Distinguished
Distinguished by Trevino v. State, 18 Ariz. App. 515 (1972)
Rose is distinguishable from the situation at bar.
The opinion
CHAMBERS, Circuit Judge
(concurring).
I am always depressed when, because of our concepts of the law, we have to overrule a coordinate court such as the Supreme Court of California, which is a leader in zealously protecting the rights of the individual.
*617 But I cannot understand what was done here on the state side. The California Supreme Court appointed a retired Superior Court judge, Jordan L. Martinelli, to go to San Quentin penitentiary and hold a hearing. His report, in gentlemanly terms, means he simply did not believe the story of Rose’s trial counsel. He saw the witness. I have read the transcript. Even on the paper transcript, I have my doubts about his testimony. I see a picture of a lawyer stultifying himself, who cannot say no to those imploring him. The burden of proof was on Rose.
But the Supreme Court of California announces it is not bound by the referee. Then, in effect, it says it will accept Rose’s version of the facts. This done, it seems to say the facts still amount to nothing. In Re Rose, 62 Cal.2d 384 , 42 Cal.Rptr. 236 , 398 P.2d 428 .
On the federal hearing, I think, if it desired, the district court could have made its own exploration and determination of the facts on representation or nonrepresentation. It did not. At the conclusion of the federal hearing (not the state’s hearing) an assistant attorney general stipulated in writing with present counsel for Rose that “said [trial counsel] testified truthfully to the best of his recollection and belief at [the state referee’s hearing].” So any reason for a new evidentiary hearing was removed.
In view of the concession, I suppose our district court was right. Judge Browning’s opinion, I think, sweeps too broadly, but I do concur in the result.
Judge Browning’s opinion would get us a dozen cases where we would have to distinguish the Rose case.