# Reply Brief for Respondent — Dickson v. Carmen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0110%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief for Respondent - **Published:** January 1, 1960 - **Citation:** 361 U.S. 934 ## Text » \ . { “ \ . . ‘ : ‘ ) } . - ‘ i a ae | | . _ the findifigs were; on May 17, 1955, filed with the Cali- . fornia Supreme Court. On the basis of the evidence adduced, the referee found as follows: “3 (1) W haa Dan MeSwain, the deceased, Was an Indian; ae (2) Rayna Tom Carmen is, and w as, an un- _emane ipated Indian; ; v on QQ ye T he alleged erime was committed on the Maggie | Jim: Allotment, which consists of land held in trust by’ Unifed States Government fora : twenty -five-vear period. (Federal Register, No- vember 14, 1944; 9 ELR. 3699, Executive Order No. 9500 U.S, Cong, Service 19H, p. 1539.). On August 2, a the ¢ California. Supre me Court by four ‘to three deaisign,, decided to disregard the ref- | eree’s tindings and « ‘nied the writ. Dissenting: opin- tons were filed by Justices’ Traynor, Carter anid. Nehater; » This case was reported in hi Re Carmen, 48 C. 2d p. S51. On. October 25, 1957, petitioner filed } lis: petition _for Writ of Certiorari be ‘fore the Supreme Court, of the’ United. States, No. 577- -Miscellaneous, October Term, 1957, ‘and on January 13, 1958, the Supreme , Court denied. the “petition * ‘without prejudice to an ” application fora Writ of Habeas Corpus in an appro- priate United States District Court”, (355 ILS, 954.) On April 2 » 1958, the de fend: ant filed an amended petition for writ of habeas corpus in the United States District Court for fhe Northern District of California. Southern Division, On Septe mher 11, 2 i the gis \ Vass. 7 trict Court issued a writ of habeas’ corpus and directed that the petitioner, Rayna-Tom Carmen, be released from custody. The opinion of the Court, 165 Fed. Supp. 942, is set forth.in. Appendix B hereof. Thereafter, the appellant appealed this decision to the United. States Court of Appeals, for the Ninth Circuit: On September. 29, 1959, the Court. of Ap- _ peals rendered a -unanimous opinion upon the judg-——— ment of the Distr ict Cougt and stated therein: . * Tlie exhaustive opanion of Judge (ioodma - leaves nothing to be added and his judgment i affirmed.” (See Appendix B. Petition for writ of — * certiorari.) ” . ARGUMENT.. I. THE OPINION OF THE UNITED STATES COURT OF APPEALS Is NOT IN CONFLICT WITH ANY DECISION OF THIS COURT ON THE QUESTION OF ‘‘WAIVER'’ OR ‘FAILURE TO EX. HAUST STATE REMEDIES'*. ' Petitioner seeks to prevent ‘the courts af. the United States from the examination of facts dehors the rec ord m order to avoid federal statutes, which yest ex- _chfsive jurisdiction in the federal courts. Petitioner eontends that such examNnation is comPary to some ' California procedural rules. (Petition, pp. 7 11.) It is arened that this constitutes a-failure to exhaust state remedies within the meaning of 28 U.S.C. See. 2954, and is contrary. to the decisions of this Court. The speciousniess of this ‘argument ean he readily dem- onstrated. eee ss s [re * . . . ” . . a , a. S ; Petitioner relivs*on Brown v. ‘Allen,-344 U.S. 443, 97 L: Ed. 469, 73'S. Ct. 397 and Irvin v. Dowd, 359 U.S. 394, 3° L.-Ed. 2d 900. Neither of these cases As applicable here. Brown v. Allen, supra, unlike the present case, did ; hot involve a jurisdictional statute. The defendant. _ there objected to discrimination. in Jury lists and al- - leged coercion of confessions. These matters were de-,” cided adversely to the defendants by both the. North Carolina trial court, and the North Carolina Supreme — Court. In addition, there was available-in North Caro- lina the writ of error coram nobis to test eonstitu- tional rights by examination of facts outside the trial © record, — ” In the allied case .of Daniels vr, Allen there was an additional feature: the failure of Daniels to perfect his appeal within the 60-day -period pe rmnitted by . North Carolina law. The opinion written by Mr. Jus- tice Reed decided the Daniels ease on this ground. This Court said: 7 As the failure to serve the aleniead of the case ' on appeal scems-torrs-deetsive, we-do-not- disenss —_ in detail the other constitutional issues: tendered: . and only point out that they were resolved against. petitioners Jy the sentencing state conrt and the _ Federal District Court (344-UCS. 483, 73S. Ct: . 420.) ; ' | As a corollary to the foregoing, this Court held that petitioner was not entitled to a wrif@of habeas Corpus because he had failed to éxhaust state remedies by het complying with North Carolina’ 's “adequate ‘and 9 ‘easily-complied-with method of ‘appeal’. — USS... 485.) | | The doctrine. of waiver institicmel in’ “the separate opinion of Mr. Justice Fo ankfurter (S44 U.S.at page 503), referred to the general rule that constitutional rights: such as the right to trial by jury (Adams v. U nited States-er rel, “McCaun) or the right of the ac- cused to be present at all stages of a trial (Frank v. Mangum) may be knowingly waived. at the trial or by failure to assert such errors on appe sal. That the Court had no intention of overruling the well: estab- lished Federal rule that facts outside the record may be examined in habeas corpus whenever exceptional circumstances warrant is clearly shown by the .con- cluding se ntence of the very “paragraph quoted by petitioner : However, this-does not -tench one of ane eX- traordinary, cases i in which a substantial claim goes to the very. foundation of a preceeding, as in Moore v. Dempsey, 261 U.S, 86, 43S. Ct. 265, 67 A. Ed. 543, Cf. Ex parte Lange, 1S Wall. 163, 2 I. Ed. S22; hx il Royall, 117 si JS. 241, 6S. 6-734; 29-b_Ed: 868 — Irvin ve Dow rs supra, is clearly inapplicable here, This case like WIS did not: involve a matter of, juris- —. diction ora jurisdiction: statute. The United. States District Court: atid the Court of Appeals concluded that the Indiana. Supreme Court decision rested on the fact that petitioner was an escapee when his mo- tien for new trial was made, and thus barred under Indiana law. Since the appeal was from the denial of. the motion for new trial, it was held that Indiana. poate lle - appellate procedural rules had not been followed, and therefore, there was a failtre to exhaust state reme- dies within the meaning of 28 U.S.C. See. 2254, ° ‘The majority opinion of this Court, delivered@by Mr. Justice Brentian, determined that’ the appeal had” been perfected in full compliance with Indiana pro-. cedural law. The Court therefore concluded that Brown v, Allen, supra, was inapplicable, ‘saying: This Court held that under the doctrine of ex-. ~haustion of State remedies, habeas corpus dught not to be granted, since petitioner has sdizht too late to invoke North Carolina‘s heey and easily -complied-with method of appea (344 US , i 485). In contrast the petitioner's eee from “his judgment of conviction to the: Indiana Su- preme Court raising the constitutional claim was timely and was aceepted by that Court as fully complying with all’ pertinent ‘procedural ' require- ments. Furtherimore, the State Supreme. Court did reach and decide petitioner's federal consti- tutional claim”. ; eee ES iO att sero oo o a ae Ld . Two remaining decisions of this Court cited by pe- titioner, hamely Toy Toy o, Hopkins, 912° Tv. S. . 542, and Bowen v. Johnston, 306 U.S, 19 certainly do not aid petitioner, In Poy Toy v. Hopkins two: Indians _ were indicted and convicted in the Oregon State Court . and thereafter the Supreme Court of Oregon, on ap- peal, upheld their contention that the crime was ex- clusively within federal jurisdiction heeause c¢ommit- ted ofvan Indian. rese rvation, Thereafte Ns the. defend- ants were tried and convicted in the fede ral Court, under an ‘indictment chi irging “Columbia George and 11° Toy Toy, Indians, with the mur@&er of. Annie Edna, an Indian woman, upon the: Umatilla reservation’. Five years after conviction, Toy Toy reversed his po- sition and tried on habeas — to introduce evi- dence of facts. showing Jack of federal jurisdiction. These facts were in’issue ppt trial under the afore- said indictment and were decided adversely to defend- ant. Therefore; defendant was properly foreclosed: from raising the same facts, in habeas corpus, or otherwise. 7 The citation,of Bowen v, Johnston, supra, is even - more i to: understand. In that case the sole question/ was whether: the Court on habeas corpus could determine, that a murder committed in Chatta-: nooga National Park Within the State of Georgia, was within the exclusive jurisdiction of the United States, -afterefailure to: raise this question on ‘appeal. The opinion of, Mr, ‘Chief Justice Hughes said: wo The rule requiring-resert-to-appellate proc edure when the trial court has determined its own juris- diction of an offense js not’ a mie .denyitig the’ power to issue a writ of habeas corpus when it appears that nevertheless the’ trial court was Without jurisdiction, ... it is equally true: that the rule is: net socintlexible that it may not yield to exceptional , circumstanges Wire the need -for the remedy ‘afforded by the writ of haheas corpus is apparent. Among these eéxceptional cireum- stances are those indicating a conflict between State and Federal authorities on a question of law involving concerns of large Importance.afféct- ‘ing their respective jurisdictions, Tn re Lincoln, 902-1 IS, 178; 182, 183, 26 8. Ct. 602, 603. 604, 50 L. Ed: 984; ie v. Henkel, supra, pages =28, 229,.35 S. Ct. pages 56, 57. (306 oo 27.) The Carmen ease falls squarely within the *‘excep- tional circumstances” doctrine of Bowen v. Johnston, Moreover, we are not concerned with any state -procé- dural rule or statute, as in‘ Brown v. Allen, supra, and Irvin v. Dowd, supra. On the contrary, the majority opinion in the California Supreme Court is based solely on a misinterpretation of the decisions of this” Court respecting the right to examine faets outside _ the trial court record on habeas corpus under excep-- tional cireumstances, In the be einnitiey the Califor- nia Court said: ) ' The people contend. that the evidence is insuf- ficient to Sustain the referee's findings concern- ing the status of petitioner and Wilbur Dan Me- Swain, Upon further consideration, however, we have concluded that it is unnecessary to determine — the sufficiency of the evidence to support fhe refs erée’s findings or the adequaey of said findings. We have reached this conclusion because we are — of tie Opinion that in the absence of exceptional _ cirumstances, which are not present here, peti- tioner. may yot contest, in this collateral attack upon the final judgments of eonvietion, the trial court's determination and exercise of jurisdic- i upon the basis of new and additional facts . Which do not appear in the trial court record. (48 Cal. 2d 853.) eal Then, the California Court, after Ap -the ‘pe rtinent federal cases, from Frank v. Mangum, 237 aa ” - AD 13. U.S. 309 and Bowen v. Johnston, supra, to Johnston v. Zirbst, 304 U.S. 458, concluded that the ‘excep-_ tional circumstances” rule applied only to a contest of » jurisdiction based on a denial of constitutional due process of. law as distinguished from jurisdiction based. on federal: statutes. (In re Carmen, 48 Cal. 2d 851 856-899. ) , | The District Court opinion, adopted. by the Court of Appeals in this case aptly pointed out that ‘this Soon eral habeas corpus statute, 3s ce See: 2241, ex- ‘tends the writ to alk cases ‘involving persons “in eus- todyein Violation of the € ‘onsfituticn or laws or treaties of the United States”. (165 F/Sup pr. P42, YAY.) | The. District fciees characte rized the circumstances of this case as falling wythin the clear meaning of the Oxce ptional cireumstanees’ doctrine. In this regard “the Court said: a hl . : : hin ae . ? The testimony et petitioner's trial was that both: he and his Victim were Indians, and that the mur-- der occurred at the victim's residence. Although these facts alongs did not fully demonstrate the lack of Jurisdietion in the trial court, they should have put the State Court on inquiry A to: its own jurisdiction. The vight to be tried inca Fed- eral court aceordcd petitioner by the Ten Major Crimes Act, was not ao imere procedural right, * waived witless asserted.* It could hot have been waived even by express agreement. The) Ten" Major Crimes Act was enacted for the protection of the Indian wards of the. United States. Both *Emptiasis is thi \“ riter’s throughout, ttitess otherwiseeindicated —eo distinction without asdifferenee, inasmuch as the Fed-_$ 14 _ the trial court and the state’s attorneys had a duty. ° to uphold this federal statute. They had a respon- ‘sibility to see to it that the. court did not improp- erly assume jurisdiction over an Indian ward of ‘the Federal government”. (165 F: Supp. 942, 950.) That the District Court ‘and the Court of Appeals - correctly inte rpreted the federal cases and applicable federal statutes. is readily apparent. It is fundamen- tal that where. a court is without jurisdiction over the — subject matter, its proceadlings are absolutely void. Therefore, an objg ‘tion to: jusisdiction, historically and uniformly may be raised at any stage of the pro- | ceedings, and may be raised fer the first time on ap- peal. Thus, the Court said in United Statés v. An- derson, 60 F. Supp. 649: eee | Even the consent of the accused ‘cannot confer Jurisdiction, and it is an issue that-edin be made at any stage of the proevédings.”” (p. 650.) CG See-also: ed f. United States v. Rogers, 23 Fed.658; Matson Navigation .Co. v. United States, 284 U.S, -352, 52 9. Gt. 162, 76 L. Ed. 336; Gainesville v. Brown-Crummer Inv.-Co., 277 U.S. 54, 48 S. Ct. 454, 72 L. Ed. 781. It had heen presutined that this was likewise the law in California, until the Carmen ease: Costa v. Banta, 98 C.A. 2d 181; > People v. Oakland Waterfront Co, us Cal. 234, 239; mo, 13: Cal. Jur, 2d 597. 1s Conseque ‘ntly, ‘it has long been the federal rule that “in matters involving such fundame aital. constitutional rights as the right to. be tried by a court of ‘competent jurisdiction, a court in habeas ‘corps may examine into facts outside the record of the trial court. The federal rule was clearly stated in Johnston ev, Zerbst, 304 U.S. 458, 58 S, Ct. 1019, 82 L. Ed. 1461 as fol+ lows: . “There being no doubt of the authority of the Congress t to thus liberalize the commondaw proce-- dure on habeas co pus in order to saféguard the liberty of all Sons within the jurisdiction of, the United States against infringement. through any violation of the Constitution or ‘a law or treaty established thereunder, it results that under the sections eited'a prisoner ih custody pursuant to the final judeme nt'of a state court of criminal jurisdiction may have a judicial inquiry in a court. of the United States into the very truth and subs— stance of the causes of his detention, although it may become hecessary to look behind and beyond the record of his cénviction:to-a sufficient egtent to test the jurisgiction of the state court to pro-- coed to judgment against: him”? j & 1024 > Seealso: © |; . ne - ss Frank v. Mangum, 237 US. 309, 35: S. Ct. 582, 59 L.Ed. 969; - — 3 : Moore ve De _ y, 261 US, 86, 43S. Ct. 265, -: 4 ~—6h66hT OL ide: . Mooney ©. ni, 2040 S. 10. 55 S. Ct. 340, 79 i. Ed. 7 16 ioe v. Johnston, 306 U. S. 19; 59 S. Ct. 442, 83 L. Ed. 455; Waley v. Johnston, 316 U. S. 101, 62S Ct 964, 86 L. Ed. 1302; United States ex rel. McCann. v. Adams, 320 , -U.S, 220, .64 S. Ct. 14,88 L. Ed. 4; “United States v. _ Hayman, 342 U.S. 205, 72S: ° “Ct. 263. i 7? ‘In at least three federal cases. inv olving jutindiction over Indians, facts dehors the record were examined. » to determine jurisdiction : Rice v. Olson, 324 U.S._786, 65 S. Ct. 989, ‘89 _ L. Ed. 1367; | _Ex parte Van Moore, 221 Fed. 954; : Tooisgah v. l "nited States, 186 F. 2d 93. — The same rule: has been followed in state Courts in - _ Indian jurisdiction. eases.” The leading ease is State ,, “rel. Irvine v. District Court, 239 P. (Mont.) 272. Of particular interest is a recent state Court deei- ~ gion. In Joseph Joe Wesley v. Merle, E. Schneckloth, ‘proceeding No. 34127, decided by the Supreme Court of the State of W ashington on November 19, 1959, ...... P, | ee -¥ the -Caurt reviewed the Carmen litigation - from its inception and based its decision om. the Fed- — eral District Court opinion herein, ‘as affirmed by the Court of Appeals. Asa ‘matter of fact, ‘until the Carmen case, the fed- | eral rule in re spect to ex ‘amination of facts outside ‘the zecord in habeas corpus was likewise the rule in Caljfornia. Thus, in Jn re Bell, 19 Cal. 2d 488; the - Court said: : see eee , a " eee eee ie Ste a Y sotitiones secking habeas corpus, however, _ is not confined to the face of the record in at- ‘tempting to sustain the burden of proving that his conviction was ‘in violation. of his ‘constitutional rights. The courts of both the United States and’ California have declared that the remedy of ha- beas corpus permits an examination: not only of the actual evidence introduced at petitioner’s. ‘ trial. but of arf necessary additional evidence bearing upon the infringement ‘of petitidwter’s constitutional rights {e ited cases)”. (p. 901.) See also: , (a In re Connor, 16 Cal. 2d 701; In re. Moone y, 10 € al. 2d 1. The conclusion is inescapable that the U ‘nited States | | District Court has the inherent power on habeas: cor. pus’ to- examine into jurisdictional fac ts outside the record in support of a fede ‘ral statute vesting e xclusive jurisdiction in the courts of the United States. This _ would appear to be particularly true where the, appli- cant: is a ward of ‘the federal government, who-made a prompt effort to present the jurisdictional facts on appeal as soon as they were suggeste d by the v nited “States Attorney. ee ae TT. _ "REMAINING QUESTIONS. The responde nt believes that the decision of the United States Distriet Court (Appendix B) is a full and complete answer to all remaining questions raised - by the petition. o . ey ue AG ia - | CONCLUSION. — oa Certiorari should be denied for two reasons: First, There is no conflict of decisions, Second: The question is not new important, because of the 1953 Congres- sional legislation. ~, Dated, San: Francisco, California December 24, 1959.. 4 Respectfully submitted,” Mason ‘A, BAILEY,. nee LEonaRD J. BLoom, Apernens for ‘Respondent. (Appendices A and B Follow.) - a a. ~ ] » Af i . Ni ° y y ae Ag . a Appendix A | {a i . - Penal Code of California — - a Section 777 (Jurisdiction oft offenses committed in state: Juris- diction of county where committed: Non-support of minor ward’ of, juvenile court.) -Every person is liable to punishment IR the laws, of this state, for a publie offense committed by him therein, except where it is by law cognizable exclusively an the courts oft the United States; and except as herein otherwise provided, the jurisdiction, of every public offense is in the county’ wherein it is _commubiteaks provided, ‘that if a ‘parent violates the provisions of section twa hundred seventy of this code in respect to a minor -child whe has been declared a ward of the juvenile court of any count® under the juvenile court law of this state, and by such juvenile evurt committed to the custody of a person, society or institution Which places or keeps sueh child in another county, “thé jurisdictymh is in’ either the county in which such commit- ment was.4bade, or the county within which such minor child is placed # képt by authority of such commitment: ( Enaeted 1872: Am. Stafs. /1901, p. 481 (unconstitutional) ; Stats. 195, p. 692, Stats. oe pe SL.) | : Appendix B € Petition of Reyna Tom Carmen fa sh ++ ‘ for a Writ of Habeas Corpus. - ‘ ° Civ. No. 37037. . i United States District -Court / 3 N. D. California, S.’ D. * Sept. 12, 1958. (GOODMAN, Chief Judge. ‘Petitioner is confined at the California State Penitentiary at San Quentin pursuant to a judgment’ of conviction of murder and senience of death imposed by the Superior Court of the State cf California in-and‘ for the County of Madera, on ‘October 30, 1951... By an application for the writ of habeas corpus, he seeks his discharge on the ground that the California Superior Court lacked jurisdiction to try him for the murder of which he was convicted because exclusive jurisdiction to try him for such offense was vested by federal statute in the United States Dis-_ trict Court. . The statute relied upon by petitioner is often referred to as the Ten Major Crimes Act? and is now incorpotated in Sections 1151, 1153, and 3242 of Title 18 of the United States. Code. It provides _in*substance that an Indian who commits any of the ten listed erimes,.among ‘whieh is murder, in Indian Country shall be sub- ject to the same laws and penalties and tried in the same courts as perscus committing such erime within the exclusive jurisdiction . . of the United States. During petitioner's trial in the Superior Court apparently he. and his counsel, the’ prosecution, amd the court were @@® unaware of this statute. There was testimony at the trial indieating that both petitioner and his victim were Indians, but this testimony was given as background information - a : IThe offense was committed on “Apait 23, 1950. A trial held«in June . 1950 resulted in a judgment of conviction which was réversed by the (Jaliférnia _Supre me Court for improper instructions. People v. Carmen, 36 Cal.ld 3°S, 228 P.2d 281 (Mareh 1.1951): The judgment under which + —s petitioner is now in custody. was entered in.a second trial held i in October, - 1951. as As originally enae ted in 1885, 23 Stat. 385, this Act dealt only with seven erimes and was then referred to as the Seven Major Crimes Act. In 1909, the erime of assault with a dangerous - ‘weapon was included. 5 Stat. 1151. ‘And, in 1932, imecest and robbery were added, 47 Stat. 337. . fe : ‘ ¥ 3 ~ ese / \ 2 > . and not for the purpose of questioning the court's jurisdiction. There was evidence that the scene of the crime was the victim's residence, but this. ev idence did not establish that his: residence was in Indian Country.’ % Upon the automatic ‘onl from .the judgment: ef conviction and sentence of death, an Assistant United States Attorney ‘appeared before the Supreme Court of California in behalf of the, United States and advised the Court that since petitioner and | hig victim were Indians and there Wils reason to believe the locale of the erime was Indian Country, t appeared that the United States had exclusive jurisdiction “si try petitioner. Thereafter the parties filed, with the’Supreme Court a stipulation that both petitioner and hise vietim were Indians by. race and that the Jmurder had been committed on-an Indian allotment the title to which avas held in trust by the United States. On. the basis of this stipulation, the Supreme Court found that exclusive jurisdie- ‘tion jo try petitioner avas vested by statute’ in the ‘United States -/ conrts, and reversed the judgment of cons iction, “Reople -v. Car- men, 265 P.2d 900 (Feb, 1, 1994). Upon application by the pros- ee ution, a rehearing was granted. On rehearing,. the Supreme Court found the stipulation inade- quate to establish that petitioner’ or his victim were Indians within the meaning of the Ten Major Crimes ‘Act. It also found the evidence, in the trial record inadequate to show that petitioner and his vietin were Indians within the meaning of the Act or ‘that the crime occurred in Indian Country. ‘It therefore sus- tained the jurisdiction of the Superior Court updn the trial ‘ree- ord and affirmed the judgment of conviction, People v. C armen, $3 Cal.2d 342, 273 P.2d 521 (August 17,1954). Petitioner then sought to raise the jurisdictional issne hy appli- cation to the-California Supreme Court) for a writ) of habeas. corpus. Upon the filing of this application on November 10, 1954, the Supreme Court issued the writ and ‘appointed: a Referee to take testimony and make findings regarding the Indian: status of petitioner and his vietim as well as the locus of thejerime. At the ‘hearings before the Re teree it Was again stipulated Phat the é¢rime was committed on an “Indian allotment ‘title to. which was held in trust by the “United States and the petitioner and his tietim were Indians by blood. In addition, on the basis of the testimony: taken, the Referee found that petitioner and his vietim belonged to the Mono tribe of Indians and were listed on the roll of v * lv. — Indians maintained by the U nited States Department of Interior ' as members of such tribe. He. further found that the tribe main- tained a loose tribal ‘organization and followed unique customs and that petitioner and -his vietim . had never severed tribal, relations. . ; - After receiving the findings of the Referee, the Sapreme Court ‘of California ‘nevertheless disregarded them, beeause- in its opin- ion the trial court's exercise of jurisdiction could not be contested in a habeas corpus proceeding’ ‘on the basis’ of new facts not appearing in’ ‘the trial record. ‘It therefore discharged the writ ot fabees corpus. In re Carmen, 48 Cal.2d 85k; 313 P.2d 817 (August 2, 1957). , . ; ~ During all-of these years that the California Supreme Court. wrestled. with the jurisdictional question, petitioner remained in custody on death row in San Quentin. Upon the adverse ruling on his petition for-habeas corpus, he applied to the United States - Supreme Court for.a writ of certiorari to review the judgment ot the California Supreme Court, This application was denied on January 13, 195s * ‘without pre judieé to an application for a writ.” ot habeas corpus in an appropri: ite United States Distriet Court.” Carmen vy. Diekson, 855 U.S, 924, 75 S.Ct. 367, 2 L.Ed.2d 354. ° Thé application to this Court for the writ followed. An order to show cause was issued and a return was. made by respondent. _ The: eause has been argued and briefed by counsel for petitioner and respondent. ‘ ” | 1] Respondent initial ly questions the applicability of the Ten Major Crimes Act. The text of this act as it now appears in the U “oy States ( Code is as follows: : i IS ULS. C. 1153, Offenses committed within Indian Conintry. . Any phen who commits against the érson or property of another Indian or other person any of the following of- fenses, namely, murder, manslaughter, rape, incest, assault | with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other . persons committing any of the above offenses, ‘within ‘the exclusive jurisdiction of the United States.” IS US. OC. $3242 Indians committing certian offenses. “All Indians committing any of the following offenses, namely. murder, manslaughter, rape, incest, assault with in- ~ Vv eatin, terit. to kill, assault with a dangerous weapon, arson, bur- ‘glary, robbery, and” larceny on and within the Indian. country, shall be tried in the same courts, and in the same manner, as are all other persons committing any of the above crimes within the exe ‘lusive jurisdiction of the United States.” ISULS.C, S51. Indian country de fined. 6 eae as otherwise. provided in sections 1454 and 1156 ‘of this title, the term ‘Indian country,’ as used Yn this chap- ter, means (a) all land within the limits of any Indian. reservation under the jurjgdiction of the United States gov- ernment, notwithstanding the issuance of any patent, and, ; ineluding rights-of-way running through the reservation, .(b) all dependent. dndiaa communities within the borders of the” ‘United States ‘whether within the original. or subsequently acquired territory thereof, and whether within or without the limits of a state, and (e¢) all Indian allotments,-the Indian titles to which have not been extinguished, including rights- of-way running through the same.” R ~The Indian allotment which was the site of the murder, for which petitioner was ‘convicted, was made from lands in the public domain, Respondent urges that it consequently was not an | allotment, the Indian title to which has not been extinguished dnd thus is not Indian country as defined in the Adt. He contends that an allotment, the Indian title to which has ‘not been extin-- guished, .is an allotment from an Indian reservation -or trom * land of Which | the Indians . have. had uninterrupted use and ot. cupancy. : _ Respondent hases this. interpretation of the statute primarily upon his view of its legislative history. The Ten Major Crimes Act as originally enacted on March 3, 1885, 28 Stat. 399, Was not- applicable to the Indian country generally but only to Indian reservations. But, when the Act was incorporated into the New Criminal Code in 1948, the reach-of the Aet.was extended to all ‘Indian country as defined in Section 1151 of the Code. Seetion 1151 represented the first attempt to: statutorily’ define the terin “Indian Country” since the Act of June 30, 1834, 4-Stat. 729, which had been repealed in’ Isv4 (Revised Statutes $5596). Seetion 11: oy resulted’ from the ‘judicia! definitions of the term in the intervening years. House Report No. 304, 80th Gongress, page 492 states that Indian allotments were included in the definition of Indian Country on the authority of Emited States o .* . v. Pelican, 1914, 232 1°, S. 4425 34 S.Ct. 396, 399, 58 L.Ed. 676. ‘In Peliean a murder had hes n sites on an [Indian al!otment which had been carved out of an Indian reservation and then excluded from the boundaries of. the reservation. The Supreme Court held that so long as,the United States held title to the allotment in trust for the ‘Indian allottee it remained [Indian country even though the allotment. Was no longer within theres-_ 2 2. _—- ervation. -Responde nt interprets the Pelican decision to mean: that an‘allotment to be Indian-Country must have been mide . from lands which were, previously Indian Country. But this is an unduly restricted view of that decision. In Péliean the allot- ment in question had in fact been made from lands that were already Indian Country. But, that decision does not imply at ‘all that this was. a necessary prerequisite” to the allotment being Indian Country. Indeed, quite the contrary is true. In Pelican. the reservation from which the allotment was’ made had itself been ereated out of the publie domain rather than from land whieh’ had préviously’ been in Indian possession? The Supreme Court noted that in an earlier decision, Donnelly v. United States, 1912, 228 U. S. 243, 33 8.Ct. 449, 57 L.Ed. 820, it had held that a reservation set apart out of the piublie- domain was just as truly Indian: Country as a reservation ereated from land» ‘which had always been oceupied by Indians. The Court then went on to say that: “In the present case, the original | reserva- tion was Indian, country simply heeause it had been “validly set ‘apart for the .use of the Indians as such, under the superintend- ence of the government. * * © The same considerations, in sub- stanee, apply to the allotted lands ‘whieh, when the reservation Was diminished, were gxyepted _ from the portion restored to the public domain. The allottees were permitted to enjoy a more secure tenure, and provision was made for their ultimate owner- ship without restrictions. But, meanwhile,the lands remained Indian lands set apart for Indians under governmental care; and we are unable tq.find ground’ for the.eonclusion that they became other than Indian country through the distribution ‘into separate holdings, the government retaining control.” ‘Since all Indian allotments, Pgardless of eb souree; are maintamed under the, same ‘type of Governmental supervision, either by holding title in trust for the allottee or by restricting athenation, there is no logieal reason for making the application. of protective criminal statutes dependent upon the souree of the ° allotment. But, if there were otherwise any doubt about. the matter, _the re ois an aspect ot the le wistative: history of ‘Seetion 1151, overlooked by respondent, which compe ‘is the conclusion that the Cofigress intended to include in this statutory definition of "Indian Country all Indian allotme nts, reqardle ss of source, “while in trust or inalienable by the apse Prior to 148 when Section . ____ 11a) was cnacted, Section 241 of “Title. 20 of the United States . Code made“it-a Prec ee oa, to iIntrodiee intoxicating quer int® the Indian country and - provited? Trartsrwchs_ dorm should inelude “any Indian allotment. while the title to the same shall he held in trust by the Government, of. While the same shall remem - inalienable by the diHottee without the consent oY the United States.” 52 Stat. 696. In 14S Section ZL was repealed and? the ‘prohibition against introducing, intoxte ating liqqaer into the Lndian country Was incorporated in tiew Section: Plot ot Tithe Is. But, the provision of the repealed Section 244i that Indian country should include “any Inclian allotment while the tith to the same shall be held in‘trust. by the Government, or wt hile The same shall "remain inalienable by the allottee without the consent of the United States,” was emitted from the new Seetion 1154. The Reviser's Note specifically states this portion of rep ‘aled Section 241. “relating tothe scope of the term ‘Indian COUnLEY Was omitted as unnecessary in view of the definitions of “Indian country” in Seetion 11)" Tithe IS. Tt is thus. clear? that when Congress peerre in. Section P15) that Indian country should inelude “all Indian cyerapae the Indian titlés to which have not been ex- tinguished,” considered this deseription broad senough to en: _compass all indian allotments while the title to the same shall be held in trust by the Government, or white the sare shall remain inalienable .| the allottee Without” the consent of the Um teat ! states. The pach nt which Was tlie situs of petitioners offense is then Indiat country within the me cats tise of the Ten Major Crimes Act. . . . aye 5 f 12} Respondent itlse 1y(legt tons the apphieability ot thie Ten, Major ea Act oon the erovne — potitiotier, although, an Indian ~ blood. is emane ipatedt to such an extent that he is hot an “ig ad Within the meaning ‘of the Ner None aol the deetsions relied pon by respondent support tits contention OA proper Unde rstanding of these authorittes ia res a peietuane at the jilinens ‘of the Ten Major © rimes Aettin the scheme of federal regulation of the Amer lean Indian. e ! Originally the federal government permitted the Indian tribes considerable governmental autonomy. The tribal: autonomy was recognized in the -Act of. June °30, 1834, 4 Stat. 729, ‘and. TB, which extended the federal criminal. laws to the Indian Country, but expressly made them inapplicable te crimes “committed by one Indian against the person or property of another Indian.” In Iso4, 10 Stat. 270, the federal criminal statutes as extended to the Indian Country were also made- inapplicable to Indians committing any offense within the Indian Country. if they were punished by the local law of the tribe.4 But, as tribal authority diminished through the years and the Thdians entered more and more into thé life of the non Indian communities, tribal autonomy ‘in tiajor criminal ¢natters. became undesirable. Thus in IS8S85, the: Ten Major Crimes’ Act (23 Stat. 385) ‘was passed to make’ the tedeval eriminal statates applicable to serious. erimes committed by Indians on their reservations. The apparent effect of these federal statutes was to divide the jurisdiction over erimes eom- — mitted by Indians in Indian Country between the federal govern. ment and the Indian tribes. However, some state courts. recog nized a small area of state jurisdiction by holding that an Indian who was not a member of any tribe Was subject to state eriminal Jurisdiction even for offenses comimitted in the Indian country. ° Three of the decisions relied on by respéndent so hold. Two of. these decisions! however, deal with offenses not enumerated: in the Ten Majar Crimes et. Thus they are not direct authority tor the proposition that non-tribal Indians are not Indians within Hie meaning of that Aet. The third ease, State v. Howard, 1903, 33 Wash, 250, 74° Po 382. does hold that an Indian who is not a laember of arty tribe is not an Indian subject to the Ten Major Crimes Aet. But, in se holding it stands alone.> Its authority Is. eweakened by the deeision of the United States Court of Appeals for the Ninth Cireuit -ir Davis vo United States, 1929, 32 -F 2d SHO, which appears to stand: tor the proposition that tribal rela- | ‘These statutory provisions cfre TOW incorporated in Seetion 1152 of Tithe Is¢or the United States @ ode. . ape a tee Pvesple ex rel. Schuyler \.. Livinastene, 1924, P23 Mise. GOH, 205 NOYOS. S88; State vo “Campbell, 1895, 53 Minn. 354, 55-N.W. 553, -21- LARA. 16m ; ses . - ie ‘Respondent “alse cites People y. Ketehum, 1887, 78 Cal. 635, 15 a Wo. whieh hetd a nmon-tribat DPndian could -be tmed ino the State eourts ter murder. But at) does hot, appeur in ‘that ease that the imurder eae * committed ot at Test rvation or elsewhe rein Indian Country. be Bemrete = _ tribe.® — sidered as themgh reeeived in thes procera lit, tions have ‘no bearing on an Indian's status as’an Indian within the meaning of the Ten Major Crimes Act. Bute whether ‘or not, ‘Howard represents the correct interpretation of the term “In- dian” as used in the Aet, it ts factually inapplicable io Petitioner, since. Petitioner bas been found to be. a member of the Mono On February 8; S87, two years after the’ passage: of the Ten Major Crimes ‘Act, the Conéress enacted the Dawes (ieneral — Allotment Act, 24 Stat. JAS, 25 0S. Cl AL $548, which provided for the allotment of lands in severalty to Indians with the title — “held in trust for twenty five years. The Act specified that upon = ‘the eompletion of such allotment, the allottee should “have the ‘benefit of and be subject to. the laws, both eivil and eriminal, of the State” where he resided/ 25 U.S. ©. AL $349. In) 1906, the . Ps . 4 ° . a . - «° Dawes Act was atiended to: make it clear that the allittee should not be subject to state law until the trust period expired and he ‘ peceived a fee patent. J4 Stat. Ts2. ; . As additional authority in support of the argument that peti- tiuner. is an emaneipated Indian net subject to the Tey Major Crimes Act, respondent cites a aleeision by the Court of ‘Appeals forsthis cireyit® ane a devision. hy the Supreme Court of Mon. tana’. holding that an Indian who his reeeived a fee patent to land allotted atider the Dawes Aet is ne longer subject to the Ten Major Crimes Avt. There are decisions of the United States Supreme Court. whieh, while cnot directly eontrary, make- these devisions questionable’ But, fight or wrong, they are factually irrelevant jrasmuch as petitioner has never received an allotment under. the Dawes Act. : . . [3] Respondent Shas cited no cises, and there appear to be none, Whieh saggést any methed of emancipation Whiehe might except an Indian from the previstens ofthe. Ten) Major Cremes Act, other than the severing of all tribal relations or the obtain Ing of a Tee patent te laned allotted under the Dawes Act.” ac F ; r "Tt was pureed that the evidence nadueed at othe hearmg bererte the Reteree apporited by: the Supreme Court ot Calstornar might. be. cet: TEuvene Sel Lane ve United States, Cir, 121, 274 FL 47. SState Vo Monree, 1920, 85 Mont. 556, 274 P8400. Osee Rieeev. -Clson, 145, 324 US. 786, TOO TAL, Oo S.C USO, SO Lod. 1i67, and the Cases there cited. W hether or ‘not non-tribal, Indians or Indians holding a fee pat- ent to land allotted under the Dawes ‘Act are subject to the Ten Major Crimes Act is- unnecessary to decide. For there is no doubt ‘that petitioner, who has. received no allotment and is an Indian by blood, enrolled as a member of the Mono tribe by the Bureau uf Indian Affairs, is an Indian subject to-that Aet. ; : |+] Respondent next contends that the Ten Major Crimes. Act ' does not vest the federal courts with exclusive jurisdiction over the offenses enumerated in the Act, but only grants jurisdiction to be exefeised, concurrently with the State courts. This conten- _ tion is wholly untenable. The language of the Act which specifies — that Indian ‘offenders subject to the Act “shall be tried‘in the : . same courts, and in the same manner, as are all other persons committing any of thé above crimes within the exelusive jurisdic- tion of the United States”. clearly contemplates that Indian of- fenders shall be tried exclusively in. the federal courts. There are many cases that so hold, '* and none which hold to the contrary. “45] Respondent’ s final contention in respect to the Ten Major — Crimes Act is that the Act is unconstitutional if interpreted to - vest the federal courts with exelusive jurisdiction over the murder committed by petitioner. In United States v. Kagama, 1886, 118 U.S: 375, 6 S.Ct. 1109, 30 L_Ed. 228, the. constitutionality of the Ten “Major Crimes Act was upheld: on the theory that the ~ Indians are. a dependent people within the limits of the. United States who must of necessity be the wards of the national govern-* ment. Respondent ‘suggests that United States v. Kagama is. ubsolete. He urges that the wardship theory can not. sustain the constitutionality of the Ten’ Major Crimes Aet as applied to a crime ot.an allotment from the publie domain and to an Indian offender, who is a citizen of the United States and the State of California, who lives where he pleases unsupervised by any fed- eral ageney and who is entitled to educational facilities, welfare’ ‘services, and other bene fits supplied by the State of California. But. the Supreme Court of the United States has consistently rejected all arguments that Federal powér to re gulate the Indians ~MSee eg. Ex parte Pero, 7 Cir, 1938, 99 F.2d 28; Yohyowan v. Lawes: * D.C. 1923, 201 F. 425; State ‘y. Pepion, 1951, 125 Mont. 13, 230 P.2@ Mil; State v. Columbia George. “1901, 39-Or., 127, 65°P. 604: People ex rel. Cusick vy. Daly, 1914, 212 N.Y\183, 105 NE. 1048; State v. Condon, 1914, 99 Wash. 97, 139 P. 871; Ex, parte Cross, 1886, 20. Neb. 417, 50 N.W. 428; State v. Campbell, 1393}.53 Minn. 354, 55 N.W. 553, 21 L.R.A. 169. . : 7 - ** \ . 2 2 , ‘ Pat i Wa Aitery Rai sas ca a has diminished as federal control has been relaxed. Thas the Court has held that the grant of national and ‘state citizenship * to the Indians in no way altered their status as wards of the ~ Federal government.''| The Court has repeatedly -stated that it rests with the Congress totdetermine when and how the national guardianship shall be brought to an end, and whetlier the eman-— eipation shall at first be complete or only partial.'* In. 1953, subsequent to the offense committed by. Carmen, the Congress did: substantially eurtail thé Federal guardianship, over: the California Indians by granting the State of California ‘erim- ~jnal «and civil jurisdiction over Indians within all of the Indian Country in the State, subject to ‘limited exceptions. 67 Stat. DSS, This action was taken by the Congress only. atter eareful study.'s } -It would certainly be presumptuons of this Court to substitute / its judgment for that of the Congress and hold that this action should have, been taken sooner, and tliat Congressional- power to assert criminal! jurisdiction over the Califyrnia Indians had: pre- viously expired. Respondent's contention ‘that the Ten Major Crimes Act is unconstitutional as applied to petitioner fannot ‘be sustained. eee re Ped [6] - There remains the question whether the lack of jurisdic- PP tion in the State eourt can he entertained in this habeas corpus - proceeding inasmuch as the test, of the state court's jurisdiction requires consideration ‘of some facts dehors the trial reeard. The decisions of the United States Suprefire Court, defining the seope of the inquiry that may be made in a habeas corpus proceeding, -* feave no doubt that this Court has the, power to consider the | jurisdictional issue. In Frank v. Mangum, 1914, 287 U.S. 309, at page 331, 35 S.Ct. os 2, at page 588° 39 L.Ed. 969, the Court said, MBoard of Commissioners ot Creek County. v- Seber, 1943, 318 U.S. ° 705, 718, 63 S.Ct. 920, 87 1 Ett. 2094: ‘Tiger vo Western Inyestment Co., 1911. 221 ULS. 286. OT SCR. STS. LB. 738;-United) Mates: v. (es- tine, 1909, 215 US. 278, 30 S061 93, 54 Led. 195. ek Board ot Commissioners of Creek County vy Seber, 143, 318- U.S. i 705, TIS, HA S.Ct. G20 87 L.Ed. 10d, hited States v. Nice, 1915, 241 US. SOT, 30S. 36 Suet. 606, GO Lod. TE. Tiger vo Westerti Divestment : Col, 1910, 221 USo286,. 510 et seg. SE D.Cb 85, SA BEd. Tas, Perrin v. United States, 1913, 252 1 IS. 47S, SE SCR OST, 5S LL.B. 691; United States v. Sandoval, T9153, 7 ES. 2A, 3 St. 1, 48 L.Rd. 107.7 United States ¥. Rickert: 1903, 188 U8, 452) 445, 23 St. 478,47 LB ote, LiSee House Report SES, Strd-“Congress, Ist) Session, TS LS.Code ‘Congressional and | Administrative News, p. 2400, . > ’ : “ . ° . e xu : a Tig » ‘ ¢ : : . ° R 4 / "There being. no doubt of the sietidetay of the Congress to ‘thus liberalize .the commom law procedure on habeas corpus’ in, order to safeguard: the liberty of all persons withit the jurisdigf ion of the, United States against infringement through any violation of the Constitution or a law or treaty established -thereunder, it results that under the: sections cited a prisoner in custody pur- suant to the final judgment of a state court of -criminal jurisdic-— tion smay have a judicial inquiry in’a court of the United States inito the very truth and substance of the causes-of his detention: although it may become necessary to look behind and beyond the : record of his convietion to a sufficient extent to test the: jurisdie- tion of the state’court-to proceed to judgment against him."" See also, Mooney v. Holohan, 1935, 294 U.S. 103, 55° 8.C't. 340, 79 L.Ed. #1; Moore v. Dempsey, 1923, 261 U, S. 86, 43.8.Ct. 265, 67 L.Ed. 543, ee ‘ aati Fo, The Supreme Court ‘of California, in refusing te consider the jurisdictional issue here tendered upon petitioner's application for _the writ, of Natbeas corpus, noted that these decisions of the United States Supreme Court considering facts dehors the trial reeord involved elaimed ‘denials of fundamental constitutional rights. This, said the California Supreme Court, distinguishes those eases - from the present ease where the claim of want. of jurisdiction is based on petitioner's status and the locus of the crimé, In re Carmen, 48 Cal.2d 851, 859, 313 P.2d 817. Implicit in this at- tempted distinction is the suggestion that a claim of lack of jurisdiction beeause of a violation of a constitutional right is of greater. consequences than a claim of the wrongful assumption: of Jurisdiction in- violation of. a fede ral statute. But, the federal ‘habeas corpus statute, which was interpreted by the United States Supreme Court, makes no distinction between violations Of vonsti- tufional rights and violaticns of rights ageorded by statute. It extends. the writ of habéas corpus to all cases of persons “in. cus- tody in violation of es Constitution or laws or treaties of the United States.” 2s U. (*, $2241. ~ * Respondent cites a number of Tederal Mises in which the Court © in a habeas corpus proceeding declined. to consider a jurisdic- tional question dependent upon facts dehors the record. ae of = these cases, Rodman y.-Pothier, 1924, 264 U.S. 399, 44. 8.Ct. 360, 6s L.Ed. 759, is irrelevant because there the pare ati issue was raised by petition for habeas corpus before irial. Another, In re Lineoln. 190, 202 U. 8. FeS, 26 8.Ct. 602, 50.1 .Ed. 954, is of . no value beeause it dealt with an attempt to secure direct ‘review ;: of a judgment of conviction by the United States Supreme Court by. petition for the writ of -Habeas corpus, in avoid@nee of the normal appellate provess. In the remainder of-the cases cited by . respondent, '4 the facts dehors the record alleged in support of the claim of want of jurisdiction were inconsistent with jurisdictional facts alleged in the, indietment. In. the present case, the absence — of jurisdiction in ‘the State eourt is evidenced. partially by the trial reeérd and partially by new facts in ne. Way inconsistent with any facts alleged in the information or found by the court. In Ex parte Van Moore, D.C 1915, 221 F. 954. a ease strik- ingly similar to this one, the United States District Court for South Dakota, upon a petition for‘habeas corpus, considered facts outside the trial record in holding the Cireuit Court of the State wf South Dakota lacked jurisdiction-to trv an Indian for.a mur- der committed upon an Indian allotment. In Ex parte Pero, 1! O38, 99 F.2d 28, another similar habeas corpus proceeding, the Court of Appeals for the Seventh: Cireuit also appears to have looked to facts dehors the record in holding that the State of Wiséonsin Was Withowt jurisdiction to try an Indian fora murder ‘«ommitted ona reservation within the State. But, respondent urges that’ even if it -bé conceded that this ‘Court has the power in this proceeding to look: to facts outside the trial reeord tf test the jurisdiction of the “State eourt, the. exercise of this power is proper onlys upon a_ showing of execep- tional cire umstances. However one might characterize the eireum- Stanees’ in’ this case, they clearly warrant tlie exereise of this Court's power to imquire into thie jurisdiction of the State court |7| The testimony at petitioner ‘s trial was tt both he: and his vietim were Indians: and that the murder occurred at the vietim’s residence... Although these facts alone did) not fully dem- onstrate the lack of jurisdietion in the trial court, they shoukd have put the State Court un inquiry as to its own Jurisdiction. The right to be tried in a Federal © ‘ourt accorded petitioner by the Ten Major Crimes Act.. was not a. meg procedural right, waived uutiless asserted. n could not -have been wajved even by Tir -Tov v. “thoes 1909, 212 US. 3H, 2OoSer. a6, 5a LL Bad 644: Davis vo Johnston, & Cir, 144, 1b P2d S62, Hatten v. Hindspetl ii 10° Cir. 1938, 99 Pd 1s Walsh vo Johnston, O Cin Ta 1S. Pod S06; Walsh ve Areher, °C, 14, 74) Fd 197: Ex parte Savage, C.C Kan. 1008, 158 Fe 205. * 8 : B xIV . y & . ; . express agreement. The Ten -Major Crimes Act was enacted for the proteetion of the Indian wards of the United States. Both the trial court and the state's attorneys had a duty to uphold this wderal statute. They had a responsibility to see to it that the court did not improperly tssume jurisdiction taal an Indian ward of the Federal govermment, When the matter oa the attention of the United States, WS representative promptly advised the California Supreme Court of the jurisdictional question while the appeal was pending. The, Stipulation of the parties that petitioner was an Indiah by blood, and that the locus of the crime was.an Indian allotment, ‘the title: to which was held in trust, constituted at the least a prima facie * showing of the lack of jurisdiction in the State court. If, in the opinion of the California Supreme Court, the exclusive federal jurisdiction also depended unon the fact’ that petitioner wes a tribal kndian and had not ‘ved agtee patent to an allotment under the Dawes Act, these woe faets which were a matter of publie reeord and easily ascertainable. They were in fact ascer-, tained by the Referee appointed by the California Supreme c ourt Upren petitioner's application for the writ of habeas ‘corpus, which Was promptly presented to that court after his unsuccessful ap- peal Vet the California Supreme Court deemed itself powerless to remedy an assumption of jurisdiction clearly ‘in violation of a federal statute. Under these ‘eireumstances, it beeomes the plain duty of this Court-to protect the jurisciction- vested in the Federal Courts by the Ter Major Crimés Att. . It appeurs | from respondent's return to the order to show cause, that ‘in thee trial. in dune 1950 in whieh ‘petitioner was originally eonvieted of murder, he was also tried and ve for assuult with. intent to smurder. Although the judgment conviction of murder entered in that trial was reverseds for im- proper instructions, the judgment of econvietion of assault with intent to murder was affirmed on appeal, People v. Carmen, 36 Cabld 76s, 228 P2d 28h (March 4, 1951) and is still out- standing. | ak 33 Petitioner's application for the writ of habeas corpus directly challenges only the judgment of. eanviction -for murder in his. second trial tor that offense. And, in their argument and briets the parties concerned themselves solely with that judgment. But, rhasmuch as petitioner's application seeks his discharge from eus- . xv tody and respondent ‘has a. serted in his return to the order to show cause the judgment of eonvietjon of assault” with intent to murder as a bar to this reliéf,-the validity of that judgment has been put in issue in this proceeding, Certainly "in view of the inordinate ainount of time that the state court's jurisdiction over petitioner “has been in controversy, it is imperative that the re- maining question of its jurisdiction to try petitioner for assault with intent to murder be promptly disposed of in this proceeding. {S] . Assault with intent to kil) is one of the-erimes whieh the Ten Major Crimes Act places within the exclusive jurisdiction of the federal courts when committed by an Indian in’ Indian. coun- try. It. aprears from the opinion of, the California) Supreme Court affirming the judgment of conviction of assault with intent to murder that the assault Was committed at tle same place as the murder and the record in the case so shows. The Superior Court in and’ for the County of Madera theretore lacked jurisdic- gn to try petitioner for that offense. . * The Writ of Habeas Corpus will issue and it is Ordered that petitioner be discharged from custody. ee ad JAMES + In the Supreme Court | ' OF THE ‘ Pnited States . Oke Tow RT, ras No. 562 . eA Pn son AVarden of the Cali. fornin State Prison at San Quentin, California, Pui titioner, \ Vs. Rayva Tou Carmen, I, Bes pour wil, : PETITION FOR A REHEARING OF ORDER DENYING PETITION FOR WRIT OF CERTIORARI. SPaANE ly Mesis Atrornesy Geniorabof the State of abitern Anne RS Arent, Deoprits Artery Seen roptha State cot thifern J G00 State Baibding. San Pramecteee 2 C'alitergu Cloutiise / for id filiowe t. ant Oo NING, Q ‘ . . » . . ‘ . : . ° . . . o ° . - . 4 r ss x wy é / P > - ™ e ;. : ° - ’ Subject Index . , : » Paue. Reasyns for granting rehearing and issuing the writ Pt a . The opinions of the federal courts in this case are contrary ~ to subsequent. decisions of United States Courts of Ap. peals; this court has created a dual standard tor deter. Mining a “waiver”, one applicable sto federal prisoners and another applicable to state prisoners 4 . * | ; ae oT This court, by its actjon- in cenying the petition tas ap: proved of the Cireuit) Courts action whieh places: a statutory right above a constitutional right. Carmen received a trial whieh accorded hink due process, he was accorded a fair trial with all of the procedural and sub- stantive rights guaranteed by the state and. federal eon: stitutions 2... he MA Apres 5S eee OEE y : ) re | |p By refusing te grant the petition ter writ of certionary this ‘court has aggravated the confusion already existing com. * . cerning the application of the watver Hloet rine in the . ‘4 . e -Federal District Courts. there are noumerons additional questions in doubt that were tet specitieally urged in the petition for éertiorari 7 Counelusion - 9 lable of Authorities Cited a. - Cases “+ : Pages Hirewn v. Allen. HAULS. f45... se eae eiseia, oe Cam. § OS. 274 Red 2d 337 sth Cir. Nov. 6. 1950 pa Dratieis vy. Abe. SHELLS. a Aras Pe bevdus . ‘. tm, ed 2a (Cir DLC Dee BOS pau) 2 Inore Carmen, 48 Caivd saboo..o.o... Rte eine ore ga ape a6. ; af , - ‘ : - Jrvine \) Dowd S590 Sood roge Lea Whe grtk atarn Gree © a ecg ‘ People vy. Carmen, S6 Cal ld 76s, Se Et aay ee ;4 ty Statutes and Authorities | 44 Me eHEA by bo ADS Bee ta Sheets 6.7.5.0 Piilie Law 2se, Ls eee ba ae aaNet ERS yee a 6 bee Supreme Court, 15s Term Poreword, Henry M. Hart, OE. FF: DREN: Bas Oy i BER. OL ss vane cahh ecu lean 7 — In the Supreme Court ea se : OF THE . ‘ Anited States — Geveicas Tene. 1oa9 . No, 562 | ott Binh M. Dieksox, Warden of the Cali. | fornia State Prisen-at San Quentin, | ° California, Ll’ filioner, ' ye = Rayna Tow Carmen, Re apie ‘sian PETITION FOR A-REHEARING OF ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Fred Ro Diekson, petitioner, prays that thes Court erant rehearing of its order of. danuaky U1, denying petition for writ ot certioram, amd that a: Writ of certiorari issite te review the judement of the ‘Court of Appeals for the Noath Cirenit in the above entitled ease as praved feop ahothie pegitreni tiled Pecan "ber PSO, Therein. ; boot / ) REASONS FOR GRANTING REHEARING. AND ISSUING THE WRIT. I. THE OPINIONS OF THE FEDERAL COURTS IN THIS CASE ARE CONTRARY TO SUBSEQUENT DECISIONS OF UNITED . STATES COURTS OF APPEALS; THIS COURT HAS CREATED A DUAL STANDARD FOR DETERMINING A ‘*WAIVER'’, ONE APPLICABLE TO FEDERAL PRISONERS AND ANOTHER AP. | - PLICABLE TO STATE PRISONERS. This Court, Jw re fusing to review ihe 5 of the UL S. Court. of Ap pesils and the UL S. Distriet ~ Court, has by dincwet ben rap yproved aedtial standard: for determining when a question has been “waived” trial and appellate proceedings. The Alecisions Thy sie Ul S. Court of Appeals have sidopted one standard of waver S applies able te federal prisoners ino state courts and another st: indard apphleable te state pris: ode rs. = - Phe recent ileetsions of the ee Corrt of Appeals ee - an Cain ve OLS. 2T Ped.vel hoe OSth. Cir. Nove 6, O50). amd Modges er EUS. Bedid £Cir DG Dee, SO, 1959). are Suibscepite rit deeistons of the Courts Ajapeals bdiestive oF the federal rules. applicable te federal prisoners. Phesg decisions indieate that the * | ~Cirenit Courts ore suppl iis ok da tferent standard tes federal prisoners thin Wats applied te the state pris her ("t rinen Ith thre pres nt. «sase’. ‘Tn Llane BS fs T Mes it ha, the court st; fae eo “AI theone hh seetion BRO contains hie prey is leon for exhaustion ot federal appellate: remiedios Te- fore a ceollaterat attiek pon a federal sentences . TT A sasetiavnindl, hi orderly diministration «af ermine law bn a beads rea! Courts, oh!) Sootete what comparable rank with COMET NS Ds Invelved in. such an attack when ne appedl has been prosecuted from the jue: Srent of eon tetion and ne Pegsen advaneed for the comission to appeal We remain of the view that the right of appeal may net Ie abandoned and resort had te section 2255 awhen- ever the convietion rests on evidence admitted ate the trial in vielation cof a constitutionally: pares. tected right. Otherwise. the -appellate process to eure cerrer in the admistien of evidence .would * . “be pure tante atrophied, One under sentence by a : Federal | cart in such a ease could Simply ignore hid right of appeal and resort to section 2255 at rany ‘ume sy dine Indeed. California has. argued consistently: inthe lower federal courts that the state process cannot. be .Vsimply ignerefd |. We have contended as has. the Court of Ap peals for the District of Columbia. that the ordinary state PROCESSE s and state remedies ought fot be short-circuited. by pe rinitting a petitioner | to either lgnere or tail Yo utilize the avaitable state remedy. Carmen failed Te utilize the state remedy available by lis«faihiure: te a tiahes the matter to the jury. He thus waived the contention under state: law, See ln ve Carnion, AS Caled SOL. This Court ought . Hot perm one rile te apply te federal prisoners ard? another rule te apply to. state prisoners. ‘Like laniwtawe 1S seotatititoed ~in the tease at Caan ov, 2. PTL -Fed2d BUT (Sth Cir. a oe where’ the cent et states is fellows: : cs Ty addition. they [the trial! recorded maay’ hare, this etfeet by demonstrating that) the petitioner — ° 4 had prior opportunities to urge the claims of lis motion arid failed to do se. thereby. raising a conn elusive inference: of their invalidity. Kyle vy. United States, 2 Cir, 1959, 226° Fd 670,> eer- tiorart denied October 19, 1959, 80 S.Ct. 151; duelich ve United States, 6 Cin, 195s, 257 F.2d 424, certiorart dented 358 US. S47. TOS.Ct. 72, - "go L.Bd.2d Ste Donovan ve. United States, 10 Cir, 1953, LOD Fed 557: United States v. Newman, D.C. God 16° Fasupp. Go arn er, United States, P20 B37, BBS) ee This language is clearly in eouthet with the standard applied by the Ul oS. District Court and) the’ Ninth Cireuit te the state prisoner Carmen, Carmen had. in the. language of the Cain case, two opportunities ‘during the course of the various proceedings” "te raise eat thee question concerning his status and the locale of the crime, Tle was tried twice in what is goneeded by ‘all persons tos have been al fair hearing in the :Cali- fornia courts, He failed te utilize, the remedy ‘avail- Jatblesand should not be heard to raise the matter col- laterally. , The U.S. Court of Appeals has eranted a stan of miatndate sin the present’ éase to and inelrdine the tiling and disposition sof the petition for rehearing, This action by the Court cof Appeals subsequent TW: the action af this Court in failing fo erant a heading: Is taken bye the petitioner te didteate: that that Court Feels 7that the questions raised by the petition for: eertrorar’ Ty , bor the the hig Ceaquestions of Widespread Ii portance hdanee of the Pederat District Cou ‘ts in ) adding cot. state his aubeas corps CUSES, Petitioner likewise infers thai the Court of Appeals Is of the “view that Piosstble cortliets between the City, cuit Courts and the opitions ef this Court exist and. should be resols eal. Hl. _ ‘THIS COURT, BY ITS ACTION IN DENYING THE PETITION HAS f -APPROVED OF THE CIRCUIT COURT'S ACTION WHICH | PLACES A STATUTORY RIGHT ABOVE A CONSTITUTIONAL RIGHT. CARMEN RECEIVED A TRIAL WHICH ACCORDED » HIM DUE*’PROGESS; HE ‘WAS ACCORDED A FAIR TRIAL . WITH ALL OF THE PROCEDURAL AND SUBSTANTIVE RIGHTS GUARANTEED BY THE STATE © AND FEDERAL CONSTITUTIONS. Petitioner, has not previously nrved the distine- tion that gxists between Carmen's ease ind the risa constitutional right’ "ese, ° ot —* Rayna Tom Carmen wis tr (inthe Supertor Cort of Madera Couity for the erie of minrder cue as Ssault with intent.te commit minrger and avas conv letiod on both counts. Phe orion! tral was reyerned by. thie California Supreme Court on the cromnd that the ter Count omitted te vive Contain Hristitetas Nis te the prs, “Om retrial Car See Prople ve Carmen, 306 Called tH men Was neath eonvieted of fifstQdegres miagrdér and sentenced tu death. Cuartien Hits hieot contended 1h) iis federal proceeding that hie was Het aecoreedd a faire trial in a ane process’ seqee. Et appears te he eon coded by all eoneerted. that Carton reeerted a tiuart ; ‘trial; thit hie wits accorded aly of the Ie bat». eMatatite val to hin bvethe Verde rial and shite Constitutions. . . . >. p ee . —