Riojas v. Turner, C-300

• Decision Date: 03 October 1969
• Docket Number: 306,No. C-300,248 and 213-69.,C-300
• Citation: 304 F. Supp. 559
• Parties: Jimmy RIOJAS and Gary Martin, Plaintiffs, v. John W. TURNER, Warden, Utah State Prison, Defendant. Edward KANOSH, Plaintiff, v. John W. TURNER, Warden, Utah State Prison, Defendant. Chester B. BROWN, Plaintiff, v. John W. TURNER, Warden, Utah State Prison, Defendant. William WHETTON, Plaintiff, v. John W. TURNER, Warden, Utah State Prison, Defendant.
• Court: U.S. District Court — District of Utah

304 F. Supp. 559

Jimmy RIOJAS and Gary Martin, Plaintiffs, v. John W. TURNER, Warden, Utah State Prison, Defendant.

Edward KANOSH, Plaintiff, v. John W. TURNER, Warden, Utah State Prison, Defendant.

Chester B. BROWN, Plaintiff, v. John W. TURNER, Warden, Utah State Prison, Defendant.

William WHETTON, Plaintiff, v. John W. TURNER, Warden, Utah State Prison, Defendant.

Nos. C-300, 306, 248 and 213-69.

United States District Court D. Utah, C. D.

October 3, 1969.

MEMORANDUM DECISION

CHRISTENSEN, District Judge.

The first two cases mentioned above were initiated by unverified letters from prisoners in the Utah State Prison, leave was granted by the Chief Judge to file these letters in forma pauperis as petitions for writs of habeas corpus, and they were docketed as habeas corpus cases and assigned to me by our automatic assignment system. The latter two cases involve letters similarly addressed and unverified, asking for further relief by way of rehearings or otherwise in matters already assigned to me.

Civil Number 300-69, Riojas and Martin v. Turner, was initiated by the following letter to the Chief Judge:

We Gary Martin and Jimmy Riojas are writing in regard to our parole violation when we were violated with out a lawyer being present at our board hearing. I, Jimmy Riojas did receive a three year date in April 67, I also was convicted of a new charge. We have heard that you have stated that this is not constitutional. Since then I have sen people released from the state prison who were faced with the circumstances that we are faced with. We would appreciate any and all advice to this matter that you could give us. We would appreciate it if you would appoint an attorney to come out here to the prison and talk to us.

Number C 306-69, Kanosh v. Turner, was initiated by the following letter similarly addressed:

I am writing to you in regards to an inmate at the Utah State Prison, who is illiterate, and who I believe has had his Constitutional Rights violated.

His name is Edward Kanosh, USP #12121.

He was violated on the grounds, "using intoxicants in violation of the order of the Board of Pardons," on February 5th, 1969, without counsel, due to lack of funds and knowledge.

Neither he nor myself are very well acquainted with the law, nor have the law book available.

He would appreciate a chance to consult with an attorney, but he is still without funds to retain one.

We place our faith in the justice of your court.

Based upon these letters on August 22, and September 2, 1969, respectively, the Chief Judge entered orders in the following terms:

The Court having examined the application for Writ of Habeas Corpus filed by the above named petitioner, together with the Motion for Leave to Proceed in Forma Pauperis and the required affidavit,

IT IS ORDERED that petitioner be, and he is hereby authorized to proceed in forma pauperis, and the Clerk is directed to file forthwith the petitioner's application without prepayment of fees and costs or security therefor.

In C 248-69, Brown v. Turner, on August 26, 1969, after an evidentiary hearing, I entered findings of fact, conclusions of law and judgment determining that petitioner's claim with respect to one sentence was moot since he already had served it and that as to the other sentence under attack, state court findings that his plea was voluntary were fully supported by the evidence, that there was no evidence that the plea was not intelligently and advisedly made and that plaintiff was not denied the right to counsel, but rather was represented effectively by counsel. Plaintiff's appeal of this decision is now pending in the Court of Appeals.

The plaintiff, Brown, has now written the following letter to the Chief Judge asserting new grounds for relief, and this letter has been referred to me pursuant to the assignment rule:

Would you see Raymond Berry about making an order to release me. I was not given a hearing at my Parole Revocation. Judge Sherman Christensen did not consider that when I was before him on a Writ of Habeas Corpus. If you want some information would you please Mr. Raymond Berry, my attorney, which was appointed by you to represent me. I should of been released with the first fellows you granted. I am ignorant of the laws. I don't have no one to help me. I also would like to talk private with you on some matters in the prison hear on. If you care to send some one I can give you the true facts about anything and everything hear in this Prison. I been hear 3½ years on a 1 to 10. Illegible * * * which I was forced to plead guilty to or be tried on a 5 to life sentence they say I did. I was under the influence of narcotics when they charged me with this crime. And another fellow would like to see you on a illegible if you would send one down. His name is Randel Bryant who has been hear over 5 years and he could not have had a fair trial as he had a stroke and is unable to converse with anyone. Thanking you, Chester Brown.

In C 213-69, William Whetton v. John W. Turner, Warden, I held on the original petition that without a showing of the exhaustion of state remedies or any pending appeal or habeas corpus proceeding either in the state or this court, I had no authority to order the state to provide him with a copy of his trial transcript. No appeal was taken from this ruling within the time required by law, or at all.

Under date of September 22, 1969, the plaintiff has written the following letter on the subject to the Chief Judge:

Repeated attempts to obtain a copy of my "trial transcript" have resulted in repeated failures.

Attached is a copy of the "denial" of the Supreme Court of my "Petition for a writ of mandamus" requiring the Third District Court (Salt Lake County, Utah) to show cause, if any it had, why I should not be granted a "transcript" of my "trial" consistent with the holding of the Supreme Court in Gardner v. California, 37 U.S. Law Week 4098 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (Jan. 21, 1969).

Inasmuch as a person of means (financial means) would be able to support his contentions in a Habeas Corpus or Coram Nobis proceeding by the use of his "Trial Transcript" it would seem that the Denial of such subject—matter to me an indigent defendant, would be condemned as the "invidious discrimination" condemned in Griffin v. Illinois, 351 U.S. 12 76 S.Ct. 585, 100 L.Ed. 891 (1956) and Long v. District Court, 385 U.S. 192 87 S.Ct. 362, 17 L.Ed.2d 290 (1966).

I feel compelled to seek your aid in causing the "transcript" to be furnished to me under the Federal Constitutional Guarantee of "Equal Protection of the Laws" and in the interest of justice. Especially in view of the fact that I am imprisoned for a capital offense— which I am sure the "transcript" will show a total absence of malice of any kind and other facts which are fatal to the validity of my conviction.

I shall be most sincerely grateful for your favorable consideration in regard to the forestated "transcript" being prepared and forwarded to me. Thank you.

Respectfully submitted William Whetton.

I had already pointed out in my memorandum decision on the original petition that, unlike the situation discussed in Gardner v. California, 393 U.S. 367, 368, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969), the Utah statute governing an original petition for habeas corpus where no previous petition has been filed requires a statement of the cause or pretense of petitioner's illegal restraint "according to the best information of the plaintiff". Utah R.Civ.Pro. 65B(f) (1). On mandamus, rather than in connection with a habeas corpus proceeding, a denial by the State Supreme Court of such relief without basis other than a hope that a transcript would show that evidence of malice was lacking at his trial is not sufficient to authorize this court to grant relief.

The accumulation of such matters and particularly the above-entitled cases seem to make necessary the statement, or restatement, of certain principles and applications:

1. The rule of the Judicial Council of the Tenth Circuit with reference to the division of the business of the court between the two judges in the District of Utah provides for the automatic assignment on irregular sequence between the judges of civil cases, including habeas corpus matters, and litigants cannot select the judges they wish to decide their cases any more than the judges could select even if they were so inclined the litigants whose causes they are to try.

2. On matters assigned to one of the judges, the other judge has no judicial power or control, and if an appeal from the ruling of the assigned judge is to be taken, it cannot be to the other judge but must be to the United States Court of Appeals for the Tenth Circuit within the time provided by law from the final judgment either granting or denying a writ of habeas corpus.

3. That one of the judges entertains a different view of the governing law than that held by a litigant or another judge is not in any particular case grounds for disqualification. Personal bias or prejudice such as would disqualify a judge does not include bias based on a previously expressed view of the law, or based on a previous decision against a litigant or an adverse ruling during the course of litigation. See Knoll v. Socony Mobil Oil Co., 369 F.2d 425 (10th Cir. 1966). Each judge was appointed and holds his office to exercise his own independent judicial judgment, subject only to appeal to superior courts as provided by law. The Court of Appeals, through its decisions upon timely appeal, will correct prejudicial error and where differences of opinion may exist between the judges will properly resolve those differences by its controlling rulings.

The rule of the Judicial Council of the Tenth Circuit which has also been mentioned with...