Jean L. Chester v. The People of the State of California

355 F.2d 778, 1966 U.S. App. LEXIS 7378

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 27, 1966
• Docket: 19773
• Status: Published

Opinions

HAMLEY, Circuit Judge:

Jean L. Chester, a California state prisoner, appeals from a district court order denying, without hearing, his application for a writ of habeas corpus. A certificate of probable cause was entered by a judge of this court, thereby enabling this court to entertain the appeal. See 28 U.S.C. § 2253 (1964). Chester appeared pro se in the district court but counsel has been appointed to represent him on this appeal.

Chester argues that the district court erred in failing to issue a show cause order to determine whether his allegations of fact are disputed, and in failing to hold an evidentiary hearing as to any disputed facts. It is also contended that if reliance is placed upon state court findings as to any disputed facts, the district court erred in accepting such state court findings without first examining the state court record.

The principles to be applied in considering this argument are well established. The district court should not, in lieu of an evidentiary hearing, rely on a state court finding of fact, without first ascertaining that the state court evidentiary hearing was full and fair. Townsend v. Sain, 372 U.S. 293, 319, 83 S.Ct. 745, 9 L.Ed.2d 770. The adequacy of the state court hearing may be established only by a concession to that effect by the applicant or by examination of the state court record, an examination of a state court appellate opinion being insufficient. Jennings v. Ragen, 358 U. S. 276, 79 S.Ct. 321, 3 L.Ed.2d 296; Pike v. Dickson, 9 Cir., 323 F.2d 856, 859.

One ground for relief asserted in Chester’s application is that at the time of the preliminary examination in justice court on June 16, 1947, on a charge of violating California Penal Code, § 4502 (possession of a deadly weapon by a state prisoner) he did not have an attorney and no one told him that he was entitled to be represented by an attorney.

As to this ground the district court accepted the findings of the Supreme Court of California in a state habeas corpus proceeding brought by Chester. In re Chester, 52 Cal.2d 87, 338 P.2d 431. The California Supreme Court determined, on the basis of findings prepared after an evidentiary hearing, by a referee appointed by that court, that Chester was not advised of his right to counsel at that preliminary examination, but that he was fully advised of such right at his arraignment in the justice court on May 28, 1947, and that Chester waived counsel at that arraignment.

Since the district court thus accepted as true, Chester’s allegations that he did not have counsel at the preliminary examination and was not advised of such right, it was not necessary for the court, as to this ground, to hold an evidentiary hearing or call for and examine the state court record. The question remains whether, in view of the facts so established, the district court erred in holding that this asserted ground for relief is without merit.

An accused has a constitutional right to representation by counsel at a preliminary examination in a state court if, under the facts of the particular case, the examination is a critical stage in the criminal proceeding. Wilson v. Harris, 9 Cir., 351 F.2d 840, decided October 19, 1965.

The record of the preliminary hearing, which was designated as an exhibit and attached to the application for a writ, shows that at the preliminary examination in question two witnesses testified for the state, one of them being cross-examined by Chester. The defendant did not testify, or offer any testimony, nor did he enter a plea or make any statement tending to incriminate himself. The cross-examination which he conducted did not uncover any fact disadvantageous to him. The state court record before us further shows that on June 21, 1947, Chester was arraigned in superior court, at which time he pleaded guilty. Chester did not allege that this plea was in any way induced by the proceedings at the preliminary hearing, or by any disadvantage to him in not having legal representation at that hearing.

Under the stated facts the preliminary examination on June 16, 1947 in justice court was not a critical stage of the criminal proceeding and the failure to provide counsel or advise Chester of his right to counsel at that hearing did not deprive him of a constitutional right. See Wilson v. Harris, supra. Accordingly, the district court did not err in rejecting this ground for relief.¹

The memorandum and order of the district court indicates ’ that the court thought that this was the only ground upon which relief was sought. This is not correct since Chester advanced two additional grounds in his application, namely: (1) at the time of his arraignment in the state superior court on the section 4502 charge, Chester pleaded guilty and was sentenced without the assistance of counsel, and without waiving his right to counsel; and (2) he pleaded guilty to that charge on the representation of the district attorney, conveyed to him by his aunt, that if he would do so, he would not have to spend any more time in prison in addition to the time he was already serving for statutory rape.

The district court has not passed upon these additional questions, the second of which was not discussed in the California Supreme Court opinion in In re Chester. It is therefore necessary to remand the case so that these additional grounds for relief may be considered.

In his brief on appeal, Chester advances several additional reasons for reversal which were not presented in his district court application for a writ of habeas corpus.² Except where necessary to prevent a manifest miscarriage of justice, no such showing being made here, an appellant may not urge as a ground for reversal a theory which he did not present in the trial court. See Thomason v. Klinger, 9 Cir., 349 F.2d 940, decided August 6, 1965; Daugharty v. Gladden, 9 Cir., 257 F.2d 750, 758. Accordingly we do not reach these additional arguments on this appeal. In the remanded proceedings, however, Chester may amend his application to assert additional grounds for relief concerning which he has exhausted his state remedies.

Reversed and remanded for further proceedings consistent with this opinion.

1 . Under California Penal Code, § 859, as it existed in 1947, an accused was entitled to be represented by counsel at his preliminary examination, and to be advised of that right. Had there been any allegation that these rights were withheld from Chester because of his poverty, we might have an equal protection question such as was presented in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. But there is no such allegation. Nor is there anything in the record to indicate that Chester was, because of poverty, dealt with differently than defendants who were able to employ counsel.

2 . In so concluding, we are mindful of the rule that the petitioner’s documents are to be read with a reasonable measure of tolerance where, as here, his district court appearance was pro ne. See Wright v. Dickson, 9 Cir., 336 F.2d 878, 881; Pike v. Dickson, 323 F.2d 856, 857. Some of the additional issues Chester seeks to raise might be surmised from facts unearthed by a meticulous reading of certain state habeas corpus documents, copies of which were filed as exhibits to the petition purportedly in support of issues there raised. We do not believe that the district court is to be blamed for failure to discover issues presented in this manner.