Wade v. State of California

• Decision Date: 22 November 1971
• Docket Number: No. 25061,25073.,25061
• Citation: 450 F.2d 726
• Parties: Joseph William WADE, Petitioner and Appellant, v. STATE OF CALIFORNIA, Respondent and Appellee (two cases).
• Court: U.S. Court of Appeals — Ninth Circuit

450 F.2d 726 (1971)

Joseph William WADE, Petitioner and Appellant, v. STATE OF CALIFORNIA, Respondent and Appellee (two cases).

Nos. 25061, 25073.

United States Court of Appeals, Ninth Circuit.

October 4, 1971.

As Modified on Denial of Rehearing November 22, 1971.

John E. Sparks (argued), of Brobeck, Phleger & Harrison, San Francisco, Cal., for appellant.

Charles R. B. Kirk, Deputy Atty. Gen. (argued), Evelle J. Younger, Cal. Atty. Gen., John T. Murphy, Deputy Atty. Gen., San Francisco, Cal., for appellee.

Before CHAMBERS and BARNES, Circuit Judges, and JAMESON, District Judge.^*

BARNES, Circuit Judge:

This two-pronged appeal arises from the granting in the District Court of a petition for a writ of habeas corpus and from the remedy ordered. The writ ordered Wade, a state prisoner, released from custody arising out of his 1957 conviction after a plea of guilty to the crime of sodomy, unless the State of California granted him a new hearing within 30 days. This was on the ground that the guilty plea entered by Wade was involuntary.

The State appeals from the granting of the writ. Wade appeals from that portion of the writ requiring a new hearing, maintaining he should be unconditionally released, and not be required to again have the issue tried.

The District Court issued a certificate of probable cause, and stayed the execution of the judgment pending the determination of the appeal. Meanwhile, Wade has completed his time in prison, and has been released, presumably on parole.

Jurisdiction below rests on 28 U.S.C. A. § 2254; and here on 28 U.S.C. § 2253.

The petition was carefully considered by the District Judge. He outlined the procedures he followed in his order of July 8, 1969 C.T., pp. 288, 289, and then found that certain facts were not in question, as quoted in the margin.¹

The district court then set forth his understanding of the basis for petitioner's claim his plea was involuntary:

First, that it was induced by an extra-judicial confession made by petitioner following physical and mental coercion by sheriff's officers;

Second, that it was induced by the deceitful actions of the prosecuting attorney in failing to inform petitioner of the nature of the possible charges against him;

Third, that it was induced by a confession made by petitioner at a preliminary hearing at which petitioner was not represented by counsel and at which petitioner was not informed of his right to counsel;

Fourth, that petitioner never waived counsel.

The state defended against issuance of the writ upon three grounds:

A. That petitioner has failed to exhaust his state remedies as to the question of waiver of counsel;

B. That petitioner intentionally by-passed his available state remedies, rendering federal habeas corpus unavailable;

C. That the evidence adduced at the evidentiary hearing in the District Court fails to support petitioner\'s contentions.

The District Judge first ruled that petitioner had exhausted his state remedies, and had not by-passed relief available to him, and that the issue of waiver of counsel was properly before the District Court.

The alleged intentional by-pass by petitioner was based on his failure to file an opening brief on his direct appeal to the California Supreme Court. The state asserts this violates Chavez v. Dickson, 280 F.2d 727 (9th Cir. 1960). As the District Judge herein noted, that court does have the power to deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts. But this general rule is subject to limitations. "The court can find deliberate by-pass only when there was an intentional relinquishment of a known right or privilege, cf. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), coupled with a state refusal to entertain his federal claim on the merits because of the waiver. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L. Ed.2d 837 (1963)" C.T. p. 291²

The District Court said:

"In this case neither the waiver nor the refusal of the state court to entertain the federal question on its merits has been shown. On the contrary the evidence before the court indicates that the failure to appeal was not a true waiver, but rather arose out of petitioner\'s lack of funds and of legal knowledge to prosecute and appeal on his own behalf. Further, the issues were presented to the California Supreme Court in a petition for writ of habeas corpus. It was denied without comment. Such a denial must be presumed to have been on the merits unless otherwise stated. Castro v. Klinger, 373 F.2d 847 (9th Cir. 1963)."

The district court then concluded petitioner "has failed to support his contention that his extra-judicial confession was induced by physical or mental coercion. He has also failed to support his contention that he was intentionally misled by the prosecution attorney." C.T., p. 291.

The record before us clearly supports such conclusions by substantial evidence, and we agree with the District Court's conclusion on these issues, and affirm them. Jones v. United States, 423 F.2d 252, 254, Note 1 thereof (9th Cir. 1970); Hunt v. Nelson, 440 F.2d 58, 60 (9th Cir. 1971).

The District Court next found that petitioner was denied counsel at the preliminary hearing, and that he did not intelligently waive such counsel. Conceding that counsel need not always be furnished at such a hearing, the District Court held that counsel must be provided when the preliminary hearing is a critical stage in the criminal proceedings. It relied on Sessions v. Wilson, 372 F.2d 366 (9th Cir. 1967) in support of that position.

But Sessions was not an absolute holding. It states: "The pertinent question here, then, is whether in view of the events which transpired at Sessions' preliminary hearing * * * the effectiveness of his legal assistance in subsequent proceedings was impaired." (Idem. p. 369). Emphasis added.

This limitation of a general rule rests on the law, as expressed by this Court in Wilson v. Harris, 351 F.2d 840 (9th Cir. 1965), and quoted in Sessions at p. 369:

"(1) Under California law a preliminary examination is not in and of itself a critical stage in the judicial proceedings such as to constitutionally require the appointment of counsel at all such hearings; (2) a California preliminary hearing may be `critical\' however, under the circumstances of a particular case * * *; (3) such a hearing is critical if the events which transpire at that hearing are likely to prejudice the effectiveness of legal assistance in the subsequent proceedings. * * *"

The pertinent question here, then, is whether, in view of the events which transpired at Wade's preliminary hearing, the effectiveness of his legal assistance in subsequent proceedings was impaired. Sessions, ante, p. 369, Wilson v. Harris, ante, p. 844.

The District Judge stated that after the defendants' confession to the charges at the preliminary hearing "there was little help that counsel could offer." We do not agree.

The order of the District Judge was filed on July 8, 1969. This was prior to the time the Supreme Court delivered the triumvirate cases of Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, McMann, Warden v. Richardson, etc., 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 all decided May 4, 1970.

McMann v. Richardson is particularly apt. There, there were three defendants: Dash³, Richardson⁴, and Williams.⁵

After the District Court in Dash, Richardson and Williams had denied hearings on the several petitions for habeas corpus, the Second Circuit reversed. The reason—said the Supreme Court— "was the Court of Appeals' view that a plea of guilty is an effective waiver of pretrial irregularities only if the plea is voluntary, and that a plea is not voluntary if it is the consequence of an involuntary confession." McMann v. Richardson, ante, at 765, 90 S.Ct. at 1445.⁶ This view of the Second Circuit was based at least in part on two opinions of the Ninth Circuit: Smiley v. Wilson, 378 F.2d 144 (9th Cir. 1967) and Doran v. Wilson, 369 F.2d 505 (9th Cir. 1966) Cf. Note 10, McMann, p. 765, 90 S.Ct. 1441. Neither are here applicable, for in both Doran (p. 506) and Smiley (p. 148), the District Court had rejected the petitions on the pleadings, without a hearing.

The Supreme Court (McMann, ante), in reversing, found itself "unable to agree with the (Second Circuit) Court of Appeals on this question."

A guilty plea, said the Supreme Court, is not only an admission the defendant committed the acts charged, but also a waiver of trial, and hence must be "an intelligent act `done with sufficient awareness of the relevant circumstances and likely consequences.' Brady v. United States, ante at 748, 90 S.Ct. 1463." Quoted from McMann v. Richardson, ante, at p. 766, 90 S.Ct. at p. 1446.

The Supreme Court then pointed out there were cases (a) where the defendant has his own reason for pleading guilty wholly aside from the strength of the case against him, and (b) where the defendant, had he thought the State could not prove its case would have gone to trial, but was motivated by evidence against him independent of the confession. "In these cases, * * * the confession, even if coerced, is not a sufficient factor in the plea to justify relief." Emphasis added. And see Doran v. Wilson, ante, p. 507, key paragraph 2; and United States v. Smith, 139 U.S. App.D.C. 213, 432 F.2d 646, 647 (Cir. 1970).

We think the factors in this case clearly establish Wade's case falls in category (b) above, and bring the factual situation in Wade within the rule of McMann.

We first note that the defendant took the stand at his preliminary hearing and told of the tragic and horrible events in which he had participated in the early morning hours of December 7, 1956. On December 8, 1956, the defendant was interrogated by prison officials and denied the acts of sodomy and the assault on a fellow...