninth Circuit.

December 7, 1966.

Eddie W. Pembrook, Tamal, Cal., in pro. per.

Thomas C. Lynch, Atty. Gen., of Cal., Robert R. Granucci, James A. Aiello, Deputy Attys. Gen., San Francisco, Cal., for appellee.

Before HAMLEY, DUNIWAY and ELY, Circuit Judges.

HAMLEY, Circuit Judge:

On March 2, 1966, Eddie W. Pembrook, in California penal custody following his 1960 conviction for manslaughter, applied to the district court for a writ of habeas corpus and sought leave to proceed in that court in forma pauperis. The district court denied the motion to proceed in forma pauperis and also denied a similar petition for rehearing of that motion. Pembrook appeals.

The district court denied Pembrook's original motion for leave to proceed in forma pauperis on the ground that the only constitutional rights asserted by Pembrook were those having to do with police interrogation, as announced in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, decided in 1964, and that those principles could not be applied retroactively.¹

The Supreme Court has held that the constitutional rights articulated in Escobedo may not be applied retroactively by federal courts in testing the constitutional validity of state court convictions. See Johnson v. State of New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772; Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895. Therefore, if Pembrook sought habeas corpus relief solely on the basis of the constitutional rights announced in Escobedo, his application was frivolous on its face and the denials of his motions to proceed in forma pauperis were proper. See McGarrity v. Wilson, 9 Cir., 368 F.2d 677.²

In addition to Escobedo, however, Pembrook's application for a writ of habeas corpus also asserts several other grounds for relief, namely: (1) use of coercion in obtaining incriminating statements which were used against him;³ (2) receiving the incriminating statements in evidence without determining their voluntariness; and (3) ineffective assistance of counsel.

If Pembrook was coerced into making incriminating statements which were later used against him, he is entitled to habeas corpus relief. See McGarrity, supra. Appellee contends, however, that Pembrook's factual allegations concerning coercion are "only conclusionary."

If we assume that Pembrook's allegations concerning coercion are conclusionary, and if we further assume that Pembrook has stated no other ground for relief, such a defect in his application still would not warrant denial of his motion to proceed in forma pauperis on the ground that his application is frivolous. Such an application is frivolous only if the applicant can make no rational argument on law or facts to support his claim for relief. Blair v. State of California, 9 Cir., 340 F.2d 741, 742. This cannot be said of an application containing conclusionary allegations relating to a ground which, if factually established, would entitle the applicant to relief, for the applicant may be able to amend his application to allege such facts.⁴

However, Pembrook's allegations concerning coercion are not "conclusionary."⁵ Pembrook alleged that he was arrested on July 22, 1960, at approximately 10:00 p. m., and was held incommunicado until July 25, 1960, during which time he was not allowed to call his family or friends. He further alleged that he was interrogated in secret, over a period of several hours, by a succession of police officials. First, Officer King interrogated him for about forty-five minutes. Then Inspectors Connolly and Bratton interrogated him for almost two hours. Then the district attorney, with a shorthand reporter present, questioned him for about two and a half hours.

All this interrogation, Pembrook alleged, came in rapid succession. Officer King and Inspector Connolly allegedly knew that, at the start of the second interrogation, Pembrook had been without sleep for over seventeen hours, after having worked all day on the day of his arrest. Before and during the interrogation, Pembrook alleged, he was completely exhausted, and the police officials were well aware that he did not know or understand what was going on around him because he was in a "semi-state of shock. * * *"

The allegations summarized above, together with the further allegations that Pembrook was denied the assistance of counsel at his interrogation and that he was not then advised of his right to such assistance, and his right to remain silent,⁶ provide an ample factual basis for his claim that he was coerced into making incriminating statements.⁷

Since a claim for habeas corpus relief on the ground of coercion was adequately alleged, the district court should have granted Pembrook's motion to proceed in forma pauperis, accepted his application for filing, and called upon the appellee to make return thereto. In its return appellee will also have an opportunity to answer Pembrook's allegations concerning the failure of the state trial court to determine the voluntariness of the incriminating statements, and the ineffectiveness of Pembrook's counsel in the state criminal proceedings. We do not, at this time, express or imply any view as to the merits of any of these contentions.

Appellee does not contend that Pembrook has failed to exhaust presently available state remedies, as required by 28 U.S.C. § 2254 (1964). See Fay v. Noia, 372 U.S. 391, 399, 83 S.Ct. 822, 9 L.Ed.2d 837. He argues, in effect, however, that Pembrook deliberately bypassed state remedies which were once available to him and that, for this reason alone, the district court properly denied his motion to proceed in forma pauperis.

In support of this contention, appellee asserts that Pembrook did not raise the coercion issue at his trial. Moreover, appellee states, Pembrook did not appeal his state conviction, even though he could have raised the coercion issue on appeal for the first time. In addition, appellee avers, Pembrook did not ask for leave to file a late notice of appeal, as provided under California procedure, nor did he ask for a hearing in the California Supreme Court.

In advancing this by-pass argument, appellee is invoking the rule, announced in Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, that a federal judge has a limited discretion to deny relief to an applicant who has deliberately by-passed orderly state court procedures and, in so doing, has forfeited his state court remedies. However, the district court in this case did not deny the motion to proceed in forma pauperis on this ground and so there has not been, as yet, any exercise of discretion in the matter by the district court.

Moreover, there is nothing in the record before us to indicate that Pembrook did not raise the coercion issue at trial and, even if he did not raise the issue at trial, what his reason was for not doing so. There is also no reason indicated in the record why Pembrook did not take a state appeal from his conviction.⁸ Since these factual questions cannot be resolved by reference to the record, as we were able to do in Kuhl v. United States, 9 Cir., 370 F.2d 20, the issue of deliberate by-passing can only be determined after "* * * the federal court has satisfied itself, by holding a hearing or by some other means of the facts bearing upon the applicant's default." Fay v. Noia, 372 U.S. 391, at 439, 83 S.Ct., at 849.

Therefore, in the absence of some explanation in the...