Howard J. Kearns, B-3528 v. Harold v. Field, Warden

432 F.2d 68

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 23, 1970
• Docket: 24631
• Status: Published

Opinions

PER CURIAM:

Kearns is a California state prisoner. He was charged in the state court with having issued a fraudulent check in the amount of $24.81, and after having pleaded guilty to the offense, he was given the sentence which he attacks. He petitioned for habeas corpus relief in the District Court, alleging that he pleaded guilty in the state court only because he had theretofore been promised that he would be given probation, and not imprisoned, if he did so. The District Court denied Kearns’ petition after an evidentiary hearing, and this appeal followed.

We have concluded that the judgment must be reversed because of oversight on the part of counsel who appeared in the District Court. The basic factual issue was, as we have indicated, whether or not Kearns’ plea was induced by a promise made by state officials and unfulfilled. The issue was sharply contested, and after receiving evidence, the District Court requested counsel to supply it with the record of the state court proceedings at the time Kearns entered his plea of guilty. California’s attorney stated to the court, in effect, that the record would be obtained and supplied, and the court apparently delayed its decision pending receipt and examination of the necessary record.¹ That record is not before this court, was apparently never received and considered in the District Court as an Exhibit, and we think that the District Court was entitled to examine a transcript of all the state court proceedings before the judgment in question was made.

Upon remand the District Court will direct the appellee to present the full state court record within a reasonable time, not exceeding thirty days, from the issuance of this court’s judgment herein.

In the evidentiary hearing, it was undisputed that the attorney who prosecuted the case for California had promised that if Kearns pleaded guilty the prosecuting officer would recommend that the sentencing judge award probation. The state court record should reveal whether or not the prosecuting officer, during the sentencing proceedings, made the recommendation which had been promised. If, upon remand, the District Court ascertains from an examination of the state court record that the promised recommendation was not made, then it will grant habeas relief unless California does, within thirty days from the issuance of this judgment, afford Kearns an opportunity to withdraw his former plea, and the District Court may, of course, grant Kearns relief unless appellee’s counsel supplies the District Court with the state court record which the District Court requested and which, insofar as we can ascertain from the record before us, was, through oversight, not supplied.

Reversed and remanded.

1 . The district judge obviously expected to be supplied with a transcript of one of the state court proceedings. Near the close of the evidentiary hearing, he remarked,

“The matter will stand submitted. And when the transcript of the change of plea proceedings, held on June 28, 1966, is received, I will read and consider that transcript and that will be received as per the stipulation as Petitioner’s Exhibit 2.

“If either side desires to bring on additional testimony, you will have ten days after the Court has received that transcript.”

Since “that transcript” was apparently not “received” before the Petition was denied, neither party was afforded the contemplated opportunity to produce additional testimony.