Fred M. Dickson, Executive Superintendent of the California Institution for Men, Tehachapi, California v. Glenn Castle

Dickson, superintendent of the California state prison at Tehachapi, California, appeals from a judgment of the United States District Court for the Southern District of California, Northern Division, granting the application of Glenn Castle, appellee, a prisoner in said state prison, for a writ of habeas corpus.

It appears from the record that appel-lee on September 30, 1949, was charged in the Superior Court of the State of California in and for the County of Orange with issuing a bank check with *666 intent to defraud. Upon appellee’s plea of guilty the court imposed the following judgment:

Appellee’s application for probation was denied. Thereafter appellee served his sentence in the county jail, and on December 23, 1949, was released from custody. The minutes of the court on that date read:

Thereafter on July 6, 1951, the court issued a bench warrant for appellee's arrest, in which it was stated that suspension of appellee’s commitment to San Quentin “is hereby revoked”, and on August 6, 1951, the judgment, the validity of which is attacked in this proceeding, was entered. This judgment reads in pertinent part as follows:

Appellee’s contention, which was accepted by the…

(concurring specially) .

If appellee’s petition for a writ of habeas corpus presents a federal question I agree that he must first exhaust his state remedies. His earlier effort in that direction was abortive for he did not comply with Darr v. Burford, 339 U.S. 200 , 70 S.Ct. 587 , 94 L.Ed. 761 , and he allowed the time to seek certiorari to expire. That mistake on his part does not forever foreclose him from relief from a void judgment, nor does it excuse him from further attempts to seek relief in the state courts, for I assume that in California, as in most states, a denial of habeas corpus is not res judicata and does not, per se, prohibit another try. 1

Therefore, since a chance for state relief is still open to appellee, if he is still confined in violation of federal constitutional right, he must make another try for that relief before he goes to the federal court.

I should add, however, that I cannot perceive that appellee’s petition presented any question of federal rights.

. If the California rule were like that in some states, and one denial foreclosed any other applications, then there would now be “an absence of available State correetive process” under Title 28,…

244 F.2d 665 Fred M. DICKSON, Executive Superintendent of the California Institution for Men, Tehachapi, California, Appellant, v. Glenn CASTLE, Appellee. No. 15375. United States Court of Appeals Ninth Circuit. May 8, 1957. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., State of Cal., for appellant. John Gelegan, Fresno, Cal., John A. Hooper, William I. Edlund, San Francisco, Cal., Glenn Castle, Los Angeles, Cal., in pro. per., for appellee. Before DENMAN, Chief Judge, and STEPHENS and POPE, Circuit Judges, Circuit Judge Pope concurring specially. DENMAN, Chief Judge. 1 Dickson, superintendent of the California state prison at Tehachapi, California, appeals from a judgment of the United States District Court for the Southern District of California, Northern Division, granting the application of Glenn Castle, appellee, a prisoner in said state prison, for a writ of habeas corpus. 2 It appears from the record that appellee on September 30, 1949, was charged in the Superior Court of the State of California in and for the County of Orange with issuing a bank check with intent to defraud. Upon appellee's plea of guilty the court…