Troglin v. Clanon, C-74-0020.
| Decision Date | 11 June 1974 |
| Docket Number | No. C-74-0020.,C-74-0020. |
| Citation | 378 F. Supp. 281 |
| Parties | Herbert Ray TROGLIN, Petitioner, v. T. L. CLANON, M.D., Respondent. |
| Court | U.S. District Court — Northern District of California |
Thomas A. Salciccia, San Jose, Cal., for petitioner.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Kenneth C. Young, Deputy Attys. Gen., San Francisco, Cal., for respondent.
ORDER OF HEARING
Petitioner, in state custody at the California Medical Facility, Vacaville, California, claims in his petition for a writ of habeas corpus that the state judge who sentenced him considered four prior convictions in other states which must now be considered invalid because he was not afforded his right to counsel. See United States v. Tucker, 404 U.S. 443, 447, 449, 92 S.Ct. 589, 591, 592, 30 L.Ed.2d 592, 596, 597 (1972). The Court issued an order to show cause on this claim. Respondent has filed a return and petitioner a traverse to that return. The issue before the Court now is whether a date for an evidentiary hearing should be set. See 28 U.S.C. § 2243. Respondent in his return has argued that such a hearing should not be scheduled because (1) petitioner has failed to exhaust state remedies in California, (2) he has failed to exhaust remedies in the states of those prior convictions, and (3) the prior convictions were not considered by the sentencing judge.
In its order to show cause filed February 1, 1974, the Court found that petitioner had sufficiently alleged exhaustion of state remedies. Respondent now claims that in fact petitioner has not exhausted the remedies available in the courts of California. Respondent argues that petitioner in his state petition failed to set forth facts which would substantiate his claims and also that he bypassed the state court of appeal. In respondent's view, therefore, the state courts have not been given a sufficient opportunity to pass on the merits of petitioner's claims. Moreover, respondent contends that an appeal in the state courts was available and that petitioner has failed to explain why he did not raise his present claim before the sentencing court or on appeal.
Respondent has raised some substantial points. The Court of Appeals for this Circuit has recognized that under California law a petitioner for a writ of habeas corpus must allege with considerable particularity the facts which he feels support his claims. Conway v. Wilson, 368 F.2d 485, 486-87 (9th Cir. 1966), cert. denied, 386 U.S. 925, 87 S.Ct. 897, 17 L.Ed.2d 798 (1967). Failure by an applicant for a federal writ of habeas corpus to comply with this state law requires dismissal of his application for failure to exhaust state remedies. 368 F.2d at 487.
The Court does not agree with respondent that "petitioner has totally failed to give the state courts a factual basis on which to review his claims." He has submitted court records relating to the challenged convictions. The Colorado records are ambiguous in that they refer to defendant and his counsel, but his counsel is nowhere named. The records of the two Arkansas convictions indicate that petitioner declined appointment of counsel. The Oklahoma record does indicate that petitioner had an attorney. These records do show that petitioner did not have counsel in two of the cases and may not have had counsel in another. These records tend to corroborate his claims, therefore, although certainly do not prove them.1
Petitioner filed his first state petition in the Superior Court of Sacramento County. That court transferred the petition to the sentencing court, the Superior Court of Santa Clara County. In its order, it expressly relied upon In re Haro, 71 Cal.2d 1019, 1021, 80 Cal.Rptr. 588, 591, 458 P.2d 500, 503 (1969). The California Supreme Court said in Haro that "once the court of the county of confinement makes a preliminary determination that the prisoner has alleged facts which, if true, would entitle him to resentencing, that court must transfer the case to the county of sentencing for an evidentiary hearing to determine the truth of the alleged facts." In his petition to the California Supreme Court, petitioner included a copy of a memorandum from a research assistant to the judge ordering the transfer. That memorandum concluded: The order of transfer and the above memorandum indicate that one state court viewed the factual allegations as sufficient to justify continued proceedings leading to a decision on the merits.
Respondent claims that in his state petitions petitioner did not explain his failure to raise his contention before the trial court or on appeal. But in his petition to the State Supreme Court petitioner answered the question of why his claims had not been presented to any court previously by stating "because of intervening changes in law." It would appear that, as to the claim before this Court, that reference would have to be to United States v. Tucker, supra, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). But that decision was handed down on January 11, 1972, whereas petitioner was sentenced on August 18, 1972. Hence petitioner supplied the State Supreme Court with an explanation, but it was not a persuasive one.
Upon being transferred to the Superior Court for Santa Clara County, petitioner's petition was denied by that court "without further hearing." The judge ordering the denial was not the sentencing judge, however. Petitioner did not seek relief from a court of appeal but instead petitioned directly to the State Supreme Court. Failure to seek relief from the intermediate appellate court can result in denial of a petition by the State Supreme Court which is not an exhaustion of state remedies. See Baskerville v. Nelson, 455 F.2d 430, 432 (9th Cir. 1972).
The Supreme Court denied the petition without an opinion or citation of authority. Justice Tobriner, however, was "of the opinion that the respondent should be ordered to show cause why the relief prayed for should not be granted." Official Advance Sheet No. 34, California Official Reports, Minutes, p. 1. Thus, there was clearly a dissent on the merits. The Court of Appeals for this Circuit has held that the brief citation of authorities by the California Supreme Court which answer a petitioner's substantive claims adversely is a sufficient indication of a decision on the merits and exhaustion of state remedies. Ross v. Craven, 478 F.2d 240, 241 (9th Cir. 1973). The Court of Appeals viewed the result as compelled by comity and by the policy of not encouraging repetitious petitions to state courts under the doctrine of exhaustion.
Although Ross does not control this case, it certainly points to an exhaustion of state remedies here. Petitioner's pleadings in the state courts and their results do not provide a model of exhaustion of state remedies. Indeed the record is very ambiguous. But in a case in which the state court's decisions are not clearly based on a failure to plead specific facts or on procedural defects and in which one member of the state's highest court dissents on the merits, it will take more than silence by the Supreme Court's majority to compel a federal court to send a petitioner back to the state courts. Under all the circumstances of this case, this Court holds that petitioner exhausted his remedies in the courts of California. See Castro v. Klinger, 373 F.2d 847, 850 (9th Cir. 1967); Hamilton v. Craven, 350 F.Supp. 1251, 1254 (N.D.Cal. 1971), aff'd per curiam, 469 F.2d 1394 (9th Cir. 1972). Cf. Turner v. Lloyd, 439 F.2d 138, 139 (9th Cir. 1971).
Respondent also contends that petitioner must exhaust his remedies in the courts of the states in which he claims he was convicted unconstitutionally. In fact, petitioner has in recent months brought proceedings, in those courts to challenge the prior convictions.
Respondent has not pointed to any case law in support of this theory of exhaustion. The Court's own research has disclosed somewhat of a conflict among the circuits. In cases very similar to this one several decisions have clearly held that this type of exhaustion is not required. Each involved the application of a statute imposing a particular sentence upon a convicted defendant because of his prior convictions when he challenges those convictions as constitutionally invalid. See Craig v. Beto, 458 F.2d 1131, 1134 (5th Cir. 1972); United States v. Martinez, 413 F.2d 61, 63 (7th Cir. 1969); United States v. LaVallee, 330 F.2d 303, 306 (2nd Cir. 1964) (en banc), cert. denied 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048 (1964); United States v. LaVallee, 306 F.2d 417, 419-420 (2nd Cir. 1962) (Friendly, J.). But recently two circuits, in cases raising Tucker questions pertaining to persons serving sentences imposed by federal courts, have required the petitioners to exhaust the remedies of the states of the challenged prior convictions. Young v. United States, 485 F.2d 292, 294 (8th Cir. 1973); Brown v. United States, 483 F.2d 116, 118-19 (4th Cir. 1973). The United States Court of Appeals for the Fifth Circuit has taken the opposite position. Mitchell v. United States, 482 F.2d 289, 292-94 (5th Cir. 1973); Lipscomb v. Clark, 468 F.2d 1321, 1323 (5th Cir. 1972). The United States Court of Appeals for this Circuit has apparently not faced this question.2
As the discussion in the next section indicates, this question does not require an answer at this time. If the Court faces this issue in the future, the parties must address themselves to the question whether, apart from...
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