Tannehill v. Fitzharris, 71-1732.
| Decision Date | 29 November 1971 |
| Docket Number | No. 71-1732.,71-1732. |
| Citation | 451 F.2d 1322 |
| Parties | Phillip Lee TANNEHILL, Petitioner-Appellant, v. Cletus J. FITZHARRIS, Superintendent, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ruth M. Friedman, of Newman, Marsh & Furtado, Hayward, Cal., for petitioner-appellant.
Evelle J. Younger, Cal. Atty. Gen., Gloria F. DeHart, Mark A. Levin, Deputy Attys. Gen., San Francisco, Cal., for respondent-appellee.
Before WRIGHT, TRASK and CHOY, Circuit Judges.
Tannehill appeals from an order denying his petition for writ of habeas corpus. In his petition he alleged sixteen grounds for relief, several of which appear to raise genuine constitutional issues. Although one of his grounds has been the subject of a prior petition fifteen are new.
The district court denied the writ without a hearing. Because we believe that the consideration given Tannehill's petition was inadequate, we must remand.
The district court concluded that the ground previously raised was barred by the doctrine of res judicata. It has consistently been held, however, that this doctrine is not applicable to habeas corpus and 28 U.S.C. § 2255 proceedings.
A petition can be dismissed on the basis of a prior adjudication only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).
If the district court dismisses a petition on the basis of a prior adjudication, it must make a specific finding that the ends of justice would not be served by reaching the merits. Gomez v. United States, 396 F.2d 323 (9th Cir. 1968).
It also appears that the district court did not have before it the transcripts of the relevant state proceedings. Rather it relied on state appellate court opinions. We have repeatedly held this procedure inadequate. Selz v. California, 423 F.2d 702 (9th Cir. 1970), and its many progeny.
Finally the district court found the petition an abuse of the writ. It appears that there was no return from the state authorities pleading abuse, which is an affirmative defense. See Sanders, supra; United States v. Lee, 446 F.2d 350 (9th Cir. 1971). Moreover, it appears that Tannehill was seeking collateral relief from the state courts, which was finally denied only a few months before he filed this petition. It may be that he believed in good faith, perhaps correctly, that his claims for federal relief would...
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Hardwick v. Doolittle
...Boles v. Beto, 379 F.2d 614, 614 (5th Cir. 1967); Johnson v. Massey, 516 F.2d 1001, 1002 (5th Cir. 1957); accord, Tannehill v. Fitzharris, 451 F.2d 1322, 1323 (9th Cir. 1971). In these circumstances, to equate the filing of successive petitions with an "abuse" of habeas is to misunderstand ......
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Galtieri v. Wainwright
...remitted to the state courts to exhaust and reappears alleging that he has done just that." 488 F.2d at 495. See Tannehill v. Fitzharris, 451 F.2d 1322, 1324 (9th Cir. 1971). Sanders itself demonstrates just how narrowly limned are the policies disfavoring successive petitions. Sanders' fir......
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...petition after exhausting state remedies. Neuschafer v. Whitley, 860 F.2d 1470, 1475-76 (9th Cir.1988) (citing Tannehill v. Fitzharris, 451 F.2d 1322, 1323 (9th Cir.1971)), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). McCleskey v. Zant makes clear that this result does......
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Campbell v. Blodgett
...petition after exhausting state remedies. Neuschafer v. Whitley, 860 F.2d 1470, 1475-76 (9th Cir.1988) (citing Tannehill v. Fitzharris, 451 F.2d 1322, 1323 (9th Cir.1971)), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). McCleskey v. Zant makes clear that this result does......