Record and brief — Dowdle v. Wright

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Office Supreme Court, U.S.

FILED

81-1512 |. >

No. ALEXANDER \ STEVAS.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

EARL B. DOWDLE, Superintendent,

Safford Conservation Center; and

Attorney General, State of

Arizona,

Petitioners,

VS.

EMIL THOMPSON WRIGHT,

Respondent.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

ROBERT K. CORBIN BRUCE M. FERG

The Attorney General Assistant Attorney General

315 State Government Bldg.

WILLIAM J. SCHAFER, III 402 West Congress

Chief Counsel Tucson, Arizona

Criminal Division 85701-1367

Telephone: (602) 628-5501

Counsel of Record

QUESTIONS PRESENTED FOR REVIEW

I. Did the Court of Appeals violate

U.S. v. Timmreck in granting relief when the

habeas corpus petitioner never alleged that

he did not know what he was giving up by

pleading guilty, or that he would not have

pleaded guilty had he been properly instructed

by the trial judge?

II. Did the Court of Appeals err in

putting the burden on the State to prove

that Wright's guilty plea was valid when it

was Wright's own dilatory conduct which both

created the doubt about the plea and hampered

the State in reconstructing what had occurred

at the change of plea hearing?

III. Did the Court of Appeals arrive at an

erroneous assessment of the case through

wilfull disregard of pertinent evidence and

refusal to give due deference to the findings

of the state court?

TABLE OF CONTENTS

Table of Cases and Authorities,

Opinions Below, ...

Jurisdictional Statement,

Constitutional and Statutory

Provisions Involved ,

Statement of the Case

Reasons for Granting the Writ:,

II.

Iift.

The Court of Appeals has granted

relief in circumstances which

clearly do not constitute grounds

cognizable in habeas corpus,

thereby rejecting the plain teach-

ing of the habeas corpus statutes,

its own precedents, decisions in

other federal courts of appeals,

and this Court's decision in U.S.

v. Timmreck. .

It was Wright's dilatory conduct

in causelessly waiting six years

to attack his conviction which

allowed the reporter's notes to

become lost, and which rendered

it virtually impossible for the

State to prove the validity of

the plea, so the Court of Appeals

should not have placed the burden

of proof on the State.

The Court of Appeals plainly erred

in its assessment of the case by

disregarding presumptions favoring

the state, ignoring evidence sup-

porting the state's position,

affording no deference to the

findings of the state court, and

engaging in groundless speculation

about what Wright might have be-

lieved about his change of plea.

ee ee ee ee ee ee ee ee ee ee

Appendices:

1. Affidavit of Emil Wright.

2. Minute Entry of March 6, 1979

(Pima County Superior Court).

3. District Court Order Denying

Petition for Habeas Corpus.

4. Memorandum of Ninth Circuit

Court of Appeals, Reversing

the District Court.

TABLE OF CASES AND AUTHORITIES

Alessi v. United States,

628 F.2d 1133 (2nd Cir. 1980) ...

Bellew v. Gunn,

532 F.2d 1288 (9th Cir. 1976) cert.

denied 426 U.S. 953 . . 17, 21, 22,

Bouchillon v. Estelle,

628 F.2d 926 (5th Cir. 1980) ...

Boykin v. Alabama,

a walls. Gee Gee oo eo ote SGy

Brady v. United States,

oe a wee See «6 «6 é& Se

Brady v. United States,

164 F.2d 601 (10th Cir. 1968)

QEE°G Ber U.B. 4B «© we eo eo eee

California v. Prysock,

U.S. , LOI S.ct. 2806 (1981) .

o £8 «

Clayton v. Blackburn,

org F.2d 11? (5th Cir. 1978) ...

Fay v. Noia,

372 U.S. 391, 438 (1963) .....

Galleges v. Cox,

8 F. (10th Cir. 1966) cert.

denied 385 U.S. 869. ....-e«-.-

Grantling v. Balkcom,

F. th Cir. 1980). . .

Honeycutt v. Ward,

etD F.20 36 (2nd Cir. 1979). ...

Hutto v. Davis,

16,

~ 50 U.S.L.W. 3540 (U.S., Jan. 11, 1982)

In re Johnson,

53 Cal. Rptr. 1 (App. 1966)... .

Mayola v. Alabama,

623 F.2d 992 (Sth Cir. 1980) ...

McIntyre v. Balkcon,

339 Ga. 81, 189 S.E.2d 445 (1972).

McMann v. Richardson,

397 U.S. 759, 773-774 (1970) ...

Mi randa . . * * . . . . . . . . 7. . dl

Norvell v. Illinois,

373 U.S. 420, 423 (1963) - . 7 . .

Parker v. North Carolina,

U.S. 790 * .* * i _ . . * bal . .

Pasley v. Overholser,

LY. F.2d 494 (D.C. Cir. 1960)...

14,

People v. Coultas,

Fs T1l.App.3d 137,. 394 N.E.2d 26 (1979)12

People v. Wright,

96 Cal. App.3d Supp. 17, 158 Cal. Rptr.

Sew UR. & GCEPTOR we woe eee 8

- iii -

Roddy v. Black,

SiG F.2d 1380 (6th Cir. 1975)....

State v. Rouse,

Neb. 371, 293 N.W.2d 83 (1980)

Stinson v. Turner,

473 F.2d 913 (10th Cir. 1973),

Sumner v. Mata,

U.S. 101 S.ct. 764 (1981). ..

U.S. v. Ackerman,

PF. couG@ Gar. 1900) w cece

U.S. v. Crook,

PF. 70 (5th Cir. 1979)

U.S. v. Horsley,

599 F.2d 1355 (3rd Cir. 1979).

U.S. v. Salas,

602 F.2d 215 (9th Cir. 1979) ll,

United States v. MacCollom,

U. . -

United States v. Pricepaul,

540 F.2d 417 (9th aE 1976) ...

United States v. Timmreck,

Dole « « ofe Be Sho Bee

United States ex rel. Black v. Russell,

F. 9 3rd Cir. :

United States ex rel. Crosby v. Brierly,

—~“T04 F.2d 790 (3rd Cir. 1568) Sa

United States ex rel. Darrah v. Brierly,

PF. rd Cir. 1969)

United States ex rel. Grays v. Rundle,

° rd Cir. 1970),

- iv -

Wacht v. Cardwell,

F. (9th Cir. 1979)...

Wade v. Coiner,

F. 59 (4th Cir. 1972)...

Walker v. Caldwell,

F. em Cis. 1973) «. « «

Webster v. Estelle,

505 F.2d 926 (5th Cir. 1974) cert.

Gee Wells OEce © © © 0 6 eo et

Wilkins v. Erickson,

F. th Cir. 1974) ...

Wilson v. State,

-E. 82 (So. Car. 1968) ..

Wilson v. Wiman,

e (6th Cir. 1967) cert.

nr rr i. DO . 2 6 6 6 6 6

Winford v. Swenson,

8th Cir. 1975) cert.

denied 423 U.S. 1023.......

Statutes:

96 U.8.C. § 1284... 11 ee ew

28 U.S.C. § 2241(c)(3) ......

28 U.S.C. § 2254(a). .......

28 U.S.C.

28 U.S.C. § 2254 . 2. «© «© «© 2 © ©

§ 2254(@). . « «© « © « @

28 U.S.C.

2255 . . . . . . . 7 .

- Veo

22,

RULES GOVERNING SECTION 2254 CASES:

ee a a a a a ee

ee ee . & ©. oe): 6 @e © 6 ee

FEDERAL RULES OF EVIDENCE

Male 406 . wc ccc eceveses

SUPREME COURT RULES

eS ee ae ee a

A. BISHOP, FEDERAL HABEAS CORPUS

IN STATE GUILTY PLEAS

71 F.R.D. 235, 272 (1976) ...

ARIZONA RULE OF CRIMINAL PROCEDURE

- vi -

OPINIONS BELOW

The decisions of all the courts considering

this case, both state and federal, have been

by minute entry, order, or Memorandum, rather

than by formal Opinion. Therefore, there are

no published reports. The decisional documents

are reproduced in the Appendices to this

Petition.

JURISDICTION OF THIS COURT

A three-judge panel of the Ninth Circuit

Court of Appeals filed its Memorandum decision,

reversing and remanding the District Court's

denial of a petition for habeas corpus relief,

on August 19, 1981. A Petition for Rehearing

and request for rehearing en banc was timely

filed by mailing it on August 31, 1981. The

Petition for Rehearing was denied by an Order

filed December 8, 1981, no judge having re-

quested a vote on the suggested hearing en

banc. This Court has jurisdiction pursuant

to 28 U.S.C. § 1254(1).

- vii -

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

AMENDMENT V.

No person shall be held to answer for a

capital, or otherwise infamous crime, wiless

on a presentment or indictment of a Grand

Jury, except in cases arising in the iand

or naval forces, or in the Militia, when in

actual service in time of War or public dan-

ger; nor shall any person be subject for the

same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any

criminal case to be a witness against him-

self, nor be deprived of life, liberty, or

property, without due process of law; nor

shall private property be taken for public

use, without just compensation.

AMENDMENT VI.

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be in-

formed of the nature and cause of the

accusation; to be confronted with the wit-

nesses against him; to have compulsory

process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for

his defense.

AMENDMENT XIV.

Section 1. All persons born or natural-

ized in the United States, and subject to

the jurisdiction thereof, are citizens of

the United States and of the State wherein

they reside. No State shall make or en-

force any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State de-

prive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

- viii -

28 U.S.C. § 2241,

extend to a prisoner unless --

(1) He is in custody under or by

color of the authority of the

United States or is committed for

trial before some court thereof; or

(2) He is in custody for an act

done or omitted in pursuance of an

Act of Congress, or an order, pro-

cess, judgment or decree of a court

or judge of the United States; or

(3) He is in custody in violation

of the Constitution or laws or

treaties of the United States; or

(4) He, being a citizen of a for-

eign state and domiciled therein

is in custody for an act done or

omitted under any alleged right,

title, authority, privilege, pro-

tection, or exemption claimed

under the commission, order or

sanction of any foreign state, or

under color thereof, the validity

and effect of which depend upon

the law of nations; or

(5) It is necessary to bring him

into court to testify or for trial.

28 U.S.C. § 2254.

State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof,

a circuit judge, or a district court shall

entertain an application for a writ of habeas

corpus in behalf of a person in custody pur-

suant to the judgment of a State court only

on the ground that he is in custody in

violation of the Constitution or laws or

treaties of the United States.

* * *

(ad) In any proceeding instituted

in a Federal court by an application for a

writ of habeas corpus by a person in custody

pursuant to the judgment of a State court,

a determination after a hearing on the merits

of a factual issue, made by a State court of

competent jurisdiction in a proceeding to

which the applicant for the writ and the

State or an officer or agent thereof were

parties, evidenced by a written finding,

written opinion, or other reliable and

adequate written indicia, shall be presumed

to be correct, unless the applicant shall

establish or it shall otherwise appear, or

the respondent shall admit --

(1) that the merits of the

factual dispute were not re-

solved in the State court

hearing;

(2) that the factfinding pro-

cedure employed by the State

court was not adequate to afford

a full and fair hearing;

(3) that the material facts

were not adequately developed

at the State court hearing;

(4) that the State court lacked

jurisdiction of the subject mat-

ter or over the person of the

applicant in the State court pro-

ceeding;

(5) that the applicant was an

indigent and the State court, in

deprivation of his constitutional

right, failed to appoint counsel

to represent him in the State

court proceeding;

- x<x~ =

(6) that the applicant did not receive

a full, fair, and adequate hearing in

the State court proceeding; or

(7) that the applicant was otherwise

denied due process of law in the

State court proceeding;

(8) or unless that part of the record

of the State court proceeding in which

the determination of such factual

issue was made, pertinent to a deter-

mination of the sufficiency of the

evidence to support such factual

determination, is produced as pro-

vided for hereinafter, and the Federal

court on a consideration of such part

of the record as a whole concludes

that such factual determination is

not fairly supported by the record:

And in an evidentiary hearing

in the proceeding in the Federal

court, when due proof of such

factual determination has been

made, unless the existence of one

or more of the circumstances

graphs numbered (1) to (7), in-

Clusive, is shown by the applicant,

otherwise appears, or is admitted

by the respondent, or unless the

court concludes pursuant to the

provisions of paragraph numbered

(8) that the record in the State

court proceeding, considered as

a whole, does nct fairly support

such factual determination, the

burden shall rest upon the

applicant to establish by con-

vincing evidence that the factual

determination by the State court

was erroneous.

(e) If the applicant challenges

the sufficiency of the evidence

adduced in such State court pro-

= si «

the applicant, if able, shall

preduce that part of the rec-

ord pertinent to a determina-

tion of the sufficiency of

the evidence to support such

- xii -

STATEMENT OF THE CASE

Emil Thompson Wright murdered one man and

blinded another by shooting him in the head,

on January 22, 1970, near Tucson, Arizona.

He was not apprehended until January 1971,

when he was arrested in New York. After

being returned to Arizona he pleaded guilty

to first degree murder on May 21, 1971,

waived the statutory period of waiting before

sentence could be imposed, and was immediately

sentenced to life imprisonment. Though he

was advised of his appeal rights, he filed

no appeal.

Nothing further happened in the case until

1977, when Wright requested to know the cost

of a copy of the transcript of the hearing

in which he changed his plea to guilty; the

trial judge directed the court reporter to

inform him of the cost, by minute entry

dated July 27, 1977. Whether there was

further communication is not known; the next

activity occurred in August 1978 when Wright

filed a pro se application for writ of habeas

— a

corpus in the Arizona Supreme Court, claiming

that he had entered his guilty plea “without

the trial court having first made a determina-

tion of voluntariness and intelligence of the

plea," and that no one would provide him with

a transcript of the hearing. The Supreme

Court referred the matter to the Pima County

Superior Court to be handled under the pro-

visions for post-conviction relief, Arizona

Rule of Criminal Procedure 32. On October

23, 1978 the court reporter was ordered to

prepare a transcript of the change of plea

hearing and provide it to Wright's new

defense counsel, but on November 3, 1978 the

reporter filed an affidavit stating that

despite some 36 hours spent searching his

notes, he was unable to locate the notes of

the hearing. After several delays caused by

scheduling problems, an evidentiary hearing

was held in Pima County Superior Court on

February 16, 1979. At the hearing all of the

legal personnel involved in the case testified;

Wright did not, but stipulated that his

testimony would simply be the contents of a

oa 2 «

previously submitted affidavit. (Appendix 1.)

Wright's former defense counsel, Gilbert

Veliz (who had himself been elevated to the

trial bench) testified that he had no

specific recollection of what the trial judge

(John Collins) had said to Wright during the

change of plea hearing, and that he had not

himself specifically gone over with Wright a

list of the rights that he would be giving up

in pleading guilty. However, he believed that

Wright was told everything he was supposed to

be told at the hear.ing, and that the plea was

knowing, intelligent, and voluntary. Support-

ing this conclusion were many factors:

1. Veliz had discussed the strong evidence

possessed by the prosecutor with his client

and Wright had called him up saying, “Save my

life." (R.T. Feb. 16, 1979 at 36-40.)

2. He had discussed the right to a jury

trial. (Id. at 12-13.)

3. He had discussed with Wright his right

to testify and to refrain from testifying.

(Id. at 14-15.)

4. He had informed him of his right to

subpoena witnesses. (Id. at 26.)

5. Wright had actually seen his right to

confront and cross-examine adverse witnesses

in action, because that was done in his

presence at a lengthy preliminary hearing.

(Id. at 13, 18, 39.)

6. Wright had been told what the probable

length of his actual imprisonment was likely

to be if he received a nominal life sentence.

(Id. at 15.)

7. Wright was specifically seeking a life

sentence. (Id. at 15-16.)

8. Veliz had seen no evidence of mental

problems in Wright and had no indication of

problems with drugs. (Id. at 14, 44.)

The court reporter testified that he had no

particularized recollection of Wright or that

hearing. However, having worked in Judge

Collins' court on numerous occasions, he could

say that Collins was so thorough that his

change of plea hearings generally ran at least

half an hour in length, and that he sometimes

would even cover some of the rights being

— a

waived more than once. (Id. at 53, 59.) The

prosecutor stated that because the warnings

required by Boykin v. Alabama, 395 U.S. 238

(1969) were then still relatively new and

unfamiliar, the deputy county attorneys were

all specifically under responsibility to keep

track of the judges and make sure that

Boykin was fully complied with. As a result,

he specifically recalled going down a mental

checklist at the hearing, and being satisfied

at the end of it that everything needful had

been covered. (R.T. Feb. 16, 1979 at 82-83,

86.) Finally, Judge Collins stated that he

was fully aware of the Boykin requirements,

that he always tried to protect the indivi-

dual's rights, and that he would have been

especially careful in a case of this sort.

(Id. at 65-67.)

After the hearing was finished the trial

judge denied Wright's petition for post-

conviction relief. He concluded that, while

he could not find from the testimony that

Collins had advised Wright in court of his

constitutional rights, the evidence as a whole

(especially that from the defense counsel)

showed that Wright was aware of the rights

he was giving up, and that the plea was made

knowingly, voluntarily, and intelligently.

(Minute Entry, March 6, 1979, Appendix 2.)

Wright then exhausted his state remedies by

filing a motion for rehearing with the

Superior Court and a Petition for Review with

the Arizona Supreme Court, both of which were

denied. He then filed a habeas corpus

petition in the federal District Court, but

the petition was denied. The District Court

judge found that “Petitioner was aware of and

informed of his constitutional rights", and

that the state court finding that Wright's

plea was knowing, voluntary, and intelligent

was fairly supported by the record. (Appen-

dix 3.) Wright then appealed to the Ninth

Circuit which reversed, holding that the

findings were not supported by the record of

the evidentiary hearing. (Appendix 4.) It

is this cofclusion which Petitioners desire

this Court to review and reverse.

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS HAS GRANTED

RELIEF IN CIRCUMSTANCES WHICH

CLEARLY DO NOT CONSTITUTE GROUNDS

COGNIZABLE IN HABEAS CORPUS, THERE-

BY REJECTING THE PLAIN TEACHING OF

THE HABEAS CORPUS STATUTES, ITS

OWN PRECEDENTS, DECISIONS IN OTHER

FEDERAL COURTS OF APPEALS, AND THIS

COURT'S DECISION IN U.S. v. TIMMRECK.

It is fundamental that there is a remedy

by way of habeas corpus only when a person is

in custody “in violation of the Constitution

or laws or treaties of the United States".

28 U.S.C. §§ 224l1(c) (3) and 2254(a). Asa

matter of simple logic a person cannot be

wrongfully in custody within the contemplation

of these statutes if the alleged trial errors

had no effect on the outcome of the proceed-

ings; if the conviction and resultant custody

derive only from legitimate legal processes,

the fact that errors of some sort may have

occurred along the way is irrelevant, and

habeas corpus will not lie. This plain and

irrefutable logic was applied by this Court in

United States v. Timmreck, 441 U.S. 780 (1979)

— oe

in holding that a defendant who claimed

there were errors in his guilty plea proceed-

ing was entitled to no collateral relief

under 28 U.S.C. § 2255:

In Hill v. United States, 368 U.S.

424, the Court was presented with the

question whether a collateral attack

under § 2255 could be predicated on a

violation of Fed. Rule Crim, Proc. 32

(a), which gives the defendant the

right to make a statement on his own

behalf before he is sentenced. The

Court rejected the claim, stating:

"The failure of a trial court

to ask a defendant represented

by an attorney whether he has

anything to say before sentence

is imposed is not of itself an

error of the character or mag-

nitude cognizable under a writ

of habeas corpus. It is an

error which is neither juris-

dictional nor constitutional.

It is not a fundamental defect

which inherently results in a

complete miscarriage of justice,

nor an omission inconsistent

with the rudimentary demands

of fair procedure. It does

not present ‘exceptional cir-

cumstances where the need for

the remedy afforded by the

writ of habeas corpus is

it." Bowen v. Johnston,

306 U.S. 19, 27. See Escoe v.

Zerbst, 295 U.S. 490; Johnson

v. zerbst, 304 U.S. 458; Walker

v. Johnston, 312 U.S. —

Waley v. Johnston, 316 U.S.

Tor 368 U.S., at 428.

constitutional nor jurisdictional:

the 1966 amendment to Rule 11 ob-

an appeal."

U.S. 174, 178.

; ° increasing

the volume of judicial work,

inevitably delays and impairs

the orderly administration of

justice. The impact is great-

—— on

est when new grounds for setting

aside guilty pleas are approved

because the vast majority of crim-

inal convictions result from such

pleas. Moreover, the concern that

unfair procedures may have resulted

in the conviction of an innocent

defendant is only rarely raised by

a petition to set aside a guilty

plea." United States v. Smith,

440 F.2d 521, 528-529 (Stevens,

J., dissenting).

441 U.S. at 783-784 (emphasis added,

footnotes omitted).

This case is virtually on all fours with

Timmreck. Wright never took a direct appeal,

but waited until years later to stage a col-

lateral attack on his guilty plea. In none of

the pleadings or documents submitted by

Wright personally has he ever suggested that

his guilty plea was involuntary, that he did

not understand the rights he was waiving in

pleading guilty, or that he would not have

pleaded guilty had he been ee | informed

and catechized about the waivers. For

1 A statement was made in the Opening Brief submitted

to the Ninth Circuit on Wright's behalf by the Federal

Public Defender that "Boykin never asserted his plea

was coerced or in ignorance of the consequences. Peti-

tioner Wright does make those allegations..." (Opening

Brief at 14). However, this statement is contrary to

everything else ever filed in the case, cites no facts,

and is unsupported by anything in the record, and so is

a ne ae Sam aie bet Suess

@ 19 «

example, the affidavit which constitutes his

stipulated testimony at the state court evi-

dentiary hearing (reproduced in toto as Appen-

dix 1 to this Petition) simply alleges that

thereafter, on May 22, 1971, upon

advice of counsel, he entered a plea

of guilty to the charge of first de-

gree murder; that, at no time, did

the court discuss the facts of the

case with the affiant nor did the

court advise the affiant that he had

the right to plead not guilty, to

out all stages of the proceedings,

nor of any other constitutional

right; that the court simply asked

the affiant his name, stated the

nature of the charge, asked if

the affiant was entering a plea of

guilty, and sentenced the affiant

to life imprisonment.

.t is therefore clear that Wright has never

presented any claim which is properly cogni-

zable in habeas corpus. A variety of Federal

and state courts, including the Ninth Circuit,

have relied on Timmreck to deny relief in

similar circumstances. See U.S. v. Horsley,

599 F.2d 1265 (3rd Cir. 1979); U.S. v. Acker-

man, 619 F.2d 285 (3rd Cir. 1980); U.S. v.

Crook, 607 F.2d 670 (5th Cir. 1979); U.S. v.

- ii -

Salas, 602 F.2d 215 (9th Cir. 1979); Wacht v.

Cardwell, 604 F.2d 1245 (9th Cir. 1979);

People v. Wright, 96 Cal. App.3d Supp. 17, 158

Cal. Rptr. 275, fn. 1 (1979); People v. Coul-

tas, 75 Ill. App.3d 137, 394 N.E.2d 26 (1979);

State v. Rouse, 206 Neb. 371, 293 N.W.2d 83

(1980). There was, moreover, no excuse for

the Court of Appeals to ignore Timmreck in

dealing with this case; that decision was

alluded to in the briefs and discussed during

oral arguments, and yet was never even men-

tioned in the Court of Appeals Memorandum.

The bottom line is that the Court of Appeais

has ignored and contradicted a clearly control-

ling precedent from this Court, thereby en-

couraging “anarchy to prevail within the

federal judicial system." Hutto v. Davis,

50 U.S.L.W. 3540 (U.S., Jan. 11, 1982). This

of itself is reason enought for this Court to

grant the Petition, but it should aiso be

noted that the decision also creates a con-

flict with decisions of other circuits, as

well as with prior decisions in the Ninth

Circuit, and effectively renders meaningless

- 12 -

the portions of 28 U.S.C. §§ 2241 and 2254

cited above. See Supreme Court Rule 17.1.

The application of this Court's guiding hand

is sorely needed in this case.

II. IT WAS WRIGHT'S DILATORY CONDUCT

IN CAUSELESSLY WAITING SIX YEARS

TO ATTACK HIS CONVICTION WHICH

ALLOWED THE REPORTER'S NOTES TO

BECOME LOST, AND WHICH RENDERED

IT VIRTUALLY IMPOSSIBLE FOR THE

STATE TO PROVE THE VALIDITY OF

THE PLEA, SO THE COURT OF APPEALS

SHOULD NOT HAVE PLACED THE BURDEN

OF PROOF ON THE STATE.

This Court has made it clear for many years

that habeas corpus is an essentially equi-

table remedy, to be administered in accordance

with the general principles of equity.

Furthermore, habeas corpus has tradi-

tionally been regarded as governed by

equitable principles. Among them is the

principle that a suitor's conduct in re-

lation to the matter at hand may dis-

entitie him to the relief he seeks.

Fay v. Noia, 372 U.S. 391, 438 (1963).

One such principle is the doctrine of laches,

which precludes a party from resting on his

rights so long that the delay causes disad-

vantage to an opposing party. A dozen years

ago this Court intimated its disapproval of

stale collateral attacks on convictions,

- 13 -

especially those based on guilty pleas. See

McMann v. Richardson, 397 U.S. 759, 773-774

(1970). The doctrine of laches has since been

incorporated into the Rules Governing Section

2254 Cases, in Rule 9:

(a) Delayed petitions. A petition

may be dismissed if it appears that the

state of which the respondent is an officer

has been prejudiced in its ability to re-

spond to the petition by delay in its

filing unless the petitioner shows that

it is based on grounds of which he could

not have had knowledge by the exercise

of reasonable diligence before the cir-

cumstances prejudicial to the state

occurred

That this Rule was designed to cover just such

a case as the one now before us is made clear

by the Advisory Committee Note:

The assertion of stale claims is a

problem which is not likely to decrease

in frequency. Following the decisions

in Jones v. Cunningham, 371 U.S. 236

(1963), and Benson v. California, 328

F.2d 159 (9th Cir. 1964), the concept

of custody expanded greatly, lengthen-

ing the time period during which a

habeas corpus petition may be filed.

The petitioner who is not uncondition-

ally discharged may be on parole or

probation for many years. He may at

some date, perhaps ten or fifteen

years after conviction, decide to

challenge the state court judgment.

The grounds most often troublesome

to the courts are ineffective counsel,

denial of right of appeal, plea of

» 14 -

guilty unlawfully induced, use of a

coerced confession, and illegally

constituted jury. The latter four

grounds are often interlocked with

the allegation of ineffective coun-

sel. When they are asserted after

the passage of many years, both the

attorney for the defendant and the

state have difficulty in ascertain-

ing what the facts are. It often

develops that the defense attorney

has little or no recollection as

to what took place and that many

of the participants in the trial

are dead or their whereabouts un-

known. The court reporter's notes

may have been lost or destroyed,

thus eliminating any exact record

of what transpired. If the case

was decided on a oquilty plea, even

if the record is intact, it may

not satisfactorily reveal the

extent of the defense attorney's

efforts in behalf of the petitioner.

As a consequence, there is obvious

difficulty in investigating peti-

tioner's allegations.

There can be no doubt that Arizona has been

profoundly prejudiced in its attempts to de-

fend against Wright's claims. There having

been no appeal or any other action on the

case for six years after the conviction on

May 21, 1971, there was no reason for the

court reporter to transcribe his notes and

they were apparently lost. Memories faded,

to the point where the participants had rela-

@ 15 -

tively little recollection of precisely what

words had been spoken at the change of plea

hearing. To the extent that the post-convic-

tion evidentiary hearing may be found insuf-

ficient to prove the validity of the guilty

plea (which the Ninth Circuit held to be the

situation, but which Petitioners deny), the

fault obviously lies with Wright, whose

dilatory conduct has made preparation of a

complete record impossible.

In similar circumstances cases from a

majority of the circuits, including the

Ninth Circuit, have given substantial weight

to a habeas corpus petitioner's lack of

diligence, holding that it will put the bur-

den of proof on him, or even be grounds for

dismissing the petition. See Pasley v. Over-

holser, 282 F.2d 494 (D.C. Cir. 1960); Honey-

cutt v. Ward, 612 F.2d 36 (2nd Cir. 1979),

cert. denied 446 U.S. 985; United States ex

rel. Darrah v. Brierley, 415 F.2d 9 (3rd Cir.

1969); Mayola v. Alabama, 623 F.2d 992 (5th

Cir. 1980); Clayton v. Blackburn, 578 F.2d

é 16 -

117 (5th Cir. 1978); Bellew v. Gunn, 532 F.2d

1288 (9th Cir. 1976), cert. denied 426 U.S.

953; Gallegos v. Cox, 358 F.2d 703 (10th Cir.

1966), cert. denied 385 U.S. 869; Annot.,

"Delay as affecting right to coram nobis

attacking criminal conviction," 62 A.L.R.2d

432. These holdings seem particularly appro-

priate in light of this Court's own decision

in Norvell v. Illinois, 373 U.S. 429, 423

(1963):

We do not say that petitioner, having

had a lawyer, could be found to have

waived his rights on appeal. We only

hold that a State, in applying Griffin

v. Illinois to situations where no

transcript of the trial is available

due to the death of the court reporter,

may without violation of the Due Pro-

cess or Equal Protection Clause deny

relief to those who, at the time of

the trial, had a lawyer and who pre-

sumably had his continuing services

for purposes of appeal and yet failed

to pursue an appeal.

See also United States v. MacCollom, 426 U.S.

317 (1976), which held that a federal defen-

dant's intentional decision to forego direct

appeal and the automatic provision of a trial

transcript places him “in a different position”

when he later seeks a transcript for a colla-

- 17 -

teral attack on the conviction -- "The basic

question is one of adequacy of respondent's

access to procedures for review of his con-

viction... and it must be decided in light of

avenues which respondent chose not to follow

as well as those he now seeks to widen."

426 U.S. at 326.

The Ninth Circuit totally ignored both

Rule 9(a) and this array of caselaw, which

clearly places the burden of proof on the

habeas corpus petitioner when his unexplained

delay prejudices the state's ability to de-

fend against his claims. Instead, they re-

lied on two cases in which no questions of

prejudicial delay were either raised or con-

sidered, United States v. Pricepaul, 540 F.2d

417 (9th Cir. 1976), and Roddy v. Black, 516

F.2d 1380 (6th Cir. 1975). (See Appendix 4

at 2.) In so doing they have not only de-

cided wrongly, they have at least tacitly

rejected Rule 9(a), created a conflict within

the Ninth Circuit about the proper allocation

of burden of proof in the circumstances of

-~- 18 -

cases like this one, and placed themselves con-

trary to a substantial body of decisions in

other circuits. That the decision renders

one of the major safeguards against the

whelming flood of post-conviction litigation

a dead letter, while at the same time creating

a substantial conflict with decisions from

the other circuits, is sufficient reason for

this Court to review it. Supreme Court Rule

17.1. While the damage done may seem to be

mitigated somewhat by the fact that this is

an unpublished decision, that is actually

indicative of the need for this Court to take

action. A published opinion exposes erroneous

reasoning to constructive criticism, which

may lead to its correction, but an unpublished

decision is like the proverbial victim of

medical malpractice -- the Court of Appeals

has effectively buried its mistake. Moreover,

given the huge number of habeas corpus petitions

filed annually, many of which surface years

after the trial, this is a recurring issue

of real importance to the administration of

justice. This Court should therefore agree

= 19 «

to review it.

III. THE COURT OF APPEALS PLAINLY ERRED

IN ITS ASSESSMENT OF THE CASE BY

DISREGARDING PRESUMPTIONS FAVORING

THE STATE, IGNORING EVIDENCE SUP-

PORTING THE STATE'S POSITION,

AFFORDING NO DEFERENCE TO THE FIND-

INGS OF THE STATE COURT, AND EN-

GAGING IN GROUNDLESS SPECULATION

ABOUT WHAT WRIGHT MIGHT HAVE BE-

LIEVED ABOUT HIS CHANGE OF PLEA.

The Court of Appeals concluded that it was

free to disregard the state court's conclusion

that Wright knew what he was giving up by his

guilty plea, based on its determination that

the finding was not fairly supported by the

record. However, to arrive at this conclusion

the Court of Appeals had to radically distort

the decision-making process by casting aside

numerous factors supporting the position

which was advocated by the State and which was

found to be true by the state court and the

District Court. To begin with, it must be

recalled that Wright was represented by coun-

sel, and that at no time has there ever been

the slightest suggestion that that lawyer

(who has since been elevated to the trial

bench) was anything less than completely

- 20 -

competent and effective. "“[T])he universal

policy in federal habeas corpus is that a plea

of guilty entered on the advice of defense

counsel is presumptively valid.” A. Bishop,

“Federal Habeas Corpus in State Guilty Pleas,"

71 F.R.D. 235, 272 (1976). Support for this

generalization can be found in this Court's

trilogy of guilty plea cases, McMann v.

Richardson, supra, Parker v. North Carolina,

397 U.S. 790, and Brady v. United States, 379

U.S. 742 (1970). See United States ex rel.

Grays v. Rundle, 428 F.2d 1401 (3rd Cir. 1970).

"It is clear from these cases that even on a

silent record, if a petitioner was represented

by counsel when he entered his plea of guilty,

as is the case here, the presumption is that

the plea was the voluntary product of an

intelligent and knowing act." United States

ex rel. Black v. Russell, 435 F.2d 546, 547

(3rd Cir. 1970), cert. denied 402 U.S. 947

(1970); see also Grantling v. Balkcon,

632 F.2d 1261 (5th Cir. 1980); Winford v.

Swenson, 517 F.2d 1114 (8th Cir. 1975), cert.

denied 423 U.S. 1023; and Bellew v. Gunn,

@ 21 «

supra. Thus, even absent the facts developed

at the post-trial hearing, the Court of Appeals

should have presumed the guilty plea valid, but

no mention of such a presumption appears in

the Memorandum, so it evidently was not

applied.

Next, it must be noted that nowhere in the

Memorandum did the Court of Appeals take

note of the available evidence regarding

habit and custom as it related to those mat-

ters where the specific memories of the

participants had dimmed. Such evidence is

allowed, even without corroboration, by both

Federal Rule of Evidence 406 and its identi-

cal Arizona counterpart. Numerous federal

and state courts have considered such evidence

in dealing with precisely the sort of issue

presented by this case. See, e.g., Alessi v.

United States, 628 F.2d 1133 (2nd Cir. 1980);

Bouchillon v. Estelle, 628 F.2d 926 (5th Cir.

1980); Webster v. Estelle, 505 F.2d 926 (5th

Cir. 1974), cert. denied 421 U.S. 918; Wilson

v. Wiman, 386 F.2d 968 (6th Cir. 1967), cert.

- 22 -

denied 390 U.S. 1042; Bellew v. Gunn, supra;

In re Johnson, 53 Cal Rptr. 1 (App. 1966);

McIntyre v. Balkcom, 229 Ga. 81, 189 S.E.2d

445 (1972); Wilson v. State, 159 S.E.2d 282

(So. Car. 1968). Cf. United States v. Tim-

mreck, supra, 441 U.S. at 782.

This is a very substantial point, because

there was considerable testimony at the state

evidentiary hearing about the habitual tho-

roughness of the judge involved when it came

to accepting guilty pleas. The court reporter

testified that even Judge Collins' short

change of plea hearings usually took at least

half an hour, that he specifically recalled

the judge referring during plea changes to the

right to remain silent and the right to trial

(two of the matters troublesome to the Court

of Appeals),and that the judge was thorough

to the point of sometimes covering the same

matter twice. (R.T. Feb. 16, 1979 at 53-54,

59.) The judge himself testified to his

awareness of the requirements of Boykin, that

he always did everything he could to protect

the rights of the individual, and that he

« 23 «

would have been even more careful than usual

in taking a plea in a first degree murder case.

(Id. at 63-68.) The prosecutor stated that

he was always careful to insure that all the

Boykin requirements were covered in guilty

pleas, especially around the time of the plea

in question because Boykin was still new

enough to be a source of numerous appeals,

and that he distinctly recalled going down a

mental checklist at this particular change of

plea, and being satisfied that everything had

been properly covered. (Id. at 82-83.) He

also corroborated the other witnesses on Judge

Collins' customary thoroughness. (Id. at 84.)

The defense counsel likewise testified that

the judge had covered everything, and that

Wright's plea was a voluntary, intelligent

plea. (Id. at 21-26.) Given the case law

noted above, this testimony from the court

personnel who participated in the change of

plea may not have been by itself a sufficient

basis for concluding that Wright knew what he

was waiving, but it should certainly have been

given some consideration. The Court of Appeals

- 24 -

apparently ignored it completely.

Third, it is apparent that the Court of

Appeals gave insufficient consideration to

the findings of the state court, and the

conclusions it reached after an extensive

evidentiary hearing. Whether a guilty plea

is knowing, intelligent and voluntary is a

question of fact. United States ex rel.

Crosby v. Brierly, 404 F.2d 790 (3rd Cir.

1968); Walker v. Caldwell, 476 F.2d 213 (5th

Cir. 1973); Bellew v. Gunn,. supra; Brady v.

United States, 404 F.2d 601 (10th Cir. 1968),

aff'd 397 U.S. 742. As such, it is the sort

of question where the determination made by

the state court is presumed correct. Sumner

v. Mata, _U.S.__, 101 S.Ct. 764 (1981); 28

U.S.C. § 2254(d). The Ninth Circuit refused

to apply that presumption, concluding that

the state court findings were not supported

by the record. When the specifics of the

rejection are examined, however, it becomes

plain that the Court of Appeals was analyzing

the question in a manner which was hyper-

technical in the extreme. The Memorandum

— =

(Appendix 4 at 2) states that Wright's defense

counsel “did not testify that he advised his

client of his right not to testify", and sug-

gests that Wright “might well have believed"

the state could force him to take the stand.

However, the defense lawyer did testify as

follows:

Q. Did you ever discuss the potential

for him taking the witness stand in

his own defense?

A. Yes, sir.

Q. And also the potential for him not

taking the witness stand?

A. The situation as I saw it, and I

conveyed to him, was as follows: As

I recall, he had two felonies.

Q. Are those prior felony convictions?

The only reasonable interpretation of this

exchange is that the lawyer told Wright he

had the option to testify or not testify, but

that taking the stand would allow him to be

- 26 -

impeached by his prior convictions during

cross-examination. The suggestion that he

might have believed he could be compelled to

take the stand is baseless conjecture, with-

out any foundation in the record, not even

from the affidavit which was stipulated to

as constituting what Wright's testimony would

have been i* he had testified at the eviden-

tiary hearing. (Appendix 1 to this Petition.)

After all, Wright had been present at a

lengthy preliminary hearing where the state

presented its case against him; logically, if

the prosecutor could have forced him to tes-

tify, he would have done it then, but of

course no such compulsion was exercised.

Thus, Wright had to be aware of his privilege

to refrain from testifying.

The same sort of situation exists with re-

gard to the Court of Appeals' second objection,

that there was a possibility Wright might have

thought the state would decide whether or not

there should be a jury trial. The defense

lawyer testified:

- 27 -

Q. Okay. Now, Judge, without tel-

ling me anything that Mr. Wright

told you about his possible in-

volvement in the crime itself,

did you discuss with him prior to

arriving at the decision to take

this plea agreement about the

potential of going to trial on

this case, potential success by

taking this in front of the jury?

A. Yes. Yes, sir.

Q. And did you explain to him or

discuss with him the fact that a

jury might acquit him?

A. Yes, sir. In the context of

the evidence that we -- that I was

gathering -- in other words, we

had a day. In those days you

didn't have the discovery that we

have now. After the preliminary

hearing, wherein Emil was there,

I made some motions and there was

other evidence that was made avail-

able to me. Every time I would get

something new I would go and show

it to Mr. Wright, and we would dis-

cuss its implications and things

of that type.

(R.T. Feb. 16, 1979 at 12-13.)

The phrase “taking this in front of the jury”

clearly indicates a volitional act, optional

to the defense, and the defense lawyer

accepted the terminology, adding that he dis-

cussed the implications of every new develop-

ment in the case with Wright. This refutes

the Ninth Circuit suggestion as to what he

- 28 -

“could have inferred", which again is merely

groundless conjecture.

Finally, as to the right to confront

witnesses (Memorandum at 2.) The Court of

Appeals acknowledged that Wright had been

present at the preliminary hearing, and had

seen his counsel cross-examine the adverse

witnesses, but without a scintilla of cause

hypothesized that he could have believed some

other rule applied at trial. It is utterly

illogical to believe that a right to ccnfron-

tation would apply at a mere probable cause

hearing but not exist at the actual trial.

Wright knew that witnesses would be cross-

examined at trial because his lawyer had

warned how he could himself be impeached with

his prior convictions. Moreover, the lawyer

discussed with Wright what their approach

would be as to each witness against him. (R.

T. Feb. 16, 1979 at 38-39). It is simply

unthinkable that such discussions would not

have included cross-examination, especially

with Wright being so alert and so suspicious

that he insisted on personally examining the

@- 29 «~

lawyer's file every time he visited him. (Id.

at 33.)

In sum, the Court of Appeals' decision is

based upon an unreasonably and unsupportably

rigid analysis. The law does not require the

sort of recitation of magic words that court

seems to be demanding; the Ninth Circuit it-

self made clear long ago that specific arti-

culation of the Boykin rights is not necessary

so long as the understanding is present.

Wilkins v. Erickson, 505 F.2d 761 (9th Cir.

1974). See also Wade v. Coiner, 468 F.2d 1059

(4th Cir. 1972); McChesney v. Henderson, 482

F.2d 1101 (5th Cir. 1973), cert. denied 414

U.S. 1146; Stinson v. Turner, 473 F.2d 913

(10th Cir. 1973). This Court has recently

condemned similar hair-splitting in the con-

text of Miranda rights waivers. California v.

Prysock, U.S. , 101 S.Ct. 2806 (1981).

The Court of Appeals should have analyzed this

case with reasonableness, with deference to

the state court's findings, mindful of the

presumption of validity which attached because

Wright was represented by competent counsel,

- 30 -

and paying heed to Wright's unexplained,

prejudicial delay in seeking relief. If all

of those factors had been properly weighed,

the trial court and the District Court would

have been affirmed, and the Court of Appeals'

failure to do so is a gross abuse of judicial

authority, which cries out for supervisory

action by this Court.

CONCLUSION

The Court of Appeals granted Emil Wright

habeas corpus relief when there was no basis

in law to do so, and in utter disregard of a

dispositive decision by this Court; it

trampled on the rules of equity which

underlie habeas corpus by misallocating the

burden of proof; and it arrived at a demon-

strably wrong conclusion by neglecting to

take proper account of either the presump-

tions and deference favoring the state, or

» 31 @-

the actual evidence adduced. This Court

should grant the present Petition and reverse

the Court of Appeals, in order to correct

such wanton misuse of judicial authority.

Respectfully submitted,

ROBERT K. CORBIN

The Attorney General

WILLIAM J. SCHAFER, III

Chief Counsel

Criminal Division

BY P

BRUCE M. FERG

Assistant Attorney Geferal

315 State Government Bldg.

402 West Congress

Tucson, Arizona 85701-1367

Telephone: (602) 628-5501

Counsel of Record

« 32 -

AFFIDAVIT

STATE OF ARIZONA )

) ss.

COUNTY OF PIMA )

EMIL T. WRIGHT, having been first duly

sworn upon his oath, deposes and states:

That he is the defendant in that certain

criminal caused denominated No. A-18997 in the

Superior Court of the State of Arizona, in and

for the County of Pima; that he was originally

arrested on January 7, 1971, in the State of

New York, pursuant to a warrant issued in the

State of Arizona; that he was returned to the

State of Arizona on January 8, 1971; that,

thereafter, on May 22, 1371, upon advice of

counsel, he entered a plea of guilty to the

charge of first degree murder; that, at no time,

did the court discuss the facts of the case

with the affiant nor did the court advise the

affiant that he had the right to plead not

guilty, to have a jury trial, to appeal any

conviction, to have an attorney appointed to

Appendix 1

represent him throughout all stages of the

proceedings, nor of any other constitutional

right; that the court simply asked the affiant

his name, stated the nature of the charge,

asked if the affiant was entering a plea of

guilty, and sentenced the affiant to life

imprisonment.

"/S/__EMIL T. WRIGHT"

EMIL T. WRIGHT

SUBSCRIBED AND SWORN TO before me this

6th day of November , 1978 , by Emil T.

Wright.

"/S/ THARY C. HARTZLER"

NOTARY PUBLIC

My Commission Expires:

July 8, 1980

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

HARRY GIN, Judge NO. A-18997

DATE March 6, 1979

STATE OF ARIZONA,

Plaintiff,

EMIL THOMPSON WRIGHT,

Defendant.

MINUTE ENTRY

UNDER ADVISEMENT:

IT IS ORDERED that Defendant's Petition

for Post Conviction Relief is DENIED.

The Court cannot conclude from Judge

Collins’ and his Court Reporter's testimony

that Defendant was advised of his constitutional

rights at the Change of Plea because it was

Judge Collins' habit to do so, but it is clear

from Judge Veliz's testimony, and Defendant's

prior record, that Defendant was aware of his

constitutional rights when he pled guilty and

Appendix 2

must conclude that his plea was knowingly,

voluntarily and intelligently made.

cc:

County Attorney (Dan Smith)

Lieberthal & Kashman

Under Advisement Clerk

Court Admin.

Judge Gin

JAMES N. CORBETT, Clerk

" "

ByAS/Carolyn Brittain

Deputy

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

EMIL THOMPSON WRIGHT,

No. CIV 79-270-TUC-

MAR

Petitioner,

vs.

EARL B. DOWDLE, Super-

intendent, S.C.C.,

)

) ORDER

)

Respondent. )

)

Petitioner has filed a petition for writ

of habeas corpus pursuant to Title 28 U.S.C.

§ 2254. This petition was filed with the Clerk

of the United States District Court for the

District of Arizona at Tucson, Arizona. The

Attorney General of the State of Arizona has

responded on behalf of Earl B. Dowdle, Super-

intendent, Safford Conservation Center.

Petitioner claims entitlement to relief on

two grounds: (1) The trial court failed to

determine that the petitioner voluntarily,

knowingly, and intelligently entered a guilty

plea; and (2) he is being denied access to the

Appendix 3

courts by the loss or destruction of his

trial proceedings.

May 21, 1971, petitioner pursuant to a

plea bargain agreement entered a plea of guilty

to the charge of first degree murder. This

plea was in Cause No. A-18997 in the Superior

Court of the State of Arizona, in and for the

County of Pima. Petitioner was sentenced at

the time of his change of plea. He was

sentenced to a term of life imprisonment. It

cnaata be noted that as part of the plea

agreement a pre-sentence report had been

prepared and submitted to the sentencing judge.

Petitioner did not appeal from the judg-

ment and sentence. In 1978, petitioner filed

a petition for writ of habeas corpus with the

state court. An attorney was appointed to

represent petitioner. It was determined that

the court reporter's notes of the change of

plea were lost. An evidentiary hearing was

held February 16, 1979. March 6, 1979, the

trial court denied the petition for post

conviction relief and ruled that petitioner

was aware of his constitutional rights when he

pled guilty and concluded that the plea was

knowingly, voluntarily and intelligently made.

A motion for rehearing was filed and denied.

A petition for review was filed and denied by

the Arizona Supreme Court on September 10,

1979.

Title 28 U.S.C. § 2254(d) provides in part:

In any proceeding instituted in

a Federal court by an application for

a writ of habeas corpus by a person

in custody pursuant to the judgment

of a State court, a determination

after a hearing on the merits of a

factual issue, made by a State court

of competent jurisdiction in a

proceeding to which the applicant

for the writ and the State or an

officer or agent thereof were parties,

evidenced by a written finding,

written opinion, or other reliable

and adequate written indicia, shall

be presumed to be correct, ...

The statute further provides that the burden

is on the petitioner to establish by convic-

ing evidence that the factual determination

by the state court was erroneous.

The Court has before it a transcript of

the evidentiary hearing held by the state

court pursuant to Rule 32.8, Arizona Rules

of Criminal Procedure. A review of this trans-

cript supports the state court's ruling that

petitioner's plea was knowing, voluntary and

intelligently entered. Petitioner was aware

of and informed of his constitutional rights.

This Court, of course, could hold an

evidentiary hearing, however, the same is

not necessary. See, e.g., Wilkins v. Erick-

son, 505 F.2d 761 (9th Cir. 1974). Petitioner

was given a full an fair opportunity to litigate

his claim before the state court. The record

of the state court proceedings fairly supports

the factual and legal conclusion of the state

courts.

IT IS ORDERED that the petition for writ

of habeas corpus is denied and the same is

dismissed.

IT IS FURTHER ORDERED that the Clerk mail

a copy of this Order to petitioner and to the

attorney for respondents.

DATED: March 5, 1980

“/s/ MARY ANNE RICHEY"

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 80-5285

Emit THOMPSON WRIGHT, D.C. No. CIV 79-

Petitioner-Appellant, | 479

ee \TUC-MAR

Eart B. DowpLe, Superintendent; ATrorNey | MEMORANDUM

GENERAL, State of Arizona,

Respondents-Appellees.

Argued and Submitted — March 10, 1981

Decided — August 19, 1981

Appeal from the United States District Court

for the District of Arizona

Mary Anne Richey, District Judge, Presiding

Before: FLETCHER and POOLE, Circuit Judges, and

CLAIBORNE,* District Judge.

Ten years ago, Wright pled guilty in state court to one count of first

degree murder. He now petitions for a writ of habeas corpus under 28

U.S.C. § 2254, claiming that his plea was not knowing and voluntary.

The district court denied his petition. We reverse and remand for an

evidentiary hearing.

Wright claims that his plea was not voluntary under the rule of

Boykin v. Alabama, 395 U.S. 238 (1969), because he was not advised

of his privilege against compulsory self-incrimination, his right to trial

by a jury, and his right to confront his accusers. Since the transcript of

Wright's plea hearing has been lost, Wright's conviction must be

reversed unless it can be shown at a postconviction evidentiary

hearing that Wright knew of his Boykin rights. United States v.

*The Honorable Harry E. Claiborne, United States District Judge for the

District of Nevada, sitting by designation.

Appendix 4

2 A Wright vs. Dowdle

Pricepaul, $40 F.2d 417, 422 (9th Cir. 1976); Wilkins v. Erikson, 505

F.2d 761, 765 (9th Cir. 1974); Roddy v. Black, 516 F.2d 1380, 1384

(6th Cir. 1975); Walker v. Caldwell, 476 F.2d 213, 21S n. 1 (Sth Cir.

1973). Moreover, the government has the burden of proving :hat the

waiver was voluntary and was intelligently made. Pricepaul, $40 F.2d

at 423; Roddy, $16 F.2d at 1384 &n. §.

The district court did not hold an evidentiary hearing. Instead, it

concluded that the record of the evidentiary hearing on Wright's state

habeas corpus petition ‘‘supporis the state court’s ruling that

petitioner’s plea was knowing, voluntary, and intelligently entered.”’

See 28 U.S.C. § 2254(d)(8).

We cannot agree with the district court’s conclusion. The state court

took testimony from Wright's defense attorney, the prosecuting

attorney, the court reporter, and the judge who had presided over

Wright's plea hearing. None of the witnesses recalled whether or not

Wright had been advised of his Bovkin rights. Based on this

testimony, the court ruled that it could mor conclude that Wright had

been advised of his rights at the plea hearing.

Despite this ruling. the state court denied Wright's habeas petition.

The court concluded that ‘‘it is clear from [the defense attorney's]

testimony, and the Defendant's prior record, that Defendant was

aware of his constitutional rights when he pled guilty.’’ This state

court finding is not fairly supported by the record. 28 U.S.C. §

2254(d (8).

With respect to the privilege against self-incrimination, Wright's

attorney testified that he and Wright had discussed the advantages and

disadvantages of Wright taking the stand. The attorney did not testify

that he advised his client of his right not to testify; on the contrary, he

stated that he had not specifically informed Wright of any of his

Bovkin rights. Wright might well have believed that he could have

been compelled by the Government to take the stand.

With respect to the right to trial by a jury, Wright's attorney

testified that he discussed with Wright the effect certain evidence

might have on a jury, and what the jury might or might not do.

Wright could have ‘rferred from these discussions that he had the

right to a jury trial, but he could also have believed that the

Government would decide whether or not a jury would be used.

Wright vs. Dowdle

Finally with respect to the right to confront one’s accusers, Wrigh

attorney did not testify that he had ever discussed with Wright the f:

that the Government's witnesses would have to appear at trial and

cross-examined. Although Wright had attended a preliminary heari

at which witnesses were cross-examined, there is no indication ont

record that Wright knew he had the right to engage in similar cro

examination at trial.

-The state court’s reliance on Wright’s ‘“‘prior record’’ »

misplaced. Wright's two prior felony convictions apparently result

from guilty pleas rather than trials at which the Boykin rights mis

have been exercised. The record does not show whether Wright »

advised of his rights at the time of his prior guilty pleas, or whether 1

prior pleas were sufficiently close in time so that Wright would ha

remembered his rights if he had been advised of them.

Because the state court's findings were not fairly supported by

record. the district court should hold a new hearing and make its o

findings on the merits of Wright's habeas claim. See Sione

Cardwell, 620 F.2d 212. 213 (9th Cir. 1980). We remand for suci

hearing.

REVERSED AND REMANDED.

RECOBDER-SLNSET PRESS. SAN FRANCISCO.C4 8-31-81 —S50

_ - —-, —

. _— ss =

IN THE

UPREME COURT OF THE UNITED Se RECEIVED

APK 2 9 198% )

OFFICE GF THE CLERK

SUPREME COURT, U.S.

NUMBER 81-1512

EARL B. DOWDLE, Superintendent,

Safford Conservation Center; and

Attorney General, State of

Arizona,

Petitioners,

vs.

EMIL THOMPSON WRIGHT,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Respondent, EMIL THOMPSON WRIGHT, pursuant to Rule

53, Supreme Court Rules and Title 18, United States Code,

582006 (d) (6), respectively, moves this Honorable Court for

leave to file the attached Brief of Respondent in Opposition

to Petition for Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit without pre-payment of costs

and to proceed in forma pauperis. Counsel undersigned was

appointed to represent the Respondent by the District Court

on appeal to the United States Court of Appeals for the

Ninth Circuit.

Respectfully submitted,

Y, Assistant

Federal ic Defender

P. O. Box 2710

Tucson, Ar 85702

Telephone: | (602) 792-6521

(FTS) 762-6521

Respondent

IN THE

SUPREME COURT OF THE UNITED STATES

NUMBER __81-1512

EARL B. DOWDLE, Superintendent,

Safford Conservation Center: and

Attorney General, State of

Arizona,

Petitioners,

vs.

EMIL THOMPSON WRIGHT,

Respondent.

BRIEF OF RESPONDENT IN

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

EMIL THOMPSON WRIGHT

Respondent

INDEX

INTRODUCTORY STATEMENT ...... ++ ++ 1

ee Ge @eeeceeceee eee ee eee l

ARGUMENT :

I. By admitting jurisdiction in the

federal court for habeas relief

and by admitting that the defendant

had exhausted his state remedies,

the state is foreclosed from

raising these issues for the first

time upon appeal. ...... 7

Il. The limitations placed upon federal

habeas relief by boited States v.

Timmreck are inapplicable in the in-

Stant case where the errors of the

trial court were of constitutional

DE. «6 4 6 © ¢ « ¢ 9

III. The doctrine of latches is inappli-

cable in the instant case where this

issue was not raised before the

district court and where it was the

States own lack of action and delay

which resulted in greater difficulty

in reconstructing the guilty plea. 13

IV. The Ninth Circuit did not err in

remanding the instant case for a

new evidentiary hearing... 15

Vv. Sufficient reasons have not been

presented for this court to grant

certiorari in the instant case. . 17

a 18

CASES

Boykin v. Alabama, (1969)

oBe . CAO aa ae 3,4,9,10,11,12,15,17

Commonwealth ex rel. West v. Rundle, (1968)

a. Ps ont ,

i i i « 6 o's = © © ¢ © © ee 10

Ae v. 1saac. (U.S. April 5, apes

(No. 80-1430) ... io & ok 12

wart v, Erman, (9 - aplapaabllnatans

Ao, aa 11,14

Henderson v. Mor , (1976)

Sepdecaon x. Morgan, ey a 11,12

Cases, continued

Roddy v. Black, (6th Cir. 1975)

: re 2 Ee eae ee ee ee < 11,16

Summer v. Mata, (1981)

U.S. & & Se | a 16

Wainwright v. Sykes, (1977)

United States v. Dayton, (5th Cir. 1979)

604 F.2d S31, 939(en banc) .......... 12

United States v. Pricepaul, (1976)

: : ere eee eS ee ee ee 11,15

United States v. Timmreck, (1979)

sae -s 2 ent aa oie eA 7,8,9,16,17

STATUTES

Title 28, United States Code, §2254. ..... 6,16

RULES

Rule 9, Rules Governing Section 2254 ..... 8,13

Rule 31.3, Arizona Rules of Criminal Procedure 12

INTRODUCTORY STATEMENT

On Februray 5, 1982, a Petition for a Writ of

Certiorari was filed in this Court to review an order of

the United States Court of Appeals for the Ninth Circuit

(No. 80-5285) dated August 18, 1981.

This response in opposition to the Petition for

Writ of Certiorari was requested by the Court in a letter

to counsel. for Respondent dated April 1, 1982.

FACTS :

Emil Thompson Wright pleaded guilty to first degree

murder in the Superior Court of the State of Arizona on

May 21, 1971. (CR 5, Exhibit, pages 115-116). At that time

he was represented by a court appointed public defender,

Gilbert Veliz. (RT 6). At that period of time, attorneys

in Mr. Veliz’ office each carried a caseload of over 100 felony

cases. (RT 27-28). From the time of Mr. Veliz' initial appoint-

ment on Mr. Wright's case and the first trial date set (two

months time or less), Mr. Veliz had thirty preliminary hearings

and twelve cases that had been set for trial. (RT 27).

Mr. Wright was sentenced, on the same day he pleaded

guilty, to a period of life in prison. Arizona Superior Court

Judge John P. Collins presided at both the guilty plea and

sentencing. (CR 5, Exhibit, pages 115-116). Mr. Wright began

serving his sentence, and on July 21, 1977 he wrote the Clerk

of the Pima County Superior Court requesting a transcript of

his guilty plea and sentencing. (CR 5, Exhibit, page 121). On

July 27, 1977, Judge Collins entered an order directing the

court reporter to advise Mr. Wright of the transcript cost and

to prepare a transcript at Mr. Wright's expense if requested

(CR 5, Exhibit, pages 119-120).

Apparently, nothing further happened until

August 28, 1978, when Mr. Wright filed with the Arizona

Supreme Court an application for a Writ of Habeas Corpus,

a memorandum in support thereof, and a motion for appoint-

ment of counsel. Mr. Wright indicated therein that he had

entered his guilty plea “without the trial court having

first made a determination of voluntariness and intelli-

gence of the plea.”. Mr. Wright also asserted that, after

over one year from his original request, no one would pro-

vide him with a transcript of his hearing. (CR 5, Exhibit,

page 123). On September 20, 1978, the Arizona Supreme

Court ordered Mr. Wright's habeas petition transferred to

the Pima County Superior Court where he had originally

pleaded guilty. (CR 5, Exhibit, page 122).

Judge Collins “prevailed upon" Howard Kashman

(who had been Veliz’ supervisor as the public defender at

‘the time the plea was entered) to take the court appoint-

ment. (RT 62-63; CR 5, Exhibit, page 137). On October 13,

1978, Mr. Kashman filed a motion for preparation of a trans-

cript. (CR 5, Exhibit, page 136). After a second court

order ordering the court reporter to prepare a transcript

(CR 5, Exhibit, page 138), the court reporter, Jim Bouley,

filed an affidavit saying that he could not locate his notes

on the May 21, 1971 change of plea and sentencing. He further

stated that he could not prepare a transcript without these

motes. (CR 5, Exhibit, pages 139-140).

After Mr. Wright, through his court-appointed

counsel, filed a supplemental memorandum in support of his

application (CR 5, Exhibit, pages 141-148), and the prose-

cutor filed his opposition thereto (CR 5, Exhibit, page 153),

an evidentiary hearing was held before Superior Court Judge

Harry Gin on February 16, 1979. (CR 5, Exhibit, pages 159-161;

(RT 1-95). Mr. Wright stipulated that his testimony would

be the contents of an affidavit previously submitted.

(RT 76, 90). Four witnesses testified at this hearing:

Gilbert Veliz, (RT 4); Jim Bouley, (RT 47); Judge Collins,

(RT 61); and Mike Cochran (the prosecutor at the 1971

guilty plea) (RT 79).

GILBERT VELIZ

testified that at the time of the

Mr. Veliz!

1971 guilty plea, attorneys in his office were carrying a

caseload of over 100 felonies each. (RT 27-28). Mr. Veliz

did not recall whether Mr. Wright had been advised of all

his rights at the change of plea. (RT 19). Im fact, when

asked by the prosecutor whether or not Judge Collins had

advised Mr. Wright of his Boykin rights, Mr. Veliz question-

ed, “which are the Boykin rights?" (RT i8).

Mr. Veliz also testified that Mr. Wright was

hesitant to give a factual basis for the plea. (RT 19).

When Judge Collins refused to accept the plea without a

factual basis, Mr. Veliz had a short discussion with Mr.

Wright, after which Mr. Wright "did admit the allegations

in general terms, but not specifically admitting having

killed Mr. Downy by shooting him in the head." (RT 19-20).

In addition to not remembering whether Judge

Collins informed Mr. Wright of his Boykin rights, Mr. Veliz

Mr. Veliz had, at the time of the hearing, become

a Superior Court Judge. For clarity, he will continue to be

referred to as Mr. Veliz

felt that he, as Mr. Wright's counsel, had not gone over

these rights with him:

"I did not--you know, a lawyer's function

is different than that of a judge, and I

would not have sat there and given him

what has been referred to as his Boykin

Rights, you know, and go over the ery3 at

that point.

(RT 42).

Despite the fact that Mr. Veliz could not remember

if Judge Collins advised Mr. Wright of his Boykin rights and

the fact that Mr. Veliz affirmatively testified that he had

mot gone over a list of these rights with his client, Mr. Veliz

nonetheless felt that the "plea was voluntarily made, and

intelligently made, and that he had been advised of the con-

stitutional rights in the change of plea as much as anybody

else was advised in those days." (RT 26).

After hearing Mr. Veliz’ testimony, Judge Gin summed

up the testimony, and Mr. Veliz concurred, that Mr. Veliz

had no recollection of what happened in the courtroom at the

time of the change of plea other than that it was a longer --

than -- usual proceeding and that Judge Collins did establish

a factual basis for the plea. (RT 46).

JIM BOULEY

Bouley testified that he was the court reporter

who had reported the May 21, 1971 change of plea and sentencing.

He had worked for Judge Collins from 1965 to 1975 on approxi-

mately every third week and later every eighth week. (RT 52)

Contrary to counsel's statement at page 3 in the

petition for writ of certiorari, Mr. Veliz never testified

that he discussed Mr. Wright's right to a jury trial with

him. Mr. Veliz only testified that he discussed with Mr.

Wright the fact that a jury — acquit him (RT 12) and

that a jury would have the task of determining a death

penalty (RT 13).

Furthermore, although Mr. Veliz testified he dis-

cussed with Mr. Wright "the eos for him taking the

witness stand” (RT 14), Mr. Veliz never testified that he

had discussed with Mr. Wright his right to refrain from

testifying.

-4-

Bouley testified that although he searched, he was unable

to locate any notes of the May 21, 1971 proceedings and had

no recall of the events. (RT 58). He could not even recall

the length of time required for the change of plea.

Not only did he not recall the change of plea, he

did not recall the Petitioner. (RT 51). It was further

Bouley's testimony that Judge Collins at that time did not use

a checklist in taking a change of plea but would talk at

random with no pattern or sequence to his questioning and

Statements. (RT 59).

JOHN P. COLLINS

Judge Collins testified that he did not recall the

plea proceeding and if he had seen Mr. Wright other than on

this occasion in court, "I wouldn't have known him from a

loaf of bread." (RT 12). Judge Collins testified that he

did not use a checklist in taking a guilty plea and that he

would not intentionally leave off the giving of any rights in

any particular case. (RT 65, 66). Judge Collins went on to

say, "I am not going to sit here and tell you that I remember

that day, and remember that I did such, such, and the other,

because I don’t remember." (RT 66).

MIKE COCHRAN

Mike Cochran, the prosecutor in the 1971 plea

proceedings, testified that he recalled "the hesitancy on

the part of the defendant to admit the act." (RT 86).

Mr. Cochran could not testify that he remembered every

question being asked:

I can’t tell you that I specifically

remember now each question being asked, but

I do recall at that time going , am my

mental checklist of the things that had to

be covered, and was satisfied at the end of

the change of plea, that they were covered.

(RT 83).

On March 6, 1979, Judge Gin entered an order

denying Mr. Wright's petition for post-conviction relief.

In the minute entry, Judge Gin stated that he could not

conclude from Judge Collins’ testimony and that of the court

reporter Jim Bouley that Mr. Wright had been advised of his

constitutional rights at the plea proceeding. However, Judge

Gin felt that the evidence as a whole showed that Mr. Wright

was aware of his rights when he pleaded guilty and therefore,

the plea was made knowingly, voluntarily, and intelligently.

(CR 5, Exhibit, page 177). Judge Gin also denied

Mr. Wright's motion for rehearing. (CR 5, Exhibit, page 182).

Mr. Wright, through his defense counsel, filed a petition

for review in the Arizona Supreme Court (CR 5, Exhibit, page 183)

which was also denied. (CR 5, Exhibit, page 190).

After exhausting his state remedies, Mr. Wright

filed for a writ of habeas Corpus pursuant to 28 U.S.C. §2254

in the United States District Court. (CR 2, 3). The state

admitted jurisdiction of the district court and admitted that

‘Mr. Wright had exhausted his available state remedies with

regard to the issues raised. (CR 5). On March 5, 1980, the

U.S. District Court ordered Mr. Wright's writ denied and

dismissed. Mr. Wright then petitioned for the appointment

of counsel to appeal the district court's ruling. (CR 8).

Present counsel was then appointed on March 21, 1980. (CR 9).

Pursuant to a timely appeal, the Ninth Circuit on August 19,

1981 reversed and remanded the case to the district court for

a new evidentiary hearing.

ARGUMENT

e defendant e usted his state

that

remedies, the state is (srclose rom

t time

raising these issues for the firs!

upon appeal.

Counsel for the state argues in his petition for

a writ of certiorari that (l)under United States v. Timmreck,

441 U.S. 789 (1979), Mr. Wright's claim is not properly

cognizable in habeas corpus; and (2) the doctrine of latches

precludes federal habeas relief as well. Neither of these

issues, however, was raised before the district court nor in

the state's brief to the Ninth Circuit. The state raises

them now in its present petition for writ of certiorari,

not having given the lower courts the full opportunity to

address either issue.

More telling than the state's apparent waiver of

‘these issues by not raising them below is the prior admission

by the state that this case was properly before the district

court for habeas relief. In its October 31, 1979 response

to Mr. Wright’s petition for habeas corpus, the state admitted

jurisdiction:

“Admits the jurisdiction of the Court,

Seusted the evatlesle ects cameiics

with regards to the issues raised in

his petition."

(CR 5).

The state's only challenge to Mr. Wright's petition

was to assert that the plea was knowing, intelligent, and

voluntary, and not without due process. (CR 5, Exhibit, page

12, Appendix 1).

Although counsel for the state sharply criticizes

the Ninth Circuit for failing to address Timmreck, this

case was never cited by the state in its brief to that court.

Although Timmreck was decided by this court five months

prior to the state's first responsive pleading in 1979,

the first time it was ever cited in any of the state's

briefs or memoranda was in February of this year when the

state brought the present petition.

Similarly, the state did not raise the latches

issue before the district court or in its brief to the

Ninth Circuit. Although the doctrine of latches, now codi-

fied into the Rules Governing Section 2254 Cases, is an

equitable remedy requiring the exercise cf discretion by the

lower court, the state did not present this argument to

the district court for its consideration. Now, over two

years later, the state comes before this court formally

raising the issue of latches for the first time.

Having failed to argue these two issues in its

briefs and memoranda below, the state is foreclosed from

raising them anew here. See e.g. Neely v. Eby Construction

Co., Inc., 386 U.S. 317, 330 (1967). Furthermore, having

conceded the exhaustion of state remedies and the juris-

diction of the district court below in its response to

Mr. Wright's Petition, the state may not argue to the con-

trary for the first time here, Rewsey v. United Mine

Workers of America, 401 U.S. 302, 312 (1971) (where this

court was unsure whether an issue was presented to the

District Court or Court of Appeals, it was deemed inappro-

priate to consider it in the first instance).

Il.

trial court were of constitutiona

Counsel for the petitioners argues in his petition

for writ of certiorari that the instant case “is virtually

on all fours with” United States v. Timmreck, 441 U.S.

780 (1979). In Timmreck, however, this court was concerned

merely with "a formal violation of Rule 11," rather than

the errors of constitutional dimension raised in the instant

case.

In Timmreck, the trial judge failed to explain to

the respondent a mandatory special parole term required by

the applicable federal statute. This court found this

omission in a guilty plea proceeding “neither constitutional

or jurisdictional.” and thus afforded no relief in the

habeas proceeding. Timmreck, 441 U.S. at 783. This court

reasoned that since the formal violation of Rule 11 was

(1) not constitutional nor jurisdictional; (2) did not

result in a complete miscarriage of justice; and (3) did

not result in a proceeding inconsistent with the rudimentary

demands of fair procedure, there was no basis for allowing

collateral attack to do service for an appeal. Timmreck,

441 U.S. at 784.

In the instant case, however, the errors complained

of are of constitutional dimension. In Boykin v. Alabama,

395 U.S. 238, 243 (1969), this court held that several

federal constitutional rights “are involved in the waiver

that takes place when a plea of guilty is entered:"

United States v. Timmreck, however, was not

among the five cases cite the state's brief below to the

Ninth Circuit.

(1) the privilege against compulsory self-incrimination;

(2) the right to trial by jury; and (3) the right to con-

front one’s accusers. Boykin, 395 U.S. at 243. This

court declined to presume waiver of these rights from a

eileat record. In so holding, this court said that when

a judge discharges this duty, collateral proceedings are

forestalled:

"What is at stake for an accused facing

death or imprisonment demands the utmost

vsolicitude of which courts are capable in

canvassing the matter with the accused to

make sure he has a full understanding of

what the plea connotes and of its conse-

quence. When the judge discharges that

function, he leaves a record adequate for

any review that may later be — (foot-

notes and ciations omitted) and forestalls

the spinoff of collateral proceedings that

seek to probe murky memories."

Boykin, 395 U.S. at 243-244.

In charging trial judges that it was their duty

to make sure that a defendant understands the nature of a

plea and its consequences, this court suggested that in-

order to insulate convictions from attack, the trial court

would be advised to conduct an on the record examination

of the defendant. Boykin, 395 U.S. at 244 (quoting

Commonwealth ex rel. West v. Rundle, 428 Pa. 102,105-106,

237 A.2d 196, 197-198 (1968).

In the instant case, the record is completely

devoid of evidence that Mr. Wright was informed of the

important constitutional rights he was waiving by entering

a plea of guilty. His own trial counsel's answer to whether

Mr. Wright was informed of his Boykin rights was "which

are the Boykin rights?" (RT 18). The trial judge remembers

nothing of the proceedings. (RT 62). Even the prosecutor

admitted that he can not remember that every question was

asked and that he merely used a "mental checklist" to make

sure everything was covered. (RT 83). What both the de-

fense and the prosecuting attorney did remember, however,

was that Mr. Wright was most hesitant in admitting he

committed the crime. (RT 86, 19). This perhaps was the

-10-

reason that the plea proceeding was longer than usual.

This case clearly presents an appropriate one

for habeas review. Mr. Wright was represented at the time

of the plea by an extremely overworked public defender.

At the time of the state hearing to review this plea pro-

ceeding, two of the witnesses were Superior Court judges

from the same court as that judge who presided over the

hearing. The attorney appointed to represent Mr. Wright

in this matter was appointed by Judge Collins, the judge

whose plea proceedings was under review. The attorney

so-appointed had been Mr. Veliz’ supervisor at the time

Mr. Veliz represented Mr. Wright.

The federal court was clearly the only forum in

which Mr. Wright's federal constitutional rights would be

independently and adequately addressed.

In Henderson v. Morgan, 426 U.S. 637 (1976), the

respondent pleaded guilty to second degree murder in the

State court. He did not appeal, but five years later

brought a collateral attack seeking to have his conviction

vacated on the ground that his plea of guilty was involun-

tary. This court affirmed the district court's granting

of habeas relief, stating:

". , .such a plea cannot support a judgment

of guilt unless it was voluntary in a con-

stitutional sense. And clearly the plea

could not be voluntary in the sense that it

constituted an intelligent admission that

he committed the offense unless the defend-

ant received real notice of the true nature

of the charge against him the first and

most universally recognized requirement of

due process." (footnotes and citations

omitted)

The Ninth Circuit has held that silence of the

record on the Boykin waivers is enough by itself to shift the

burden to the government to prove that the ms was voluntary

and intelligent. United States v. Pricepaul, 540 F.2d 417,

423 (1976) See also Hart v. Eyman, 458 F.2d 334, 338 (9th Cir.

1972) (in a habeas case, the _ & of producing the necessary

record to enable the federal court to decide the case, is

“clearly on the state""; Roddy v. Black, 516 F.2d 1380, 1384

(6th Cir. 1975) ("in the face of an inadequate transcript at

the time of a guilty plea’s ecceptance, the state must make

a clear and convincing showing that the plea was in fact,

knowingly and understandingly entered.")

ele

Henderson v. Moran, 426 U.S. at 644-645.

The instant case is unlike Engle v. Isaac, 31

Cr.L. 3001 (No. 80-1430) (U.S. April 5, 1982) in which

this court held that, absent a showing of cause and pre-

judice, a state prisoner who fails to comply with the

state's contemporaneous objection rule may not bring a

federal habeas action challenging for the first time

the alleged constitutional error. In Engle, this court

held that those defendants who had not objected to an

allegedly unconstitutional jury instruction could not,

without a showing of cause and prejudice, challenge this

instruciton in a federal habeas action. In the instant

case, Mr. Wright did exhaust all state remedies and did

present his claim to the state courts for their post-

conviction review. The state reached the merits of the

case, finding Mr. Wright's petition properly before its

courts. Moreover, the state admitted jurisdiction and

exhaustion of all state remedies in its response to

the habeas ities” Clearly, if the state reaches

the merits of a case, the contemporaneous objection rule

of Wainwright v. Sykes, 433 U.S. 72 (1977) does not

preclude federal habeas review. Thompson v. Estelle,

642 F.2d 996 (Sth Cir. 1981).

Even assuming a "cause and prejudice” requirement

in the instant case, Mr. Wright has made that showing as

well. Obviously, the “cause” for not raising this claim on

direct appeal was because he was never made aware of his

rights during the guilty plea proceeding. An appeal from a

guilty plea in Arizona must be taken within 20 days. Rule 31.3,

Arizona Rules of Criminal Procedure. To fail to advise a

defendant of his Boykin rights upon pleading guilty and then

to require that the defendant discover on his own this error

within 20 days would be a virtually impossible burden. More-

over, the ag ee ene from an involuntary and unintelli-

gent guilty plea to first degree murder is inherent within

a constitutional violation of this magnitude. See McCarth

v. United States, 394 U.S. 459, 471-472 (1969); United States

v. Dayton, 604 F.2d 931, 939 (5th Cir. 1979) (en banc).

III. The doctrine of latches is inapplicable

@ instant case where this issue was

not raised before the district court and

res own Lack of action

and dela ch resulted in greater diffi-

culty in reconstructing the guilty plea.

The doctrine of latches, incorporated into the

Rules Governing Section 2254 Cases, Rule ¥, was never

raised before the district court and was not mentioned

by the state in its brief to the Ninth Circuit. As an

equitable doctrine, requiring the use of discretion,

latches is the most inappropriate issue to bring before

the United States Supreme Court without having raised

it below. Not having presented it to the lower courts,

it may not be raised for the first time in this forum.

See Section I, of this response supra.

The state having been guilty of latches itself

throughout this proceeding, it comes before this court

with unclean hands asking for this equitable relief. Mr.

Wright first asked for a transcript in the instant case

on July 21, 1977. Although a court order was entered

ordering this transcript, Mr. Wright waited for over one

year without hearing anything from Judge Collins’ court

reporter. Mr. Wright was forced to file a petition with

the Arizona Supreme Court on August 28, 1978, before any

inquiry was made regarding the whereabouts of the trans-

cript. It was not until November 3, 1978 that the court

reporter Mr. Bouley filed an affidavit with the court in-

dicating he could not find the notes of the plea proceed-

ing. Mr. Bouley's affidavit indicated that in August, 1977

he spend 16 hours looking for the notes to no avail. There

is no justification in the affidavit or elsewhere for

Mr. Bouley's failure to so inform Mr. Wright prior to

November 3, 1978. It took from July, 1977, to February,

1979, before a hearing was ever held to reconstruct this

lost transcript. By this inaction on the part of the

-13-

state, almost two years went by during which memories

further failed and post-conviction relief became all

the more difficult for Mr. Wright to obtain.

The Ninth Circuit has commented at least once

on the Arizona courts “lack of system and security

governing the storage of court reporter's notes," Hart

v. Eyman, 458 F.2d 334, 336-337 (9th Cir. 1972). In

Eyman. five years transpired between a guilty plea in

1961 and a habeas proceeding in 1966. The Arizona

Attorney General did not reveal to the petitioner un-

til 1969 that the reporter's notes were lost. At the

time of the 1972 decision of the Ninth Circuit neither

a transcript nor a reconstructed transcript had yet been

afforded the petitioner by the Arizona courts. Holding

that the obligation to provide some clearly defined method

by which the state prisoners could raise their claims

of denial of federal rights devolved “upon the state and

the state alone,” the Ninth Circuit criticized the system

for storage of reporters’ notes:

The reporter's testimony illustrates

a laxity and lack of system and security

governing the storage of court reporters’

notes which, it seems to us, is generally

prevelant throughout the American Court

System. The reporter testified that some

reporters’ notes in her county are stored

a places. . . (citations

Eyman, 458 F.2d at 336-337.

Although this issue was not presented to the

district court, there is ample evidence in the record to

justify a holding that any prejudice resulting from the

delay in time was caused in the instant case by the state

as well as by Mr. Wright. The state having failed to

raise this issue below and thus having failed to carry

its own burden in proving prejudice, cannot prevail in the

present forum.

-14-

IV. The Nint id not err

the instant case for a new evide

aring.

In remanding the instant case for a new

evidentiary hearing, the Ninth Circuit carefully reviewed

the state and district courts’ conclusions as well as the

testimony before the state court. It's memorandum opinion,

although unpublished carefully examines the testimony and,

from it, concludes that a new hearing is necessary.

None of the witnesses at the hearing testified

that they could remember Judge Collins specifically inform-

ing Mr. Wright of all his Boykin rights. While Mr. Veliz

noted that Mr. Wright had two prior convictions based upon

guilty pleas, there is not evidence in the record that Mr.

Wright was informed of his Boykin rights at these guilty

plea proceedings. Mr. Veliz did testify tuat he talked

with Mr. Wright about his taking or not taking the stand

and about the effect certain evidence might have upon a

jury, but he never testified that he told Mr. Wright of

his right to a jury trial and right not to testify. In

fact, Mr. Veliz noted that his role as a lawyer was much

different from that of a judge in a guilty plea proceeding.

He also noted that Mr. Wright was hesitant to admit his

guilt.

In remanding this case for a new evidentiary

hearing, the Ninth Circuit was most conservative in the

relief it afforded Mr. Wright. It merely gave the state

a second chance to meet its burden to show that the plea

was voluntary and intelligent. In doing so, the Ninth

Circuit followed its own precedent as well as that of this

court.

In United States v. Pricepaul, 540 F.2d 417, 423

(1976) the Ninth Circuit stated that silence of the record

on Boykin waivers shifts the burden to the government to

-15-

prove that the plea was voluntary and intelligent. See

Roddy v. Black, 516 F.2d 1380, 1384 (6th Cir. 1975). In

remanding for a new evidentiary hearing, the Ninth Circuit

in the instant case merely noted that the state had not

met its burden.

The court also followed the directives of

Sumner v. Mata, U.S. 101 S.Ct. 764, 770 (1981)

that:

"When Congress provided in §2254(d) that a

habeas court could not dispense with the

presumption of correctness embodied therein

unless it concluded that the factual deter-

minations were not supported by the record,

it contemplated at least some reasoned

written references to §2254(d) and the state

court findings."

Citing 28 U.S.C. §2254(d)(8), the Ninth Circuit carefully

noted its reasons why the state court finding was not

fairly supported by the record.

While the state criticizes the Ninth Circuit

sharply for ignoring Timmreck and numerous other "precedents",

it is telling that only five cases were cited in the state's

brief to the Ninth Circuit. Timmreck was not among these.

Furthermore, the state has not pointed this court to any

controlling precedent in any jurisdiction holding that a

circuit court may not review a state court's findings in a

§2254 proceeding to see that they are fairly supported by

the record.

«8g

Vv. Sufficient reasons have not been presented

for this court to grant certiorari in the

nstant case.

Counsel for the state has been unable to point

to any case in either the circuit courts or this court which

the instant opinion from the Ninth Circuit contradicts.

While the state has pointed to many recent cases attempting

to limit habeas relief in the federal courts, the instant

case does not specifically fall within any of their proscriptions.

Here, there was clearly an inadequate hearing before

the state court. The judge whose plea proceeding was under

review made the court appointment of counsel. The counsel

he appointed was, at the time of the original plea, the

supervisor of Mr. Wright's court appointed public defender.

In other words, the counsel representing Mr. Wright at the

state hearing on these issues was chasged with arguing that

at the time of the plea, one of the attorneys in his office

failed to ensure that his client made a voluntary, intelli-

gent plea. Moreover, the state judge presiding over: this

hearing concluded that despite the fact that there was in-

sufficient evidence to conclude that Mr. Wright was informed

by Judge Collins of his Boykin rights, he was nonetheless

aware of them. This case is nothing more than a routine

§2254 case in which the Ninth Circuit remanded for a new

evidentiary hearing on the constitutional issue of volun-

tariness of a plea. As an unpublished decision, it has no

precedential effect and will not serve to create conflicts

among the circuits.

Assuming that this case raises questions regarding

the scope of federal habeas review, it is inappropriate for

certiorari because these issues were not raised before the

district court or in the state's brief to the Ninth Circut.

While Timmreck is not controlling in the instant case, the

habeas issues it discusses were not briefed to the lower

eAje

courts. Neither the order of the district court nor the

opinion of the Ninth Circuit addresses these habeas issues.

This is perhaps because the state admitted in its response

to Mr. Wright's petition that jurisdiction was proper and

that state remedies had been exhausted.

The Ninth Circuit exercised habeas relief properly

by providing the necessary dispassionate second look at a

state's proceeding regarding important federal constitutional

rights. It acted conservatively in carefully reviewing

the evidence before the state court and in merely remanding

for a new hearing. There being no special and important

reasons for review on writ of certiorari, this petition

Should be denied.

-18-

seg dey

$ JOUONNed -

—

¥ FILED

WAY 21 198

No. 81-1512 —

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

EARL B. DOWDLE, Superintendent,

Safford Conservation Center; and

Attorney General, State of

Arizona,

Petitioners,

Vs.

EMIL THOMPSON WRIGHT,

Respondent.

REPLY TO BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

ROBERT K. CORBIN BRUCE M. FERG

The Attorney General Asst. Attorney General

315 State Government Bldg.

WILLIAM J. SCHAFER, III 402 West Congress

Chief Counsel . Tucson, Arizona

Criminal Division 85701-1367

Telephone: (602) 628-5501

Counsel of Record

TABLE OF CONTENTS

Table of Cases and Authorities . .... -ii

Reply to Respondent's Arguments:

I. The state is not foreclosed from

arguing either United States v.

Timmreck or the doctrine of laches

in this court, because both matters

were raised in the Court of Appeais. l

II. United States v. Timmreck is properly

applicable to this case. -++-+-+-s- 3

III. The doctrine of laches is properly

applicable to this case. - + «+ «+ +» « 5

Conclusion e «+esrseercsee2e ec eevee §

Appendices:

1. Notice of Supplemental Authorities,

filed in the Court of Appeals

2. Minute entry, Pima County Superior

Court, Cause No. A-18997, dated

May 21, 1971

3. Judgment and Commitment Order,

No. A-18997, May 21, 1971

TABLE OF CASES AND AUTHORITIES

Sumner v. Mata,

_U.S._, 101 S.Ct. 764, 770 (1981) .. 8

Sumner II, No. 81-844,

30 Crim. L.Rep. 4253 (U.S., 3/22/82). . 8

United States v. Timmreck,

aWe 9 9 ) a a 1, 3, 4

Arizona 1956 Rules of Criminal Procedure

Rule 348 ° . ° . . . . . > . . . 7 ° . 6

Arizona Rules of Criminal Procedure

Federal Rules of Criminal Procedure

Rule 1 1 ad ° . +. 7. . ° o o 7 . . 7. 7 . 5

~iii-

REPLY TO RESPONDENT'S ARGUMENTS

I. THE STATE IS NOT FORECLOSED FROM

ARGUING EITHER UNITED STATES v.

TIMMRECK OR THE DOCTRINE OF LACHES

IN THIS COURT, BECAUSE BOTH MATTERS

WERE RAISED IN THE COURT OF APPEALS.

Respondent's Opposition repeatedly urges that

the state may not argue the applicability of

United States v. Timmreck, 441 U.S. 789 (1979),

because that case was not cited either in the

state's response to the original petition for

habeas corpus, or its answering brief before

the Court of Appeals. While it is true that

the state did not cite Timmreck on those

occasions, this Court should not be misled

into believing that the question of Timmreck's

applicability was never placed before the

Court of Appeals. Timmreck was repeatedly

cited in Respondent's opening brief before

the Ninth Circuit, in frantic efforts to dis-

tinguish it away. Moreover, as counsel for

Respondent well knows, the applicability of

Timmreck was one of the topics of oral argument

before the Court of Appeals. There can be,

therefore, no question that the issue has been

adequately raised below.

The situation is similar with the doctrine

of laches. Subsequent to the filing of the

briefs in the Court of Appeals but before oral

argument, counsel for the state filed

(pursuant to the Rules of Appellate Pro-

cedure) a list of eight additional pertinent

cases. (See Appendix 1 hereto.) Three of

those eight (Norvell v. Illinois, Mayola v.

Alabama, and Clayton v. Blackburn) were

specifically identified as pertaining to

the effect of delay on the necessity of

providing transcripts. Again, the issue

was touched upon during the oral arguments.

Hence, these matters are not being raised

for the first time in this Court, and are

legitimate grounds for decision./+

This conclusion is not changed by the

state's concession that the Federal District

/l I the Court is truly concemed about matters

not being raised below, it should ignore the repeated

attempts to suggest a conflict of interest on the part

of the lawyer who represented Mr. Wright in his state

post-conviction relief proceedings or the judge who

presided over them. (See Brief in Oppostiion at 2, ll,

17.) That really is a question never raised before.

nin

Court had jurisdiction over the original habeas

petition and that state remedies had been ex-

hausted. (See Brief in Opposition at 7-8.)

An admission of a court's power to decide a

case certainly does not imply any concession

that it can either legally or equitably grant

the relief requested, and Respondent's attempts

to telescope these two very different questions

into one can only be categorized as sophistry

of the first water.

II. UNITED STATES v. TIMMRECK IS PROPERLY

APPLICABLE TO THIS CASE.

Respondent seeks to eviscerate Timmreck

by narrowly focusing on its reference to a

"formal violation of Rule 11" while ignoring

the total impact of the case. This Court

effectively defined what it meant by a

"formal" or "technical" violation by the

very structure of the decision:

Nor can any claim reasonably be made

that the error here resulted in a

“complete miscarriage of justice” or

in a proceeding "inconsistent with

the rudimentary demands of fair

“. Respondent does not

that he was actually unaware

° special parole term or that,

=3-

if he had been properly advised by the

SS He a eI ie or

claim is of a tech-

real polation Of the vale

441 U.S. at 783 (emphasis added).

Thus, the Court seems to have defined a “merely

technical” violation as one so slight that if

the defendant had been properly advised it

would not have affected his decision to plead

guilty. This case is precisely like Timmreck

in that Respondent has never argued "that he

was actually unaware of [his Boykin rights] or

that, if he had been properly advised by the

trial judge, he would not have pleaded guilty."

His stance from the very beginning has only

been that he was not informed by the judge,

not that he did not actually know. (See his

affidavit, reproduced as Appendix I to the

Petition for Writ of Certiorari.) He clearly

was willing to plead under almost any circum-

stances in order to obtain a life sentence.

Therefore, he has presented at most only a

"technical violation”, insufficient to warrant

any relief.

It should perhaps be reemphasized that

~4-

(contrary to the Brief in Opposition at 10) the

state believes the record does contain evidence

that Respondent had been informed of the rights

he was waiving, by his own counsel if not by the

trial judge. (See the Petition for Writ of

Certiorari at 2-6, 25-30.) The former defense

lawyer's question about "which are the Boykin

rights?" does not indicate ignorance of them

(See Brief in Opposition at 3, 10); much like

Federal Rule of Criminal Procedure 1l, the

Arizona rules now require discussion of sub-

stantially more than the naked triad of Boykin

rights. See 17 Ariz. Rev. Stat. Ann., Rules

of Criminal Procedure, Rules 17.1 -- 17.4. It

is not, therefore, surprising that a simple

reference to Boykin did not raise instant recall

of the specific contents of that decision.

III. THE DOCTRINE OF LACHES IS PROPERLY

APPLICABLE TO THIS CASE.

As noted in Section I., supra, the doctrine

of laches was raised in the Court of Appeals,

so it can be considered by this Court, and the

facts indicate that the doctrine should be

applied to preclude Respondent's claim. Contrary

to the Brief in Opposition at 12, n.5, the time

for appeal under Arizona law when Respondent

pleaded guilty was 60 days, not the current

20 days. (1956 Rules of Criminal Procedure,

Rule 348.) More importantly, the record is

clear that Respondent was informed of his

appeal rights. (See Appendices 2 and 3

hereto.) Besides, he was represented by

counsel. Therefore, he is without excuse for

his failure to do something about his claim of

error.

Finally, despite Respondent's efforts to

obfuscate the situation (Brief in Opposition

at 13), the fact remains that the overwhelming

bulk of the time which elapsed between Respon-

dent's conviction and the hearing to reconstruct

the record is directly chargeable to him alone.

He simply sat and did nothing for more than six

years. (May 21, 1971 to July 21, 1977.) The

record shows no response to his July 1977

letter about transcripts, but there may well

have been one, because his state habeas corpus

petition states quite emphatically that he

"now finds that there is no transcript..." In

any event, that state petition was not filed

until August 8, 1978, over a year after his

letter of inquiry, which hardly indicates a

burning sense of urgency on Respondent's part.

Once that petition was filed, matters moved

along with reasonable speed: counsel was

appointed, a second search for the hearing

notes was made, memoranda were exchanged (one

from Respondent's counsel being two weeks late),

a change of judge effected, and an evidentiary

hearing held, all within eight months (the

hearing being held on February 16, 1979).

After seven years of delay by Respondent, the

eight months of rather normal proceedings re-

quired to get to the evidentiary hearing (not

all of which is itself ascribable to the

state) fades into insignificance. The bottom

line is that Wright himself caused whatever

prejudice might have been engendered by the

lapse of time, and the Ninth Circuit was wrong

to put the burden onthe state,

CONCLUSION

Both the state court and the District Court

found that Respondent did know the rights he

was waiving and that the guilty plea was

valid. This Court demands a reasoned basis

for rejecting such factual conclusions. Sumner

v. Mata, U.S. _, 101 S.Ct. 764, 770 (1981)

(Sumner I.) However, as appears to be the

wont of the Ninth Circuit (see Sumer II,.,

No. 81-844, 30 Crim.L.Rep. 4253, (U.S. March

22, 1982)), a wholly unreasonable standard was

applied in order to reject the findings of

the lower courts. . The Court of Appeals

should be reversed and its abuse of its

authority corrected.

Respectfully submitted, ,

ROBERT K, CORBIN

The Attorney General

Assistant Attorney General

Attorneys for Petit:oners

- xipuaddy

ATTORNEY GENERAL

Southern Arizona Office

403 W. Congress

Tucson, Arizona 85701

Robert K. Corbin

February 27, 1981

Clerk

U.S. Court of Appeais for the Ninth Circuit

P.O. Box 547

San Francisco, California 94101

RE: Supplemental authorities pertaining to

Wright v. Dowdle, CA-CIV 80-5285

(DC CIV 79-270 TUC MAR)

Dear Sir:

In accordance with the Federal Rules of

Appellate Procedure, Rule 28 (j), Respondents-

Appellees submit the following list of perti-

nent and significant authorities which have

come to the attention of counsel undersigned

Since the filing of the Answering Brief.

This case is set for oral argument on March 10,

1981.

1. Sumner v. Mata; No. 79-1601, (U.S.

Supreme Court, January 21; 1981) - pertains

to degree of deference to he paid to findings

of fact by a state court (see Answering Rrief

at 2; Reply Brief at 1).

2. Norvell v. Illinois, 373 U.S. 420,

83 S.Ct. 1366 (1963) — pertains to constitu-

tional requirement for provision of trial

transcript to petitioner, especially where

request delayed.

3. Grantling v. Balkcom, 632 F.2d 1261

(5th Cir. 1980) - pertains to deference to be

paid to state court finding that guilty plea

Appendix 1

was knowing and yoluntary (see Answering Brief

at 2; Reply Brief at 1).

4. Rawls v. Mabry, 630 F.2d 654 (8th

Cir. 1980) - pertains to correctness of find-

ing that guilty plea here was voluntary (see

Answering Brief, Argument II), especially with

regard to extent of discussion of charge (see

Opening Brief at 15).

5. Bouchillon v. Estelle, 628 F.2d 926

(5th Cir. 1980) - pertains to evidence admiss-

ible to show proper advisement of rights (see

Opening Brief at 11-12, Reply Brief at 6-7).

6. Alessi v. United States, 628 F.2d

1133 (2d Cir. 1980) -— same pertinence as

Bouchillon.

7. Mayola v. Alabama, 623 F.2d 992

(5th Cir. 1980) - pertinent to necessity to

provide transcript after unreasonable delay

in request by petitioner.

8. Clayton v. Blackburn, 578 F.2d 117

(5th Cir. 1978) — pertains to necessity to

provide transcript after unreasonable delay in

request, voluntariness of counselled guilty

plea, and deference to state court findings.

Sincerely,

"/s/ Bruce M. Ferg"

Bruce M. Ferg

Assistant Attorney General

Criminal Division

BMF /rm

Copy mailed this

27th day of February, 1981

to: Fredric F. Kay

Asst. Federal Public Defender

P.O. Box 2710

Tucson; Arizona 85702

(Counsel for Petitioner)

IN THE SUPFRIOR COURT OF THE

STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

JOHN P. COLLINS NO. A-18997

JUDGE, Of the

Superior Court DATE May 21, 1971

STATE OF ARIZONA, James W. Cochran

PLAINTIFF PLAINTIFF'S ATTORNEY

FMIL THOMPSON WRIGHT,

aka Lawrence Wright, Gilbert Veliz

DEFENDANTS DEFENDANTS ATTORNEYS

MINUTE ENTRY

CHANGE OF PLFA & SENTENCING:

Neft. present.

James Bouley reporting.

The State moves to amend Count One of

the Information to read "Murder; First Degree."

The Court questions Deft.

There being no objection,

IT IS ORDERED that the motion is

granted and that Count One of the Information

be amended to charge Neft. with "Murder,

First Degree."

Deft. moves to withdraw his plea of

"Not Guilty" previously entered to the

original open charge of murder in Count One

of the Information.

The Court questions Deft.

IT IS ORDERED that the motion is

granted and that Deft's plea of "Not Guilty”

previously entered to Count One of the Infor-

mation be withdrawn.

Appendix ?

Deft. enters a plea of "Guilty" to

"Murder, First Degree,” as charged in Count

One of the Information as amended.

The Court finds that the plea is made

freely and voluntarily.

Deft. waives the statutory time for

sentencing.

B. CHADWICK, Deputy Clerk

FILED

May 21, 1971

FRANCES C. GIBBONS, CLERK

By “/s/ B. Chadwick"

Deputy

IN THE SUPERTOR COURT OF THE

STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

THE STATE OF ARIZONA, ) No. A-18997

Plaintiff, )

) JUDGMENT AND

vs. ) COMMITMENT

) Plea of Guilty to;

EMIL THOMPSON WRIGHT, )

aka Lawrence Wright, )

Defendant. )

ay }

MURDER, FIRST DEGREE,

Count One

On this 21st day of May, 1971, the

defendant being present in open court, in

person and by counsel, Gilbert Veliz, and the

deputy county attorney, James W. Cochran,

being present’ on the part of the State, and

this being the time heretofore fixed for

passing judgment on the defendant, the defen-

dant was informed by the Court of the nature

of the Information/filed charging the crime of

as amended

MURDER, FIRST DEGREE, Count One

committed on or ahout the 22nd day of —

January, 1970; also of the arraignment and

plea = "Guilty" as charged in the

Tnformation/on the 21st day of May; 1971.

as amended

The defendant being asked to show legal

cause why judgment shculd not be pronounced at

this time, and no sufficient cause heing shown

or appearing to the Court, thereupon the Court

renders its judgment, that, WHEREAS, you

EMIL THOMPSON WRIGHT, aka Lawrence Wright,

having pled guilty in this Court to the charge

of MURDER, FIRST DEGREE, Count One it is found

Appendix 3

by the Court that you are guilty of said

crime. Therefore,

IT IS ORDFRED, ADJUDGED AND DECREFD,

and the judgment and sentence of the Court is

that you EMIL THOMPSON WRIGHT, aka Lawrence

Wright be punished by imprisonment in the

State Prison at Florence, Arizona, for axkexm

afxnakxiessy kkanxxxxxxxXXXXXRAES¥XARGXHSEXMSER

kHaNYxXxX¥xXxxxx life Keaxs, to date from May 21,

1971, and defendant is remanded to the custody

of the Sheriff of Pima County, Arizona, to he

by him delivered into the custody of the proper

officers of said State Prison.

IT IS FURTHER ORDERED that a certified

copy of this Judgment shall be a sufficient

warrant for said Sheriff to take; keep and

sately deliver the said EMIL THOMPSON WRIGHT,

aka Lawrence Wright into the custody of the

proper officers of said State Prison, and a

sufficient warrant for the officers of said

State Prison to keep and imprison the said

EMTL THOMPSON WRIGHT, aka Lawrence Wright in

accordance herewith.

Thereupon, the defendant, in open

court, was advised by the Court of the right

to appeal, of the time in which notice of

appeal may be filed and of the right to have

counsel to prosecute the appeal, and, if

indigent, of the right to appointed counsel

and the right tc be furnished, without cost,

a copy of the record and reporter's transcript

for appeal purposes.

"/s/ John P. Collins"

JUDGE

BOOK 1004 PAGF 447

(Prison) 16-1

MINUTE ENTRY

Page No. 2. Mate May 21, 1971 Case No. A-18997

The Court sets this as the time for

sentencing.

This being the time set for sentencing,

and no legal cause having been shown why

sentence should not be passed at this time,

and Deft. having pled guilty to "Murder, First

Degree," as charged in Count One of the Infor-

mation as amended,

IT IS THE JUDGMENT OF THE COURT that the

Deft. is guilty of that charge.

IT IS THE FURTHER JUDGMENT AND SENTENCE

OF THE COURT that the Deft. be sentenced to

the Arizona State Prison for life, commencing

today, May 21; 1971.

The Court advises the Deft. of his

appeal rights.

On motion of the State, and there being

no objection;

IT IS ORDERED that Cownts Two and Three

of the Information are dismissed.

cc: County Attorney

Public Defender

B. CHADWICK, Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.