Wilson v. Gray
| Decision Date | 26 May 1965 |
| Docket Number | No. 19380.,19380. |
| Citation | 345 F.2d 282 |
| Parties | Lawrence E. WILSON, Warden of San Quentin Prison, Appellant, v. Frederick GRAY, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas C. Lynch, Atty. Gen. of Cal., Albert W. Harris, Jr., Robert R. Granucci, and Michael J. Phelan, Deputy Attys. Gen. of Cal., San Francisco, Cal., for appellant.
Marshall W. Krause, San Francisco, Cal., for appellee.
Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges.
Appellee, Frederick Gray, is an inmate at San Quentin Prison, California. On April 3, 1962, the appellee was charged by information in the Superior Court of the State of California in and for the County of Los Angeles with assault with a deadly weapon, a violation of section 245 of the California Penal Code. On April 12, 1962, the appellee, represented by his attorney, a deputy public defender of Los Angeles County, entered a plea of not guilty. When the case came on for trial in the Superior Court of Los Angeles County, appellee, represented by his attorney, personally waived his right to a trial by jury. In appellee's presence and without any objection on the part of appellee, his attorney stipulated that the matter be heard on the transcript of the preliminary hearing, each side retaining the right to produce additional evidence at the trial. However, at the trial neither side produced any further evidence. Appellee was found guilty of assault by force likely to produce great bodily harm, a lesser included offense of the crime charged in the information. On June 1, 1962, appellee's motion for probation was denied, and he was sentenced to state prison for the term prescribed by law. Throughout these proceedings, appellee was on probation for a similar offense of which he had been convicted on June 30, 1961. Immediately after the sentencing proceedings for the more recent offense, a hearing was held on the revocation of probation as to the prior offense. The Superior Court found appellee in violation of probation and sentenced him to imprisonment in the state prison for a term to run concurrently with that previously imposed for the more recent offense.
On November 6, 1963, appellee filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. in the United States District Court for the Northern District of California, Southern Division. In substance, appellee alleged in his petition for the writ of habeas corpus that he was convicted in violation of his constitutional rights in that the submission of the case on the preliminary transcript by his attorney without his express personal waiver constituted a denial of his right to cross examine and confront prosecution witnesses. On June 17, 1964, after a full evidentiary hearing, the district court granted the writ of habeas corpus, remanding the appellee to the Superior Court for the County of Los Angeles.1 Notice of appeal was filed and a certificate of probable cause issued out of this court on June 26, 1964. This court has jurisdiction to hear the instant appeal under 28 U.S.C. § 2253.
The sole issue on appeal is whether the district court erred in granting appellee's petition for a writ of habeas corpus. A threshold inquiry, however, is whether the district court had jurisdiction to grant the writ of habeas corpus. Appellant contends that the district court did not have jurisdiction because the appellee was then serving a sentence under a separate valid judgment and commitment based upon the revocation of probation for his previous offense. It is well settled that a federal court may not issue a writ of habeas corpus to set aside an invalid judgment and commitment where the petitioner is also held in custody under a lawful judgment and commitment. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934); Lee v. Swope, 9 Cir., 225 F.2d 674 (1955) and cases cited therein. The rationale underlying this rule was aptly stated by the Supreme Court: "There is no warrant in * * * the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention." McNally v. Hill, supra at 137, 55 S.Ct. at 27. In short, the writ of habeas corpus is only available in situations where discharge from custody will result from the granting of relief. Id. Consistent with this proposition, a limited exception to the rule announced in McNally v. Hill has been carved out where probation or parole under a prior conviction was revoked solely because of the entry of a subsequent conviction. Ex parte Hull, 312 U. S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). In such cases a state prisoner may be discharged on a writ of habeas corpus challenging the second conviction without attacking the first conviction. Id. The district court found that the Superior Court revoked appellee's probation as a result of his conviction for the second offense.2 We do not agree. The record of what transpired in the state court is set out below.3 This record shows that not only the conviction of appellee was taken into consideration, but also taken into consideration were all of the other relevant facts as shown by the probation officer's report, the eight-page psychiatrist's report, the letter of the appellee to the judge, the fact that appellee, contrary to the restrictions of his probation, had been drinking, that appellee had an alcoholic wet brain, and that he needed to be placed where he would not have access to alcohol and where he would receive medical attention, and the other matters as shown in the record.
Upon careful consideration of the relevant portions of the record in this case, we are of the opinion that the record clearly indicates that the Superior Court's decision revoking appellee's probation was predicated upon the appellee's conduct, only a portion of which constituted the offense of which he was charged and for which he was convicted, and not solely by reason of his conviction for that offense. Therefore, we hold that the district court's finding in this regard was "clearly erroneous." Rule 52(a), Federal Rules of Civil Procedure; United States v. United States Gypsum Co., 333 U.S. 364, 394-395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
Since, under the circumstances of this case, the commitment for the prior offense is valid and the two sentences appellee is presently serving are concurrent, discharge will not follow the granting of relief from the commitment for the second offense. We hold, therefore, that the district court did not have jurisdiction to grant appellee's writ of habeas corpus. McNally v. Hill, 293 U.S. 131, 137, 55 S.Ct. 24, 79 L.Ed. 238 (1934); Lee v. Swope, 225 F.2d 674 (9th Cir. 1955) and cases cited therein.
On a separate and independent ground we also believe the decision of the district court should be reversed. The only claim asserted by the appellee in his petition for the writ of habeas corpus considered by the district court under the commitment for the second offense was that the appellee did not personally waive his right to cross examination and confrontation of the prosecution's witness. It was on the basis of this allegation that the district court granted the writ of habeas corpus. The district court held that the right of an accused to cross examine and confront prosecution witnesses in a state criminal trial was guaranteed by the due process clause of the Fourteenth Amendment; that the waiver of this right must be made by the accused personally rather than by his attorney; and that the appellee had not personally waived this right.4 We agree that the right of an accused to cross examine and confront prosecution witnesses in a state criminal trial is an essential ingredient of a fair trial. As such it is necessarily a right embodied in the due process clause of the Fourteenth Amendment. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, decided April 5, 1965; Cf. Willner v. Committee on Character, etc., 373 U.S. 96, 83 S. Ct. 1175, 10 L.Ed.2d 224 (1963);5 see Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962).6 But we do not agree that in all cases the waiver of this right must be made by the accused personally rather than by his counsel. It has been consistently held that the accused may waive his right to cross examination and confrontation and that the waiver of this right may be accomplished by the accused's counsel as a matter of trial tactics or strategy. E. g., Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Cruzado v. People of Puerto Rico, 210 F.2d 789 (1st Cir.1954); Fukunaga v. Territory of Hawaii, 33 F.2d 396 (9th Cir. 1929); United States v. Meyers, 226 F.Supp. 343 (E.D. Pa.1964).7 Here, in the presence of appellee and without any objection on his part, his counsel stipulated that the matter be heard on the transcript of the preliminary hearing, each side retaining the right to produce additional evidence at the trial. The record clearly indicates that under the circumstances of the case as they existed at the time of trial, the decision of appellee's counsel to enter the stipulation was both wise and prudent, a decision deliberately made as a matter of trial tactics and strategy.8 We hold that under the circumstances of this case the appellee's right to cross examine and confront prosecution witnesses was effectively waived by his counsel.9 Nor is this result inconsistent with Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). There, the Supreme Court stated the following guidelines for determining whether there has been an effective waiver of a federal constitutional right:
...
To continue reading
Request your trial
-
Dickey v. Davis
...does not appear to suggest that Schultz intentionally waived confrontation as a matter of trial tactics. See e.g., Wilson v. Gray , 345 F.2d 282, 286 (9th Cir. 1965) ("the accused may waive his right to cross-examination and confrontation and that the waiver of this right may be accomplishe......
-
U.S. v. Gamba
...held that defense counsel may waive constitutional rights of the accused as part of the trial strategy or tactics. In Wilson v. Gray, 345 F.2d 282, 286 (9th Cir.1965), cert. denied, 382 U.S. 919, 86 S.Ct. 288, 15 L.Ed.2d 234 (1965), for example, we determined that counsel may waive the accu......
-
Griffin v. Harrington
...result of trial tactics and strategy waive the accused's Sixth Amendment right to cross-examination and confrontation); Wilson v. Gray, 345 F.2d 282, 286 (9th Cir.1965) (“It has been consistently held that the accused may waive his right to cross examination and confrontation and that the w......
-
State v. Tribble
...as it can be said that the attorney's decision was a legitimate trial tactic or part of a prudent trial strategy.”); Wilson v. Gray, 345 F.2d 282, 287–88 (9th Cir.1965) (where defendant's attorney stipulated to introduction of transcript of preliminary hearing at trial in the presence of de......