White v. Wilson

• Decision Date: 19 July 1968
• Docket Number: No. 22210.,22210.
• Citation: 399 F.2d 596
• Parties: Louis C. WHITE, Appellant, v. Lawrence E. WILSON, Warden, San Quentin Prison, Tamal, California, State of California, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

399 F.2d 596 (1968)

Louis C. WHITE, Appellant, v. Lawrence E. WILSON, Warden, San Quentin Prison, Tamal, California, State of California, et al., Appellees.

No. 22210.

United States Court of Appeals Ninth Circuit.

July 19, 1968.

Louis C. White, in pro. per.

Thomas C. Lynch, Atty. Gen., Derald E. Granberg, William D. Stein, Deputy Attys. Gen., San Francisco, Cal., for appellees.

Before JERTBERG and MERRILL, Circuit Judges, and ROGER D. FOLEY, District Judge.^*

JERTBERG, Circuit Judge:

Appellant appeals from an order of the District Court denying his petition for writ of habeas corpus filed under 28 U.S.C. § 2253.

The district court issued a certificate of probable cause and authorized appeal to be taken in forma pauperis.

Appellant is in custody of the State of California. He was arrested on November 3, 1961, and charged with the offense of assault with a deadly weapon with intent to commit murder California Penal Code § 217. Following preliminary examination in the Municipal Court, an information was filed in the Superior Court of the State of California, in and for the County of Alameda, charging a violation of California Penal Code § 217. The information also charged that he was convicted in the Superior Court of the State of California in and for the County of Contra Costa, in 1946, of the offense of a felony, to wit: manslaughter, and in pursuance of said conviction, he served a term in the California State Prison at San Quentin, a penal institution. On his arraignment appellant appeared with counsel, pleaded not guilty to the main charge of assault with a deadly weapon, and stood mute on the charge of a prior conviction. Later, in open court, in the absence of the jury, appellant admitted the prior conviction.

Appellant's trial before a jury commenced on January 22, 1962. He was found guilty of the lesser included offense of assault with a deadly weapon California Penal Code § 245.

On February 16, 1962, appellant was sentenced to the State Prison for the term prescribed by law. An appeal from the judgment of conviction was taken to the Court of Appeal for the State of California, for the First Appellate District. On January 29, 1963, Division 3 of that court affirmed the judgment. See People v. White, 212 Cal. App.2d 464, 28 Cal.Rptr. 67 (1963).

On January 9, 1967, appellant filed a petition for writ of habeas corpus in the district court. An order to show cause was issued and appellee filed a return to that order, to which return appellant filed a traverse. With the return to the order to show cause, appellee lodged a copy of the reporter's transcript and supplement thereof of the trial in the state court. Attached as exhibits to the return are the following:

(a) Certified copy of the Clerk's Transcript of the proceedings held in the state court;

(b) Certified copies of the proceedings in 1946 in the Superior Court of the State of California, in and for the County of Contra Costa, at the time appellant pleaded guilty to the offense of manslaughter, and at the time of his sentencing;

(c) Reporter's transcript of appellant's confession to the 1946 offense.

On this appeal, appellant attacks his conviction on various grounds, five of which were urged in the district court and were rejected in the following manner:

"In this action, petitioner seeks to attack his conviction on the grounds that (1) statements made by him were incriminatory and were introduced in evidence in violation of his constitutional rights; (2) he was not brought to trial promptly; (3) his bail was excessive; (4) a prior conviction was improperly charged against him and was constitutionally invalid because it was obtained upon a coerced guilty plea; and (5) that the representation of his counsel at the sentencing was inadequate.

"Turning first to the question of coerced incriminatory statements, it is clear that this allegation is insufficient. It is alleged that petitioner was interrogated by police officers using coercive methods and was denied the right to be represented by counsel, although he requested counsel. Aside from the fact that petitioner was tried in 1962, long before the effective date for the prospective application of the rules of Escobedo v. State of Illinois, 378 U.S. 478 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), see Johnson v. State of New Jersey, 384 U.S. 719 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the record of the trial indicates that no incriminatory statements allegedly given to police officers were introduced in evidence against petitioner at trial.

"It is next claimed that he was denied his constitutional right to a speedy trial. Since the time this petition was submitted, the United States Supreme Court has held that the Sixth Amendment right to a speedy trial is one of the rights made applicable to the states through the Fourteenth Amendment. Klopfer v. State of North Carolina, 386 U.S. 213 87 S.Ct. 988, 18 L. Ed.2d 1 (1967). Nevertheless, the record in this case shows no unreasonable delay which would warrant a finding that petitioner's rights had been infringed. The crime was committed on October 31, 1961, petitioner was arrested on November 3, 1961, he was arraigned on December 14, 1961, and by consent of petitioner's counsel and the prosecutor, the case was continued to January 22, 1962, at which time the trial commenced.

"Petitioner's contention that he was held under excessive bail is also without merit. He does not demonstrate in what way he was constitutionally prejudiced thereby, and on the basis of the record there is no indication that this could have affected his conviction. At least one court has held that the Eighth Amendment prohibition against excessive bail applies to the states through the Fourteenth Amendment, Pilkinton v. Circuit Court, 324 F.2d 45 (8th Cir. 1963), but it has not been held that this ground is a constitutional basis for invalidation of a conviction. Even if this were a sufficient allegation, in light of the seriousness of the offense petitioner was charged with and his prior record, this Court cannot say that the alleged bail of $3,150, which was...