Robert Harrison Choate v. Lawrence E. Wilson, Warden of the California State Prison, San Quentin, California

363 F.2d 543 Robert Harrison CHOATE, Appellant, v. Lawrence E. WILSON, Warden of the California State Prison, San Quentin, California, Appellee. No. 20582. United States Court of Appeals Ninth Circuit. July 13, 1966. Rehearing Denied August 3, 1966. Robert Harrison Choate, in pro. per. Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Charles W. Rumph, Deputy Attys. Gen., San Francisco, Cal., for appellee. Before HAMLEY and JERTBERG, Circuit Judges, and THOMPSON, District Judge. JERTBERG, Circuit Judge: 1 Before us is an appeal from an order of the District Court denying appellant's petition for writ of habeas corpus. 2 Following trial by jury, appellant was convicted in the Superior Court of the State of California, in and for the County of San Bernardino, of the offense of second degree murder, in violation of Section 187 of the Penal Code of the State of California. 3 On September 26, 1962, he was sentenced to imprisonment in the state prison for the term prescribed by law. 4 On March 25, 1965, appellant filed his petition for writ of habeas corpus in the District Court. As grounds for his allegedly unlawful detention, the petition states: 5 (a) An investigation had focused on…

Before us is an appeal from an order of the District Court denying appellant’s petition for v.rit of habeas corpus.

Following trial by jury, appellant was convicted in the Superior Court of the State of California, in and for the County of San Bernardino, of the offense of second degree murder, in violation of Section 187 of the Penal Code of the State of California.

On September 26, 1962, he was sentenced to imprisonment in the state prison for the term prescribed by law.

On March 25, 1965, appellant filed his petition for writ of habeas corpus in the District Court. As grounds for his allegedly unlawful detention, the petition states:

In support of said grounds it is alleged that shortly after the commission of the-offense for which appellant was tried, he was arrested. That at that time he had consumed a large quantity of whiskey and was drunk; that he was immediately questioned by police officers concerning the shooting, put in a police car and again questioned, and taken to the scene of the shooting where he was further *544 questioned; that he was later questioned by a deputy district attorney in the presence of a court reporter while he was still drunk; that he was at…

(concurring):

As indicated in the majority opinion, this court is not expressing agreement with the ground relied upon by the district'court in denying the application— that Choate had deliberately by-passed state appeal procedures wherein he could have obtained a determination of his involuntary confession question. Instead, this court is disposing of the appeal on the alternative ground; suggested by ap-pellee on this appeal, that certain California cases “ * * * raise the possibility that petitioner can obtain state appellate review of his conviction * * As indicated by the quoted words, the appellee is himself not very sure that Choate still has a remedy by state appeal.

In view of these circumstances, I feel that affirmance of the order denying Choate’s application with the intimation that there “ * * * may be a State remedy available to appellant which he should pursue before seeking relief in the Federal Courts,” is not the best way of disposing of this appeal. I think it would have been preferable to reverse and remand with directions to afford Choate a reasonable opportunity to seek reinstatement of his right to a state appeal. If he did not follow that course or,…