Roberts v. Hocker

• Decision Date: 19 June 1969
• Docket Number: No. 5593,5593
• Citation: 85 Nev. 390,456 P.2d 425
• Parties: Ode Kie ROBERTS, Jr., Petitioner, v. Carl G. HOCKER, Warden of the Nevada State Prison, Respondent.
• Court: Nevada Supreme Court

Page 425

456 P.2d 425

85 Nev. 390

Ode Kie ROBERTS, Jr., Petitioner, v. Carl G. HOCKER, Warden of the Nevada State Prison, Respondent.

No. 5593.

Supreme Court of Nevada.

June 19, 1969.

Noel E. Manoukian, Zephyr Cove, for petitioner.

Harvey Dickerson, Atty. Gen., and Peter I. Breen, Deputy Atty. Gen., Carson City, for respondent.

OPINION

COLLINS, Chief Justice.

This is an original application for habeas corpus in this court.

Petitioner was convicted of grand larceny and sentenced on November 30, 1966, to a 2 to 14 year term in the penitentiary. On February 12, 1968, the State Parole Board granted petitioner parole pending the furnishing of a plan for rehabilitation. Before his release was effected, information was received from the State of Washington that petitioner was wanted there on a felony charge. The parole board reconsidered its previous order and ordered petitioner paroled to a Washington hold.

On April 2, 1968, a Nevada governor's warrant was issued on the request of the Washington governor under the Uniform Criminal Extradition Act (NRS 179.177--179.235). Petitioner was taken before the First Judicial District Court and advised of his rights under the extradition act. As an indigent, he requested appointment of counsel, which was refused, although he was given time to obtain his own counsel. On May 13, 1968, while petitioner was still without counsel, the court ordered the governor's warrant to be executed and petitioner released to the Washington authorities.

Other legal action intervened which is not relevant to the issues here. Finally, upon application to this court for habeas corpus, counsel was appointed, the issues framed and argument had.

There are three issues before us for decision; they are:

I. Will habeas corpus lie to determine the validity of a parole to hold and of extradition proceedings instituted by a demanding state seeking extradition of a person confined in the Nevada State Prison?

II. Does petitioner have the right to appointment of counsel to represent him at the extradition proceeding and in his petition for habeas corpus to test the validity of the restraint?

III. What is the scope of review in an extradition habeas corpus proceeding?

1. The writ of habeas corpus is available to every person unlawfully committed, detained, confined or restrained of his liberty. NRS 34.360. In State ex rel. Howard v. Fogliani, 82 Nev. 300, 417 P.2d 148 (1966), this court held:

'* * * the availability of the writ of habeas corpus * * * has been expanded to allow the presentation of questions of law that cannot otherwise be reviewed, or that are so important as to render ordinary procedure inadequate and justify the extraordinary remedy.'

Other cases have held that habeas corpus will lie to test the constitutionality of an ordinance while on bail (Ex parte Philipie 82 Nev. 215, 414 P.2d 949 (1966); to test unlawful restraint (Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965); or when one contends that he is 'aggrieved' by the governor's order (United States ex rel. Darcy v. Superintendent of County Prisons, 111 F.2d 409 (3rd Cir.1940). For a case discussing the very issue before us, see Ex parte Drake, 38 Cal.2d 195, 238 P.2d 566 (1951), and also see United States ex rel. Smith v. Jackson, 234 F.2d 742 (2d Cir.1956). We hold that habeas corpus will lie in this situation to test the legality of the particular restraint, even though it would not permit discharge from actual custody. See NRS 34.380.

2. NRS 179.197 provides, in part, that:

'1. No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him has appointed to receive him unless he is first taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel.

'2. If the prisoner or his counsel state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus.' (emphasis added)

The right to demand and procure legal counsel during an extradition proceeding is wholly statutory and not from any constitutional right or mandate. In the absence of a statute allowing a defendant the right to demand and procure legal counsel at an extradition proceeding, no such right exists. Applications of Oppenheimer, 95 Ariz. 292, 389 P.2d 696 (1964), Rugg v. Burr, 1 Ariz.App. 280, 402 P.2d 28 (1965).

The court was confronted with an analogous situation in the cases of In re DuBois, 84 Nev. 562, 445 P.2d 354 (1968), and Smith v. Warden and Luse v. Warden, 85 Nev. ---, 450 P.2d 356 (1969), where we held that an indigent person, on probation, was not entitled to appointed counsel at a revocation hearing because such a hearing is not a critical stage of the criminal proceeding. In the Smith and Luse case we said: 'The Sixth Amendment right to counsel cases decided by the United States Supreme Court center upon the need for counsel at critical stages of the criminal proceeding in order to insure fundamental fairness in the treatment of an accused or of one upon whom suspicion is focused. Consequently, that court has ruled that the right to counsel attaches when a police investigation is no longer a general inquiry into an unsolved crime but has begun to focus upon a particular suspect in police custody (Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)); at pre-trial lineup conducted for identification purposes (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951 (1967)); at the time when a plea is entered (White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961)); at trial (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)); when sentence is imposed (Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967)); and on a convicted person's first appeal granted as a matter of right (Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)). All of those cases rest upon the guarantees of fair procedure inherent in the Due Process Clause of the Fourteenth Amendment through which the Sixth Amendment is made applicable to the states, with only Douglas v. California giving equivalent emphasis to equal protection.'

If a probation revocation hearing, where a defendant is subject to the loss of his liberty for an extended period of time, is not a critical stage of the criminal proceeding a fortiori, an extradition proceeding is certainly not a critical stage of the criminal proceeding. The defendant can only be returned to the demanding state for trial. We see nothing sinister or foreboding about that situation. In fact, the opportunity for one accused to have a trial and be faced by his accusers is the touchstone of jurisprudence. We cannot presume that the defendant will be treated with fundamental unfairness in the demanding state. In fact, with the forest of safeguards set down by the United States Supreme Court, as well as post-conviction remedies and the virtually unlimited right to appeal, we must assume that the defendant will be treated fundamentally fair and will be afforded a fair trial at all stages of the proceedings in the demanding state.

It is our view that an extradition hearing is not a critical stage of the criminal proceeding. The guilt or...