Petitioners Brief — Procunier v. Atchley

Subject Index

Page

Opinion below ....---eeeeeeeeeee eee eeeeeeeeteceeeeeees 1

Jorindiction . 1. eee eee cece cece nec ecn cscs eeesenes 2

Questions DENN yeapecdcssideunesacsncusesscesecnens 2

Retete MNGITEE 5a. onsen snncvececsecnccacscescncessones 3

@eotempamt OF The CRED 22... cc sc cscs csccnnsccncecccccees 3

A. Proceedings in the state courts .................0.-. 3

B. Proceedings in Federal Courts ..................4. 3

Gepemntet GE GRMRD one c cic n cece cece ccecaceenes piseeniee 4

i CE in need becAceSed vancceees kde ceavens 4

B. Defendant’s statements admitted at trial .......... 6

C. The now challenged statement .................... 7

D. Defendant’s subsequent statements admitted at trial

wh RE ree 4

E. Other evidence presented at trial .................. 9

Reem GE GUI aos oes ccc sedans sncssccececsens 12

Argument ..... ccc cccccccccnccccccccsecscccsecvecsesese 13

I

The district court erred in refusing to apply the presump-

tion of correctness declared in Title 28, United States

Code, Section 2254(d), to the findings of the state trial

and appellate courts that Atchley’s tape recorded state-

Se SU I 6 ninco an on 46s 1p see aed cecaxeseeees 13

A. The state court’s findings on the issue of voluntariness 15

ee FG PTET Ter TT Tree eer 15

2. The appellate court holding .................. 17

B. The district court erroneously concluded that the

presumptive validity of these findings had been viti-

ME. ce aks Coca es eehdhs cobalt whhsaeeewd sae 17

C. Defendant’s statement was voluntary as a matter of

Pt ce eet bine akek Cahn Aen CAbkNSs eeuhs knee «<6 25

———

ii Sussect InwpEx

II

On federal habeas corpus proceedings brought by state

prisoners the district court’s scope of review should be

confined to whether the prisoner was afforded a fair re.

view of his conviction in the state courts which was ade.

quate to allow a resolution of the matters he sought to

PUTIN heated eccncandiveccccnucacscechenetaanteebant 27

A. Finality of criminal judgments ................... 30

B. Conformity with the intent of congress ............ 35

C. Relief of federal court dockets .................... 36

D. Application of the proposed rule to this case ...... 36

; III

The federal district court has ordered the California courts

to hold a hearing in excess of their jurisdiction ........ 38

RIE © bcs ctisadiacd anh caeee hd maded sew eae ee 40

Table of Authorities Cited

Cases Pages

Anders v. California, 386 U.S. 738 (1967) .............. 31

Ashcraft v. Tennessee, 322 U.S. 143 (1943) .............. 24

Atchley v. California, 366 U.S. 207 (1961) ............ 8, 12

Atehley v. Dickson, 338 F.2d 1014 (9th Cir. 1964) ...... 4

Atchley v. Wilson, 300 F.Supp. 68 (N.D. Cal. 1968)...... 4

Brown v. Allen, 344 U.S. 443 (1953) .............. 12, 29, 30

Brown v. Crouse, 399 F.2d 311 (10th Cir. 1968) ........ 36

Canales v. Baker, 406 F.2d 685, (10th Cir. 1969) ........ 36

Chambers v. Florida, 309 U.S. 227 (1989) .............. 24

Commonwealth v. Howard, 212 P.A. Super, 100, 239 A.2d

eT en eed eek uke cecenauun at 24

Connor v. Wingo, 409 F.2d 21 (6th Cir. 1969) .......... 36

Culombe v. Connecticut, 367 U.S. 568 (1961) ............ 24, 25

Davis v. North Carolina, 384 U.S. 737 (1966) .......... 24, 25

Dentis v. Oklahoma, 376 F.2d 590 (10th Cir. 1967) ...... 36

TaBLE oF AUTHORITIES CITED iii

Pages

Desist V. United States, 394 U.S. 244 (1969) .......... 33, 34, 35

Douglas v. California, 372 US. 368 (1968) .............. 31

Draper v. Washington, 373 US. 487 (1968) ............ 31

Escobedo v. Illinois, ely Se) Be | ere 25

Fay v. Noia, 372 U.S. 391 ee ae coe hes 0 khus 29, 30

Fikes v. Alabama, 352 oo & Ke | SaSNeee: 24

Gallegos v. Colorado, 370 U.S. 49 (1962) ..........--++-- 24

Gideon v. Wainwright, 372 U.S. 335 (1963) ...........-. 31

Griffin v. Illinois, 351 U.S. 12 (1956) ......----.++++++- 31

Hutchinson v. Craven, 415 F.2d 278 (9th Cir. 1969)...... 17

In re Wallace, 24 Cal.2d 933, 152 P.2d 1 (1M4) ........ 24

Jackson v. Denno, 378 U.S. 368 (1964) ...2, 22, 23, 31, 37, 38, 39

Johnson v. Florida, 283 F.Supp. 494 (S.D.Fla. 1968) .... 14

Justus v. New Mexico, 378 F.2d 344 (10th Cir. 1967).... 34

Katz v. United States, 389 U.S. 347 (1967) .........-.. 20

Kaufman v. United States, 394 U.S. 217 (1969) ........ 34

Lisenba v. California, 314 U.S. 219 (1941) ........-..-.. 24

Maes v. Patterson, 401 F.2d 200 (10th Cir. 1968) ........ 36

Mathis v. Nelson, 411 F.2d 1363 (9th Cir. 1969) ........ 17

Miranda v. Arizona, 384 US. 436 (1966) .............. 25

People v. Atchley, 53 Cal.2d 160, 346 P.2d 764 (1959) ..11, 17, 20

People v. Belvins, 54 Cal.2d 71, 351 P.2d 776 (1960)..... 23

People v. Berve, 51 Cal.2d 286, 332 P.2d 97 (1958)...... 23, 24

People v. Gonzales, 24 Cal.2d 870, 151 P.2d 251 (1944) 23

People v. Millum, 42 Cal.2d 524, 267 P.2d 10389 (1954) 24

People v. Speaks, 156 Cal.App.2d 25, 319 P.2d 709 (1957) 24

People v. Stroble, 36 Cal.2d 615, 226 P.2d 330 (1951)....19, 24

People v. Trout, 54 Cal.2d 576, 354 P.2d 231 (1960)..... 23

Piche v. Rhay, ........... POS use (i ) eee 36

Pinto v. Pierce, 389 U.S. 31 (1967) .............2-- eee 23

Pointed v. Texas, 380 US. 400 (1965) ................ 31

Reck v. Pate, 367 U.S. 483 (1961) ................-4-. 24

Sanders v. United States, 373 US. 1 (1963) ............ 30, 31

Sims v. Georgia, 385 U.S. 538 (1967) .............-+.-- 31

Townsend v. Sain, 372 U.S. 293 (1963) ....13, 14, 29, 30, 31, 37

Turner v. Pennsylvania, 338 U.S. 862 (1949) ............ 24

—,

iv TaBLE OF AUTHORITIES CrreD

, Pages

United States ex rel. Thomas v. Maroney, 406 F.2d. 9992

(ee SME, BOOOD. 5 clawing cdo ude das ibnsaminuel

United States ex rel. Worlo v. Pate, 411 F.2d 972 (7th Cir.

BONNE. 5 osu ers tos 0chinibhs ce phitbarliddcaseaanenarc ee 36

Wade v. Wilson, ..... | ae . 24 L.ed.2d 470 (1970)... 33

Williams v. Beto, 386 F.2d 16 (5th Cir. EPP eP Ren 39

Wilson v. Atchley, 412 F.2d 230 (9h Cir. 1969) ........ 4

Statutes

California Penal Code:

cE DC ee ee 11

SN I oo is cdaak ait aren y hide dea min'c Aiea keke oe ll

ee aA aki Aig hob sere cut Wokeede al rae 39

SP Wig PODS ns oo wn nwhe wadabaeureaacet as p)

BO Mama MNS his diins bd panedacweesabhaviweouls 14, 15

28 U.S.C., Section 2254(d) .......... 2, 3, 12, 14, 15, 16, 17, 28 35

amp ULEAD, Ge ED ke eile 18

Constitutions

California Constitutions:

RR rr err rye = 39

Texts

Public Law, 89-711, See. 2, 80 Stat. 1105 ................ 14

Prof. Paul M. Bator, Finality in Criminal Law and Federal

Habeas Corpus for State Prisoners, 76 Havard Law

See SR I, 08 Ls GS Shia bh cle ductich Laced eos cd 32

The Federal Habeas Corpus Act, 22 U.Mi.L.Rev. 409

fs ie pat dy AS eG A One Ada SAE, MMA ek CAA. 14

iy: in, MD es ce wn ta elgg dbieelea EEE ces 14

Habeas Corpus, Proposal for Reform, 9 UtahL.Rev. 18

ED <heidla dia Dh Wheod soins od awa cia ve Hs a ee 38

Senate Report 1979, 89th Cong. 2d Sess. 1, 3 US. Code,

Cong., Sec. A.B. News 36 (1966) .................... 14

1966 U.S. Cong. & Adm. News, Vol. II, pp. 3666-67...... 15

1968 U.S. Cong. & Adm. News, Vol. II, pp. 2123 ...... 15

—

In the Supreme Court

OF THE

Runited States

——

OcToBER TERM, 1969

No. 642

LAWRENCE E. Witson, Warden, California |

State Prison, San Quentin, California,

Petitioner,

—

vs.

Veron ATCHLEY,

Respondent.

A

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE PETITIONER

OPINION BELOW

The memorandum opinion of the United States Dis-

trict Court for the Northern District of California,

printed in the Appendix at pages 68 through 79, is

reported at 300 F. Supp. 68 (N.D. Cal. 1968). The

Court of Appeals per curiam majority opinion affirm-

ing the order of the District Court and Judge Barnes’

2

dissent thereto, are printed in the Appendix at pages

80 through 85, and reported at 412 F.2d 230 (9th Cir.

1949).

JURISDICTION

The judgment of the Court of Appeals was entered

May 27, 1969, and our petition for rehearing was de

nied June 26, 1969. The petition for certorari was

filed with this Court September 4, 1969, and granted

February 24, 1970. The jurisdiction of this Court is

invoked under Title 28, United States Code, Section

1254(1).

QUESTIONS PRESENTED

1. Whether the District Court erred in refusing to

apply the presumption of correctness declared in Title

28, United States Code, Section 2254(d), to the find-

ing by the California trial and appellate courts that

Atchley’s tape recorded statement was voluntary.

2. Should a district court on a petition for a writ

of habeas corpus relitigate the voluntariness of a con-

fession where this issue was presented to the state

trial court whose decision adverse to the defendant

was affirmed by a unanimous state supreme court?

3. Can a federal district court compel the state

courts to act beyond their jurisdiction by invoking

the “procedure of convenience” outlined in Jackson

v. Denno, 378 U.S. 368 (1964).

So

STATUTE INVOLVED

This case concerns the proper interpretation of

Title 28, United States Code, Section 2254(d), which

is set forth in Appendix C to the Petition for Certi-

orari at pages 19 through 22.

STATEMENT OF THE CASE

A. Proceedings in the State Courts.

Veron Atchley was convicted by a jury of the first

degree murder of his wife. The death penalty was

imposed. Upon appeal to the California Supreme

Court his conviction was affirmed in an opinion set

forth in the Appendix at pages 48 through 67, and

reported at 53 Cal.2d 160, 346 P.2d 764 (1959).

Subsequently, Atchley’s sentence was commuted by

the governor to life imprisonment with eligibility for

parole.

B. Proceedings in Federal Courts.

Atchley’s petition to this Court for a writ of cer-

tiorari to review the decision of the California Su-

preme Court affirming his conviction and the imposi-

tion of the death penalty was granted. After hearing

argument this Court concluded that the totality of

cireumstances manifested by the record did not war-

rant bringing the case before it. Accordingly, the writ

was dismissed. Atchley v. California, 366 U.S. 207

(1961). .

Atchley then unsuccessfully petitioned the United

States District Court for the Northern District of

4

California for a writ of habeas corpus. The District

Court’s denial of that petition was affirmed on appeal.

Atchley v. vickson, 338 F.2d 1014 (9th Cir. 1964).

The instant proceedings commenced with the filing

of a petition for a writ of habeas corpus in the Dis.

trict Court for the Northern District of California

on March 10, 1967. An order to show cause issued,

counsel was appointed and a supplemental return and

traverse were filed. See Appendix pages 7 through 47,

The District Court ordered Atchley’s release from

custody unless the state afforded him a hearing on the

voluntariness of his confession or a new trial. Atchley

v. Wilson, 300 F.Supp. 68, 73 (N.D. Cal. 1968), Ap-

pendix pages 78-79. Warden Wilson appealed to the

Court of Appeals for the Ninth Cireuit which affirmed

the order of the District Court in a per curiam opin-

ion. Judge Barnes dissented. Wilson v. Atchley, 412

F.2d 230, 231-232 (9th Cir. 1969), Appendix pages

80-85.

STATEMENT OF FACTS

(A) The ‘Shooting.

At approximately 2:30 a.m. on August 3, 1958, de

fendant’s wife, Marcella Katherine Atchley was shot

and killed in the front yard of her home in Gridley,

Butte County, California (RT 601-608).'

Several days previously she had separated from de-

fendant and moved with her children from his home

“RT” refers to the Reporter’s Transcript on Appeal to the Cali-

fornia Supreme Court, a copy of which was before the District

Court, the Court of Appeals and has been lodged with this Court.

—

in Palermo to Gridley (RT 513-514). On the evening

before her death defendant arrived at her home about

12:30 a.m., parked his car a block away and walked

to the house (RT 696). When he did not see his wife’s

car and no one answered the door, he left to search

for her at several bars (RT 1491-1492). Defendant

returned to his wife’s house about 1:20 a.m. and again

parked his car a block away from the house (RT

9359-2353). He removed a .22 caliber automatic pistol

from the glove compartment of his ca, placed it in

the belt of his trousers (RT 1512) and approached

the house through a back alley (RT 842).

Atchley waited near the back of the premises until

he could see the headlights of his wife’s car as it

entered the driveway (RT 1536). Mrs. Atchley left

the car and was approaching the front door of her

house when the defendant stepped from behind the

corner of the house (RT 954-955). In the next few

minutes Mrs. Atchley was shot six times (RT 1043-

1046). Five empty cartridge casings were found near

the body in such proximity as to indicate that all of

the shots had been fired with the gun in approxi-

mately the same position. The absence of pow-

der burns on the victim’s clothing showed that the

gun was at least two feet from her at the time of the

shooting (RT 820-822).

5

The neighbors were awakened by a woman’s voice

hysterically crying “‘Oh, don’t, don’t” (RT 602), fol-

lowed by a series of shots (RT 603). They observed

the defendant in a stooped position fire two shots to-

ward the ground (RT 603) but their view of the body

.

was obscured (RT 604). When one of the neighbors

asked ‘‘What in the hell is going on over there” (RT

604, 605), defendant immediately darted to his car

and drove off at a high rate of speed (RT 698).

Defendant returned to his home in Palermo, where

he buried the murder weapon in his backyard (RT

956).

Defendant was arrested at his home about an hour

and a half after the shooting (RT 956).

(B) Defendant's Statements Admitted at Trial.

Defendant was first questioned at 6 a.m., August 3,

by Mr. Anderson, an investigator for the District At-

torney’s office. At that time defendant stated that he

had not been in Gridley that night and denied owning

a .22 caliber pistol. He claimed to have gone to bed

at his residence in Palermo at 12:30 a.m. and thought

Mr. Jones, who had previously threatened Mrs. Atch-

ley, might have done the shooting (RT 836-839). No

objection was made to the admission of this statement.

Defendant was not questioned again until 11:30

p.m, on August 3 when Mr. Lazier, an investigator for

the State Department of Justice, arrived (RT 759-

760). Mr. Lazier made no promises of immunity or

threats to induce defendant’s statements (RT 761)

which were substantially the same as he had given

earlier (RT 762-768). These were admitted at trial

over defendant’s objection (RT 761-762). This ques-

tioning continued until about 5 a.m. on August 4, at

which time defendant was returned to his cell where

he slept until noon (RT 772-773).

7

During the morning of August 4, the police located

the murder weapon at defendant’s home in Palermo

(RT 775). Defendant, knowing that he was booked for

investigation of murder, did not appear nervous when

the officers confronted him with the weapon that

afternoon (RT 773). He then changed his former

story and admitted burying the gun in his backyard

(RT 775-776). He also admitted that he had driven to

Gridlev on the night of the shooting, parked his car

about one and a half blocks away from his wife’s

home, entered the premises by way of the back alley

and waited in the rear of the premises (RT 776).

When he heard his wife’s car enter the carport, he

came out from behind the corner of the house and

proceeded toward her (RT 777). He claimed that she

pointed the gun at him and it went off several times

during a struggle (RT 777). After he wrestled the

gun away from her it went off several additional

times (RT 777). He took the gun with him and re-

turned to Palermo where he buried it (RT 777-778).

This statement was admitted after voir dire exami-

nation on defendant’s objection to its voluntariness

(RT 770-774).

(C) The Now Challenged Statement.

Late on the afternoon of August 4, defendant iele-

phoned Ray Travers, a friend and his insurance

agent, and asked him to come to the jail (App. 140-

141)? Mr. Travers arrived at the jail about 10 a.m.

on August 5 (App. 141) and had a conversation with

2This portion of the reporter’s transcript is reproduced in the

Single Appendix.

8

defendant relative to an insurance policy on the life

of the decedent which was payable to her children

(App. 143-144). During the course of this conversa.

tion defendant, on his own initiative, told Travers

how the shooting took place (App. 152). As Travers

was leaving the jail, he informed the sheriff’s officers

about defendant’s statement (App. 141-142). Travers

intended to return to get additional information from

defendant for his insurance company (App. 142, 156),

and agreed to let the officers tape record their next

conversation (App. 156).

At about noon on August 5, Travers returned and

had another conversation with defendant. Travers

testified that defendant’s statements were given freely

and voluntarily without promises or inducements

(App. 144-145). Atchley was aware that this informa-

tion had to be reported to Travers’ insurance com-

pany (App. 142-143).

This tape recorded conversation was played to the

jury over defense objection (App. 159-160).

In this statement, Atchley told Travers that on the

night of the shooting he was standing behind the cor-

ner of the house waiting for Mrs. Atchley’s arrival

(App. 97, 102). She lunged for the pistol he had

tucked in the belt of his trousers and a struggle en-

sued (App. 97-98, 102-103). During this struggle the

gun discharged three times (App. 98). After he

pushed her to the ground, the gun, still in his hand,

discharged twice (App. 98).

Defendant admitted that he owned the gun over a

year and kept it in his car (App. 100-101). He car-

-

9

ried the gun to the house to scare the man Mrs.

Atchley was running around with (App. 99), and did

not intend to kill her (App. 99).

(D) Defendant's Subsequent Statements Admitted at Trial

Without Objection.

Defendant did not make any further statements un-

til August 7, 1958, when he was taken to view his

wife’s body at the mortuary (RT 840). In a conver-

sation which was given freely and voluntarily (RT

874), he told substantially the same story he told

Travers (RT 841-850).

(E) Other Evidence Presented at Trial.

At trial, defendant testified that he had + ~~. wait-

ing near the back of the house for his wife)» *urn

(RT 1495), that he had the pistol in his mic tT

1496) but maintained that he had it only to seare her

for he had no intention of killing her (RT 1501-1502).

He testified that when he saw her returning alone he

stepped out to greet her but she saw the gun under

his shirttail and lunged for it (RT 1497). During the

struggle to recover the gun it discharged several times

and even after he recovered it, it fired several addi-

tional times (RT 1499).

| Defendant was born in Tennessee in 1917 where he

attended school through the third grade. He could

neither read nor write anything other than his name.

He moved to California in the early forties and

worked initially as an agricultural laborer and then

as a welder (RT 1411, 1416-1419). He met the de-

cedent in 1953 and she bore a child which he claimed

———

was his (RT 1422, 1586). Later in 1958 he left the

decedent and moved to Palermo where he opened a

bar which he later sold and went to work for his

brother in the used car business (RT 1550-1551). He

subsequently opened his own used car lot which netted

him between eight and thirteen thousand dollars per

year (RT 1554). In operating this business he had

retained various attorneys and engaged in law suits

in Butte County (RT 1551).

In 1957 Mrs. Atchley came to Palermo and moved

in with the defendant (RT 1436-1437). They were

later married in Georgia but the marriage was not

publicized in order to avoid a reduction in the child

welfare aid Mrs. Atchley was receiving (RT 1462,

1476). Prior to the shooting, Mrs. Atchley had com-

plained to the police of defendant’s threats and also

expressed these fears to others (RT 2089, 2339-2340).

During argument defense counsel made the follow-

ing reference to the now challenged statement,

«¢ |. and I think when .. . Atchley was in there

that first meeting at 10 o’clock and before they

knew anything at all about a whole lot of these

things that you have heard here, that . . . Atchley

did tell Travers definitely what occurred there.

* * * T was going to introduce this statement to

you, Ladies and Gentlemen, if the State had not

put it in, I would have put it in. Now, let me go

over the important parts of this statement.”

(RT 2587).

10

The case was tried on the theory of murder which

was deliberate and premeditated and also on the the

11

ory of murder perpetrated by means of lying in wait.

(al. Pen. Code § 189. The jury was instructed as to

second degree murder (CT 163-164) ;* manslaughter

(CT 166-168) ; justifiable homicide (CT 174-175) and

self-defense (CT 176-180). The jury concluded that

defendant was guilty of murder in the first degree

(CT 188).

Pursuant to California procedure defendant’s con-

viction was automatically reviewed by the California

Supreme Court [Calif. Pen. Code § 1239, subd. (b)]

and affirmed in a unanimous opinion which recognized

for the first time in our state that ‘‘any statement

by an accused relative to the offense charged is in-

admissible against him if made involuntarily”. People

v, Atchley, 53 Cal.2d 160, 170, 346 P.2d 764, 769 (1959)

App. p. 56. On certiorari from that decision the sole

issue presented in Atchley’s brief was the voluntari-

ness of his statements. See “Brief of Petitioner” No.

9%, October Term, 1960. After hearing oral argument

and fully examining the record this Court concluded

that ‘‘the totality of circumstances as the record

makes them manifest did not warrant bringing the

“CT” refers to the Clerk’s Transcript on Appeal, a copy of

which was lodged with the District Court and is before this

Court.

‘Petitioner did not request any instructions on admissions or

confessions (CT 99-125) and, except for the following cautionary

one, none were given:

“The law of this state admonishes you to view with caution

the testimony of any witness which purports to relate an

oral admission of the defendant or an oral confession by

him.” (CT 144).

12

case [before the court]”. Atchley v. California, 366

U.S. 207 (1961).°

SUMMARY OF ARGUMENT

The District Court erred in granting the writ of

habeas corpus in this case because the state court

findings that Atchley’s confession was voluntarily

given were entitled to a presumption of correctness

under Title 28, United States Code Section 2254(d),

None of the reasons advanced by the District Court

for refusing to apply that presumption find any sup-

port in the record; indeed, they can be answered by

an examination of the opinion of the California Su-

preme Court. Moreover, the record shows that Atch-

ley’s confession was voluntary as a matter of law.

Secondly, this Court should adopt a rule confining

the scope of review on federal habeas corpus to the

face of the opinion of a state appellate court where

the state has provided the prisoner with an adequate

corrective process for the adjudication of federal con-

stitutional issues based on disputed questions of fact.

Previous decisions of this Court have given insufficient

weight to the importance of the finality of state crim-

inal judgments. This Court should consider the effect

of its recent series of decisions which guarantee state

5While we recognize the general rule that a denial of cer-

tiorari is not entitled to persuasive effect in subsequent proceed-

ings [Brown v. Allen, 344 U.S. 443, 489-498 (1953)] where, as

in this case, certiorari is withdrawn as having been improvi-

dently granted after briefs were filed and argument heard it

must be presumed that the record did not manifest any unfair-

ness at the hearing on the issue of the voluntariness of Atchley’s

statements.

—

-

criminal defendants the right to a meaningful appeal

in the state courts.

Finally, the District Court erred by ordering the

California courts to hold a hearing on the admissibil-

ity of petitioner’s confession where no California

court has jurisdiction to do so in the absence of an

application by petitioner.

13

ARGUMENT

I

THE DISTRICT COURT ERRED IN REFUSING TO APPLY THE

PRESUMPTION OF CORRECTNESS DECLARED IN TITLE 28,

UNITED STATES CODE, SECTION 2254(d), TO THE FIND-

INGS OF THE STATE TRIAL AND APPELLATE COURTS

THAT ATCHLEY’S TAPE RECORDED STATEMENT WAS

VOLUNTARY

Townsend v. Sain, 372 U.S. 293 (1963), empowers

federal district courts to hold evidentiary hearings

to resolve contested issues of fact in habeas corpus

proceedings brought by state prisoners. A duty to

hold such hearings was imposed on the district courts

only when the state courts had not provided a full

and fair evidentiary hearing on the issue. Guidelines

were announced for the district courts to follow in

exercising their discretion to hold plenary hearings

in other cases.°

°Those guidelines were: (1) The merits were not resolved in

the state court proceedings; (2) The factual determinations made

in the state court proceedings were not fairly supported by the

record; (3) the procedure employed in the state court was inade-

quate to a full and fair hearing; (4) There was a substantial

allegation of newly discovered evidence; (5) Material facts were

not adequately developed; (6) The state did not afford a full

—

Thereafter, Title 28, Section 2254 was amended

[Public Law 89-711, § 2, 80 Stat. 1105] to increase

the number of situations in which a state court de.

termination of a factual issue was to be accorded

finality. See Statute Note, 45 Tex.L.Rev. 592, 596,

These amendments to Section 2254 apply a qualified

doctrine of res judicata in federal habeas corpus pro-

ceedings brought by state prisoners. See Senate Re-

port 1979, 89th Cong. 2d Sess. 1, 3 U.S. Code, Cong,

§ A.B. News 36, 68 (1966). When enacted, Section

2254(d) was hailed as a great assistance to the dis-

trict courts in relieving their overcrowded dockets by

limiting the situations in which evidentiary hearings

should be held. Cerf, The Federal Habeas Corpus

Act, 22 U.Mi.L.Rev. 409, 492 (1967). It was also felt

to have effected a badly needed reform in reducing

the rising friction between state and federal judicial

systems. Johnson v. Florida, 283 F.Supp. 494, 497

(S.D.Fla. 1968).

The failure of the federal district courts to give

this amendment the effect intended by Congress, as

exemplified by this case, has led to more drastie pro-

posals for legislative reform.’ If the reforms intended

14

and fair hearing. Townsend v. Sain, supra, at 313-318. Title 28,

United States Code, Section 2254(d) codifies most of these guide-

lines with the notable exception of “newly discovered evidence”

which, having been specifically deleted, will not support a col-

lateral attack on the presumptive validity of a state court

finding.

7The “Omnibus Crime Control and Safe Streets Bill of 1968”

was reported from Senate Committee with provisions which re-

moved from federal courts the power to reverse state convictions

involving admissions or confessions introduced into evidence as

voluntarily given where the highest court of the state had ap-

—

15

by the enactment of Title 28, United States Code Sec-

9954(d) are frustrated, as they were in the instant

case, then more severe legislative action is to be ex-

pected.

Title 28, United States Code Section 2254 as

amended in 1966, accords a presumption of correct-

ness to factual determinations made by state Courts

at a hearing on the merits. The burden of establishing

an exception to this presumed validity rests on the

prisoner who must show, by convincing evidence, that

the factual determination of the state court was erro-

neous. 1966 U.S. Cong. & Adm, News Vol. IT, pp.

3666-67.

A. The State Courts’ Findings on the Issue of Voluntariness.

1. The Trial Court Finding:

In the instant case, following his arrest, defendant

Atchley made numerous statements. Initially he de-

nied being near the decedent’s home on the night of

the murder (RT 150-152; 759:768) until the police

found the murder weapon at his house. He then ad-

mitted going to his wife’s home (RT 776) but claimed

that the gun was his wife’s and it discharged during

a struggle to prevent her from shooting him (RT

7717).

Defendant’s later statements to Travers altered his

previous statements only by admitting that he had

brought the pistol to the scene (App. p. 98).

proved their admission. 1968 U.S. Cong. & Adm. News, Vol. II,

p. 2123. The committee felt that whether a confession was vol-

untarily given is essentially a question of fact which should be

decided at the trial level.

16

Two days after his conversations with Travers,

which defendant did not know had been recorded, he

told the sheriff's officers substantially the same story

(RT 841-850). This statement was admitted at trial

without objection (RT 840-850).

When the prosecutor offered into evidence the

tape recording of defendant’s second conversation

with Travers, counsel objected and requested an in

chambers hearing on his cvjections (App. p. 86). Dur-

ing the course of this hearing it became apparent to

the trial court after listening to the tape recording

that the statement approached a confession (App. p.

126-127) and the court admonished the prosecutor

that ‘‘before the tape is used I think that the same

foundation should be laid as is used for the introdue-

tion of a confession” (App. p. 127). The court then

ruled that the tape would not be played to the jury

unless such a foundation was laid (App. p. 131).

When court reconvened before the jury Travers’

testimony established the necessary foundation (App.

pp. 141-145) and the court allowed the tape recording

to be played over defendant’s objection (App. p. 160).

This admission of Atchley’s statement to Travers over

his objection to its voluntariness was clearly “A de-

termination after a hearing on the merits of a factual

issue,” and thus entitled to the presumption of valid-

ity conferred by Title 28, United States Code, Sec-

tion 2254(d).

—

¢ The Appellate Court Holding:

The California Supreme Court, after a full review

of the record, recognizing that Atchley’s statement

would be inadmissible if made involuntarily (People

». Atchley, 53 Cal.2d 160 at 170-171, 346 P.2d 764 at

769), unanimously found that there was “‘no merit in

defendant’s contention that this recording was admit-

ted without a proper showing that his statements

were made voluntarily”. That court, while reviewing

the admissibility of Atchley’s statements, noted par-

ticularly Travers’ testimony that there were no threats

nor inducements for these statements and found ‘‘sub-

stantial and uncontradicted evidence that no coercion

occurred.” People v. Atchley, 53 Cal.2d 160, 170-171,

346 P.2d 764, 769 (1959). We submit that this hold-

ing of the California Supreme Court made after a

full review of the trial record is entitled to the pre-

sumptive validity conferred by Title 28, United States

Code, Section 2254(d).°

17

B. The District Court Erroneously Concluded that the Pre-

sumptive Validity of these Findings had been Vitiated.

In contrast to the specific findings of the state

courts, the District Court concluded that there had

been no reliable determination of the issue of the vol-

untariness of this confession (App. p. 76). Defendant

had the burden of overcoming the presumptive va-

‘Symptomatic of the confusion over the proper application of

Title 28. United States Code Section 2254(d) in the Ninth Cir-

cuit are Mathis v. Nelson, 411 F.2d 1363, 1372 (9th Cir. 1969),

which holds that appellate court opinions are entitled to the

presumption of validity and Hutchinson v. Craven, 415 F.2d

978, 279-280 (9th Cir. 1969), which denies to such holdings this

presumption.

18

lidity accorded these findings. The record does not

support the District Court’s conclusion that Atchley

rebutted the presumptive validity of either the state

trial or Supreme Court finding that his statement was

voluntary.

The District Court, in the face of the California

Supreme Court’s conclusion to the contrary, held that

the trial Court erred in five specific instances® by re

fusing to hear evidence offered by the defendant prior

to the introduction of this tape recording. Based upon

this conclusion, the District Court held that the fact

finding procedure employed by the state Court was

not adequate to afford a full and fair hearing on this

issue and thus the presumption of validity was re

butted (App. pp. 76, 78 n. 8). Title 28, U.S.C. § 225

(d) (2).

However, the development of the material facts in

the trial court was adequate in every respect. Most

of the evidence Atchley allluded to on the issue of

voluntariness at the in-chambers hearing was even-

tually admitted and thus was contained in the record

reviewed by the California Supreme Court. That

court was confronted with defendant’s contention that

the trial court erred in admitting the statement.

®Diseussed individually infra, the specific instances of alleged

error are: (1) that defendant had communicated to the police

his desire to have an attorney; (2) that Travers’ feigned sym-

pathy for the defendant deceived him about his motives in

questioning him; (3) that defendant did not know the statement

was being tape recorded; (4) what the officers said to Travers

before he agreed to allow his conversation with the defendant to

be tape recorded; and (5) evidence of defendant's mental con-

dition, his ability to read and write, and the extent of his edu-

eation at the time the statements were taken (App. pp. 7476).

-—

This tape recording was played im chambers prior

to the court’s ruling on its admissibility and it reflects

the following colloquy regarding Atchley’s request for

counsel :

“Q. [Travers] I don’t know who your at-

torney is. What was that fellow’s name?

A. [Atchley] I was trying to get Madino

Cardo( ?)

Q. Madino Cardo?

A. Yes.

Q. San Jose?

A. Yes.” (App. pp. 104-105).

When defense counsel attempted to elicit additional

information from Travers regarding defendant’s re-

quests for counsel, the trial court sustained the pros-

eutor’s objection on the grounds of relevancy (App.

p. 155).

Since the California Supreme Court had held such

evidence material on the issue of voluntariness as

early as 1951 (People v. Stroble, 36 Cal.2d 615, 624-

627, 226 P.2d 330, 336-338 [1951]) defendant correctly

contended on appeal that this ruling was erroneous.

However, he could not establish that it was prejudi-

cial. As the California Supreme Court noted in de-

fendant’s case:

“Although a refusal to permit defendant to talk

to counsel suggests an intent to coerce, it seems

highly improbable that either the trial judge or

the jury would have inferred coercion from such

a refusal alone in the light of the substantial and

uncontradicted evidence that no coercion oc-

—

20

curred.” (Emphasis added). People v. Atchley,

supra, 53 Cal.2d at 171, 346 P.2d at 770, App. p.

58.

Defendant never claimed he could not afford an attor-

ney and the record establishes that he had access to

the telephone (App. p. 141).

The California Supreme Court also directed itself

to defendant’s contention regarding Travers’ feigned

sympathy and concluded:

“In... [Leyra v. Denno, 3A7 US. 556 (1954)]

the police, having promised a suspect medical

treatment for an acutely painful attack of sinus,

introduced as the ‘doctor’ a highly skilled psychi-

atrist with a considerable knowledge of hypnosis.

Although there was a similar deception in

the present case, there was no comparable mental

coercion. The deception itself does not render de-

fendant’s statements inadmissible, for it was not

of a type reasonably likely to procure an untrue

statement.” People v. Atchley, supra, 53 Cal.2d

at 171, 346 P.2d at 769.

Whether Atchley knew his conversation with Trav-

ers was being recorded is irrelevant. While talking to

Travers, defendant understood that his statements

would not be held in confidence, that they would at

least be forwarded to the insurance company (App.

pp. 142-143). Hence, although the tape recorder may

have been an uninvited ear, the statements it over-

heard had been knowingly exposed to the public by

defendant. Compare, Katz v. United States, 389 US.

347, 351-352 (1967).

21

The District Court’s conclusion that the hearing in

the trial court was inadequate is based in part upon

its finding that the trial court erred in limiting the

proposed recross-examination of the undersheriff, who

requested Travers’ permission to make a tape record-

ing of the second conversation. Undersheriff Spann

was called by the prosecution prior to the introduction

of the tape recording and his direct examination did

not cover his conversations with Travers. Atchley

requested an opportunity to reopen his cross-examina-

tion in order to go into these matters prior to the

introduction of the tape recording. California and the

majority of states follow the federal rule restricting

eross-examination to the scope of the direct examina-

tion and thus, the trial court properly limited the

proposed recross-examination of Officer Spann. De-

fendant could not have suffered any prejudice since

his attorney knew he could call any of the People’s

witnesses as his own on direct examination and go

into any matter relevant to the case (RT 932). Fur-

thermore, whatever Undersheriff Spann may have

said to Travers before he consented to their tape re-

cording his second conversation with Atchley is imma-

terial to the voluntariness of that statement. Travers

testified that prior to the officer’s request that they

be allowed to tape record his conversation with

the defendant he intended to have an additional con-

versation with the defendant in order to acquire addi-

tional information for his insurance company (App.

p. 156).The recorded conversation, as heard by the

trial court, does not reflect any evidence of coercion

22

or pressure brought to bear by Travers either on his

own volition or under direction of the undersheriff

(App. pp. 97-105).

Finally, the District Court’s charge that the trial

court erred in excluding evidence regarding defend-

ant’s ability to read and write prior to admitting this

tape recording is directly refuted by the record. Tray-

ers testified on cross-examination that he was unaware

Atchley could not read nor write (App. p. 146). When

asked if he had ever given Atchley anything to read

the prosecutor objected that the question was irrele-

vant to the issue of voluntariness (App. p. 147). A

lengthy discussion ensued until the trial court ruled

‘The objection will be overruled. You may proceed”

(App. p. 148). Thereafter, defense counsel failed to

pursue the issue of whether Atchley could read and

write. Hence, the trial court cannot be charged with

erroneously excluding such evidence. Indeed, such evi-

dence was beyond the knowledge of this witness.

The District Court concluded that because of these

erroneous exclusions of relevant evidence on the issue

of voluntariness the hearing held in the trial court

was not adequate to insure a reliable and clear cut

judicial determination of the voluntariness of the

confession as required by Jackson v. Denno, 378 US.

368, 369 (1964). Appendix p. 76. Jackson v. Denno,

supra, concerns the inherent integrity of the fact find-

ing process and has been held to be fully retroactive.

Pinto v. Pierce, 389 U.S. 31 (1967). However, at

the time of defendant’s trial California followed the

approved, or ‘‘Massachusetts,” procedure for the ad-

-

mission of confessions. Jackson v. Denno, supra, at

418 (Black, J., dissenting). As recognized by the trial

court (App. p. 127) the burden rested upon the pros-

ection to establish that the confession was voluntary

(People v. Trout, 54 Cal.2d 576, 583, 354 P.2d 231, 235

[1960] ; People v. Berve, 51 Cal.2d 286, 291, 332 P.2d

g7, 99 [1958]). The prosecution met the foundational

requirement by presenting evidence of voluntariness

(App. pp. 140-145) and the defendant had an oppor-

tunity to controvert the prosecution’s showing (App.

pp. 146-159). The trial judge was ‘‘duty bound to

withhold . . . [the statement] from the jury’s consid-

eration” if he found the statement to be involuntary.

People v. Gonzales, 24 Cal.2d 870, 876, 151 P.2d

951, 254 (1944). Thus, defendant secured a judicial

determination on the issue of voluntariness, as re-

quired by Jackson v. Denno, 378 U.S. 368 (1964),

before the statement was submitted to the jury.

Although, he could have had this issue resubmitted

to the jury, defendant never requested any instruc-

tions regarding his statements (CT 100-125). In fact,

he argued to the jury the truth of the now challenged

statement (R'T 2587). Contrary to the District Court’s

holding (App. p. 78, n. 8) only where the evidence

concerning the circumstances surrounding a confes-

sion is in conflict must the trial court instruct the jury

that they should also make a determination on the

issue of voluntariness. People v. Belvins, 54 Cal.2d

71, 77, 351 P.2d 776, 780 (1960). The evidence in the

instant case was not in conflict as to the circumstances

surrounding the defendant’s statement. There was no

24

factual question to be resolved by the jury, and there

fore, no instructions on this issue were required. Com-

pare, Commonwealth v. Howard, 212 P.A, Super,

100, 239 A.2d 829 (1968).

The District Court apparently concluded that cer.

tain applications of the classic test of voluntarinesg”

announced by this Court after defendant’s trial" were

“‘new” law in the field of voluntariness and alterna-

tively held that the trial Court followed an erroneous

standard of law in determining this issue (App. p. 78,

n. 8). However, those cases did not direct attention

to any circumstances to be considered in ultimately

determining voluntariness which were not implicit in

earlier opinions of this Court’? and were also recog-

nized law in California at the time of defendant’s

trial.’* Surely this Court does not envision relitigating

the issue of voluntariness in every case where a state-

ment was admitted against a prisoner whenever it

applies the test of voluntariness to a situation which

requires a reversal.

10Whether an examination of “the totality of the circum-

stances” shows that the defendant was deprived of “a free choice

to admit, to deny, or to refuse to answer.” Lisenba v. California,

314 US. 219, 241 (1941).

11Reck v. Pate, 367 U.S. 483 (1961); Culombe v. Connecticut,

367 U.S. 568 (1961); Gallegos v. Colorado, 370 U.S. 49 (1962);

and Davis v. North Carolina, 384 U.S. 737 (1966).

12See, Chambers v. Florida, 309 U.S. 227 (1939); Ashcraft v.

Tennessee, 322 U.S. 143 (1943); Lisenba v. California, 314 US.

219 (1941); Turner v. Pennsylvania, 338 U.S. 862 (1949); and

Fikes v. Alabama, 352 US. 191 (1955).

13§¢e, In re Wallace, 2A Cal.2d 933, 937, 152 P.2d 1, 3 (1944);

People v. Stroble, 36 Cal.2d 615, 624-627, 226 P.2d 330, 336-338

(1951); People v. Millum, 42 Cal.2d 524, 526-528, 267 P.2d 1039,

1040 (1954); People v. Berve, 51 Cal.2d 286, 292, 332 P.2d 97,

100 (1958) ; and People v. Speaks, 156 Cal.App.2d 25, 36-37, 39,

319 P.2d 709, 716-719 (1957).

25

¢, Defendant’s Statement was Voluntary as a Matter of Law.

As noted in Davis v. North Carolina, 384 U.S. 737

(1966), the non-retroactive effect of Miranda v. Ari-

gona, 384 U.S. 436 (1966), does not affect the duty of

trial courts to consider claims that a statement was

taken under circumstances which violated the stand-

ards of voluntariness as those standards had begun to

evolve before this Court’s decision in Miranda v. Ari-

zona, supra, and Escobedo v. Illinois, 378 US. 478

(1964). Although there are numerous circumstances

to be considered in deciding a claim of involuntari-

ness, the essential test remains unchanged. ‘‘Is the

confession a product of an essentially free and uncon-

strained choice by its maker?” Culombe v. Connectt-

cut, 367 U.S. 568, 602 (1961). In this case it can be

said, as a matter of law, that this statement was the

product of Atchley’s free and unconstrained choice.

The only reference contained in the District Court’s

Memorandum of Decision to the fact that two sep-

arate conversations took place between defendant and

Travers was:

“Travers testified that he had visited the jail in

the morning of August 5th and conversed with

Atchley at Atchley’s request. After that conversa-

tion, Travers admitted that he was asked by the

undersheriff to engage Atchley in a second con-

versation which would be recorded and that he

complied with the request. Travers further testi-

fied that he offered no threat, promise or induce-

ment to Atchley.” App. p. 72.

Although this summary of the first and second con-

yersations is correct, we submit that its brevity over-

26

looks the importance of this circumstance. We have

consistently contended that the tape recorded conver.

sation, being substantially the same as the initial con.

versation, was voluntary as a matter of law.

Travers testified that on the evening of August 4

defendant requested that he visit him in order to talk

about the insurance policy and replenish his supply

of cigarettes (App. 141-143). Of this initial conver.

sation, Travers said:

“Mr. Atchley brought the subject up to me when

he was sitting there. I was sitting there and we

were talking about the policy and he brought the

whole story as he told it to me exactly what hap-

pened. He voluntarily told me about it. I did not

ask him about it the first time.” (App, 152),

Travers testified on cross-examination that prior to

his initial conversation with defendant he was never

asked by the police to interrogate him about the shoot-

ing (App. 152). In response to further questioning

by defense counsel Travers testified that the first and

second conversations were substantially the same

(App. 152, 158).

After the morning conversation, Travers told

Officer Spann what defendant had told him and in-

formed him that he had to return later in order to

secure further information for his insurance company

(App. 141-142). Travers did not threaten defendant

nor offer any inducement to secure the statements

App. 142). During the recorded conversation defend-

ant understood that what he said would have to be

reported to the insurance company (App. 142-148).

27

Since the initial conversation was clearly spontane-

ous, and there being no allegation nor proof of any

intervening coercive influences, it must be held that

defendant’s second conversation with Travers was vol-

untary as a matter of law. Furthermore, Atchley can-

not establish that he was prejudiced by the admission

of the tape recording since it contained substantially

the same statements Travers testified defendant made

during their first conversation (App. 152, 158).

We submit, therefore, that the District Court erred

in not holding the statement voluntary and dismissing

the petition.

IT

ON FEDERAL HABEAS CORPUS PROCEEDINGS BROUGHT BY

STATE PRISONERS THE DISTRICT COURT’S SOOPE OF RE

VIEW SHOULD BE OONFINED TO WHETHER THE

PRISONER WAS AFFORDED A FAIR REVIEW OF HIS CON-

VICTION IN THE STATE COURTS WHICH WAS ADEQUATE

TO ALLOW A RESOLUTION OF THE MATTERS HE SOUGHT

TO PRESENT

In this case, Atchley challenged the admissibility of

his confession at trial and on appeal to the California

Supreme Court. That court, well aware of the rule

that a confession is inadmissible unless voluntarily

made, reviewed the transcript and prepared an opin-

ion which considered and resolved each of Atchley’s

contentions. This Court brought the state proceedings

before it on a writ of certiorari and, after hearing

argument, dismissed the writ as improvidently

granted. If the District Court’s decision in this case

—

is correct, then the state appellate review in this case

was useless. Indeed, it is a waste of judicial resources

for state appellate courts to adjudicate constitutional

claims in criminal cases. That is why the instant case

presents this Court with an opportunity to effect a

badly needed reform in the administration of federal

habeas corpus, a reform which will give greater final-

ity to state appellate court decisions, conform to the

intent of Congress as manifested in Title 28, United

States Code Section 2254(d), and relieve crowded fed-

eral dockets, while not substantially detracting from

the protections now available to state criminal de-

fendants. In fact, it may well serve to make those

protections more effective. We submit that such a re

form is necessary to relieve the major cause of the

present stress on the administration of justice, caused

by the federal district courts’ refusal to afford fi-

nality to state criminal judgments where the facts

underlying the constitutional claims have been fairly

litigated in the state courts.

We therefore ask this Court to adopt the following

rule:

‘‘Where the state has provided adequate correc-

tive process for the adjudication of the factual

issues bearing on a prisoner’s federal constitu-

tional claims, either by way of appeal or collateral

attack, and it appears from the face of a state

appellate court opinion that the prisoner’s con-

tentions were fairly considered in the light of

applicable constitutional law, the federal district

court should not undertake further review of

those factual issues.”

_

28

29

We acknowledge that this proposed rule is some-

thing of a departure from previous decisions of this

Court. In Brown v. Allen, 344 U.S. 443 (1953), this

Court held that a prisoner who had exhausted state

wurt procedures for the litigation of his constitu-

tional claims could reassert them on federal habeas

corpus. This holding was extended in Fay v. Nota,

972 U.S. 391 (1963), to allow federal review of cases

in which the state prisoner’s confinement rested on

an adequate and independent state ground. Contempo-

raneously, this Court broadened the power of district

court judges to hold evidentiary hearings on con-

tested issues of fact. Townsend v. Sain, 372 U.S. 293

(1963). In asking this Court to modify these rules

we seek to change the thrust of inquiry on federal

habeas corpus away from whether the ultimate factual

issues were correctly decided and direct it toward

whether the prisoner had a fair opportunity in the

state courts to have as complete a hearing on his claim

as he desired. This proposed rule will afford finality

to criminal judgments in those cases where a state

prisoner has been given a meaningful appeal, or its

equivalent on state collateral attack, and an examina-

tion of the opinion of the state appellate court shows

that the prisoner’s constitutional claims were fairly

considered. Under this rule, where it appears that the

prisoner has had a fair opportunity to present his

daims to the state appellate courts, as defendant did

in the instant case, and the state appellate court has

applied the correct legal standard, the writ should be

denied without an evidentiary hearing or review of

the state trial court transcript.

30

In support of our proposed rule we call the Court's

attention to the following considerations.

A. Finality of Criminal Judgments

We submit that the decisions in Brown v, Allen,

344 U.S. 443 (1953) ; Townsend v. Sain, 372 US. 298

(1963), Fay v. Nota, 372 U.S. 391 (1963), and San.

ders v. United States, 373 U.S. 1 (1963), gave insuf-

ficient consideration to the importance of finality of

criminal judgments. The proposed rule corrects this

imbalance.

In Fay v. Nota, 372 U.S. 391, the majority opinion

stated :

“Conventional notions of finality in criminal liti-

gation cannot be permitted to defeat the manifest

federal policy that federal constitutional rights of

personal liberty shall not be denied without the

fullest opportunity for plenary judicial review.”

Td. at 424.

This Court is now presented with an opportunity to

reconsider this principle. We urge its rejection in

favor of a rule which would afford finality to state

court judgments in those cases where the history of

the proceedings as reflected in the opinion of a state

appellate court shows that the issues sought to be

litigated by the habeas petitioner were argued and

fairly considered in state court proceedings adequate

for their just resolution and conducted in a manner

consistent with the opinions of this Court.

State trial and appellate procedures have received

considerable attention from this Court since Noia,

31

Townsend and Sanders were decided. While those

decisions were eroding the finality of state criminal

judgments, other decisions of this Court guaranteed

every state criminal defendant the availability of ade-

quate state corrective process both for the litigation

at trial and review on appeal of federal questions in

the state Courts. State prisoners are now entitled to

counsel at trial, Gideon v. Wainwright, 372 U.S. 335

(1963) ; confrontation of witnesses, Potnter v. Texas,

380 U.S. 400 (1965) ; definitive rulings by trial judges

on their objections to the admissibility of confessions,

Jackson v. Denno, 378 U.S. 368 (1964) ; Sims v. Geor-

gia, 385 U.S. 538 (1967); and, where the state pro-

vides appellate review in criminal cases, the right to

a free transcript of the trial proceedings or its

equivalent for review on appeal, Griffin v. Tlinois, 351

US. 12 (1956) ; Draper v. Washington, 372 U.S. 487

(1963) ; and the right to counsel on appeal, Douglas

v. California, 372 U.S. 358 (1963), serving in the

capacity of an advocate, Anders v. California, 386

U.S. 738 (1967). The requirements that have been

imposed by this Court guarantee procedures in

the state courts which are calculated to reach a just

resolution of any material issue a defendant may seek

to raise. They embody the concept of adequate state

corrective process and, in view of these decisions, we

think that this Court should now pronounce a corol-

lary rule giving finality to state judgments rendered

in satisfaction of the procedural requisites instead of

allowing, as does the current practice, constant reliti-

gation on the merits of contested issues of fact, even

32

where procedural fairness has been afforded to the

defendant.

Affording finality to state court appellate opinions

when the procedural requirements have been met, will

encourage state appellate courts to determine consti-

tutional issues on their merits. On the other hand, to

deny finality to state appellate opinions removes any

reason for state appellate courts to review federal

constitutional issues.

Never has the imperative of finality in the adminis.

tration of criminal justice been better explained than

it was by Professor Paul M. Bator in his definitive

article, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 Harvard Law Review

441 (1963). Professor Bator there pointed out the

many undesirable results of undermining the finality

of criminal judgments by allowing the relitigation of

contested factual issues, Such relitigation undermines

publie confidence in the administration of criminal

justice, tends to demoralize state trial and appellate

judges, and saps the criminal law of its deterrent

effect by clouding the certainty of punishment even

after a judgment has been affirmed on appeal. More

over it is totally at odds with any idea of rehabili-

tating criminal offenders. In Professor Bator’s words,

‘*the idea of just condemnation lies at the heart of the

criminal law, and we should not lightly create proc-

esses which implicitly belie its possibility.” Id. at 452.

Professor Bator proposes that for the purposes of

federal habeas corpus, the detention of a state pris-

—

oner should not be deemed unlawful if based upon the

judgment of a state court of competent jurisdiction

which afforded the prisoner full corrective process,

including a meaningful appeal, for the litigation and

resolution of all issues he sought to raise involving

his federal rights. A member of this Court has re-

cently proposed a similar test:

“One considered appeal is enough, in the absence

of factors which show a possibility that substan-

tial injustice has been inflicted on the defendant.”

Wade v. Wilson, ...... US. ....., 24 L.ed.2d 470

(1970), Black, J., dissenting.

Our proposal is also in accord with that recently

expressed by another member of this Court in a some-

what different context.'* While discussing the develop-

ment of rules limiting the retroactive application of

newly announced constitutional doctrines in criminal

cases as an accommodation necessitated by the avail-

ability to state prisoners of federal collateral attack,

Justice Harlan observed that federal habeas corpus,

as presently constituted, serves two main purposes.

First, it seeks to assure that no man is incarcerated

33

Justice Harlan proposes a test that if the District Court

can say with assurance that, at the time of defendant's trial,

this Court would have ruled against his contention even on

it may have subsequently accepted his arguments, then the

risoner is not entitled to habeas corpus relief. Desist v. United

es, 394 U.S. 244, 261 (1969) (Harlan, J. dissenting). Since

this Court previously entertained the issue of the voluntariness

of defendant’s statement on direct review of his conviction, we

submit it can be said with absolute assurance at the time of de-

fendant’s trial this Court would have ruled against this contention,

even if it subsequently accepted some of the defendant’s arguments

in other factual situations. Compare Desist v. United States, 394

US. 244, 261 (1969) (Harlan, J., dissenting).

——ay

under a procedure which creates an impermissibly

large risk that the innocent will be convicted

Secondly, the writ functions as an incentive to state

courts to conduct their proceedings in accordance

with constitutional guarantees. Desist v. United

States, supra.’* Whether a constitutional announce.

ment of this Court is entitled to retroactive applica-

tion on collateral attack by state prisoners should be

resolved by determining whether the particular deci-

sion is an announcement of a “new” rule or merely

the application of a settled, but previously unarticv-

lated, concept. Desist v. United States, 394 U.S. 244,

261 (1969) (Harlan, J., dissenting.) Only where a

constitutional ruling of this Court significantly im-

proves the existing, fact-finding procedures is full

retroactive application necessary to fulfill the purposes

of the federal writ of habeas corpus.’* In all other

cases the function of the writ is discharged when the

District Court applies the constitutional standards

34

15The rule we propose would serve both purposes. Indeed, it

would increase the incentive to the state courts to provide full

appellate review.

18If the prisoner alleges that his trial was marred by a con-

stitutional defect relating to the integrity of the fact finding

process, his conviction would be vulnerable to collateral attack.

However, without such an allegation the prisoner has alleged

nothing which prevented the state trial and appellate courts

from constituting an unbiased tribunal and therefore, the pris

oner must bear a heavier burden if he is successfully to mount

a collateral attack upon his conviction. Compare Kaufman v.

United States, 394 U.S. 217, 235 (1969) (B J., dissenting),

and Justus v. New Mexico, 378 F.2d 344 (10th Cir. 1967). There

the 10th Circuit held that a prisoner’s unrebutted testimony that

he was forced to confess did not meet the burden of proof required

to overcome the presumed correctness of the state court finding

that the confession was not obtained by violence.

— |

_— ‘

that prevailed at the time the trial took place. Desist

». United States, supra.

Applying this analysis to the present case, at the

time of Atchley’s trial and appeal, California had

adopted and applied all the procedural safeguards

thereafter announced by this Court. Under our pro-

posed rule the District Court would have confined its

review to the opinion of the California Supreme

Court, and absent an alleged defect going to the

integrity of the fact-finding or appellate process,

such as a denial of counsel at trial or on appeal, or

the failure to afford a transcript or its equivalent,

would have deferred to the conclusions of the Cali-

fornia Supreme Court.

B. Conformity with the Intent of Congress

We submit that our proposal for reform of current

habeas corpus practice corresponds with the intent of

Qongress as expressed by the enactment of Section

2254(d). Although, it is our position that Section

9254(d) should be interpreted to cover state appel-

late court holdings (See Argument I, supra, p. 17),

our proposed rule confers a presumptive validity to

state appellate court opinions analogous to that pre-

sumption of correctness which section 2254(d) un-

questionably gives to state trial court findings of fact.

If, in this respect, our proposal goes beyond the actual

statute, it is in accordance with the intent and concern

expressed by Congress when that amendment was

passed.

=

36

C. Relief of Federal Court Dockets

A modification of this Court’s former opinions along

the lines we propose would markedly relieve the

crowded calendars of the federal district courts, In.

terpreting the present rules, the courts of appeals

have held that the district courts may not rely on

state court findings without undertaking an inde

pendent review of the record of the state trial court

proceedings. United States ex rel. Worlo v. Pate, 411

F.2d 972 (7th Cir. 1969); United States ex rel.

Thomas v. Maroney, 406 F.2d 992, 994-95 (3d Cir,

1968) ; Maes v. Patterson, 401 F.2d 200 (10th Gir,

1968); Brown v. Crouse, 399 F.2d 311 (10th Cir.

1968) ; see also Piche v. Rhay, ........ F.2d ........ (9th Cir,

1970) ; Connor v. Wingo, 409 F.2d 21 (6th Cir. 1969);

Canales v. Baker, 406 F.2d 685, 686-87 (10th Cir.

1969) ; Dentis v. Oklahoma, 376 F.2d 590 (10th Cir.

1967). This burden devolves upon the federal district

courts without regard to the length of the transcripts

involved.’ We think the Federal Courts ought to be

relieved of this burden in cases where an examination

of the face of the opinion of the state appellate court

clearly shows that the habeas petitioner received a

thoughtful consideration of his claim.

D. Application of the Proposed Rule to this Case

When the present habeas corpus proceedings are

examined in the light of our proposed rule, it becomes

clear that the District Court exceeded the proper

17]t is commonplace in the handling of criminal appeals to

find trial transcripts more than one hundred pages long and

many transcripts, such as the present one, exceed two thousand

pages.

ZZ

seope of review by granting relief because petitioner’s

allegations merely raised a question of fact which had

heen decided against him by the trial court, whose

decision was affirmed by the highest state appellate

court in a proceeding whose fairness was and is un-

challenged. In those proceedings, Atchley was afforded

counsel, an unbiased trial court and full appellate

review on the merits, in sum, the essence of fairness.

As long as Atchley has had a constitutionally “fair”

hearing, its “fullness” depended upon the relevant and

material issues he wished to litigate at that time.

Under our proposed rule defendant’s only claim

which would entitle him to review in federal habeas

corpus concerns the failure of the trial court to

comply with the requirements of Jackson v. Denno,

supra. As noted above, this finding is without support

in this record (supra, pp. 22-23). The District Court’s

reasons for concluding that the facts were not fully

developed at the hearing in the trial Court had been

anticipated by the California Supreme Court and

found to be without merit. Thus, the District Court

should have denied the writ after reviewing the opin-

ion of the California Supreme Court.

This procedure would be far preferable than the

present practice of reviewing the merits of state

court findings. Rather than the expansion of the fact

finding function on habeas corpus (Cf. Townsend v.

Sain, supra), extreme restraint in ordering eviden

tiary hearings is called for, particularly in view of the

fact that habeas corpus petitions, as evidenced by the

instant case, are often filed many years after convic-

38

tion, when prosecution has become impractical because

witnesses are no longer available, memories have

faded and other evidence has disappeared. See Sym-

posium, Habeas Corpus—Proposal for Reform, 9

Utah L. Rev. 18, 41 (1964). The problems arising

from insistent relitigation can be solved with some

degree of success if district courts are directed to

consider the fact finding processes, evidentiary rul-

ings, and evaluations of the state courts and their

appellate opinions well nigh conclusive and irrebut-

able, thereby concentrating the district court’s efforts

on the correction of serious errors in the state court’s

understanding and interpretation of federal constitu-

tional law. To this end we urge this Court to adopt

our proposed limitation of collateral review of state

court findings.

a

IIl

THE FEDERAL DISTRICT COURT HAS ORDERED THE OALI-

FORNIA COURTS TO HOLD A HEARING IN EXOESS OF

THEIR JURISDICTION

The Federal District Court, choosing to employ the

“procedure of convenience” outlined in Jackson v.

Denno, 378 U.S. 368 (1964), ordered the state to hold

a hearing on the voluntariness of Atchley’s statement

or suffer reversal of his conviction.

We concur with the District Court’s conclusion that

if a hearing upon the issue of voluntariness is neces-

sary, it should be held in the state courts. However,

Atchley’s judgment of conviction has long since be

39

come final in the California courts. There is, at this

time, no state court possessed of jurisdiction over

this cause to hold the hearing envisioned by the Dis-

trict Court’s order. The necessary jurisdiction can be

enferred upon a California court pursuant to its

habeas corpus jurisdiction (Calif. Const., Art. VI,

§10), if an application is made at the instance of the

prisoner. Cal. Pen, Code, § 1474. There is no proce-

dure in California whereby the People can properly

initiate such a hearing.

Attempts to do so in other jurisdictions have re-

sulted in confusion and litigation.’** We believe that

the procedure outlined in Jackson v. Denno, supra,

should be understood to require the prisoner to com-

mence the proceedings in the state courts where that

is required to invest them with jurisdiction.

Regardless of the forum in which these hearings

are held, they remain evidentiary hearings whose

purpose is to resolve an issue raised on collateral

attack. Hence, the burden of proof remains upon the

prisoner whether he or the state initiates the hearing.

'8Compare, Williams v. Beto, 386 F.2d 16, 17-19 (5th Cir.

1967), where Williams claimed the findings of the state court

after such a hearing were invalid because that court had acted

without jurisdiction.

40

CONCLUSION

Louis 8. Nelson,’® Warden, California State Prison,

San Quentin, California, respectfully requests this

court to remand the case to the Ninth Circuit Court

of Appeals with directions to reverse the order of the

District Court granting the writ, and to direct the

Court of Appeals to order the District Court to deny

Atchley’s petition for the writ of habeas corpus.

Dated, April 9, 1970.

THomas C. LyncuH,

Attorney General of California,

ALBERT W. Harris, JR.,

Assistant Attorney General,

Rosert R. GRANUCCI,

Deputy Attorney General,

Wu D. Stern,

Deputy Attorney General,

Attorneys for Petitioner.

19Warden Nelson is the successor in office to Lawrence E.

Wilson.