Opposition — Massie v. Sumner

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UNITED STATES SUPREME COURT

OCTOBER TERM, 1980

No, 30-5529

ROBERT LEE MASSIE, Petitioner,

vs.

GEORGE SUMNER, Warden,

San Quentin Prison, Respondent, ;

OPPOSITION TO PETITION FOR WRIT OF '

CERTIORARI TO THE UNITED STATES ;

COURT OF APPEALS FOR THE NINTH CIRCUIT :

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief Assistant

Attorney General - Criminal Division

EDWARD P. O'BRIEN

Assistant Attorney General

WILLIAM D. STEIN

Deputy Attorney General

6000 State Building

San Francisco, California 94102

Telephone: (415) 557-2347

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Attorneys for Respondent

TOPICAL INDEX

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR HE NINTH CIRCUIT

OPINIONS BELOW

JURISDICTION

QUESTION PRESENTED

STATEMENT OF THE CASE

ARGUMENT

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A. The district court properly abstained.

B. Petitioner has failed to allege the

denial of a tederally srotested right. 6

CONCLUSION ll

TABLE OF CASES

* Bunnell v. Superior Court

13 Cal.3d 592 (1975)

119 Cal.Rptr. 302 10

Dolack v. Allenbrang

548 F.2d 891 (10th cir. 1977) 6

Paretta v. California

422 U.S. 806 (1975) 8

Gori v. United States

367 U.S. 364 (1961) 10

Graves v. Eyman

373 F.2d 324 (9th cir. 1967) 7

Gregg v. Georgia

428 U.S. 153 (1976) 7

Hammett v. Texas

U.S.

T00 s.ct.~2505 (1980) 7

Hicks v. Miranda

422 U.S. 332 (1975) 6

In re Walker

56 Cal.App.3d 225 (1976)

128 Cal.Rptr. 227 8

Jackson v. California

336 F.2d 521 (9th cir. 1951)

cert. denied, 342 U.S. 929 (1952) 6

MacDonald v. Muzic

425 F.2d 373 (9th cir. 1970) 6

Meachum v. Fanno

427 U.S. 215 (1976) 5

People v. Ashley

59 Cal.2d 339 (1963)

29 Cal.Rptr. 16

cert. denied, 374 U.S. 819 3

People v. Blakeman

170 Cal.App.2d 596 (1959)

339 P.2d 202 3

People v. Coyle

88 Cal.App.2d 967 (1948)

200 P.2d 546 8

People v. Massie

66 Cal.2d 899 (19:7)

59 Cal.RXptr. 733 2

TABLE OF CASES (Cont'd.)

People v. Powell

40 Cal.App.3d 107 (1974)

115 Cal.Rptr. 109

People v. Stanworth

71 Cal.2d 829 (1969)

80 Cal.Rptr. 49

People v. Teron

23 Cal.3d 103 (1979)

151 Cal.Rptr. 633

Price v. Johnson

334 U.S. 266 (1948)

Rose v. Hodjes

423 U.S. 19 (1975)

Townsend v. Sain

372 U.S. 293 (1963)

Verde v. Case .

326 F.Supp. 701 (1971 ZED Pa)

Younger v. Harris

401 U.S. 37 (1971)

TEXTS, STATUTES & AUTHORITIES

United States Code

§ 1254(1)

§ 1654

§ 2241

§ 2254(b)

§ 2233

California Code of Civil Procedure

§ 3513

California Penal Code

§ 187°

§ 190

§ 190.2(a)

§ 190.2(a) (2) (17) (i)

§ 190.6

§ 211

§ 1227

§ 1239

§ 1239(b)

§ 1240

§ 1241

§ 1255

California Court

Rule 19

Supreme Court

Rule 60

iii.

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UNITED STATES SUPREME COURT

OCTOBER TERM, 1980

No. 80-557)

ROBERT LEE MASSIE, Petitioner,

vs.

GEORGE SUMNER, Warden,

San Quentin Prison, Respondent.

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

OPINIONS BELOW

Petitioner seeks a writ of certiorari to review the

opinion of the United States Court of Appeals for the Ninth

Circuit reported at 624 F.2d 72 which affirmed the order of

the United States District Court for the Northern District of

california denying his petition for a writ of habeas corpus.

The District Court's order was not reported. Copies of the

Circuit Court's opinion and the District Court's order were

attached to the Petition for Writ of Certiorari as Appendix A

and C respectively.

JURISDICTION

Petitioner invokes the jurisdiction of this Court

pursuant to Title 28 U.S.C. section 1254(1).

QUESTION PRESENTED

Did the District Court properly abstain from

interfering with the appeal pending before the California

Supreme Court from petitioner's death sentence?

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STATEMENT OF THE CASE

By petition for writ of habeas corpus filed July 9,

1979, and amended on August 7th, petitioner sought to enjoin

the California Supreme Court from proceeding with an appeal

from the judgment of the Superior Court of the State of

California for the County of San Francisco imposing the

sentence of death upon him. On October 3rd the district court

entered its order of dismissal and issued a certificate of

probable cause for an appeal. On June 30, 1980 the Circuit

Court affirmed the order of the District Court. The instant

petition for a writ of certiorari was docketed on October 8,

1°30.

ARGUMENT

On May 8, 1979, petitioner entered a plea of guilty

to murder in the first degree, a violation of California Penal

Code section 187. "People of the State of California v.

Robert L. Massie, No. 98306" in the files of the Superior

Court of the State of California for the City and County of

San Francisco. Petitioner admitted he had previously been

convicted of murder in the first elite and that the murder

to which he was pleading guilty was committed while he was

engaged in the commission of a robbery in violation of

California Penal Code section 211. ‘The admission of these

two "special circumstances" limited the possible penalties to

death, or confinement for life without the possibility of

parole. See California Penal Code sections 190.2(a) (2) (17) (i).

1. Contrary to petitioner's assertion (Petition, p. 9)

counsel was appointed to represent him on his automatic appeal

from this conviction. See Psopie v. Massie (1967) 66 Cal.2d

899, 903; 59 Cal.Rptr. 733, °

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The judgment of death was pronounced on May 25, 1979. Pursuant

to California Penal Code section 1239(b), an appeal from this

judgment was automatically taken and is now pending before the

Supreme Court of the State of California. That Court appointed

the California State Public Defender to represent petitioner

and has denied petitioner's motion to abandon and dismiss that

appeal,

In the federal district court petitioner contended

that his incarceration, pending determination of the state

appeal which he does not wish to pursue, amounts to the inflic-

tion of cruel and unusual punishment in violation of the Eighth

Amendment of the United States Constitution. It is respondent's

position that the petition did not allege facts sufficient to

warrant the district court's interference in a pending state

criminal prosecution; indeed, it did not allege the denial of

a federally protected right.

A. The district court properly abstained .

California requires that the safeguards enacted by

our legislature to protect those upon whom the death penalty

has been imposed must be utilized. People v. Stanworth (1969)

71 Cal.2d 829, 331, 80 Cal. Rptr. 49, 59. ‘The courts of our

State have held that where the most severe of all penalties

has been imposed, the automatic appeal affords a substantial

benefit, not only to the appellant, but to society as well.

See People v. Powell (1974) 40 Cal.App.3d 107, 143; 115 Cal.

Rptr. 109, 132. Thus, the People of the State of California

have an interest, independent of petitioner Massie, in the

accuracy of the special circumstances and penalty determina-

tions made by the trial court. See People v. ‘eron (1979)

23 Cal.3d 103, 115, fn.°7; 151 Cal.Rptr. 633, 639.

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"(W]e are not dealing with a right or

privilege conferred by law upon the litigant

for his sole personal benefit. We are

concerned with a principle of fundamental

public policy. The law cannot suffer the

state's interest and concern in the observance

and enforcement of this policy to be thwarted

through the guise of waiver of a nersonal

right by an individual. ‘Anyone may waive the

advantage of a law intended for his benefit.

But a law established for a public reason

cannot be contravened by a private agreement,.'

(California Civil Code section 3513)."

People v. Blakeman (1959) 170 Cal. App.2d 596,

598; 339 P.2d 202, 203 cited with approval

People v. Stanworth, supra, 71 Cal.2d at 334;

80 Cal.Rptr. at 59.

Petitioner sought to have the district court enjoin

the California Supreme Court from determining his automatic

appeal. The district court could not grant such an injunction

"except as especially authorized by Act of Congress, or where

necessary in aid of its jurisdiction, or to protect or effec-

tuate its judgments." Title 28 U.S.C. section 22383. Only

under the most extraordinary of circumstances, where the

danger of irreparable loss is both great and immediate, may a

federal court interfere in a state criminal prosecution.

Younger v. Harris (1971) 401 U.S. 37, 46. The State of

California has ~ legitimate interest, independent of petitioner's

in seeing that the automatic appeal from the imposition of the

judgment of death is prosecuted to a final determination.

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Petitioner contends his incarceration on death row

amounts to cruel and unusual punishment as well as involuntary

servitude. When petitioner plead guilty to first degree murder

he exposed himself to a minimum sentence of twenty-five years.

California Penal Code section 190. Upon admitting the alleged

special circumstances his minimum sentence became life without

possibility of parole. California Penal Code section 190.2(a).

Thus, petitioner's allegation that he will be compelled to

undergo incarceration during the period necessary to determine

his automatic appeal did not allege either great or immediate

danger of any irreparable ase The mere fact petitioner

is incarcerated in a maximum security section of the prison

does not allege a deprivation of a constitutional right. United

States ex rel. Verde v. Case (1971 ED Pa) 326 F.Supp. 701;

gee also, Meachum v. Fanno (1976) 427 U.S. 215. Petitioner

has not alleged he is being confined under conditions which

are shocking to the conscience. Nor, contrary to his asser-

tion (Petition, p. 11) is he tormented by having his execution

date set and reset. "lo execution date can be set until his

automatic appeal has been determined. See California Penal

Code sections 1239(b) and 1227,

Since petitioner did not allege any "special

circumstances" which would allow the district court to exercise

its habeas corpus, injunctive or declaratory judgment powers

2. Petitioner cites his prior lengthy confinement on

death row awaiting execution to support his claim of cruel and

unusual punishment. Since then, legislation has been enacted

requiring that appeals in capital cases be decided expedi-

tiously. See California Penal Code section 190.6. Pursuant

to that provision, petitioner's appeal should have been

decided within 150 days after the record was certified by the

trial court to the California Supreme Court on April 23, 1980.

The appeal has been fully briefed and awaits oral argument. A

failure to meet the time limit of section 190.6 is not grounds

for precluding the ultimate imposition of the death penalty;

the Chief Justice is, however, required to explain the delay.

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to halt an ongoing state criminal proceeding [Compare Dolack v.

Allenbrang 548 F.2d 891, 893 (10th circuit 1977)] that court

properly permitted the California courts to conclude their

prosecution of petitioner free from interference. Younger v.

Harris, supra, 401 U.S. at 43; Hicks v. Miranda (1975) 422

U.S. 332, 349,

B. Petitioner has failed to allege the denial of

a federally protected right.

The predicate for granting relief in federal habeas

corpus or review by certiorari is a determination that the

petitioner's custody violates the Constitution, laws, or

treaties of the United States. Title 23 U.S.C. section 2241;

Townsend v. Sain (1963) 372 U.S. 293, 312. "Federal courts

must withhold interference with the administration of state

criminal justice unless a federal right has been violated."

Jackson v. California 336 F.2d 521, 524-525 (9th circuit 1951),

cert. denied, 342 U.S. 929 (1952). See also MacDonald v.

Muzic 425 F.2d 373, 376 (9th circuit 1970). California courts

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have control over their procedures, subject only to the

qualification that those procedures do not work a denial of

fundamental rights, or conflict with specific and applicable

provisions of the Federal Constitution. California has deter-

mined that the People's interest in the accuracy and validity

of the findings and judgment imposing the death penalty are

independent of the petitioner and cannot be waived by hin,

This interpretation of California Penal Code section 1239(b) is

solely a question of state law and “It is not the province of a

federal habeas court to reexamine these questions." Rose v.

Hodjes (1975) 423 U.S. 19, 22. See also Graves v. Eyman

373 F.2d 324, 325 (9th circuit 1967). This Court has also

recognized automatic appellate review in death penalty cases as

a hallmark of a constitutional capital punishment statute.

Gregg v. Georgia 423 U.S. 153, 193 (1976). ‘Thus, we distinguish

Hammett v. Texas ——SsUwS. __,_-:100 S.Ct. 2905 (1980) relied

upon by petitioner. Although direct appellate review in death

penalty cases is automatic in California, there is no right to

review in this Court. Supreme Court Rule 60 allows for the

voluntary withdrawal of Petitions for Certiorari. As noted

above, the comparable California Court Rule (Rule 19), which

allows voluntary abandonment of appeals, has been judicially

qualified to prevent such dismissals in capital cases. More-

over, unlike Texas, California does oppose petitioner's attempt

to circumvent appellate review of his conviction and sentence.

Unlike the situation in Hammett, where dismissal would not

foreclose an appropriate application for collateral relief,

failure to exhaust state appellate remedies would prevent

petitioner from collaterally attacking his conviction and

sentence in the federal courts. See Title 23, U.S.C. section

2254 (b).

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Petitioner contends that the California Supreme

Court's appointment of the California State Public Defender to

represent him on his automatic appeal violates rights secured

to him by the Sixth Amendment to the Federal Constitution.

For this proposition he relies upon Faretta v. California (1975)

422 U.S. 806. Under California law a criminal defendant has

neither a constitutional nor statutory right to argue his case

on appeal, or to he present during such proceedings. California

Penal Code section 1255; People v. Ashley (1963) 59 Cal.2d 339,

361, 29 Cal.Rptr. 16, 29, cert. denied, 374 U.S. 319, People v.

Coyle (1943) 88 Cal.App.2d 967, 970, 200 P.2d 546, 549; cf.

Title 28 U.S.C. section 1654, Indeed, under certain circun-

stances, counsel may be appointed on appeal over the defendant's

objections. People v. Ashley, supra, 59 Cal.2d at 358,

29 Cal.Rptr. at 27; see also Penal Code sections 1239-1241.

"Once appointed, the atto:-ney has the

exclusive right to appear and control court

proceedings as long as fundamental rights

are not denied; neither the party himself

nor another attorney can be recognized in

the conduct or disposition of the case.

(People v. Mattson (1959) 51 Cal.2d 777,

336 P.2d 937; People v. Merkouris (1956)

46 Cal.2d 540, 554; 297 P.2d 999)." In re

Walker (1976) 56 Cal.App.3d 225, 223,

128 Cal.Rptr. 227, 292-293.

Faretta v. California, supra, does not compel a

change in this settled California law.

Faretta holds that the Sixth and Fourteenth Amendments

guarantee that a defendant in a state criminal trial has an

independent constitutional right of self representation and that

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he may proceed to defend himself without counsel when he

voluntarily and intelligently elects to do so. The court did

not have before it any claim of a right to self representation

on appeal; indeed, the majority opinion cited with approval

Price v. Johnson (1948) 334 U.S. 266 which held that a con-

victed person has no absolute right to argue his own appeal.

Faretta v. California, supra, 422 U.S. at p. 316; see also

In re Walker, supra, 56 Cal.App.3d at 228-229, 128 Cal.Rptr.

at 293.

In Price v. Johnson, supra, this Court held that

although an appellate court has the power to command that a

prisoner be produced to argue his own appeal, the exercise of

_that power is a matter of sound judicial discretion.

"The discretionary nature of the power in

question grows out of the fact that a

prisoner has no absolute right to argue

his own appeal or even to be present at

the proceedings in an appellate court.

[Citation omitted] ‘The absence of that

right is in sharp contrast to his consti-

tutional prerogative of being present in

person at each significant stage of a

felony prosecution, . . . and to his recog-

nized privilege conducting his own defense

at the trial. Lawful incarceration brings

about the necessary withdrawal or limitation

of many privileges and rights, a retraction

justified by the considerations underlying

our penal system." Price v. Johnson, supra,

334 U.S. at 285, 63 S.Ct. 1049, 1060.

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Petitioner's allegation that his automatic appeal .

may result in a violation of his right not to be twice placed

in jeopardy is premature. It rests upon the supposition his

conviction will be reversed and he will be required to stand

trial. Should these events transpire, petitioner may enter a

plea of “once in jeopardy" in the trial court. If petitioner's

ae has merit, it is unlikely it would not be resolved

in the California courts, since the scope of the prohibition

against double jeopardy is broader under California law. See

Bunnell v. Superior Court (1975) 13 Cal.3d 592, 601; 119

Cal.Rptr. 302. We do not, of course, concede the validity of

petitioner's premise. This Court has recognized automatic

appellate review as a hallmark of a constitutional death

penalty statute. Gregg v. Georgia 428 U.S. 153, 198 (1976).

If petitioner's argument is valid and an error occurred in the

initial proceedings, he is entitled to escape any punishment

for the murder he admits he committed. Such a result would:

",. »« « hark back to the formalistic

artificialities of seventeenth century

criminal procedure ..." Gori v. United

States 367 U.S. 364, 369 (1961).

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3. Petitioner argues from the premise -- since I eschew

the appeal, I cannot be said to have waived the protection of

the double jeopardy clause.

10.

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Since all

CONCLUSION

of deprivations of constitutional rights

claimed by petitioner spring from his erroneous claim he has

a right to self representation on his automatic appeal, his

petition for a writ of certiorari should be denied.

WDS/lls

DATED: November 25, 1980