Thompson v. Procunier
| Decision Date | 21 July 1976 |
| Docket Number | No. 75-2437,75-2437 |
| Citation | 539 F.2d 26 |
| Parties | Stephen David THOMPSON, Petitioner and Appellant, v. Raymond K. PROCUNIER, Director, Department of Corrections of the State of California, Respondent and Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before ELY and GOODWIN, Circuit Judges, and SMITH, * District Judge.
The first problem presented by this appeal from an order denying a petition for a writ of habeas corpus is whether petitioner has exhausted his state remedies. 28 U.S.C. § 2254(b). Petitioner was convicted in California on his plea of guilty. No appeal was ever taken from the judgment of conviction. Petitions for writs of habeas corpus alleging ineffectiveness of counsel were presented in California state courts in the following chronological order: the Superior Courts of Monterey County, San Luis Obispo County, and Solano County (transferred to San Joaquin County), the Court of Appeal for the State of CAlifornia, Second Appellate District, and the Supreme Court of California. All were denied. The Supreme Court simply denied the petitions without indicating whether or not the denials were on the merits.
The State now contends, and correctly, that petitioner, although convicted on a plea of guilty, had a right of appeal under Cal.Pen.Code § 1237.5, and that if, as petitioner alleges, he was ignorant of that right, he might have petitioned for a late appeal under the California Rules of Court, Rule 31(a). In California, issues relating to claimed ineffectiveness of counsel may be presented by appeal. In re Brown, 9 Cal.3d 679, 108 Cal.Rptr. 801, 511 P.2d 1153 (1973). By virtue of all of this the State contends that, since the issue might have been raised on appeal, the petitioner, by failing to petition for a late appeal under Rule 31(a), did not exhaust his state remedies.
A federal court will not, prior to granting habeas relief, require that a petitioner, in a state where alternative methods of reviewing constitutional issues are available, exhaust all alternatives. Fay v. Noia,372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Leftwich v. Coiner, 424 F.2d 157 (4th Cir. 1970); Buchanan v. United States, 379 F.2d 612 (5th Cir. 1967). On the other hand, if a remedy is provided by a state, a petitioner may not deliberately bypass the orderly procedure of the state courts. We believe that, in the interest of maintaining a uniform and orderly procedure, a state may require that one procedure be used to the exclusion of another so long as the right of review is not foreclosed or unduly limited.
Our difficulty is that we are unable to determine what the Supreme Court of California did by its order denying the writ. The court may have followed the broad rule stated in Ex parte Dixon, 41 Cal.2d 756, 264 P.2d 513 (1953), and repeated in In re Brown, supra, to the effect that habeas corpus normally will not lie where a remedy by appeal exists. If so, then the court was simply requiring that an established appeal procedure be followed, and we should affirm. Petitioner might then pursue his state remedies and either obtain a ruling on the merits or demonstrate that there is no review procedure available to him.
On the other hand, in In re Lopez, 2 Cal.3d 141, 84 Cal.Rptr. 361, 465 P.2d 257 (1970), the California Supreme Court granted habeas relief where there had been a denial of counsel. Lopez is distinguishable because the denial of counsel there presented no factual issue as does the claim of ineffective representation here. In People v. Vaughn, 9 Cal.3d 321, 107 Cal.Rptr. 318, 508 P.2d 318 (1973), the court on a second appeal from a penalty judgment granted collateral relief on the ground of ineffective...
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...Supreme Court denies a petition without discussion it is assumed that the petition was denied on the merits. Thompson v. Procunier, 539 F.2d 26, 28 (9th Cir.1976); see also Harris v. Superior Court, 500 F.2d 1124, 1128-29 (9th Cir.1974) (en banc) (post card denial sufficient for purposes of......
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...we assume that the merits of Journigan's petition were considered. Cf. Gardner v. Griggs, 541 F.2d 851 (9th Cir. 1976); Thompson v. Procunier, 539 F.2d 26 (9th Cir. 1976).5 Because we hold that the guilty plea did not constitute a by-pass due to the availability of state habeas corpus subse......
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