Williams v. Heinze
| Citation | 271 F.2d 308 |
| Decision Date | 22 September 1959 |
| Docket Number | Misc. No. 883. |
| Parties | Ezra WILLIAMS, Appellant, v. Robert A. HEINZE, Warden, Folsom State Prison, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Ezra Williams, in pro. per.
No appearances for respondent.
Before STEPHENS, POPE, and HAMLEY, Circuit Judges.
Following a jury trial, Ezra Williams was convicted in the superior court of the State of California of the crime of murder in the first degree. On January 7, 1957, he was sentenced to life imprisonment and is presently incarcerated at Folsom State Prison. His conviction was thereafter affirmed by the California District Court of Appeal for the Fourth Appellate District. People v. Williams, 153 Cal.App.2d 21, 314 P.2d 42.
On June 4, 1959, Williams applied to the United States District Court for the Northern District of California, Northern Division, for a writ of habeas corpus. He also moved in that court for an order appointing counsel to assist him in prosecuting his application. The application and motion were denied without hearing on June 9, 1959. A petition for rehearing was denied on June 25, 1959.
Desiring to appeal from these orders, Williams applied to the district court for a certificate of probable cause. The issuance of such a certificate is a prerequisite to an appeal to this court from an order denying an application for a writ of habeas corpus where the detention complained of arises out of process issued by a state court. 28 U.S.C.A. § 2253. On August 18, 1959, the district court declined to issue a certificate of probable cause.
Williams did not move in that court for leave to appeal in forma pauperis. The district court nevertheless certified on August 18, 1959, that the appeal was not taken in good faith. The effect of such a certificate is to preclude this court from granting leave to appeal in forma pauperis unless the certificate is first set aside. 28 U.S.C.A. § 1915(a).
Williams has now applied to the "judges" of this court for a certificate of probable cause and for leave to appeal in forma pauperis.
A certificate of probable cause may be issued by an individual judge of this court. Leave to proceed in forma pauperis, however, may be granted only by the court. Since both matters involve the same considerations, they will be considered and disposed of together by the court as herein constituted.
In the district court memorandum and order of June 9, 1959, two grounds were given for denying, without hearing, the application for a writ of habeas corpus. The first of these was that Williams had not exhausted his state remedies, as required by 28 U.S.C.A. § 2254. The second was that Williams' application did not disclose any error in his commitment cognizable by a federal court.
We turn to a consideration of this second reason for denying the application for a writ. In his application three grounds are stated for issuance of the writ, all based upon the fact that the record on appeal following his state court conviction was changed after the record reached the California District Court of Appeal. This change was with regard to the form of an instruction the giving of which, Williams asserts, was reversible error.
The reporter's original transcript on appeal recited that in reading a certain instruction to the jury the trial judge said: "If the unlawful killing of a human being is done without malice aforethought but without deliberation and meditation * * * then the offense is murder in the second degree." (Emphasis added.) Proceeding under Rule 12(b), Rules on Appeal for the California Supreme Court and the District Courts of Appeal, West's Ann.Cal.Code, the prosecution applied to the state reviewing court for an order correcting the record by changing the italicized word "without" to read "with."
This application was supported by an affidavit of the trial judge reciting that in truth and in fact he read from CALJIC instruction No. 305, which was one of the written instructions before him, and that he did not...
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O'Neal v. Price
...the trial court certifies in writing that it is not taken in good faith unless the certificate is first set aside"); Williams v. Heinze, 271 F.2d 308, 309 (9th Cir.1959) Our prior order in this case noted that "[o]ur review of the record indicates that appellant is entitled to in forma paup......
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State v. Esquer
... ... See Williams v. [26 Ariz.App. 574] ... Heinze, 271 F.2d 308 (9th Cir. 1959), cert. denied, 363 U.S. 845, 80 S.Ct. 1618, 4 L.Ed.2d 1729. In this case, we ... ...
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Javor v. Brown
...certifies in writing that it is not taken in good faith unless the certificate is first set aside. 28 U.S.C.A. § 1915(a); Williams v. Heinze, 9 Cir., 271 F.2d 308. If it appears from the record that the order sought to be reviewed is not appealable, the conclusion is warranted that the appe......