Rogers v. Nelson, 50779.

• Decision Date: 28 May 1969
• Docket Number: No. 50779.,50779.
• Citation: 300 F. Supp. 421
• Parties: Anderson ROGERS, Petitioner, v. Louis S. NELSON, Warden, San Quentin State Prison, Respondent.
• Court: U.S. District Court — Northern District of California

300 F. Supp. 421

Anderson ROGERS, Petitioner, v. Louis S. NELSON, Warden, San Quentin State Prison, Respondent.

No. 50779.

United States District Court N. D. California.

May 28, 1969.

Anderson Rogers in pro. per.

Thomas C. Lynch, Atty. Gen. of California, San Francisco, Cal., with John T. Murphy and Timothy G. Laddish, Deputy Attys. Gen., for respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

WOLLENBERG, District Judge.

Petitioner, Anderson Rogers, is presently imprisoned in the California State Prison at San Quentin, California, pursuant to a conviction in the Superior Court of Alameda County on September 19, 1963 for second degree robbery (Cal. Penal Code, sec. 211). Petitioner at that time admitted having three prior felony convictions, to wit: (1) a conviction in Louisiana on April 5, 1936, for assault with intent to commit rape; (2) a conviction in New Jersey on September 4, 1944, for assault with intent to commit robbery; (3) a conviction in New Jersey on November 7, 1946 for murder. Robbery in the second degree is punishable by imprisonment in the state prison for not less than one year, with a maximum term of life imprisonment. Cal. Penal Code, §§ 213, 671.

In August, 1964 petitioner applied to the sentencing court for coram nobis relief on grounds which are not raised in the present matter; relief was denied on August 27, 1964.

Also in August, 1964 petitioner filed a petition for habeas corpus relief with the District Court of Appeal, Third Appellate District. This petition, based on grounds not raised in the present matter, was denied on August 27, 1964.

Petitioner then made two unsuccessful petitions to the California Supreme Court. The Attorney General for the State of California contends in his return here that these petitions did not "specifically raise the issues" presented now, and this contention must be accepted in the light of petitioner's failure to challenge it in his traverse filed herein. Petitioner then filed a third petition with the California Supreme Court which was almost identical with the petition filed here, and this petition was denied without opinion (the so-called "post-card" decision) on September 18, 1968.

In the petition now before this Court, petitioner in effect is challenging his Louisiana conviction in 1936 — he contends that at his trial leading up to that conviction he was not given the benefit of counsel, in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Petitioner argues that the existence of this conviction adversely affects him at present since it may serve to lengthen the time before the California Adult Authority will grant him parole.

Whether the 1936 Louisiana conviction did in fact violate Gideon, and whether it can be said to have any likelihood of effect on petitioner's parole, are questions which this Court need not now decide, for it is apparent that petitioner has failed to...