Petition for Writ of Certiorari — Carter v. Miller

SUPREME COURT, U. S.

IN THE

Supreme Court of the United | iad

October Term, 1970

No}24 6

IVERNE R. CARTER, Warden, ef cl.,

Petitioners,

vs.

LUCILLE MILLER,

Respondent.

Petition for Writ of Certiorari to the United States

EVELLE J. YOUNGER,

Attorney General,

WILLIAM E. JAMEs,

PHILIP C. GRIFFIN,

Deputy Attorney General,

217 West ist Street,

Los Angeles, Calif. 90012,

(213) 620-4167,

Attorneys for Petitioners.

Parker & Son, Inc., Law Printers, Los

_— :

SUBJECT INDEX

Page

CURR SAN ee 1

POA 2s. kien cd. ec cualbind:. 1

Constitution and Statutory Provisions Involved .... 3

es TR oo 2

Statement of Facts Pertinent to the Questions Pre-

UOTE. poceccknscdinccpangidniceainecudkaseasaaantin 5

RS PR ener ene 4

Reasons For Granting the Writ ............................ 12

I

Section 2244(c) of 28 U.S.C. in Providing for

Unqualified Res Judicata on Habeas Corpus

After Supreme Court Adjudication Is Consti-

SIE | aaccintinixscicc nici inns 12

A. The Power of the Federal | Judiciary to

Grant the Writ of Habeas Corpus Comes

From the Congress and Congress May

Prescribe the Limits of That Power ........ 14

B. Congress May Provide for Strict Res Ad-

judicata in Habeas Corpus ...................... 15

C. Supreme Court Adjudications Should Be

Res Judicata in Habeas Corpus by Rea-

son of the Final Judicial Power and Su-

pervisory Power of That Court .............. 18

II

The Dismissal of Certiorari Is in Effect an Ad-

judication for the Purpose of Res Judicata in

the Event of Subsequent Habeas Corpus Pro-

ceedings in the Lower Federal Court .............. 19

ii.

IT Page

Defense Counsel Deliberately By-Passed Estab-

lished State Procedure and Deliberately

Waived the Constitutional Issue of Error in

the Introduction of the Testimony of An Un-

dercover Agent ......... iviwiinwasadandedes duataaaesténiiasdanes

BRR recta oot UV ERSR TEI VEERTTE TSR PRY Stal in

Appendix A. Opinion of the United States Court

of Appeals for the Ninth Circuit ............ App. p.

Appendix B. Order Denying Petition for Writ of

Habeas Corpus and Dismissing Action ....App. p.

33

46

7

iff.

TABLE OF AUTHORITIES CITED

Cases Page

Ahrens v. Clark, 335 U.S. 188 2002... cccccceeeeees 15

Baldonado v. California, 366 U.S. 417 ............ 21, 22

Brown v. Allen, 344 U.S. 443 «00.00.0000... 13, 14, 15

shaviscbdatinvievstitcetiilbeatia ND Eibkeabiaietsionds besdouele 18, 27, 33, 36

Burrus, In re, 136 U.S. 586 2.2... cccccccccccccceceseeeeee 15

Cooper v. Aaron, 358 U.S. 1 ooecceccccccccccceceeeceeceeeee 18

Curry v. Wilson, 405 F. 2d 110 .......... 12, 13, 38

a uid sencsiceiullithdck lek waabesabasalccasedions 39, 41, 42, 43

Darr v. Burford, 339 U.S. 200 .o.....ceccccccceeee 16, 24

Dixon v. Duffy, 344 U.S. 143 ooo cceececeeeeeene 18

Douglas v. Alabama, 380 U.S. 415 000... ceccecccece 45

Duncan v. Carter, 299 F. 2d 179, cert. den. 370

IE WUE sitianinalhsecsiessactniics chtcants 12, 13, 20, 21, 22

Escobedo v. Illinois, 378 U.S. 478 ............ 9, 30, 33, 34

schccibaameiiatidabiasaaciassibkantrebcnudels asssseseeeeeeed Dy 38, 41, 44

Evans v. Cupp, 415 F. 2d 844 ooo ceceeeeee 46

Fay v. Noia, 372 U.S. 391 ..0000000.000....... 11, 12, 15, 17,

sdsb/iceotel bp ht kateecliduandndiiibeicie tights chalice 24, 26, 35, 37

Harris v. Nelson, 394 U.S. 286 ..00...000..--ccccceecceeoeee 15

Henry v. Mississippi, 379 U.S. 443 ............ 31, 36, 37

Hill v. Nelson, 423 F. 2d 167 0o...c.eeccecccecccccseoceoceee 64

Jackson v. Denno, 378 U.S. 368 2.000000... 43

Johnson v. Zerbst, 304 U.S. 458 ........................... 15

Kotteakos v. United States, 328 U.S. 730 .............. 36

Lockhart v. United States, 136 F. 2d 122 ......... 15

Lopez v. United States, 373 U.S. 427 ................. 18

iv.

Massiah v. United States, 377 U.S. 201 ............

FR ee ET A SES SN ROOT eS 9, 30, 33, 38, 44

McCarthy v. United States, 394 U.S. 459 .............. 18

McNabb v. United States, 318 U.S. 332 .................. 18

Miller v. California, 392 U.S. 616 ......................-...-+ 19

Needelman v. United States, 362 U.S. 600 ............ 30

Nelson v. People of State of California, 346 F. 2d

DE: Filipina sulnctsinciedetpdbasniabseceipecdpuiatiocicnapeaiipiiiiiain sig 36

Newson v. Smyth, 365 U.S. 604 .................:ccsceeees 32

People v. Doherty, 67 Cal. 2d 9, 429 P. 2d 177

eoteibihncesoscbtenisiinigiilanntenasitiniiainipataduiaatiiiped 33, 34, 41, 42

People v. Dorado, 62 Cal. 2d 338, 42 Cal. Rptr.

Serenata le apeaeion intone: 9, 34, 35, 41, 44

People v. Hillery, 62 Cal. 2d 692, 401 P. 2d 382 .. 33

People v. Miller, 245 Cal. App. 2d 112, 53 Cal.

Ss | UT cciidnisinietacapdacetucmanaboias 10, 38, 40, 41, 42

People v. Schader, 62 Cal. 2d 716, 401 P. 2d 665.. 43

Peyton v. Rowe, 391 U.S. 54 .......2....2..2..c2eceeeeeees 15

Rice v. Sioux City Cemetery, 349 U.S. 70 .......... 29, 30

Rowe v. Peyton, 383 F. 2d 709 .....................----. 15

Salinger v. Loisel, 265 U.S. 224 .................... 14, 15, 16

Sanders v, United States, 373 U.S. 1 .................. 14, 17

Smith v. Mississippi, 373 U.S. 238 ..........-.-----0---- 32

Stirone v. Markley, 345 F. 2d 473 ......................- 15

Sweeney v. United States, 408 F. 2d 121 -............... 35

Townsend v. Sain, 372 U.S. 293 ....2222........seccceceeeneee 15

United States v. Armetta, 378 F. 2d 658 .............. 36

v.

Page

United States v. Dolleris, 408 F. 2d 918 ................ 36

United States v. Fioravanti, 412 F. 2d 407 ............ 35

United States v. Hendricks, 213 F. 2d 922 ............ 15

U.S. v. Montgomery Bd. of Educ., 395 U.S. 225 .... 18

United States v. Ohio Power Co., 353 US. 98 ...... 18

Wainwright v. City of New Orleans, 392 U.S. 598 .. 30

Walker v. Johnson, 312 U.S. 275 ......................... 15

Whitus v. Balkcom, 333 F. 2d 496 ........................ 45

Woods, In re, 256 Cal. App. 2d 748, 64 Cal. Rptr.

TUM éxicktscdinadacaicaes radios abide adden ticegian i 35

Miscellaneous

Legislative History and Senate Report, 1797, re-

ported in U.S. Congressional and Administrative

News, Volume III (1966), p. 3663 ..........0....... 23

Statutes

California Penal Code, Sec. 187 ...........20........0..... 4

United States Code, Title 28, Sec. 1254(1) .......... 2

United States Code, Title 28, Sec. 2244 ..16, 22, 24, 29

United States Code, Title 28, Sec. 2244(c) ..2, 3, 12

acasboiensisis- stil snkanbinnsisalansdasinhanthssbdatihats 13, 14, 19, 20, 23

United States Constitution, Art. I, Sec. 9, Cl. 2 ...... 14

United States Constitution, Fourth Amendment .... 36

United States Constitution, Fifth Amendment ...... 3

United States Constitution, Fourteenth Amendment

Textbooks

40 California Law Review (1952), p. 335 ............ 18

IN THE

Supreme Court of the United States

October Term, 1970

eat eet

IVERNE R. CARTER, Warden, et al.,

Petitioners,

vs.

LUCILLE MILLER,

Respondent.

Petition for Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

Petitioners Iverne R. Carter, Warden, et al., herein-

after referred to as petitioners, pray that a writ of

certiorari be issued to review the judgment of the

United States Court of Appeals for the Ninth Circuit

entered in Lucille Miller v. Iverne R. Carter, Warden,

et al., on October 9, 1970, case number 24365.

Opinions Below

The opinion of the Court of Appeals is as yet un-

reported and is appended hereto as Appendix A. The

opinion of the United States District Court for the

Central District of California is unreported and is ap-

pended hereto as Appendix B.

Jurisdiction

The judgment of the United States Court of Appeals

for the Ninth Circuit in Miller v. Carter was entered

on October 9, 1970. A motion for rehearing in banc

was denied on December 18, 1970. Jurisdiction of this

court is invoked pursuant to 28 U.S.C. _ sec-

tion 1254(1). Petitioners asserted below and _ assert

here that in respondent's state court trial defense coun-

sel deliberately by-passed established state procedure

and deliberately waived the constitutional issue of error

in the introduction of the testimony of an undercover

agent, and that the issues before the District Court on

habeas corpus had already been adjudicated by the

United States Supreme Court and were not open for

reconsideration. The Ninth Circuit Court of Appeals

has erroneously distinguished other Ninth Circuit cases

on the issue of waiver and prior adjudication by the

Supreme Court and misconstrued section 2244(c) of

Title 28 United States Code and thereby created a con-

flict of decisions and the necessity to decide an impor-

tant question of federal law not previously settled by

this Honorable Court.

Questions Presented

1. Is 28 U.S.C. section 2244(c) constitutional in

providing for the application of the unqualified doc-

trine of res judicata to an application for ha eas cor-

pus?

2. Is the dismissal of a writ of certiorari as im-

providently granted after briefs and oral argument in

practical effect an adjudication that no substantial fed-

eral question is presented which 1s res judicata in the

lower federal courts on habeas corpus or at least suf-

ficient grounds to deny the writ in the absence of a new

snl

material and controlling fact which reasonable dili-

gence could not have previously divulged?

3. Is the affirmative decision of defense counsel to

forego an objection to the testimony of an undercover

agent for the strategic purpose of introducing her tes-

timony in favor of the defense a waiver of any claim

of constitutional error which will preclude the assertion

of such a claim on habeas corpus in the federal courts?

Constitution and Statutory Provisions Involved

1. This case involves the Fifth and Fourteenth

Amendments to the Constitution of the United States.

2. This case also involves 28 U.S.C., §2244(c):

“(c) In a habeas corpus proceeding brought

in behalf of a person in custody pursuant to the

judgment of a State court, a prior judgment of the

Supreme Court of the United States on an appeal

or review by a writ of certiorari at the instance

of the prisoner of the decision of such State court,

shall be conclusive as to all issues of fact or law

with respect to an asserted denial of a Federal

right which constitutes ground for discharge in a

habeas corpus proceeding, actually adjudicated by

the Supreme Court therein, unless the applicant

for the writ of habeas corpus shall plead and the

court shall find the existence of a material and

controlling fact which did not appear in the rec-

ord of the proceeding in the Supreme Court and

the court shall further find that the applicant for

the writ of habeas corpus could not have caused

such fact to appear in such record by the ex-

ercise of reasonable diligence.”

—

Statement of the Cane

Respondent Lucile Miller wap indicted for the ar

der ol hor luaband Goidou Eugene Miller on Octatier

20, 1904. She had Decw attested on VJetoter 9, | 9f4,

the tiorming alter her Grugyed liustand liad heen

burned alive in the lauuly Voikewagen which che jad

bec diving. She was Aatged wiih murder in solation

of sevtton 138/ ot the Penal Code of the Wate of (alk

forma, and was found guilty of "hat charge fy 7 jury

with a tuning of murder in the first degree. The iio

on for a new trial was demed and she vas sentenced

tv life impiisocument,

Ou appeal, the Califorma Fourth Distret Court of

\ppeal, by 4 Unaditiwus deeision atfirmed (he jude

neat ol the tual cums. Hearing in the Supreme (ourt

tthe Mate of Cauiotua was demed on iecember | 4,

Yoo. «Phe opinion os ater inedified and [he order

i the Supreme Court of Cauforaa denying « hearing

we reported in 245 Cai. App. 2d 112, 53 Cal. Roptr.

720.

\ timely peuuen for wil of certiorari was iiled in

he United Staics Supreme Cowl. A response was re-

juested of peuuoners. \iler .uomussion of the response,

1 second respomse was reyucsicd of peuulioners. After

-ubaiission of the finai response, the petition for cer-

torari Was granted on December +, 1967, in aumber

383 O.T. 1966. Brieis having been filed and after

ral argument, (he Uniled Staies supreme Court on June

7, 1968, in a per cermam opimeon distussed the writ

§ certiorari as improvidently granted.

On Sepiember 3, 190%, respondent filed a petition

or writ of habeas corpus in the United States Distnct

-ourt, Central District of Califorma. On September

— oe

H, TMAH, the United States Dotted Kaui opdeved w oe

HE te Pe tAn For Wilt at Habeas cappue.

OW March 24, 1404, ihe United States tinoteiad Eves

atier vial arBuNen lowed an aided Menyig tie tate

Han far will ot hahews cujpus aid Mewiesiig fhe

actin. On April 10, 1904, feopunAent Nad we Hatian

WP appeal Keopandent ai Apwil 12. 1969 fwd aw

applicalian far a COMMule HA pr WIAK Awe WwW hn

Dotnet Coust Gh Apiil 24, 1964, the bhetind ¢ Aner

Henled the ceniticaic af prbwbile ewan. ty Awa st

1YGY, feopmdent Nie an apypiawiewn law © Anditiawen

Of probable cause in the United Stelae Caner ae Ay

pele for the Ninth Cine Gn Mey 2 (960 mae

COU pranted a CONNICMle A BAAD Kayan CA Cyn.

tober 9, 1970, wtter briefs wad awe WaiHhant ha

United Stites Cauit of Appeals tae Qa Omen Ciecie

In decision fren whieh Cipeuit brdaw Peat Ate

nemled, reversed and teriapled the coun far father en

ceedings, On Decetiber 12, i970. Ge Gaited Wate

Court of Appeals for the Simm Cimnnie tenia Sati.

lioners' notion fot a tohewting in sane

Muterenst A Vaete Vartwent ian he

()uectherm Vravantad

On October 9, 1964, the day of caspandent’> a.

rest, a woman by the name of Peggy Bick was tanked

into the County Jai) as a grinoner. Bowever. he

was employed by Sam Beraardine County ‘o work on

dercover and pretend to te 2 greener. Ser nstraictions

were only to listen. Site was placed in respandent’s se}!

and became acquainted wit ter Respendent ‘aiked ‘o

her about herself. her seasen for Jeng n wh, te

husband, and her domestic orebiems. ‘Rep, Tr, op

1098-99, 1102, Lii2. Appendix op. 7455. 2 46.

Fisk did not tell respondent that sie was . aw om

— =

forcement agent, but did tell her that she show dis

cuss these things with her attorney, She did not tell re

spondent that she had a right to have an attorney pres

ent when she talked to Bisk. However, the record is de

vol of a single instance in which Fisk asted respondent

a question or said anything to her which induced any

of the statements introduced into evidence [Rep. Tr

pp. LOYS-Lild: Appendix pp. 54-68] Respondent told

Pisk that she and her bushand had filed for diverce at

one time but had reconciled before his death. She said

that she had not loved her husband but that she had

respected him. She said that she had always loved

Mr, Hayton and still loved him. She said that as soon

us this ness was over that she planned to take her

daughter Debbie and the two boys away to Burope with

the insurance money. She said that she would receive

ever $100,000 in insurance because of the accidental

death, |Rep. Tr. pp. 1100-1101; Appendix pp. 56-57. |

When the undercover agent was called to the stand

as a witness for the prosecution, respondent's counse!

raised only an objection that he had not been furnished

with the witness's address as promised. At the sug.

gesten of the court, proceedings were then continued

in the Judge's chambers outside the hearing of the

jury. [Rep. Tr. pp. 1007-08; Appendix pp. 41-42. |

Once in chambers counsel for respondent said [Rep.

Tr. p. 1009; Appendix pp. 42-43 |:

“. . . T am going to represent to the Court also

that any testimony of this witness concerning any

statement made by my client would be in violation

of the rule in the Dorado case.’ She was an under-

‘(Footnote ours.) People v. Dorado, 62 Cal. 2d 338, 42

Cal. Rptr. 169, had originally been decided on August 31,

1964 but a rehearing had been granted on September 24,

1964.

- =

cover npetit, and never informed my client of her

capacity. Never advised my client of my client's

tight to remain silent.

“DT previously had served on the District Attorney

and the Sheriff of this County a demand to be

present at any interrogation of my client by any

agent of the Sheriff's office. So, any testimony

of this witness concerning any statement made hy

ny client not only violates the rule in the Dorado

case, but the rule in People v. Sharer as well.

and also the rule in Massiah versus United

States.” (Emphasis added. )

The district attorney offered counsel for the defense the

opportunity to interview the witness, and counsel later

after adjournment for the day took advantage of that

opportunity, [Rep. Tr. pp. 1009-10; Appendix pp. 42-

43.| The district attorney stated [Rep. Tr. pp. 1010

12, Appendix pp. 42-45 |:

_ “Now, so far as the rest of it, the right under

the Dorado case and Massiah case and the rest

of them, the right of a witness, a defendant to re

“main silent. It is a defendant's right, not an at-

_torney’s. The defendant may waive this right.

providing the defendant does so intelligently, know-

ingly and understandingly. This is the gist of all

of those cases.

“Now, this particular witness did not interrogate

his client. She specifically told her, the testimony

will be that she specifically advised Mrs. Miller

not to talk. Her testimony will be that Mrs. Miller

told her that her attorneys had advised her that

there probably would be somebody in jail trying

to pump her, and Miss Fisk, as part of her

technique, | suppose, told Mrs, Miller, Well yon

Shouldn't talk to anybody caxcept your attafneys

und the sheriff,’ and, of course, she never did talk

to the Sheriff, so that in beside the point

“She stayed up in the jail with her for afenut a4

week and lixtened and when Mrs. Miller talked te

her, on two or three occasions, she told her Don't

tell me about it” But Mra, Miller insisted of tell

ing her. It in Mrs. Miller's right and privilege to

talk, if she wants to.

“Nobody pumped her. Nobody interrogated

her. No attempt was made to force her to talk

at all. She did talk, and some statements which

she made which are material to this case, we will

desire to have her testify about them, and state-

ments in the report which Mr, Foley saw last De-

comber,”

The trial court suggested that the prosecution with-

draw the witness and give counsel an opportunity to

talk to her, but that on the other objection she would

have to be sworn in and at least testify to the prelim-

inary questions and have an objection made at the

proper time. |[Rep. Tr. pp. 1013-15, Appendix pp.

45-47. | |

The following morning the undercover agent was

the first witness. She was called to the witness stand

and asked preliminary questions as to her occupation

and the fact of her undercover placement in respond-

ent’s jail cell. The district attorney asked her if re-

spondent had talked about herself, the reason she was

in jail, about her husband, and about any domestic

= =

Hrabilenia abe hae Heel At that presinit teepvesnclent’s

conned eked ty inke the wittiess cn wale dire, at whieh

Hine We eked if che hael dnferined the respresmdent

Hat aie abievilel Heeieg thie with her attorney. C enity-

ael for reapeinelent clveed hie volt dire examination and

the clitect examination wae resumed. Counsel for re-

trondent did not interpose uny oblection whatewever to

the testimony of the undercover agent. Nor did te at.

tempt to lay any foundation that there had heen a

prowess of Interrogation that lent itself to eliciting in-

erlminating statements. He was entirely cognizant of

the Massiah, Keeohedy, and Dorada decisions for he

had raised the point in chambers before the under.

cover agent was called as a witness He took the wit-

hess on volr dire and did not atternpt to establish any

facts concerning a process of interrogation on the part

of the undercover agent. In fact, he later established

with the two below exceptions, that the undercover

Agent was specifically instructed only to listen to re

spondent and that she had followed those instructions.

|Kep. Tr. pp. 1102, 1112; Appendix pp. 58, 66.)

Later, in cros-examination, counsel for the first time

developed that the undercover agent had been instructed

by the Sheriff to bring a newspaper article and two

fictitious conversations to the attention of appellant

which might have provoked comment by her: however.

it was never shown that any incriminating statements

whatsoever were provoked by these matters. Certainly,

any comments of appeilant that might have been pro-

voked by these matters were not ‘ntroduced into evi-

—1i0—

dence by the prosecution nor were they introduced by

the defense.

Counsel for respondent made no request that the

trial court take evidence outside the presence of the

jury on the issue of whether the statements made by

respondent to the undercover agent were voluntary

and were not obtained in violation of respondent’s

right to counsel and against self-incrimination. Coun-

sel for respondent made no attempt to have the testi-

mony of the undercover agent stricken. The great

bulk of her testimony was favorable to the defense.

[Rep. Tr. pp. 1101-1112; Appendix pp. 57-67.]

Before the California District Court of Appeal, the

contention was raised that the testimony of the under-

cover agent was erroneously admitted despite the ab-

sence of an objection on the part of counsel. The Cali-

fornia District Court of Appeal held that the failure

to object was a deliberate waiver of any constitutional

error for strategic purposes and that the failure to ob-

ject precluded raising the matter on appeal. People

v. Miller, 245 Cal. App. 2d 112, 143-44, 53 Cal.

Rptr. 720. After a hearing was denied in the California

Supreme Court, this precise question was raised in a

petition for writ of certiorari which was granted. The

precise issue was briefed and orally argued before the

United States Supreme Court on March 26, 1968. On

June 17, 1968, the United States Supreme Court dis-

missed the writ of certiorari as improvidently granted.

The dissenting opinion of Mr. Justice Marshall clearly

indicates that the issues considered by the United

=

States Supreme Court before the writ was dismissed

were (1) whether an objection to constitutional er-

ror was waived and (2) the Constitutional questions

392 U.S. 616 (1968).

Respondent filed a petition for writ of habeas

corpus in the United States District Court Central Dis-

trict of California and raised the identical issue of con-

stitutional error in the admission of the undercover

agent’s testimony. A nonevidentiary hearing was held

in which respondent did not attempt to plead or

prove the existence of any material and controlling

fact which did not appear in the record of the proceed-

ings in the United States Supreme Court. The District

Court found both that the United States Supreme Court

in dismissing the writ as improvidently granted had in

practical effect adjudicated the issue of waiver of the

constitutional objection and found no substantial

federal question presented by the claim of constitution-

al error as evidenced by the dissenting opinion of Mr.

Justice Marshall. (Order denying petition for writ of

habeas corpus and dismissing action, pp. 6-7.) The

District Court first found, however, that there had

truly been a waiver of the constitutional objection un-

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

a: oom

REASONS FOR GRANTING THE WRIT

I

Section 2244(c) of 28 U.S.C. in Providing for Unquali-

fied Res Judicata on Habeas Corpus After Supreme

Court Adjudication Is Constitutional

The District Court below held that respondent had

deliberately waived any claim of denial of her consti-

tutional rights when counsel at the trial, in order to

carry out his defense strategy, chose to withhold any

objection to the testimony of an undercover agent

placed in respondent's jail cell prior to her indict-

ment. The District Court relied upon Fay v. Noia,

supra, 372 U.S. 391, 439 (1963) and Curry v. Wil-

son, 405 F. 2d 110 (9th Cir. 1968). But, in addiiion,

the District Court relying upon Duncan vy. Carter, 299

F. 2d 179 (9th Cir. 1962; Cert. den. 370 U.S. 952)

held that petitioner's claim did not justify the granting

of any relief in the action because: (1) The Supreme

Court, after first granting certiorari to consider whether

the admission of the undercover agent’s testimony

constituted a violation of the right to a fair trial sub-

sequently dismissed the petition for certiorari, (2)

The Supreme Court had considered the same constitu-

tional questions raised by petitioner on habeas corpus

before the District Court which was in practical effect

an adjudication and binding upon the District Court

as is anv adjudication of a question of law by the

Supreme Court in the absence of newly discovered

facts. This rule has since the Duncan case been codi-

fied in section 2244(c) of 28 U.S.C. The District

Court was fully advised as to all of the factual and

legal matters presented to the Supreme Court by the

record and briefs before the Supreme Court as well as

PIRSA PE toe + ED A LP ETA RINE ME EINE, LOTR IE II RCT AO ODA RL cA CL RMIT LORS TM ERAT EEE Sg oom

_—

the majority decision to dismiss the writ as improvident-

ly granted and the dissenting opinion of Mr. Justice

Marshall joined in by the Chief Justice and two other

associate justices of the Supreme Court which fully —

sets forth the questions considered by the Supreme

Court after briefs and oral argument. It is readily ap

parent that the waiver issue is the likely one which

prompted the dismissal of the writs without deciding

the merits of the constitutional questions. Certainly

the failure of the record to clearly reveal a constitu-

tional violation is another possibility.

The District Court, therefore, was justified in the

denial of the writ of habeas corpus. First it was

proper as a matter of discretion once the case had

been dismissed by the Supreme Court on the identical

issues, it having /beenp’ conceded that the issues were

identical, and tha new matter had been presented.

A District Court may take into consideration the dis-

missal after briefs and oral argument of a writ of

certiorari since a denial of certiorari may be so con-

sidered. Brown v. Allen, 344 U.S. 443, 456-57 (1953).

Second, it was proper as a matter of res judicata under

Duncan and section 2244(c).

The Court of Appeals disagreed, holding that there

was no waiver and that a dismissal of a writ of cer-

tiorari is not any different than a denial of certiorari

which is not an adjudication upon which the District

Court could rely in a denial of habeas corpus under

section 2244(c) or otherwise. We submit that the Dis-

trict Court was correct in its interpretation of both

Curry and Duncan which was the precursor of section

2244(c). Furthermore, we submit that the District

Court had discretion to dismiss the writ of habeas corpus

on the basis that the identical issues had been pre-

a)

sented to the Supreme Court even under the theory

that the dismissal was the equivalent of a denial of

certiorari when it was obvious that no newly dis

vovered facts had been presented. In any event, the

District Courts decision is supported by section 2244

(ec)

Section 2244(e) was enacted to reduce the number

of frivolous repetitious petitions for habeas corpus. re

lief which had become an inteolerable burden upon the

federal judiciary, Alb of the subsections of section 2244

are based upon prior Supreme Court decisions, par.

tioularly Sudimger vo Loivel, 2605 US. 224, 230 (1924)

Sanders vo United States, 374 US. 1, tb12 (1963),

concurring opinion of Frankfurter in Brown vo Allen,

44 U.S. at pp. SOR TO. We submit that there is ample

justification and preeedent for subsection (¢) as well,

Congress has provided the federal judiciary with its

habeas corpus power and may provide for the applica-

tion of the doctrine of res judicata to habeas corpus

unqualified by judictal diseretion. It is appropriate

for an adjudication of the Supreme Court to be con-

elusive on lower federal courts under the doctrine that

judgments of the Supreme Court are the law of the

land and by reason of the supervisory power of the

Supreme Court over the lower federal courts.

A. The Power of the Federal Judiciary to Grant the Writ of

Habeas Corpus Comes From the Congress and Congress

May Prescribe the Limits ot That Power

Article I, section 9, clause 2 of the Constitution

provides:

“The privilege of the writ of habeas corpus

shall not be suspended, unless when in cases of

rebellion or invasion the public safety may require

it.”

py an

The Constitution by that provision has guaranteed

the writ of habeas corpus unless lawfully suspended

which means there is no right to the writ at all in

limes of rebellion or invasion if the public safety re-

quires suspension of the writ. Congress has the power,

however, to characterize the scope of the writ by

statute and has clearly done so from the beginning.

Johnson vo Zerbst, 404 US. 45%, 465-66 (1938),

Walker v. Johnson, 412 US. 275, 285 (1941). The

decisions of the Supreme Court have always recognized

that the power to grant habeas corpus is derived from

Congress and controtled by it. Harris vy. Nelson, 494

US. 286, 298 (1969); Peyton v. Rowe, 391 US. 54,

58, 64.65 (1908), Fay v. Nola, supra, 372 US. 391,

398, AT, 406, 409-10, 413, 415, 417, 420, 442, 444

(1964), Mr. Justice Clark dissenting in Fay v. Noia

at pp. 447-48, Mr. Justice Harlan dissenting in Fay v.

Noia at pp. 449 and 452; Townsend y. Sain, 372 US.

293, 311-12 (1963); Brown v. Allen, 344 US, 443,

A60-61 (1953); Ahrens v. Clark, 335 US. 188, 190

93 (1948); In re Burrus, 136 US 586, 589-91

(1889); Rowe v. Peyton, 383 F. 2d 709, 716 (Ath

Cir. 1967); Stirone v. Markley, 345 F. 2d 473 (7th

Cir. 1965); United States v. Hendricks, 213 F. 2d

922, 929 (3rd Cir. 1954): Lockhart v. United States,

136 F. 2d 122, 125 (6th Cir. 1943).

B. Congress May Provide for Strict Re: Adjudicata in Habeas

Corpus

It has been held by the Supreme Court that res judi-

cata is not applicable to habeas corpus as a rule of

practice in the common law, however, the basis for

that rule has been recognized to be the absence of a

right of appeal from a denial of habeas corpus. Salin-

ger v. Loisel, supra, 265 U.S. 224, 7230-31 (1924).

ciniliiiiee

The court in that case went on to outline rules of

qualified res judicata which were later codified in sec-

tion 2244 of 28 United States Code. The court recog-

nized that the inapplicability of res judicata could be

modified by statute. Yet, relying upon Salinger v. Lois-

el, the Supreme Court in Darr v. Burford, 339 US.

200, 214-15 (1950) held:

«| All the authorities agree that res judicata

does not apply to applications for habeas corpus.

The courts must be kept open to guard against

injustice through judicial error. Even after this

Court has declined to review a state judgment

denying relief, other federal courts have power to

act on a new application by the prisoner. On that

application, the court may require a showing of

the record and action on prior applications, and

may decline to examine further into the merits

because they have already been decided against

the petitioner. Thus there is avoided abuse of the

writ by repeated attempts to secure a hearing on

frivolous grounds, and repeated adjudications of

the same issues by courts of coordinate powers.

“In this way the record on certiorari in this

Court is brought to the attention of the trial court.

_. . If this Court has doubts concerning the basis

of state court judgments, the matter may be

handled as in Burke v. Georgia, 380 U.S. 941,

with an express direction that the petitioner may

proceed in the federal district court without preju-

dice from the denial of his petition for certiorari.

If the District Court feels that error may have

occurred, it has power to examine the application

to see if circumstances exist to justify it in hold-

ing a hearing on the merits. Such freedom of ac-

tion protects the Great Writ without trivializing it.

=

“But it is argued that if the denial of certiorari

mean nothing, the result of our decision is to

force a ‘meaningless step.’ We do not agree.

Though our denial of certiorari carry no weight

in a subsequent federal habeas corpus proceed-

ing, we think a petition for certiorari should never-

theless be made before an application ma~ be

filed in another federal court by a state prison-

isa

In his dissenting opinion at page 224 Justice Frankfurter

stated that even after an adjudication by the Supreme

Court a District Court could grant the writ because the

Supreme Court adjudication would pot be res judicata.

Next, in Fay v. Noia, supra, at p. 423, the inapplica-

bility of res judicata to habeas corpus was laid to the

voidness of the judgments attacked by habeas corpus

and on the ground that there must always be access

to the federal courts to protect constitutional rights.

Finally, in Sanders v. United States, supra, at pages

8, 11-12, the inapplicability of res judicata to habeas

corpus was declared to be inherent in the very role

and function of the writ and it was suggested that if

Congress enacted laws to provide for res judicata it

might be unconstitutional referring back to Fay v.

Noia, supra, at p. 406.

It is abundantly clear then, that. this Honorable

Court has left open until now the question of the power

of Congress to provide for the applicability of res judi-

cata to habeas corpus. Congress has done so, but only

with respect to prior Supreme Court adjudication as

was mentioned by Justice Frankfurter. We submit that

Congress has the power to incorporate into habeas cor-

pus the doctrine of res judicata because habeas cor-

—

pus is statutory. The only sound reason for the past

inapplicability of res judicata was the absence of the

right to appeal from the denial of the writ which Con-

gress has now provided. Attacks upon void judgments

have a ready avenue to final determination through

the federal court system and need not be repeatedly

entertained. We submit that a final decision on habeas

corpus should be res judicata. The reasons for such

an approach to modernize habeas corpus are cogently

set forth in Collings, Habeas Corpus for Convicts—

Constitutional Right or Legislative Grace? 40 Calif. L.

Rev., 335 (1952).

C. Supreme Court Adjudications Should Be Res Judicata in

Habeas Corpus by Reason of the Final Judicial Power and

Supervisory Power of That Court

The Supreme Court has been given the power to de-

clare the law of the land under the Constitution. U.S.

vy. Montgomery Bd. of Educ., 395 U.S. 225, 237

(1969); Cooper v. Aaron, 358 U.S. 1, 18 (1958);

Brown v. Allen, 344 U.S. 443, 508-10 (1953). The

Supreme Court has the power to determine the finality

to attach to its judgments. United States v. Ohio Power

Co., 353 U.S. 98, 99 (1957). It is the court of ulti-

mate review of the standards formulated and applied

by the federal courts. Lopez v. United States, 373

U.S. 427 (1963). The Supreme Court alone is the

final arbiter of a state prisoner's claim that he had

been deprived of his rights under the federal consti-

tution. Dixon v. Duffy, 344 U.S. 143, 145-46 (1952).

Finally, the Supreme Court has supervisory power over

the administration of criminal justice in the federal

courts. McCarthy v. United States, 394 U.S. 459, 464

(1969); McNabb v. United States, 318 U.S. 332, 341,

347 (1943).

a

In light of these principles it is only fitting that a

final adjudication of the Supreme Court on a matter

of law should be conclusive on the lower federal courts

in habeas corpus in the absence of the particular ex-

ceptional circumstances set forth in section 2244(c).

II

The Dismissal of Certiorari Is in Effect an Adjudication

for the Purpose of Res Judicata in the Event of

Subsequent Habeas Corpus Proceedings in the

Lower Federal Court

It is conceded that respondent on habeas corpus

raised the identical issue in the District Court that she

had presented to the United States Supreme Court and

that no newly discovered facts pertaining to the waiver

issue of the constitutional issues were alleged in the

habeas corpus proceeding. The issues were fully

briefed, orally argued, and the record examined before

the United States Supreme Court. On June 17, 1968,

that court entered a per curiam opinion, reading as

following: “The writ is dismissed as improvidently

granted.” A lengthy dissent was written by Mr. Justice

Marshall indicating that the merits of the federal con-

stitutional question were considered by the majority of

the court and rejected on one or more of three grounds:

(1) that there was no constitutional error in respond-

ent’s trial; (2) that whether or not there was error,

objection to it was waived; or (3) that the error was

harmless. Miller v. California, 392 U.S. 616 (1968).

The District Court held that the Supreme Court did

indeed consider the constitutional issues and that the

District Court was bound thereby as in the case of any

adjudication of a question of the Supreme Court in

the absence of newly discovered facts which would

—_20—

cast the legal questions in a new light. The Court of

Appeal held that there was no adjudication of the

issues of the constitutional and procedural questions

involved in the appeal by the United States Supreme

Court and likened the dismissal of a writ of certiorari

after briefs and oral argument to the denial of a writ

of certiorari.

Section 2244(c¢) of Title 28, United States Code, pro-

vides:

“In a habeas corpus proceeding brought in be-

half of a person in custody pursuant to the judg-

ment of a State court, a prior judgment of the

Supreme Court of the United States on an appeal

or review by a writ of certiorari at the instance

of the prisoner of the decision of such State court,

shall be conclusive as to all issues of fact or law

with respect to an asserted denial of a Federal

right which constitutes ground for discharge in a

habeas corpus proceeding, actually adjudicated by

the Supreme Court therein, unless the applicant

for the writ of habeas corpus shall plead and the

court shall find the existence of a material and

controlling fact which did not appear in the record

of the proceeding in the Supreme Court and the

court shall further find that the applicant for the

writ of habeas corpus could not have caused

such fact to appear in such record by the exercise

of reasonable diligence.”

In Duncan v. Carter, supra, 299 F. 2d 179 (9th

Cir. 1962), the state prisoner claimed that she was de-

prived of due process of law due to adverse publicity

prior to and perhaps during her trial. The United

States Supreme Court had granted a petition for a writ

=

of certiorari as to the publicity issue, examined the

State court record pertinent thereto, ceusidered briefs

and heard oral argument, and then had stated in a

per curiam opinion:

“After hearing oral argument and on due ex-

amination of the records, we conclude that the

totality of circumstances disclosed fails to support

the substantial due process issue tendered in the

petitions for certiorari, and so we dismiss the

writs.’”” Duncan v. Carter, supra at 181.

The dismissal of the writ of certiorari was in the case

of Baldonado v. California, 366 U.S. 417 (1961 ). The

court in Duncan v. Carter held that although the

action taken was to dismiss the writ rather than affirm

the state judgment, it was in practical effect an ad-

judication that the facts presented did not support the

claim of deprivation of a constitutional right. The court

said:

“Res judicata does not apply to applications

for habeas corpus and appellant was entitled to

seek such relief in a federal district court despite

this Supreme Court pronouncement. Nevertheless,

where a question of law is actually adjudicated by

the Supreme Court, and where no newly-discov-

ered facts are alleged which would cast that legal

question in a new light a district or circuit judge

is bound thereby, as in the case of any other ad-

judication of a question of law by the Supreme

Court.

“In her application for a writ of habeas corpus,

appellant did not allege newly-discovered facts

pertaining to adverse publicity before and during

the trial. In effect, then, she was presenting to

=

the district court the same question of law which

had been resolved against her by the United States

Supreme Court. The district court correctly de-

termined that under the circumstances the con-

tention was not open for reconsideration by the

district court. It therefore did not err in refusing

to accept evidence or to examine the state court

record as to the publicity issue.” (Emphasis by

the court, footnote omitted.) Duncan v. Carter,

supra at p. 182.

There is no question but that other considerations

than the merits can result in the denial of a writ of

certiorari, but when questions on the merits have been

found deserving of the writ, the only fair and reason-

able grounds for dismissing the writ would be that the

merits as presented cannot justify relief. Otherwise,

would it not be a travesty of justice to dismiss a writ

of certiorari after briefs and oral argument and have it

mean nothing at all. The dismissal of a writ of cer-

tiorari should at the very least connote what was ex-

pressed in Baldonado v. California, supra, 366 US.

417 (196)

In this sense, there can be no true distinction be-

tween our case and Duncan v. Carter, supra, 299 F.

2d 179 (9th Cir. 1962) as implicit in the dismissal of

a writ of certiorari after briefs and oral argument, is

the adjudication that the issues are either not reachable

by reason of a failure to preserve the question below,

or are not supported by the record. This is particularly

true in our case in view of Justice Marshall’s dissent

wherein the issues were treated on the merits.

This conclusion is fortified by the legislative history

of section 2244, Title 28, United States Code, noted by

a

the Ninth Circuit Court of Appeals in its opinion

wherein it is stated that the section means that the

United States Supreme Court’s rulings are final on

issues considered by that court except: “mere denials

of writs of certiorari.” (Emphasis added.) It is to be

noted that the dismissal of writs of certiorari is not un-

common so that the absence of a reference to the dis-

missal of writs of certiorari should indicate that they

are not indistinguishable from mere denials. See: Legis-

lative History and Senate Report, 1797, reported in

U.S.C. Congressional and Administrative News, Vol-

ume III, page 3663 (1966).

In the instant case, we submit that although the

majority of the United States Supreme Court chose not

to write opinions when the writ was dismissed, prob-

ably because of a diversity of affirming theories as out-

lined above, there was an adjudication on one or more

of the above theories as presented to that court by

~ briefs and in oral argument and the district court was

bound thereby and did not need to examine the state

records, take evidence, or grant a writ of habeas cor-

pus. 28 U.S.C. § 2244(c). The Supreme Court ac-

tually ruled that there was no basis for the writ of

certiorari. This is to be distinguished from the ordi-

nary mere denial of the writ which might be on the

basis that the court was not interested in the question

or did not deem it of sufficient significance to warrant

granting certiorari.

In prior decisions of the United States Supreme

Court, the meaning of the denial of certiorari has been

touched upon in particular as to its application to the

doctrine of res judicata in subsequent habeas corpus

proceedings in the lower federal courts. However, no

decision by the United States Supreme Court has

a ee

fouched upon the meaning of a dismissal of a writ of

certiorari as improvidently granted and its application

to the doctrine of rev judicata as applied to subsequent

habeas corpus proceedings in the lower federal courts

Some pe asp of the significance of the dismissal of a writ

of certiorari can be gained from recent cases in which

the writ has been dismissed as improvidently granted

and a few examples will be discussed below

ln Phare ov Rurfond 199 TIES) JOO, JIA (1950).

the Supreme Court declined to pass upon the meaning

of the denial of certiorari and said

“There should be no controversy over whether

the refusal of certiorari ‘would serv. the purpose

mM an adjudication on the merits” All the authori-

tios agree that res judicata does not apply to ap

pheations for habeas corpus.

Now the doctrine of res judicata in qualified form ts ap-

plicable to habeas corpus under section 2244. It was

held in Darr vo Burford that though a refusal of cer-

forarn have ne effeet upon a later application for fed-

eral habeas corpus, a petition for certiorari in’ the

United States Supreme Court ordinartly should) be re-

guirnndd. Darr v. Burford, supra, 339 U.S. at p. 216.

This holding was overruled in Fay v. Nota, 372 US.

391, 435 (1963).

Some insight into the meaning of the demal of cer-

fiorari Was provided in the dissenting opinion of Frank-

furter J. in. Darr v. Burford, supra, 399 U.S. at pp.

226-27:

“7. The significance of a denial of a petition

for certiorari ought no longer to require discus-

sion. This Court has said again and again and

again that such a denial has no legal significance

a) oe

whatever bearing on the merits of the claim. The

denial means that this Court has refused to take

the case. Tt means nothing else. The State court's

judgment is left undisturbed without any legal re-

inforcement whatever of the views which the State

court expressed. Counsel at the bar have frequent-

ly heen stopped for drawing comfort out of such

a denial and the Courts opinions have indicated

impatience with failure to recognize that the only

thing that such a denial imports is that there

were not four members of the Court who deemed

it desirable, for their respective reasons, to review

a decision of the lower court. Even before the

Judiciary Act of 1925 so vastly extended this

Court's certiorari jurisdiction, the Court said: “The

denial of a writ of certiorari imports no expres

sion of opinion upon the merits of the case, as

the bar had heen told many times.’ United States

v. Carver, 260 U. §. 482, 490. This notice of im-

patience has heen sounded repeatedly.

“The wholly negative meaning of a denial of

certiorari is not so merely because we have said

it. We have said it because it must be so unless

the whole conception of certiorari in relation to

the business of this Court is to be radically trans-

formed. Such a revolutionary change cannot justi-

fiably be taken in relation to one large group of

cases without drastic revision of the Court’s treat-

ment of such cases, with far-reaching conse-

quences to the business of the Court and its prop-

er discharge. |

“Nothing is more basic to the functioning of

this Court than an understanding that denial of

certiorari is occasioned by a variety of reasons

a ae

which precludes the implication that were the case

here the merits would go against the petitioner.

Petitions inay have been denied because, even

though serious constitutional questions were

raised, it seemed to at least six members of the

Court that the issue was either not ripe enough or

too moribund for adjudication; that the question

had better await the perspective of time or that

time would soon bury the question or, for one

reason or another, it was desirable to wait and

see; or that the constitutional issue was entangled

with nonconstitutional issues that raised doubt

whether the constitutional issue could be effective-

ly isolated; or for various other reasons not rela-

ting to the merits. Divergent and contradictory

reasons often operate as to the same petition and

lead to a common vote of denial. The want of

explanations for denials of certiorari is in part

due to the fact that a collective reason frequently

could not be given. .. .”

In Brown y. Allen, 344 U.S. 443, 456 (1953) it

was held by a minority of the court that a District

Court could give consideration to the record of the

prior certiorari in the Supreme Court and such weight

to the denial of certiorari as the District Court felt

the record justified. The minority itself felt that

although the denial of certiorari imported no expres-

sion of opinion upon the merits of the case so that it

had no precedential value, nevertheless, where the rec-

ord distinctly presented a substantial federal constitu-

tional question brought to the Supreme Court by cer-

tiorari and denied, court’s dealings with future applica-

tions for habeas corpus on the same issues presented in

earlier applications for writ of certiorari should have

— on

the power to take the denial into consideration in de-

termining their action. In his concurring opinion Mr.

Justice Frankfurter, although disagreeing with the ef-

fect of the denial of certiorari, stated at page 489:

“, . . Of course, when the reasons are given

|for the denial of certiorari], the decision to deny

will have the effect indicated by the reasons

stated... .”

In his concurring opinion in Brown v. Allen, supra,

at pp. 542-44, Mr. Justice Jackson stated:

“True, neither those outside of the Court, nor

on many occasions those inside of it, know just

what reasons led six Justices to withhold consent

to a certiorari. But all know that a majority,

larger than can be mustered for a good many di-

cisions, has found reason for not reviewing the

case here. Because no one knows all that a denial

means, does it mean that it means nothing? Per-

haps the profession could accept denial as mean-

ingless before the custom was introduced of noting

dissents from them. Lawyers and lower judges will

not readily believe that Justices of this Court are

taking the trouble to signal a meaningless division

of opinion about a meaningless act. It is just one

of the facts of life that today every lower court

does attach importance to denials and to presence

or absence of dissents from denials, as judicial

opinions and lawyers’ arguments show.

“The fatal sentence that in real life writes

finis to many causes cannot in legal theory be a

complete blank. I can see order in the confusion

as to its meaning only by distinguishing its signifi-

cance under the doctrine of stare decisis from

—

its effeot under the coeteime af ree judicata 4

apie that as ture deri deaial of certiorari

whould be given ne significance whatever Th ore

Alex Ho precedent amd approves no statement of

principle entitled to weight in any other case Rut

far the case to whieh certiorari is denied, its mink

Win Meaning ia that this Court allows the judge

mont below to stam with whatever consequences

omay lave upon the litigants invelved under the

doctrine of re. jidicata as applied either hy state

om federal courts A civil or criminal judgment

usually becomes ree judicata in the sense that i

in Dangling aid comelusive even if new Faets are

discovered and even oa new theory of law were

thought up, cseept for seme provision for granting

a ew thal whieh usually is diseretionary with

the (ral court and ltnafed in time.

“Tt ois sometines said that ree judicata has no

appheathou whatever im habeas corpus cases and

surely tt dees not apply with all of its convention.

al severity, Habeas corpus differs from the ordinary

midginent im that although an adjudication has

becoure final, the application is renewable, at least

if new evidence and material is discovered or if,

mrhaps as the result of a new decision, a new

law becomes applicable to the case. This is quite

proper so long as ifs tssues relate to jurisdiction.

But call it res judicata or what one will, courts

ought not to be obliged to allow a convict to

litigate again and again exactly the same question

on the same evidence.

“Nor is there any good reason why an identical

contention rejected by a higher court should be

reviewed on the same facts in a lower one.”

49

Hoey He coer Ht Mite de dee NernennndtnNT hy evP typi tndenty

He fey the testi AP ihe erial of eertlrarl, partion.

Harty i tlhe pireoetiee rif fanimi tape Hee rveripv trying thie

Henial whieh wohl inlieate the teserine Fee the denial

Re that oe i tiny tere Neniale oh eertionard wpe peyt

res frdicnin ander cect JIAA WW is in thie Se Tse

Hat the werd Mere tp significsnee, perhaps the

word “mere” hae reference te naked tletrials writheret

ACCOMPANYING explanations op dissents We eubrenit that

a denial of certiorari con have the ineaning that the

Supreme Court wishes te pive it in any partioular case.

In any event there ie a natkedl istinetion between the

denial of cettionarh which can he haces upermn Pactors

vnrelated to the merite on the per cel. antl a dlisrnissal

Of cettionati of a cage Alrendly Fenumel werthry ter he

reviewed and adjudicated bry the Rtanting of certiorari

In Rive vw Sione City € emeter y, TAD US. T0. 77-20

(1955). a case involving a denial cf rights under the

Fourteenth Amendment was affitrned by an evenly

divided coutt, On petition for reheating, an ferwa stat.

ute passed subsequent to the litigation in question

was brought to the attention of the Supreme Court.

This statute provided for relief in the future, the na

ture of which was sought in the htigation. On rehear-

ing the writ was dismissed as improvidently granted.

The court stated:

“Such factors are among the many which must

be weighed in the excrcise of that ‘sound judicial

discretion’ which Rule 19 requires. We have taken

this opportunity to explain their relevance. when

normally, for obvious reasons in view of our vol-

ume of business. no ominion accompanies dismis-

sal of a writ as improvidently granted. because of

the apt illustration here Provided of the kinds of

="

considerations, beyond thome listed by Mule 19 as

lstiative but aot exhaustive, whieh preclude ae:

jwlieation on the merits of cases which may have

(he suilace appearance of public iniportanee ”

“Rive v Nowy City Cemetery, mapra, at pp 74

,}

lt is cleat thom: thin opinion that the Supreme Covel

dad ot Consider the distiiaaal of the wri af cerlorari

as an adjudication upon the tenis of the constitutional

question, however this caually clear that the decision

Wan ren Hadicafa on that issue Pie decision had no

precedential value, Dut was oa final determination of

the case,

lun Needelmana vo United States, $602 US, 600, 601

(1LYOO) and Massacdusettiy vo Mainten, 489 US. 560,

VYOOoS (LYON), wits of certhorart were dismissed as

mayworvidendly granted Decwuse the record was not sub

fiereadly clear and speeitte to permit decisions of the

HMpOrtant comsitudGonal questions mvolved in the cases.

Uhe dissents ino cach of the causes indicated that there

Was a disagreement on that pot. Tt ts clear that there

Was no actual adjudication of the merits of the consti-

tutional questions tnvolved, vet, in those cases would

if not be legteal to hold that on the issue of the ade-

guaey of the record to present the constitutional ques-

tion, the decision was res judicata, and that in the

absence of. new facts, the lower federal courts would

be bound on habeas corpus. In the instant case, one

af the issues before the Supreme Court was the suf-

ficieney of the record to support a denial of constitu-

tional rights under Massiah v. United States, 377 U.S.

201 (1964) and Escobedo y. Illinois, 378 U.S. 478

(1964). Wainwright v. City of New Orleans, 392 US.

SOR, TUN GU CHYGN). Ti aebdition, the doome of the

Waiver aE The eonetiitional objection wie Hn leoue of

AN adeguate tecund an appeal He wae clearly indiewted

iW the dieeeit af Mr duetive Marohall that beth of

hese faeces were comaldened hy te court and for nie

Monnet Men the iiajity Monieoed the writ we im

Providdently grated

Ih the ence af Money Mirsterippl, V¥19 WS. A444,

AAVASY 465 CIYGT) the conettutional (MACHO ite

volved wae the intteduetion af Wepally seized eviderioe

The question hefare the Nupreme Cont was whether

there had heen a knowing waiver of the nies tient fey

the evidence in the trial court The Suprenne Cont

Vacated the judginent of conviction and retianded thie

vase for heating on that question Iiterestinighy, the

cout conmelided

* I has heen suggested that this Stic tieny

night be ameliorated if the States Wenih Sethe

upon our decisions in Pay v. Nea, wipna, xt

Townsend vo Sain, supra, as affording them an

Opportunity to provide state proeedures, direct oy

collateral, for a full siting of federal letzten That

prospect it hetter served by a remand ther hy

relegating petitioner to his federal habeas remade

—.." Henry v. Mississippi, supra, at p. 453.

The opinion apparently was to the ttect that # there

was any question as to whether there had been 4

waiver, it should be remanded. Even more interesting

was the dissent of Mr. Justice Harlan in whic he con-

cluded:

“Believing that the judgment below reats on an-

adequate independent state ground. [ would dis

miss the writ issued in this case a9 mmorowidentiv

granted.” Henry v. Missizsippé Harlan. J. dis

senting at p. 465.

=

Tiplictt fin these opiniones de the tile that in the event

there is an open issue aa te waiver on the reeord a4

Proper procedtine da te renin, hat where the issue is

clear that there was a waiver, the weit should be dis

Wisse as (iprovidentl) granted) fo the instant ease,

ihe issuer of waiver wae digpited as evidenced by the

dissenting opiate, vet the oiajority dismissed the writ

As tinproviddently granted We submit that that was an

ativdication that there wae an independent state ground

fur the decision As iinplied by the maiority opinion, this

ole pospondent herein with the remedy of federal habeas

corpus Which she las pursed. however, in the absence

WE ew facts the adjudication of the Supreme Court

stout be conelusive

This nesult is supported by the decision in Newson

vo Neve (OS UN GLO? (1961) in which the writ

Was distisscd as tmprovidently granted on the ground

that the recend did) not adequately establish that) the

state court found or was required to find that) there

Was presented to it the foderal claim on which the case

Was boought to the Supreme Court so that the case

faikat te present a federal question. The dissent indi.

cated a dispute ov that issue in the Supreme Court.

Finally, the conclusion that a dismissal of a writ of

cerfearan as unpoovidentiy: granted should be conclu-

save in the absence of newly discovered evidence is the

case af Suuth vo Mississippi, 373 U.S. 238, 238-39

(1863). in which the court stated:

ee

After oral argument and = study of the

record, we have reached the conclusion that the

reoand is not sufficient to permit decision of his

constitutional claims. The writ ‘s therefore dis-

mussed as unprovidently granted, without preju-

dice to an application for federal habeas corpus

relief under 28 U.S.C. §$ 2241 after exhaustion of

any state remedies still open to him. (Citations

omitted. >”

a |

The implication from this decision is clear that aa the

record stood there were no constitutional errors, tut

that on habeas corpus where a tecord could be de-

veloped, habeas corpus might be able to grant relief.

Ht is respectfully submitted that as Justice Jackson

pointed ont in Rrown v Allen, supra, 344 US. 443

(1959). lawyers and lower courts cannot be expected

fo ignore the opinions written in conjunction with the

dismissal of writs of certiorari, and where the lower

federal courts are presented with sufficient opinions

nnd records from which it can he determined that the

Supreme Court has considered issues of fact and law,

the dismissal of a writ of certiorari is in effect an ad-

indication on those issues binding upon the lower fed-

eral courts in the absence of new and controlling facts

which could not have been presented to the Supreme

Court,

it

Defense Counsel Deliherately By-Passed Established

State Procedure and Detiherately Waived the Con-

stitutional Issue of Error in the Introdaction of the

Testimony of An Undercover Agent

It is the present law in the State of California that

on appeal the issue of denial of counsel during inter-

rogation, after the enunciation of the rules in Massiah,

Escobedo and Dorado, must be based upon an objec-

tion taken in the court below. People v. Hillery, 62

Cal. 2d 692, 711-12, 401 P. 24 382: People v. Doherty,

67 Cal. 2d 9, 14-15, 429 P. 24 177. The California

cases place emphasis on the fact that the decision to

waive objection to the introduction of statements of the

accused can be attributed to a tactical decision by

trial counsel.

a)

In Doherty it was held:

“In the absence of special circumstances jus-

tifying an inference of knowing and intelligent

waiver of an Escobedo-Dorado claim, we cannot

assume such a waiver in a trial held before Janu-

ary 29, 1965.”

But stated in that opinion:

“We recognize that defense counsel in a trial

held prior to January 29, 1965, might have de-

liberately developed on voir dire facts which would

support the exclusion of the statements under the

Escobedo-Dorado rule, yet omitted to object to

their introduction in the hope that upon subse-

quent appeal the showing would serve to reverse.

(Compare the facts in People v. Brown (1965)

238 Cal.App.2d 924, 928 [48 Cal.Rptr. 204].)

Such a tactical maneuver should not generate a

valid basis for reversal. If the People should sus-

tain the burden of establishing the fact of such

tactics, we would treat defendant’s stratagem as a

waiver of the objection.”

The Doherty decision therefore established that in

California in order to find a waiver of the Escobedo-

Dorado rule benefit prior to January 29, 1965, an ap-

pellate court must find special circumstances justify-

ing an inference of knowing and intelligent waiver of

those benefits, such as the tactic of asking questions

directed toward the foundation of such an objection

but a failure to actually make the objection. The facts

1People v. Dorado, 62 Cal. 2d 338, 398 P. 2d 361, was decided

on January 29, 1965. Some of the language in our case which

seemed to merely require absence of an objection in order to find

a waiver was disapproved for such early cases.

=<

of this case certainly justify such a waiver although the

trial commenced only a few days before January 29,

1965. In circumstances not unlike those in the present

case the California Court of Appeal in the case of In

re Woods, 256 Cal. App. 2d 748, 752-53, 64 Cal.

Rptr. 382, found a deliberate waiver of objection on

an Escobedo-Dorado claim.

The tactics of counsel in the instant case were ob-

vious. Except for the portion of Peggy Fisk’s testi-

mony which was introducted by the prosecution the

remainder of her testimony was favorable to the de-

fense, for it brought out that respondent had stoutly

maintained her innocence and told identically the same

story to which she later testified. Defense counsel had

received a copy of the undercover agent’s reports to

her superiors concerning her talks with respondent and

interviewed the witness, and it is reasonable to as-

sume that defense counsel was willing to have the un-

dercover agent testify to show the extremes to which

the sheriff went to try to convict her and to show that

her story of innocence had never varied. Indeed, de-

fense counsel in argument utilized the undercover

agent’s testimony for both these purposes.

The federal courts will deny a defendant relief if

the state courts refuse to entertain federal claims on the

merits where a defendant for a strategic and tactical

reason deliberately by-passes state procedures. Fay vy.

Noia, 372 U.S. 391, 439 (1963).

Where there is no objection to the evidence of state-

ments of an accused on constitutional grounds the

point is waived. Sweeney v. United States, 408 F. 2d

121, 124-25 (9th Cir. 1969); United States v. Fiora-

vanti, 412 F. 2d 407, 414 (3rd Cir. 1969 citing:

=

United States v. Armetta, 378 F. 2d 658 (2nd Cir.

1967): United States v. Dolleris, 408 F. 2d 918, 920

(6th Cir. 1969). An objection not raised at the trial

will not be considered on certiorari to the United

States Supreme Court. Brown v. Allen, 344 U.S. 443,

480 (1953). A procedural default which is held to bar

challenge to a conviction in state courts even on federal

constitutional grounds prevents implementation of the

federal right. Henry v. Mississippi, 379 U.S. 443, 447

(1965).

Counsel for respondent made no attempt to have

testimony of the undercover agent stricken. The great

bulk of her testimony was favorable to the defense, as

already pointed out. |Rep. Tr. pp. 1101-1112; Ap

pendix pp. 57-67.| Having deliberately chosen to waive

her constitutional objection to the testimony of the un-

dercover agent and to present the undercover agent’s

highly favorable testimony to the jury respondent can-

not now complain. In effect, respondent has attempted

to engage in the game of sowing the seeds of reversible

error in the record decried in Kotteakos v. United

States, 328 U.S. 730, 759 (1946). We submit that

these seeds are infertile and should not be cultivated by

this court.

In the case of Nelson v. People of State of Cali-

fornia, 346 F. 2d 73 (9th Cir. 1965), it was con-

tended that there was introduced against the appellant

at her trial evidence obtained in violation of his rights

under the Fourth Amendment to the Constitution of

the United States and that there wa: an unlawful

search of his apartment and seizure of contraband by

the police. In the trial, the police on three separate oc-

casions offered in evidence articles obtained from the

search of the apartment and on each occasion there

= =

was no objection. The district court concluded from

his examination of the transcript that the petitioner had

deliberately by-passed the required state procedure by

such failure to object. The district Court found that

the search and seizure question would not have been

well taken had it been raised, in light of the decision

of the California Court of Appeal; that appellant had

been competently represented by counsel and that peti-

tioner at no time contended that in handling the matter

as he did his counsel was acting contrary to his wishes.

In that case the district court based its conclusion upon

an examination of the state trial record. It felt that

that record demonstrated that counsel intentionally, as

a matter of tactics, failed to raise the constitutional

questions. And it noted that the petitioner did not

assert, in any paper before the district court, that he

did not participate in the decision, or that counsel

acted contrary to his wishes, or that he was unaware

of, and did not understand counsel’s choice.

The Ninth Circuit Court of Appeals in affirming the

denial of the petition for writ of habeas corpus held

that the deliberate failure to object to the introduction

of evidence on the ground of illegal search and seizure

where the State of California requires such an objection

constituted a deliberate by-passing of state procedure

without the necessity of concurrence in that decision of

counsel by petitioner. The court, relying upon Henry

v. Mississippi, 379 U.S. 443 (1965), and Fay v. Noia,

372 U.S. 391 (1963) (cited by petitioner before in the

United States Supreme Court), held that the California

rule requiring an objection to illegally obtained evi-

dence does serve a legitimate state interest: that de-

liberate by-passing of state procedure and waiver are

usually the same thing; that counsel’s decision controls

Toa

PERE LL I ALE INLD Sah e

despite the lack of concurrence by the client and that

the effectiveness af the procedural default to foreclose

consideration of a constinitional claim is the same on

habeas corpus as on direct review, This reasoning is,

af coupes, eytaily persuasive in our case where there

was a deliberate tactical decision to waive objection to

statements counsel claiined were iHlegally obtained so

hat the favorable aspects of the statements might be

intraduieed and afgned by the defense. Carry vy Wilson,

dS PM TIO. Hd (Oth Cir, 196K).

We respectfully subinit that the record shows a de

liberate, Knowing, fntelligent and tactical waiver of a

claim undet the Macsiot and Pecohedo decisions.

Yhe Ninth Circuit Court of Appeals held that the

California District Court of Appeal reached the merits

of petitioner's claim when it stated:

“The trick attempted by the authorities in

which they apparently hoped to obtain incrimi-

nating statements from defendant and to get her

ty thoow herself on the alleged mercy of the sheriff

arnd to suspect her own attorney was completely

indefensile, and if we had the slightest idea that

defendant was injured by it we would have no

hesitancy in ordering a reversal in spite of the

fact of defendant's failure to object to Peggy's

testimony...” People v. Miller, 245 Cal. App.

dd 112, 143-44, $3 Cal. Rptr. 720.

The Court held that neither the by-pass rule nor the

waiver rule set forth in Curry v. Wilson, 405 F. 2d

17Q 112 (9th Cir. 1968) applied to the conduct of

Sefemse counsel in deliberately withholding any objec-

pom or seeking any rule on the admissibility of the

umdercover agent's testimony in the instant case. We

a"

respectfully submit that this holding is erroneous for

two reasons: (1) the California District Court of Ap-

peal did not reach the merits of the admissibility of

the evidence, but inerely held that regardless of error,

it was harmless, and since there was no objection in

the trial court, the error was waived, and (2) as point-

ed out above, there can be no (listinction drawn be-

tween Curry and the instant case on the basis set forth

in the opinion of the Court that in Curry defense coun-

sel wanted the evidence admitted, but in our case de-

fense counsel wanted the evidence excluded.

In its opinion, the California Court of Appeal, after

the language quoted by the Ninth Circuit Court of Ap-

peals went on to state:

.... However, to do so just to administer to the

Sheriff and those joining in this most inexcusable

procedure a well-merited rebuke where no injury

occurred to defendant therefrom would not be fair

to the County of San Bernardino nor to defend-

ant in requiring her to undergo the strain of another

trial.

“We have in mind Massiah v. United States, 377

U.S. 201 [84 S.Ct. 1199, 12 L.Ra.2¢ 246]; People

v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169,

398 P.2d 361]; and Escobedo v. Illinois, 378

U.S. 478 [84 S.Ct. 1758, 12 L.Ed2d 977], but

do not consider, under the peculiar circumstances

in this case, there was any prejudicial error. More-

Over, as pointed out in People v. Palmer, 236 Cal.

App.2d 645, 650 [46 Cal.Rptr. 449]. referring to

Escobedo, failing to object in the trial court pre-

cludes raising the matter on appeal. the court

saying: ‘But the Supreme Court indicates, at

a oe

least inferentially, in the same authorities that the

raising of the issue on appeal, after the enuncia-

tion of the rule in the Escobedo case, must be based

upon an objection taken in the court below.’ See

also, People v. Valdez, 239 Cal.App.2d 459, 465

[48 Cal.Rptr. 840], applying the same rule as to

an Escobedo-Dorado situation.” (Emphasis added. )

People v. Miller, 245 Cal. App. 2d 112, 144, 53

Cal. Rptr. 720, 740 (1966).

It should be noted in the opinion of the California

Court of Appeal that the court first treated the sub-

stance of the undercover agent’s testimony and found

that defense counsel had deliberately determined to al-

low the witness to testify in order to show (1) that

the extremes to which the sheriff went to try and con-

vict appellant, and (2) that appellant’s story of her

innocence had never varied. People v. Miller, supra,

245 Cal. App. 2d at p. 143, 53 Cal. Rptr. at p.

740. The court then went on to treat the specific trick

engaged in by the. sheriff and the undercover agent

mentioned earlier in the opinion at pages 141-142. It

was concrning this “indefensible” conduct that the

court made the statement “we would have no hesitancy

in ordering a reversal in spite of the fact of defend-

ant’s failure to object.” It was obvious from the tes-

timony of the undercover agent that these tricks had

borne no fruit. Nowhere in the record is it established

that any of these tricks resulted in any of the state-

ments made by appellant to the undercover agent.

Furthermore, the reference to the failure to object was

not a holding that appellant was entitled to raise the

point on appeal absent an objection or that it was

error to have admitted the testimony of the undercover

agent because the court went on to hold that appel-

a)

lant was precluded from raising the point by reason

of the failure to object. People y. Miller, supra, 245

Cal. App. 2d at p. 144, 53 Cal. Rptr. at p. 740. The

above statement appears to have been made to empha-

size the fact that there was no possible prejudice from

the introduction of the undercover agent’s testimony.

It was necessary for the District Court of Appeal to

emphasize harmless error because of the fact that the

California Supreme Court had not as yet set down the

exact form of the rule for the necessity of an objection

based upon the Dorado-Escobedo type error although

other courts of appeal had. However, since the decision

in this case, the California Supreme Court decided

People v. Doherty, 67 Cal. 2d 9, 15-16, 429 P. 2g

177, which explicitly upholds a waiver such as occurred

in this case.

We respectfully submit that the California District

Court of Appeal merely decided that regardless of

whether or not there was error in the introduction of

the undercover agent’s testimony, the evidence was

harmless and objection was waived.

The Ninth Circuit Court of Appeals found no waiver

and distinguished Curry v. Wilson, 405 F. 2d 110, 113

(9th Cir. 1968) on the basis that counsel in Curry

wanted the evidence to be before the jury because he

believed that it would be valuable to Curry, whereas

trial counsel in the instant case considered the evidence

prejudicial rather than valuable and wanted it excluded.

This is factually incorrect. In our case, the record at

Reporter’s Transcript pages 1009-1015 clearly shows

that counsel did not even know the nature of the evi-

dence when he represented that the testimony would

violate Dorado. His complaint in chambers was that he

had been promised an Opportunity to interview the wit.

con pais

Hess and learn of her testimony. He was given that op

portunity immediately, and an Opportunity to object to

the testimony the following day if he wished. He made

Ho objection and sought no ruling in chambers. tt is

obvious, and the California Distriet Court of Appeal

held that it was “reasonable to assume that defense

counsel Was willing to have Peggy testify to show (1)

the extremes to whieh the sheriff went to try to convict

defendant and (2) that defendant's story of her in.

nocenee had never varied.” People vo Miller. supra,

48 Cal App. 2d thd. 144, 94 Cal Rpte 720, 740

lt is clear in the instant case that just as counsel

in Curry had wanted the evidence admitted as a matter

at defense strategy, defense counsel at the trial herein

nade the tactical decision to use and did use the un-

deroover agents testimony to the advantage of the de-

tense in the questions he asked and in the arpuments

he made to the jury, [Rep. Tre pp. PlObTEH2, 2174

217, JUNLNS. 2248-49, 2244-45, Appendix pp. 57.

OF, LIS]

The entire circumstances whercin, (1) counsel at

first raised the constitutional question without objecting

or seeking a ruling in chambers then abruptly dropped

the issue and withheld objcction, (2) counsel followed

with extensive cross-cxamination which brought forth a

Stary of complete innocence, and (3) counsel made an

elaborate argument based upon the undercover agent's

tesamony, demonstrates that defense strategy inescap-

ably brings this case squarely within the Curry waiver

rule as well as People v. Doherty, supra. Once coun-

sel knew what the witness knew. he wanted her testi-

mony admitted. It was her best defense. It was her only

corroboration.

—|

Ht is reapectfully submitted that in light of these cir.

cumstances there is a confliet of devision between

Cry and the instant case, and that under the circum.

Rtanives, He would be appropriate for certiorari tor he

Branted,

The Ninth Cireuit: Court. of Appeals erronecusty

held that couneet objected to the evidence in chambers

When there was actually no objection and ne request

fora ruling in chambers. ‘The trial court did not insist

that the objection be renewed in the presence of the

jury Hut merely suppested that hic reasoning indicated

that procedure. Counsel nay have felt compelled to re

fuse the objection ian the presence of the jury helieving

that @ sucvessful objection might lead the jury to specu.

late that the excluded testimony was more incriminating

than it actually was, but there was no justification for

that compiilsion under the law.

Under California law counsel for respondent could

have requested that the trial court take evidence cut-

side of the presence of the jury on the issue of whether

the statements made by respondent to the undercover

agent were voluntary and were not obtained in viola-

tion of respondent's right to counsel and against self-

incrimination. People v. Schader, 62 Cal. 24 716, 727-

28, 401 P. 2d 665. In that case the California Supreme

Court held that pursuant to the case of Jackson y.

Denno, 378 US, 368 ( 1964) and the case of People v.

Gonzales, 24 Cal. 2d 870, 877-78, 151 P. 24 251,

this procedure chould be followed by the trial court.

Counsel for respondent made no such request for the

obvious reason that after having reviewed the report of

the undercover agent and ofter having privately inter-

viewed her, he determined that it was in the best in-

terests of his client that the undercover agent be per-

iMitted to testify. This is the only reasonable conclusion

that can be drawn from the record. The trial court

had not ruled that counsel would not be permitted to

introduce evidence on the issue of the foundation for

the undercover agent’s testimony. There had been no

objection. no complaint, and no ruling on the applica-

bility of the Massiah, Escobedo or Dorado decisions.

There had merely been a discussion in chambers of the

applicable law which was never renewed by counsel.

The Ninth Circuit Court of Appeals has incor-

porated the argument of Mr. Justice Marshall in his

dissenting opinion that there was no waiver of the

issue in the trial court because an objection was made

in chambers and not renewed in open court because

of a fear of prejudicing the jury. This argument was

rejected by the majority of the United States Supreme

Court. Otherwise Mr. Justice Marshall's opinion would

have been the majority. There is no question on this

record but that the proceedings in chambers were no

more than a discussion of the applicable law. Defense

counsel made no objection and was invited to make an

objection at the proper time. Although the court in-

dicated an opinion that there would have to be an ob-

jection in the presence of the jury, California law as

pointed out above provides for objections in the ab-

senee of the jury at which time a foundation could

have been laid and a proper objection made. Under

those circumstances the trial court would have been

called upon to rule as to the admissibility of the evi-

dence in this case. The trial court was not called upon

to rule as to the admissibility of the undercover agent’s

testimony and therefore there was no opportunity in the

trial court for the error to have been obviated. This

was the basis of the District Court of Appeal’s de-

a

termination that the lack of an objection had waived

the error. There was no necessity for defense counsel

to have waited for the prosecution to prove the activi-

ties of the witness before the witness was taken on

voir dire examination to lay a proper foundation for the

objection. We repeat that defense counsel was cor

vinced that testimony of the undercover agent had far

more value for the defense than detriment and delib

erately waived the opportunity to exclude the evidence

so as to present favorable testimony for the defense.

Such tactics should not be rewarded by a reversal at

this late date on evidence that could have been ex-

cluded if constitutionally infirm had proper action been

taken at the time it was offered. Douglas v. Alabama,

380 U.S. 415, 422 (1965) cited by Mr. Justice Mar-

shall and Whitus v. Balkcom, 333 F. 2d 496 (Sth Cir.

1964) cited by the Ninth Circuit Court of Appeals have

no application whatsoever to this case because counsel

was not required to renew an objection properly made.

Counsel withheld his objection until he interviewed the

witness and then actually decided that it would be best

for his case not to object to the evidence. Nor does the

record show that there would have been any futility in

raising an objection as was the case in Douglas v.

Alabama.

The Court below has actually held that there was

an excuse for failing to object to the evidence. This

argument cannot prevail because the State of California

was not given the opportunity to determine the admis-

sibility of the evidence at the trial so as to either lay a

solid foundation or obviate the error. Judge Trask was

entirely correct in his dissenting opinios in the instant

case that there was no ruling by the trial court on the

admissibility of the evidence in advance, that there was

atl, (88 FERRE CA :

+ pened”:

a a

no request for an in limine hearing, and, therefore, no

way of knowing whether the trial court would have

permitted the testimony or not. Therefore, “[I]t is

difficult to imagine a more voluntary, considered,

conscious and stragetic waiver” than the one that oc-

curred in this case. See also: Evans v. Cupp, 415 F.

2d 844, 846 (9th Cir. 1969) and Hill v. Nelson, 423

F. 2d 167, 168 (9th Cir. 1970).

Conclusion

For the foregoing reasons it is respectfully requested

that a writ of certiorari be granted to these questions of

exceptional importance and thereby establish ‘uniformity

of decision in the altogether delicate field of federal

review of state criminal prosecutions.

Respectfully submitted,

EvVELLE J. YOUNGER,

Attorney Genera’,

WILLIAM E. JAMES,

Assistant Attorney General,

PHILIP C. GRIFFIN,

Deputy Attorney General,

Attorneys for Petitioners.

APPENDIX A.

Opinion of the United States Court of Appeals for the

Ninth Circuit.

United States Court of Appeals for the Ninth Cir-

cuit.

Lucille Miller, Petitioner-Appellant, v. Iverne R.

Carter, Warden, et al., Respondents-Appellees. No.

24,365.

[October 9, 1970]

Appeal from the United States District Court

for the Central District of California

Before: HAMLEY, BROWNING, and TRASK, Circuit

Judges

PER CURIAM:

Petitioner was convicted of first degree murder in

the Superior Court of San Bernardino County, Cali-

fornia, and sentenced to life imprisonment. Her con-

viction was affirmed by the California District Court

of Appeal, People v. Miller, 245 Cal.App.2d 112, 53

Cal. Rptr. 720 (1966). The Supreme Court of the

United States initially granted certiorari, Miller v. Cali-

fornia, 389 U.S. 968 (1967), but after hearing oral

argument ordered the writ dismissed as improvidently

granted, Miller v. California, 392 U.S. 616 (1968).

Petitioner then commenced this federal habeas

corpus proceeding, contending, as she had in her peti-

tion for certiorari to the Supreme Court of the United

States, that her constitutional rights were infringed by

the government’s use of the testimony of an undercover

agent placed in her jail cell after her arrest. The district

court dismissed the petition, holding that petitioner had

deliberately bypassed state procedures, and, in any

$ speneeneaRSUREREARRCNN

Ce ee ete eee ee

since

event, that the Supreme Court of the United States

had adjudicated the merits of petitioner’s constitution-

al claim against her.

The court erred on both grounds.

The California District Court of Appeal reached the

merits of petitioner’s claim, stating that it “would have

no hesitancy in ordering a reversal,” except for its con-

clusion that petitioner had not been prejudiced by the

informant’s testimony. People v. Miller, supra, 245

Cal.App.2d at 141-44, 53 Cal. Reptr. at 720, 738-40.

“Under these circumstances the deliberate bypass rule

is not available. Warden v. Hayden, 1967, 387 USS.

294.” Curry v. Wilson, 405 F.2d 110, 112 (9th Cir.

1968). Nor does the record conclusively establish

“waiver” in the Curry v. Wilson sense. In that case it

appeared from the record that “counsel wanted the

evidence to be before the jury because he believed that

it would be valuable to Curry in support of the only

defense that offered even a remote chance of success.”

405 F.2d at 113. Here, however, the record shows

that petitioner’s trial counsel considered the evidence

prejudicial rather than valuable and wanted it ex-

cluded. He objected to the evidence in chambers, but

the trial judge erroneously, see People v. Schader, 62

Cal.2d 716, 727-28 (1965), insisted that the objection

be renewed in the presence of the jury. Counsel felt

compelled to refuse, see Whitus v. Balkcom, 333 F.2d

496 (5th Cir. 1964), believing that a successful objec-

tion might lead the jury to speculate that the ex-

cluded testimony was more incriminating than it actual-

ly was. See Miller v. California, 392 U.S. 616, 622-23

(1968) (Justice Marshall dissenting).

28 U.S.C. § 2244(c) provides that “a prior judg-

ment of the Supreme Court of the United States on an

a

appeal or review by a writ of certiorari at the instance

of the prisoner . . . shall be conclusive . . . as to all

issues of fact or law . . . actually adjudicated by the

Supreme Court” (emphasis added) when those issues

are raised in a subsequent federal habeas corpus pro-

ceeding. In enacting section 2244(c) Congress “intend-

ed to give a conclusive presumption only to actual ad-

judications of Federal rights, by the Supreme Court,

and not to give such a presumption to mere denials of

writs of certiorari.” S. Rep. No. 1797, 1966 U.S. Code

Cong. & Adm. News 3664. The Supreme Court of the

United States did not adjudicate’ petitioner’s claim; it

merely dismissed the writ of certiorari, an action in-

distinguishable, in this instance, from a denial of cer-

tiorari. 3

Duncan v. Carter, 299 F.2d 179 (9th Cir. 1962),

relied upon by the court below, is distinguishable.

There the Supreme Court’s per curiam opinion dismiss-

ing the writs expressly adjudicated the merits. The

court stated, “the totality of circumstances disclosed

fails to support the substantial due process issues ten-

dered in the petitions for certiorari. . . .” Baldonado v.

California, 366 U.S. 417 (1961). :

Reversed and remanded for further proceedings.

TRASK, Circuit Judge (Dissenting):

It appears to me, as it did to the district court,

that this case is governed by our decision in Curry v.

Wilson, 405 F.2d 110 (9th Cir. 1968). I would there-

fore affirm the decision of the district court which

denied the petition for habeas corpus.

In Curry a state court conviction had been obtained

on evidence which it was claimed was secured in vio-

lation of the accused’s constitutional rights. No objec-

IL COI eta AA ne.

ee ee ae

— on

tion to the introduction of this evidence was made at

the trial. In the District Court of Appeal Curry’s con-

tentions were considered on the merits and rejected.

The deliberate by-pass rule was therefore not avail-

able under Worden v. Hayden, 387 U.S. 294, 297

n. 3 (1967). On an appeal from a denial of writ of

habeas corpus, this court then went on to consider

whether or not there had been a deliberate waiver.

Said the circuit court:

“In our opinion the record of Curry’s trial con-

‘clusively shows that his counsel deliberately, as a

matter of trial strategy, which proved [be] success-

ful, waived those grounds. What counsel did was

not a mere by-passing of a contemporaneous ob-

jection rule. It was an affirmative decision to

waive the objections that he might have raised.

That waiver is binding on Curry.” 405 F.2d at

112.

Waiver affecting federal rights is a federal question.

Fay v. Noia, 372 U.S. 391, 439 (1963). The majority

here apparently recognizes and follows Curry v. Wil-

son to this extent. The majority states however, that

the record does not “conclusively establish ‘waiver’ in

the Curry v. Wilson sense.” Thus the court points to

the fact that in Curry, trial counsel affirmatively

wanted the objectionable evidence to come in because

he thought it would be valuable to his client. In the

present case, on the contrary, counsel considered the

evidence prejudicial and wanted it excluded. Factually

such a distinction exists.

In each case counsel knew what the proposed evi-

dence would be. In each case a considered judgment

was made as to whether or not an objection should be

<p nt A SOIR OS PN ERLE SARI LESSER OTE CT

a es

interposed. The district judge here determined that there

was a deliberate choice made and that such choice

constituted a waiver. Said Judge Whelan:

- “Where, as here, there has been a deliberate

by-passing of state procedures through a conscious

and planned waiver of a legal objection to the

admission of evidence for a strategic and tactical

reason, this court should not grant habeas corpus

relief. Fay v. Noia, 372 U.S. 391.”

I agree. Nor should the fact that in Curry, supra,

counsel “wanted” the objectional evidence to be intro-

duced, believing he could make use of it, constitute a

significant distinction. The controlling factor is not the

motivation for the strategy decision, but the delib-

erate choice which is made. In Nelscn v. California,

346 F.2d 73 (9th Cir. 1965) it did not appear that

trial counsel “wanted” the evidence to be introduced.

Yet re there made his choice and having made it, he

was held to have waived the right to assert his ob

jections in the habeas proceeding.

It is also suggested by the majority that counsel

here was forced to forego his objection because the trial

judge indicated the objection would have to be made

in open court and that the jury might draw an adverse

inference from the objection if sustained. It is asserted

that this requirement of the trial judge to have the

objection made in open court was erroneous on the

basis of People v. Schader, 62 Cal. 2d 716, 727-728

(1965), 401 P.2d 665, 44 Cal. Rptr. 193 (1965).

I disagree. In Schader the trial judge conducted a voir

dire hearing in the presence of the jury on the volun-

tariness of a confession, leaving the consideration or

rejection of the confession to the jury on an instruction

Ss GRAN Sd SRE NE TOIT ROTO LIRIAS PCS! ee 130 SON RTENEPEED

sndliicias

as to its voluntary or involuntary character. As the

Supreme Court of California there pointed out, there

was no way to know from such a record just how the

jury considered the evidence and whether it did so

properly or improperly. The situation here was quite

different. There was a discussion of the proposed wit-

ness in the chambers of the court before she was per-

mitted to testify. Counsel was given an opportunity to

interview her before she was put on. There was no

confession involved; indeed, the witness testified that

the accused insisted upon her innocence. There was no

ruling by the trial court on admissibility in advance.

The witness was not recalled until the next morning.

No request for an in limine hearing was made at the

time. Contrary to Schader there is no way of knowing

whether the court would have permitted the testimony

or not. No objection to it was made. It is difficult to

imagine a more voluntary, considered, conscious and

strategic waiver than this.

I agree with the majority that the action of the Su-

preme Court of the United States in granting certiorari

and then dismissing the writ without opinion does not

constitute an adjudication.

i ees

pee Yen

APPENDIX B.

Order Denying Petition for Writ of Habeas Corpus and

Dismissing Action.

United States District Court, Central District of Cali-

fornia. |

Lucille Miller; Petitioner, v. Iverne R. Carter, War-

den, California Institution for Women at Frontera, Cali-

fornia, Ray Procunier, Director of Corrections, State of

California, Respondents. No. 68-1470-FW.

Petitioner prays for a writ of habeas corpus. She is

presently serving a sentence of life imprisonment for

first degree murder imposed by the Superior Court of

the State of California in and for the County of San

Bernardino. She is confined in the California Institu-

tion for Women by the individually named respondents

in their official capacities as shown in the caption

hereof.

A non-evidentiary hearing has been held in this

matter and the application has been submitted for de-

cision after counsel for all parties have filed written

legal memoranda in support of their respective posi-

tions and after oral argument by counsel.

In her petition and in other papers filed in the pro-

ceedings petitioner alleges three points as grounds for

her claim that her conviction resulted from a violation

of the Fourth, Fifth, Sixth and Fourteenth Amendments

to the U. S. Constitution and that her sentence was

therefore illegally imposed. Those points in essence are

as follows:

1. She alleges that Police Sergeant Patterson was al-

lowed to give testimony concerning his interrogation of

petitioner and her answers thereto, and that the tape

recording of such interview by Patterson was admitted

— oo

in evidence over vigorous objections by defense coun-

sel; that such admission in evidence was a violation of

petitioner’s constitutional rights in that she was inter-

rogated by Patterson outside of the presence of her

attorneys after her arrest and after her attorneys had

advised Sergeant Patterson and other police that she

would make no statements to them.

2. She alleges that the automobile in which her

husband died commenced burning at approximately

1:30 o'clock A.M. and that the burning continued

for some three hours; that an examination and search

of her automobile was conducted by police officials at

the scene shortly after 8:00 A.M. on the same day;

that approximately one hour later the automobile

was taken to a garage some five miles away and

again searched; and that petitioner was arrested without

a warrant some four hours after the vehicle was re-

moved from the scene; that all examinations and

searches were conducted without warrant and were not

incident to an arrest; and that evidence obtained there-

by was subsequently illegally introduced against peti-

tioner at trial.

3. That after her arrest and on October 9, 1964,

(she was arrested on October 8, 1964) Peggy Fisk,

an undercover agent in the employ of the County

Sheriff's Office, was falsely booked into jail on a fic-

titious narcotics charge and placed in petitioner’s cell.

Two other prisoners who had shared the cell were later

removed. Petitioner further alleges that Fisk did not

advise petitioner that she was an agent of the Sheriff

and placed in the cell to report on anything petitioner

might say. Fisk remained alone with petitioner until

October 15, 1964, giving oral reports as to their con-

versations from time to time to the Sheriff's Office;

oo

petitioner alleges a written report was prepared by Fisk

on October 12 and partly on October 14, 1964. She

further alleges that on October 13 after she was ar-

raigned on a formal complaint charging her with mur-

der that a judge issued an order prohibiting officials

from questioning petitioner unless her attorney was pres-

ent. Petitioner alleges that the court order was violated

in that Fisk was kept in the cell with petitioner until

October 15.

Petitioner alleges that the admission in evidence of

Fisk’s testimony as to what petitioner told Fisk in the

cell after her arrest for murder violated her constitu-

tional rights in that it was procured through deception

in violation of her Fifth and Sixth Amendment rights.

DISCUSSION OF HER CONTENTIONS

1. With respect to the Patterson testimony question,

counsel for petitioner at the time of oral argument

herein stated that they were not pressing the Patterson

matter and conceded that there was in fact no objec-

tion made at petitioner’s criminal trial to the introduc-

tion of such testimony. Such being the fact, and the

constitutional issue as to the propriety of allowing such

testimony in evidence never having been raised in any

state court, this Court need not consider this issue for

the reason that petitioner has not exhausted her state

remedies regarding it. Title 28, United States Code,

Section 2254. Therefore, this first point of petitioner

does not entitle her to relief in this action.

2. While counsel for petitioner did not devote any

oral argument at the hearing to the contention made

in her petition that there was an illegal search of the

burned automobile belonging to the defendant and her

deceased husband, the contention was not waived by

="

petitioner and therefore is now considered by the Court.

The evidence which plaintiff contends was illegally re-

ceived at her murder trial because of what she alleges

was an illegal search is the testimony of the witness

Snare. In the chambers of the trial judge: during

the course of trial and outside the presence of the

jury, petitioner’s trial counsel objected to the introduc-

tion of the testimony of Mr. Snare on the grounds that

it was the product of a search without a warrant and

not incidental to a lawful arrest.

At that hearing in chambers the state trial judge

ruled that there had in fact been no search of the auto-

mobile and rule’ that Snare’s testimony was admissible.

At the time that the trial judge so ruled there had

been testimony received in evidence by Fire Chief

Hogancamp. He testified that when he arrived at the

scene of the burning car in the early morning of Oc-

tober 8th he found the lefthand door of the car open.

At that time the trunk lid was not open nor was the

engine lid open, but in order to fight the fire he opened

or caused the trunk lid and engine lid to be opened.

Water was poured on the fire. At that time the fire

was burning in the engine section and there was a

little fire in back of the back seat of the car. When

Mr. Snare first examined the automobile the engine lid

and trunk lid were still propped open.

Snare testified he made a cursory examination of the

automobile on the evening of October 8th after he had

first looked at the area where the car had burned and

from which area the car had by that time been moved.

That evening he gave the car only a quick examina-

tion, and the next day he went back for a more detailed

examination of the car. |

entice

This Court has read the entire record of Snare’s testi-

mony and it appears therefrom that he examined those

portions of the car which were then readily available to

his sight, so that this Court is satisfied that the en-

tire record supports the conclusion of the state trial

court judge that there was in fact no illegal search.

Furthermore, the conclusion of the California District

Court of Appeal, in ruling on appeal that the search

was reasonable, is supported by the record. The Dis-

trict Court of Appeal held that it was the duty of the

police where a man had been burned to death in an

automobile to determine the fire’s cause; the District

Court of Appeal stated, “The situation is analogous to

that where a person suspected of homicide is found in

possession of a gun. It has never been held that a

search warrant is necessary to enable the police to test

that gun by firing bullets from it to determine if the

gun was the one used in the killing.” Miller v. Califor-

nia, 245 Cal. App. 2d 112, 140.

Petitioner is not entitled to any relief upon this, her

second contention.

3. However, counsel for petitioner strongly urge

that the admission into evidence of the testimony of

Peggy Fisk, the undercover agent in petitioner’s jail

cell, constitutes a violation of her constitutional rights

against self-incrimination under the Fifth Amendment

and of her right to the assistance of counsel under the

Sixth Amendment. The note that trial counsel for peti-

tioner in the state court criminal trial during the course

of a conference in the trial judge’s chambers in the

absence of the jury objected generally to the admission

of such testimony. The trial judge then advised such

trial counsel that objection would have to be made at

nails

the proper time after preliminary questions were put to

Fisk in the presence of the jury; such trial counsel

chose not to interpose an objection when Fisk was in-

terrogated before the jury. The failure to interpose

such objection is a clear instance of waiver of the right

to now complain of such testimony; the affidavit of

such trial counsel now submitted by petitioner herein

makes clear that his failure to object was a deliberate |

choice, and the reasoning disclosed by his affidavit

demonstrates that he was a seasoned trial lawyer and

aware of the legal and psychological aspects of a suc-

cessful criminal defense. Where, as here, there has

been a deliberate bypassing of state procedures

through a conscious and planned waiver of a legal

objection to the admission of evidence for a strategic

and tactical reason, this Court should not grant habeas

corpus relief. Fay v. Noia, 372 U.S. 391.

The deliberate bypassing of the state’s contempora-

neous objection rule precludes consideration of the

issues now raised. See Curry v. Wilson, 405 F.2d 110,

111 (9th Cir. 1968) citing Nelson v. California, 346

F.2d 73 (9th Cir. 1965), cert. den. 382 U.S. 964.

Also it is clear from statement of petitioner’s rial coun-

sel to the state trial judge during the course of the

chambers’ conference mentioned that such counsel was

fully cognizant of the implications of the Massiah and

Escobedo rulings of the Supreme Court as well -as the

ruling of the California Supreme Court in Dorado.

There is a more compelling reason why petitioner’s

claim respecting the Fisk testimony does not justify the

=, ae

granting of any relief in this action. That reason is the

fact that the U. S. Supreme Court, after first granting

certiorari to consider whether the admission of the Fisk

testimony in evidence constituted a violation of peti-

tioner’s right to a fair trial, subsequently dismissed the

petition for certiorari as improvidently granted. Miller

v. California, 392 U.S. 616 (1968).

Petitioner’s counsel herein contend that such ruling

of the Supreme Court should not be determinative here.

_ This Court notes that the minority of the Supreme

Court, speaking through Mr. Justice Marshall, discuss-

es the constitutional questions now raised by petition-

er and the reasons why they considered that petition-

er’s conviction should be reversed; it would therefore

appear that the Supreme Court did indeed consider

whether there was any violation of constitutinal rights

meriting its consideration on certiorari.

The Court of Appeals for the Ninth Cirucit has

already considered the binding effect of the dismissal

of a writ of certiorari by the Supreme Court in a case

similar in legal effect to the instant action. In Duncan

v. Carter, 299 F.2d 179, 182, the Court of Appeals in

speaking of the effect of the dismissal of a writ of cer-

tiorari by the Supreme Court stated: “It was in practi-

cal effect an adjudication. Where a question of law is

actually adjudicated by the Supreme Court, and where

no newly discovered facts are alleged which would cast

a legal question in a new light, a district or circuit

judge is bound thereby as in the case of any adjudi-

cation of a question of law by the Supreme Court.”

a en

Here there are no new facts asserted by petitioner

and the ruling by the Supreme Court is binding on this

Court.

IT IS THEREFORE THE ORDER OF THIS

COURT that petitioner is not entitled to a writ of

habeas corpus, and

IT IS FURTHER ORDERED that her petition is

den.d and this action is dismissed.

DATED this 24th day of March 1969.

Francis C. Whelan

United States District Judge

Gn

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