Petition — McCarthy v. Harper

ve

: W Office-Suz.2me Court, U.S.

80-1626 “FLL bu ie

1. MAR 27 1981

In the Supreme Court of t

LEXA ER L. STEVAS,

United States | CLend

October Term, 1980

No.

DANIEL J. McCARTHY, SUPERINTENDENT,

CALIFORNIA MEN’S COLONY EAST,

Petitioner,

v.

THEODORE MONROE HARPER,

Respondent.

PETITION FOR A 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

S. CLARK MOORE,

Assistant Attorney General

HOWARD J. SCHWAB,

Deputy Attorney General

DONALD F. ROESCHKE,

Deputy Attorney General

3580 Wilshire Boulevard

Los Angeles, California 90010

Telephone: (213) 736-2229

Attorneys for Petitioner

Westside Law Publishers Santa Monica, California (213) 450-1965

QUESTIONS PRESENTED

1. Whether a state inmate has exhausted his state

remedies within the meaning of section 2254 of Title 28 of

the United States Code where the contentions presented

in the state’s highest court consist of unintelligible con-

clusory statements which were not the substantial equiva-

lent of the contentions presented to the United States

District Court in a petition for writ of habeas corpus.

2. Whether when a state’s highest court denies a

petition for writ of habeas corpus without citation of

authorities and without giving any other reasons for the

denial it is properly presumed that the state court reached

the merits of the contentions even though the petitioning

party made only unintelligible conclusory allegations.

TOPICAL INDEX

Page

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CON. cc gancass cousridantesaneevdthaeovsrrurstess 2

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2s seaghsontindensand divans 2

Statutory Provisions Involved.....00000....0.0.0... occ. 3

Be a) Le” ree 4

Reasons Why A Writ Of Certiorari

Should Be Granted

A State’s Highest Court’s Denial Of A Petition For

Writ Of Habeas Corpus Without Citation Of

Authorities Should Not Create A Conclusive

Presumption That The Court Reached The

Merits Of The Petition. 00, 5

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es i ssscsncrsnsscoosesouconsecensaessonscoeses 15

en ove ssausecnonsssvevecvosseasscasvosnevessonns 17

TABLE OF AUTHORITIES CITED

Cases Page

Combs v. Tennessee, 530 F.2d 695... 7

Gingrich v. Oberhauser, 305 F. Supp. 738.............. 6

Hall v. Wainwright, 493 F.2d 37.................... 7,8

Harris v. Superior Court of California, 500 F.2d

Pe ROE APES LAREDO aR ery 6,8

Heflin v. United States, 358 U.S.415.... iF

In re Swain, 34 Cal.2d 300.0000... ccccccccccee. 6, 7

Kanieski v. Gagnon, 427 F.2d 401.................... 7,8

Picard v. Connor, 404 U.S.270...................... ee

Rose v. Hodges, 423 U.S. 19,...............cccccccccscsccccsse, 7

Waterman Steamship Corp. v. United States, 381

In the Supreme Court of the

United States

October Term, 1980

No.

DANIEL J. McCARTHY, SUPERINTENDENT.

CALIFORNIA MEN’S COLONY EAST,

Petitioner,

v.

THEODORE MONROE HARPER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTRODUCTION

Petitioner, Daniel J. McCarthy, Superintendent of

California Men’s Colony, respectfully prays that a writ of

certiorari be issued to review the judgment and memoran-

dum opinion of the United States Court of Appeals for the

Ninth Circuit reversing the judgment of the United States

District Court for the Central District of California

dismissing respondent’s petition for writ of habeas corpus

on the grounds of failure to exhaust state remedies. A

petition for rehearing and suggestion for rehearing en banc

was denied on December 31, 1980. Petitioner’s motion

for stay of the mandate was denied by the United States

Court of Appeals for the Ninth Circuit on January 15,

1981. Justice William H. Rehnquist granted petitioner’s

application for stay of the mandate on January 30, 1981.

OPINIONS BELOW

The Judgment and Report and Recommendation which

formed the basis of the Judgment of the United States

District Court, Central District of California dismissing

respondent’s petition for writ of habeas corpus appears as

Appendix A of this petition. A copy of the memorandum

opinion of the United States Court of Appeals for the

Ninth Circuit reversing the judgment of the United

States District Court appears as Appendix B of this

petition. A copy of the order of the United States Court of

Appeals for the Ninth Circuit denying petitioner’s petition

for rehearing and rejecting the petition for rehearing en

banc appears as Appendix C of this petition. A copy of the

order of the United States Court of Appeals for the Ninth

Circuit denying petitioner's motion for stay of the man-

date appears as Appendix D of this petition. A copy of the

opinion of William H. Rehnquist granting petitioner’s

application for stay of the mandate appears at 49

U.S.L.W. 3558.

JURISDICTION

The judgment of the United States Court of Appeals for

the Ninth Circuit was filed and entered on October 23,

1980. The denial of a timely petition for rehearing and

suggestion for rehearing en banc was filed and entered on

December 31, 1980. This petition for writ of habeas

corpus was filed within 90 days of that date and is

therefore timely filed.

STATUTORY PROVISIONS INVOLVED

The pertinent portion of section 2254 of Title 28 of the

United States Code reads:

a) ee

*“(b) An application for a writ of habeas

corpus in behalf of a person in custody pursuant

to the judgment of a State court shall not be

granted unless it appears that the applicant has

exhausted the remedies available in the courts of

the State, or that there is either an absence of

available Staie corrective process or the exist-

ence of circumstances rendering such process

ineffective to protect the rights of the prisoner.

“(c) An applicant shall not be deemed to

have exhausted the remedies available in the

courts of the State, within the meaning of this

section, if he has the right under the law of the

State to raise, by any available procedure, the

question presented.”

Rule 4, following section 2254 of Title 28 of the United

States Code reads:

“The original petition shall be presented

promptly to a judge of the district court in

accordance with the procedure of the court for

the assignment of its business. The petition shall

be examined promptly by the judge to whom it is

assigned. If it plainly appears from the fact of the

petition and any exhibits annexed to it that the

petitioner is not entitled to relief in the district

court, the judge shall make an order for its

summary dismissal and cause the petitioner to be

notified. Otherwise the judge shall order the

respondent to file an answer or other pleading

within the period of time fixed by the court to

take such other action as the judge deems

appropriate. In every case a copy of the petition

and any order shall be served by certified mail on

the respondent and the attorney general of the

state involved.”

STATEMENT OF THE CASE

Respondent Harper, while incarcerated at California

Men’s Colony located at San Luis Obispo, California,

filed a petition for writ of habeas corpus in the United

States District Court, Central District of California. The

petition was filed pursuant to section 2254 of Title 28 of

the United States Code. In the petition, respondent

Harper attacked his plea bargain on the grounds he

received ineffective representation and the plez was

coerced and that the district attorney suppressed evidence

which would show that petitioner was innocent. Although

respondent Harper appears to have alleged in the above

petition that he exhausted his state remedies in that the

California Supreme Court denied the petition without

citation of authorities in the California Supreme Court,

respondent basically made conclusory unintelligible alle-

gations.

The United States District Court reviewed respondent

Harper’s petition that was filed in said Court and also

reviewed respondent Harper’s petition that he filed in the

California Supreme Court. After reviewing the foregoing

petitions, the United States District summarily dismissed

respondent Harper’s petition on the grounds that he

exhausted his state remedies as to only one of the grounds

presented in the District Court, namely, the suppression of

evidence issue. The District Court found as to the

remaining grounds that respondent Harper failed to

exhaust his state remedies in that due to the fact it is

impossible to determine the points respondent Harper

sought to raise in the California petition for writ of habeas

corpus, it cannot be said that the substance of his

contentions were fairly presented to the state’s highest

court. (Exh. A.)

After obtaining a certificate of probable cause respond-

ent Harper proceeded with his appeal in the United States

Court of Appeals for the Ninth Circuit which resulted in

the opinion that is the subject of the within petition.

REASONS WHY A WRIT OF CERTIORARI

SHOULD BE GRANTED

A STATE’S HIGHEST COURT'S DENIAL OF A PETI-

TION FOR WRIT OF HABEAS CORPUS WITH-

OUT CITATION OF AUTHORITIES SHOULD

NOT CREATE A CONCLUSIVE PRESUMPTION

THAT THE COURT REACHED THE MERITS OF

THE PETITION.

In the within case respondent Harper made a very poor

attempt to present his federal claims to the California

Supreme Court in that he presented them so ambiguously

that the United States District Court properly concluded

that the contentions were not fairly presented to the state’s

highest court. It is thus submitted for the reasons that

follow that California has not had a fair opportunity to

consider respondent Harper’s contentions and that there-

fore there is a clear failure to exhaust state remedies.

In Picard v. Conner (1971) 404 U.S. 270, 275-276,

this Court emphasized that in order to exhaust state

remedies the state inmate must have first fairly presented

his federal claims to the state courts. On the other hand,

the United States Court of Appeals for the Ninth Circuit

held herein that there was exhaustion of state remedies

even though the United States District Court found that

respondent Harper’s petition for writ of habeas corpus,

which he presented to the California Supreme Court,

contained conclusory and confusing allegations. The

Ninth Circuit Court of Appeals based its conclusion on its

opinion in Harris v. Superior Court of California (9th

Cir. 1974) 500 F.2d 1124, wherein the Court held that

when the state’s highest court denies a petition for writ of

habeas corpus without citation of authorities it is deemed

that the denial is on the merits. (Appendix B.) In other

words,the Ninth Circuit has placed the burden on the

state’s highest court of stating the reasons for the denial of

a petition in that if the reasons are not stated it will be

deemed that the Court reached the merits of the petition

and thus will not be afforded a fair opportunity to consider

the issues prior to federal intervention. As can be seen

from the Harris case, supra, the Ninth Circuit based its

premise on the fact that the California Supreme Court will

often cite authorities when denying a petition for writ of

habeas corpus, which citations will sometimes include a

citation indicating the denial was for procedural reasons.

However, there is nothing in California consitutional,

statutory or case law to support the Ninth Circuit’s

conclusion that where the California Supreme Court

denies a petition of writ of habeas corpus without citation

of authorities it can be presumed that the California

Supreme Court reached the merits of the issues presented

to it. The contrary is the case in that the California

Supreme Court has made it explicit that in order to obtain

relief the petitioner must “allege with particularity the

facts upon which he would have a final judgment over-

turned.”’ (In re Swain, 34 Cal.2d 300, 304; 209 P.2d 793;

Gingrich v. Oberhauser (C.D. Cal. 1969) 305 F. Supp.

738, 470.) Since respondent Harper herein when seeking

habeas corpus relief from the California Supreme Court

failed to make factual allegations, he clearly did not

present the issues fairly to the California Supreme Court

and thus did not present said Court with an opportunity to

reach the merits of the issues. Therefore there is a failure

to exhaust state remedies within the meaning of this

court’s decision in Picard v. Conner, supra. Thus, the

Harris case is in conflict with the Picard decision and for

that reason alone the within petition should be granted.

(Heflin v. United States (1959) 358 U.S. 415, 452.)

In view of the fact respondent Harper did not follow the

proper state procedures in presenting his contentions to

the California Supreme Court in that he failed to make

factual allegations (In re Swain, supra), it is submitted

that the Ninth Circuit erred in holding that whenever the

California Supreme Court denies a petition for writ of

habeas corpus without citation of authorities there is

exhaustion of state remedies. Due process at least re-

quires inmates to present factual allegations to the courts.

(See Kanieski v. Gagnon (7th Cir. 1970) 427 F.2d 401,

404.) Therefore, since the state’s interpretation of its

procedural requirements meets the due process require-

ments, its interpretation is only a matter of state law.

(Rose v. Hodges (1975) 423 U.S. 19, 21-22; Combs v.

Tennessee (6th Cir. 1976) 530 F.2d 695, 698; Hail v.

Wainwright (Sth Cir. 1974) 493 F.2d 37, 39.) Hence,

since respondent Harper herein did not properly present

his contentions to the California Supreme Court it cannot

be said that the California Supreme Court was presented

with a fair opportunity to consider his contentions within

the meaning of Picard v. Connor, supra, 404 U.S. 270.

Therefore, in view of the fact respondent Harper did not

fairly present his federal contentions to the state courts, it is

submitted that it is essential that petitioner’s petition for

certiorari be granted to clarify the law pertaining to

exhaustion of state remedies dnd to ensure that the

mandate of this Court’s opinion in Picard v. Connor,

supra, is understood and followed by the lower courts.

It is further submitted that certiorari should be granted

in that the Ninth Circuit’s unpublished memorandum

herein is in conflict with their published opinion in Harris

v. Superior Court of California, supra, 500 F.2d 1124

1129, fn. 7, wherein the Ninth Circuit made it explicit that

its holding does not apply where the contentions were not

fairly presented to the state’s highest court. On the other

hand, in the within non-published memorandum decision

the Ninth Circuit clearly has not followed the above

language in footnote 7 of the Harris case but rather has

chosen to apply the Harris holding to all situations where

the California Supreme Court denies a petition for writ of

habeas corpus without citation of authorities. It is thus

becoming impossible for the United States District Courts

to ascertain when a petition for writ of habeas corpus

should be dismissed on the grounds of the state inmate’s

failure to exhaust state remedies.

Moreover, the opinion below is clearly in conflict with

the Seventh Circuit Court of Appeals wherein it was held

that in order to exhaust state remedies the state prison

inmates must present factual allegations. (Kanieski v.

Gagnon, supra, 427 F.2d 401, 404.) Furthermore, it is

submitted that Harris v. Superior Court of California,

supra, upon which the Court below relied in holding that

respondent exhausted his state remedies is in apparent

conflict with the Kanieski case in that the Harris case

does not explicitly mandate that there be factual allega-

tions in the petition presented to the state courts. There-

fore, when the Harris case is considered in conjunction

with the opinion below there is a strong conflict between

the Ninth and Seventh Circuit Courts of Appeal’s deci-

sions on the within exhaustion issue. It is respectfully

submitted that for this reason alone this Court should

grant petitioner’s petition for writ of certiorari. (Water-

man Steamship Corporation v. United States (1965) 381

U.S. 252, 258.)

CONCLUSION

For the foregoing reasons, petitioner submits that the

writ of certiorari should issue and review the decision of

the Court of Appeals for the Ninth Circuit.

Respectfully submitted,

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief Assistant

Attorney General—Criminal Division

S. CLARK MOORE,

Assistant Attorney General

HOWARD J. SCHWAB,

Deputy Attorney General

DONALD F. ROESCHKE,

Deputy Attorney General

By DONALD R. ROESCHKE,

Deputy Attorney General

Attorneys for Petitioner

10

APPENDIX A

United States District Court

Central District of California

THEODORE MONROE HARPER,

Petitioner,

No. CV 75-3399-RF(K)

v.

Separate Judgment and Order

DANIEL J. McCARTHY, Supt. Pursuant to Rule 58,

Calif. Men’s Colony, San Luis : F. R. Civ. P.

Obispo, California,

Respondent.

IT IS ADJUDGED that the Petition for Writ of Habeas

Corpus is dismissed.

IT IS ORDERED that the Clerk shall serve a copy of this

Order and the Report and Recommendation of the United

States Magistrate, by United States mail, on the petitioner.

DATED: This 23rd day of October, 1975.

/s/

ROBERT FIRTH

United States District

Judge

FILED ENTERED

OCTOBER 23, 1975 OCTOBER 28, 1975

CLERK, U.S. DISTRICT COURT CLERK, U.S. DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA CENTRAL DISTRICT OF CALIFORNIA

RJ DEPUTY RJ DEPUTY

11

FILED

OCTOBER 23, 1975

CLERK, U.S. DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

RJ DEPUTY

United States District Court

Central District of California

THEODORE MONROE HARPER,

Report and Recommendation

on Petition for Writ of

DANIEL J. McCARTHY, Supt. Habeas Corpus by a Person

Calif. Men’s Colony, San Luis In State Custody

Obispo, California,

vV.

Respondent.

This Report and Recommendation is submitted to the

Honorable Robert Firth, United States District Judge,

pursuant to the provisions of 28 U.S.C. § 636(b)(3) and

General Order 104 of the United States District Court for

the Central District of California.

On October 9, 1975, petitioner, a state prisoner at

California Men’s Colony, San Luis Obispo, was per-

mitted to file this Petition for a Writ of Habeas Corpus,

- with Exhibits “A” and “B”’ attached, in forma pauperis

pursuant to 28 U.S.C. § 1915(a).

The Magistrate has read and considered the above

records and pleadings and makes the following findings

and conclusions.

12

Petitioner is serving a prison sentence imposed after a

plea of guilty to a violaton of § 288(a) California Penal

Code, Oral Copulation, in the Superior Court of the State

of California for the County of Los Angeles.

He alleges that the plea was coerced by the Court, that

the Court failed to keep a plea bargain, that his attorney

was ineffective and that the district attorney suppressed

evidence of his innocence. He alleges few facts in support

thereof.

Petitioner alleges that he has previously filed three (3)

petitions with this Court, alleging similar grounds. All

were denied either for failure to exhaust state remedies, or

for failure to state sufficient facts. It does not appear that

there has been an adjudication on the merits in this Court.

Petitioner alleges that he has exhausted state remedies,

and refers us to his Exhibit “A,” a denial without citation

of a Petition for a Writ of Habeas Corpus by the Supreme

Court of California. Exhibit “B” appears to be a copy of

the petition thus denied.

A review of that petition indicates that the denial cannot

have been after a consideration on the merits. Petitioner

alleges his grounds and facts in a confused and conclu-

sionary fashion with reference to exhibits filed in the

Federal District Court. It is impossible to determine the

points he seeks to make. It cannot be said that the —

substance of his contentions have been fairly presented to

the highest court of the state. This is required if state

remedies are to be exhausted. Picard v. Connor, 404 U.S.

270 (1971). There is good reason to suppose that the

denial without citation or opinion is not indicative of a

decision on the merits. Harris v. Superior Court, 500

F.2d 1124 (1974).

The state court must be given the opportunity to rule on

the merits of petitioner’s claim. A denial on procedural

grounds does not exhaust state remedies, Picard, supra.

13

Petitioner further alleges exhaustion as to the alleged

grounds of suppression of evidence in a petition filed with

the California Supreme Court in 1962.

Thus, we have apparent exhaustion of remedies as to

one of four grounds urged. It would not be mindful of the

limited judicial time available to this Court to entertain the

petition at this time while state remedies remain unex-

plored. Petitioner has filed at least ten (10) previous

petitions, all of which have been [or are in the process of

being] adjudicated by this Court. Nothing in the tradition

of habeas corpus requires that the federal courts tolerate

needless piecemeal litigation. Sanders v. United —

373 U.S. 1 (1963).

It is apparent that there are available state remedies

which petitioner has not sought to exhaust. Failure to

exhaust state remedies is fatal to a petitioner in this Court

except in the iace of unusual circumstances, which are not

alleged here. 28 U.S.C. § 2254.

The Magistrate finds that it appears from the applica-

tion that the petition is frivolous within the meaning of 28

U.S.C. § 1915(d) and that the petitioner is not entitled to

a writ of habeas corpus from this court. The petition

should be dismissed pursuant to 28 U.S.C. § 2243.

IT IS THEREFORE RECOMMENDED that an Order be

issued by the Court dismissing the petition.

OCTOBER 21, 1975.

/s/

JOHN R. KRONENBERG

United States Magistrate

Pursuant to 28 U.S.C. § 636(b)(3), the Court has

reviewed the records and pleadings and the Report and

14

Recommendation of the United States Magistrate, and

concurs with and adopts his findings and conclusions.

DATED: October 23, 1975.

/s/

ROBERT FIRTH

United States District Judge

15

APPENDIX B

FILED

OCTOBER 29, 1980

RICHARD H. DEANE

CLERK, U.S. COURT OF APPEALS

United States Court of Appeals for the Ninth Circuit

THEODORE MONROE HARPER,

Plaintiff-Appella No. 76-1245

odin No. 76-1247

v. D.C. No. CV 75-3399 RF(K)

DANIEL J. McCARTHY, Superintendent

of California Men’s Colony East,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

ROBERT FIRTH, DISTRICT JUDGE, PRESIDING

ARGUED AND SUBMITTED SEPTEMBER 19, 1980

Before: POOLE, NELSON, and NORRIS,Circuit Judges.

The district court dismissed the petition for writ of

habeas corpus on the theory that the claims in Harper’s

habeas petition to the California Supreme Court had been

presented in such a confusing and conclusory manner that

the State’s “postcard” denial of the petition could not be

construed as a denial on the merits. Our decision in this

case is controlled by Harris v. Superior Court, 500 F.2d

1124 (9th Cir. 1974) (en banc), cert. denied, 420 U.S.

973 (1975), in which this court held that a “postcard”

16

denial of a petition for writ of habeas corpus by the

California Supreme Court, without opinion or citation,

constitutes a denial on the merits and therefore satisfies

the exhaustion requirement.

REVERSED AND REMANDED.

17

APPENDIX C

FILED

DECEMBER 31, 1980

RICHARD H. DEANE

CLERK, U.S. COURT OF APPEALS

United States Court of Appeals for the Ninth Circuit

THEODORE MONROE HARPER,

Petitioner-Appellant, No. 76-1245

76-1247

“ ORDER

DANIEL J. McCARTHY, etc.,

Respondent-Appellee.

Before: POOLE, NELSON, and NORRIS, Circuit Judges

The panel as constituted in the above case has voted to

deny the petition for rehearing and to reject the suggestion for

a rehearing en banc.

The full court has been advised of the suggestion for an en

banc hearing, and no active judge of the court has requested a

vote on the suggestion for rehearing en banc. Fed. R. App. P.

35(b).

The petition for rehearing is denied and the suggestion for

a rehearing en banc is rejected.

18

APPENDIX D

FILED

JANUARY 15, 1981

RICHARD H. DEANE

CLERK, U.S. COURT OF APPEALS

United States Court of Appeals for the Ninth Circuit

THEODORE MONROE HARPER,

Petitioner/Appellant, No. 76-1245

76-1247

“ DC CV 75-3399

DANIEL J. McCARTHY, etc., 74-2448 RF

Respondent/Appellee.

ORDER ON MOTION FOR STAY OF MANDATE

(Rule 41(b) Fed.R.App.P.)

Upon due consideration of appellee motion for stay of

the mandate of this Court in the above cause pending the

filing, consideration and disposition by the Supreme

Court of the United States of a petition for writ of

certiorari, such petition to be filed in the Clerk’s Office of

the Supreme Court of the United States on or before

February 8, 1981.

IT IS ORDERED that the motion for stay of mandate be,

and the same is hereby denied.*

Dorothy W. Nelson

United States Circuit

Judge

* In the event that the motion for stay of mandate and the

petition for writ of certiorari are granted, then this stay

will continue pending the final disposition of the case by

the Supreme Court of the United States.

CA9-003 (12/3/79)

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

I, the undersigned, say: I am and was at all times herein

mentioned, a citizen of the United States and a resident of

the County of Los Angeles, over the age of eighteen (18)

years and not a party to the within action or proceeding;

that my business address is 3340 Ocean Park Boulevard,

Suite 3005, Santa Monica, California 90405: that on

March 27, 1981, I served the within Petition for Writ of

Certiorari in said action or proceeding by depositing true

copies thereof, enclosed in a sealed envelope with postage

thereon fully prepaid, in the United States mail at Santa

Monica, California, addressed as follows:

Clerk, U.S. Supreme Court United States Court of Appeals

One First Street, N.W. for the Ninth Circuit

Washington, D.C. 20543 7th & Mission Streets

(Hand delivered; forty copies) P.O. Box 547

San Francisco, California 94101

Honorable Robert Firth Court Nos. of case: CA #76-1245,

United States District Judge CA #76-1247

United States District Court

Central District of California Anthony J. Mohr, Esq.

United States Courthouse Suite 500

312 North Spring Street 9460 Wilshire Boulevard

Los Angeles, California 90012 Beverly Hills, California 90212

I declare under penalty of perjury that the foregoing is

true and correct. Executed on March 27, 1981 at Santa

Monica, California.

Kirk W. Harney

(Original signed)