William Cunningham v. Robert A. Heinze, Warden, California State Penitentiary

Appellant was convicted of possessing narcotics in violation of state law. He filed a petition for habeas corpus in the United States District Court for the Northern District of California, alleging that his conviction was based upon evidence seized in violation of the Fourteenth Amendment. The district court dismissed the petition without an evidentiary hearing.

I

Appellant’s timely petition to the United States Supreme Court for a writ of certiorari to the California Supreme Court for direct review of the judgment of conviction was denied after the decision of Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), overruling Wolf v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949). Cunningham v. California, 368 U.S. 933 , 82 S.Ct. 370 , 7 L.Ed.2d 195 (1961). The Mapp exclusionary rule applies to cases in which the state court judgment was not final when Mapp was annouced because in those cases the state could not justifiably have acted in reliance upon a judgment not yet final. The rule of Mapp therefore applies to appellant’s case. Linkletter v. Walker, 381 U.S. 618 , 622 n. 5, 85 S.Ct. 1731 , 14 L.Ed.2d 601 (1965).

We cannot accept appellee’s…

(concurring in part, and dissenting in part):

The issue presented is whether the procedures had in this case require an evidentiary hearing and a redetermination of the issue of unlawful search and seizure.

The initial trial was conducted before the Superior Court of the State of California, sitting without a jury and resulted in defendant’s conviction on August 1, 1960 for the unlawful possession of narcotics. The only issue at the trial was the admissibility of the seized evidence. The attention of both parties and the trial judge was concentrated on that sole issue. Both parties had full opportunity to offer all evidence relevant to the issue. Only two witnesses testified, M. E. Buckner, one of the police officers who conducted the search, and Rene Schmidt, the occupant of the searched house, who consented to the search. The defendant did not testify. The transcript discloses that Gerald Levie, Esq., defendant’s attorney, was well prepared and forceful in his presentation of the. defense that the narcotics had been unlawfully seized and were inadmissible as evidence. The conviction was affirmed on appeal. People v. Cunningham, 188 Cal.App.2d 606 , 10 Cal.Rptr. 604 . A…

352 F.2d 1 William CUNNINGHAM, Appellant, v. Robert A. HEINZE, Warden, California State Penitentiary, Appellee. No. 19344. United States Court of Appeals Ninth Circuit. Oct. 18, 1965, Rehearing Denied Nov. 24, 1965. Robert J. Henry, San Francisco, Cal., for appellant. Thomas C. Lynch, Atty. Gen., of Cal., Doris H. Maier, Asst. Atty. Gen., for appellee. Before POPE and BROWNING, Circuit Judges, and THOMPSON, District Judge. BROWNING, Circuit Judge: 1 Appellant was convicted of possessing narcotics in violation of state law. He filed a petition for habeas corpus in the United States District Court for the Northern District of California, alleging that his conviction was based upon evidence seized in violation of the Fourteenth Amendment. The district court dismissed the petition without an evidentiary hearing. 2 * Appellant's timely petition to the United States Supreme Court for a writ of certiorari to the California Supreme Court for direct review of the judgment of conviction was denied after the decision of Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), overruling Wolf v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949). Cunningham v. California,…