# Opposition — Massie v. Sumner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 449 U.S. 1103

## Text

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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
I
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.

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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

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

Yt fogs

WILLIAM D. STEIN
Deputy Attorney General

Attorneys for Respondent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1778%3A2. Public record. Not legal advice.