Turner v. Chavez
| Decision Date | 09 November 1978 |
| Docket Number | No. 78-1181,78-1181 |
| Parties | Horace B. TURNER, Petitioner-Appellant, v. Abe CHAVEZ, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William O. Fisher (argued), San Francisco, Cal., for petitioner-appellant.
William D. Stein, Atty. (argued), San Francisco, Cal., for respondent-appellee.
Appeal from the United States District Court for the Northern District of California.
Before BROWNING and HUG, Circuit Judges, and HOFFMAN, * District Judge.
Turner appeals from an order denying his petition for a writ of habeas corpus, in which he challenged the constitutionality of two convictions for forcible rape entered against him. The district court concluded that the petition failed to adequately present disputed questions of fact which would require either an evidentiary hearing or a review of the record for procedural fairness. It conclusively appears that the decision of the district court was based on the opinion of the Court of Appeals of the State of California, rather than on an independent review of the record. We must therefore remand for such a review.
In considering a petition for a writ of habeas corpus, the district court must make its determination as to the sufficiency of the state court findings from an independent review of the record, or otherwise grant a hearing and make its own findings on the merits. Griff v. Rhay, 455 F.2d 494, 495 (9th Cir. 1972); United States ex rel. Jennings v. Ragen, 358 U.S. 276, 277, 79 S.Ct. 321, 3 L.Ed.2d 296 (1959). A reading of the well-reasoned opinion of the state court would indicate that appellant's allegations may be without merit. However, this cannot be said with certainty without a review of the record. The very nature of the habeas corpus action demands an independent review.
Of particular concern to this court is appellant's allegation of prosecutorial misconduct. The opinion of the state appellate court noted that the prosecutor made improper comments in derogation of defense counsel and witnesses, and improperly cross-examined witnesses. The state court found that the dominant figure during trial was "an aggressive, overbearing and rude prosecutor whose knowledge of the rules of evidence was woefully lacking," and described the misconduct as "deplorable and unpardonable." The determination that such egregious conduct constituted harmless error necessarily requires a firsthand view of the record.
The Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, became effective February 1, 1977, approximately two months prior to the...
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Biller v. Lopes
...the Court asked the petitioner to submit additional evidence which sets forth the nature of his proposed testimony. See Turner v. Chavez, 586 F.2d 111 (9th Cir.1978). Because of a serious heart condition, the petitioner was unable to testify at a hearing. Instead, the petitioner has filed a......
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Harris v. Pulley
...from an independent review of the record, or otherwise grant a hearing and make its own finding on the merits." Turner v. Chavez, 586 F.2d 111, 112 (9th Cir. 1978). See e.g. Pierre v. Thompson, 666 F.2d 424, 427 (9th Cir. 1982); Patterson v. Warden, 624 F.2d 69, 70 (9th Cir. 1980); Cody v. ......
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Hillery v. Pulley
...court may use Rule 7 to obtain additional materials to determine whether the allegations are meritorious. See, e.g. Turner v. Chavez, 586 F.2d 111, 113 (9th Cir. 1978).16 The obligation of a habeas petitioner to first fairly present the factual basis of his federal claim to the state court,......
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