Rose v. Dickson, 18670.

• Decision Date: 27 January 1964
• Docket Number: No. 18670.,18670.
• Citation: 327 F.2d 27
• Parties: Glenn ROSE, Appellant, v. Fred R. DICKSON, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

327 F.2d 27 (1964)

Glenn ROSE, Appellant, v. Fred R. DICKSON, Appellee.

No. 18670.

United States Court of Appeals Ninth Circuit.

January 27, 1964.

Lin B. Densmore, San Francisco, Cal., for appellant.

Stanley Mosk, Atty. Gen. of the State of California, Albert W. Harris, Jr., Deputy Atty. Gen., and Robert R. Granucci, Deputy Atty. Gen., San Francisco, Cal., for appellee.

Before MERRILL and BROWNING, Circuit Judges, and MURRAY, District Judge.

BROWNING, Circuit Judge.

Appellant pleaded guilty in the Superior Court of Alameda County, California, to charges of kidnaping and aggravated assault, and was sentenced to imprisonment. In due course he filed a petition for habeas corpus in the court below, alleging violations of his Fourteenth Amendment rights. The petition was denied. Only two of the many grounds for relief pressed upon the District Court have been urged on this appeal.

First. Appellant asserts that he did not have effective assistance of counsel. This contention is based upon the affidavit of the attorney who represented appellant prior to and at the time of his plea. Counsel's affidavit states: "Petitioner * * * was not inclined to plead guilty because he believed he had a good defense"; "at no time did I discuss with petitioner any possible defenses he might have concerning the crimes with which he was charged"; and "in my opinion petitioner entered a plea of guilty not because he recognized his guilt of the charges confronting him but because he believed he was assured of probation * * *."

Second. Appellant asserts that his plea was not made with an understanding of the nature of the charge and the consequences of his plea. This contention is based upon a transcript of appellant's arraignment, and further statements in the affidavit of appellant's then counsel. The transcript discloses that no inquiry was made at the arraignment to determine whether appellant's plea was understandingly made, and that nothing was said to appellant in explanation of the charges against him or the sentence to which he would be exposed by a plea of guilty. Pertinent statements in counsel's affidavit include the following: "at no time did I discuss with petitioner the possible result of a guilty plea in terms other than probation"; "I did not advise petitioner that kidnapping is punishable by imprisonment in a state prison for a maximum of 25 years, nor did I advise petitioner that assault with a deadly weapon is punishable by imprisonment in a state prison for a maximum term of 10 years"; and "to my knowledge, petitioner had no realization that a change of plea from not guilty to guilty could result in imprisonment, and I am certain that petitioner had no cognizance of the seriousness, in terms of punishment, of the crimes to which he was pleading guilty."

The District Court ordered the petition dismissed as wanting in merit. We affirm, but solely on the ground that it does not appear that appellant "has exhausted the remedies available in the courts of the State." 28 U.S.C.A. § 2254.

Our review of appellant's compliance with this requirement of Section 2254 is not restricted by the District Court's conclusion that it has been satisfied, for the question is one of law not of fact. Nor are we precluded by failure of the parties to raise the issue on appeal. The policy considerations underlying the statutory command are of such importance as to require an independent determination that has been fairly met. United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 710 (2d Cir. 1960).

The requirement rests, of course, in part upon regard for the sovereignty of the state. Conflict between state and federal authorities with regard to the administration of justice by the state is "a very delicate matter," to be avoided whenever possible. Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950) (Justice Frankfurter, in dissent, quoting Justice Holmes). The requirement rests also upon considerations of practical efficiency. The issues presented often concern local attorneys and court personnel, and arise in a context of local procedures and practices, with which state courts are familiar. They may be resolved most effectively by those tribunals. The requirement serves the interests of the federal courts. "Indeed, any other rule would visit upon the federal courts an impossible burden, forcing them to supervise the countless state criminal proceedings in which deprivations of federal constitutional rights are alleged." Wade v. Mayo, 334 U.S. 672, 679-680, 68 S.Ct. 1270, 1274, 92 L.Ed. 1647 (1948). The requirement also rests upon a regard for the rights of the prisoner. Courts of the state may deal with the substance of claims of unfairness in state proceedings free of the jurisdictional restrictions which bind federal courts, and grounds for relief may be found to exist far short of a determination that federal constitutional rights have been violated. Thus, state court proceedings may afford a more generous protection of the accused, and at the same time render unnecessary the decision of difficult issues of federal constitutional law.

In the present case, appellant's allegations suggest such issues as the nature and extent of state involvement necessary to render ineffective assistance of counsel a violation of the Fourteenth Amendment compare Turner v. Maryland, 318 F.2d 852 (4th Cir. 1963), Jones v. Cunningham, 313 F.2d 347 (4th Cir. 1963), and cases cited in Brubaker v. Dickson, 310 F.2d 30, 32 n. 3 and 4 (9th Cir. 1962), with, e. g., Dusseldorf v. Teets, 209 F.2d 754, 755 n. 1 (9th Cir. 1954), and Berg v. Cranor, 209 F.2d 567, 568 (9th Cir. 1954), and whether an obligation comparable to that imposed upon federal courts by Rule 11 of the Federal Rules of Criminal Procedure is imposed upon state courts by...