Lawrence E. Wilson, Warden San Quentin State Prison v. Glenn Rose

(concurring).

I am always depressed when, because of our concepts of the law, we have to overrule a coordinate court such as the Supreme Court of California, which is a leader in zealously protecting the rights of the individual.

*617 But I cannot understand what was done here on the state side. The California Supreme Court appointed a retired Superior Court judge, Jordan L. Martinelli, to go to San Quentin penitentiary and hold a hearing. His report, in gentlemanly terms, means he simply did not believe the story of Rose’s trial counsel. He saw the witness. I have read the transcript. Even on the paper transcript, I have my doubts about his testimony. I see a picture of a lawyer stultifying himself, who cannot say no to those imploring him. The burden of proof was on Rose.

But the Supreme Court of California announces it is not bound by the referee. Then, in effect, it says it will accept Rose’s version of the facts. This done, it seems to say the facts still amount to nothing. In Re Rose, 62 Cal.2d 384 , 42 Cal.Rptr. 236 , 398 P.2d 428 .

On the federal hearing, I think, if it desired, the district court could have made its own exploration and determination of the facts on…

announced the judgment of the Court in an opinion which sets forth his individual views;

The Warden of San Quentin Penitentiary appeals from an order of the district court setting aside appellee’s State conviction on the ground that it was obtained in violation of the Due Process Clause of the Fourteenth Amendment. We affirm.

Appellee's petition for habeas corpus challenged his conviction upon the ground that he did not have effective assistance of counsel when he entered his guilty plea, and did not understand the nature of the charge or the consequences of the plea. In Rose v. Dickson, 327 F.2d 27 (9th Cir., 1964) we affirmed the denial of an earlier petition raising the same issues because they had not been presented to the California courts. Appellee then filed a petition in the State court specifically raising these issues, and the State court denied relief after an evidentiary hearing. In re Rose, 62 Cal.2d 384 , 42 Cal.Rptr. 236 , 398 P.2d 428 (1965).

The State’s criminal charges against appellee arose out of a single incident involving appellee’s “girlfriend.” The State alleged three offenses; kidnapping (Calif. Penal Code § 207), assault by means of force likely to…

(concurring).

I concur in the result stated in Judge Browning’s opinion and in the views expressed by Judge Chambers in his special concurrence.

366 F.2d 611 Lawrence E. WILSON, Warden San Quentin State Prison, Appellant, v. Glenn ROSE, Appellee. No. 20250. United States Court of Appeals Ninth Circuit. September 12, 1966. Thomas C. Lynch, Atty. Gen. of Cal., Robt. R. Granucci, Michael J. Phelan, Deputy Attys. Gen., San Francisco, Cal., for appellant. Lin B. Densmore, San Francisco, Cal., for appellee. Before CHAMBERS, KOELSCH and BROWNING, Circuit Judges. 1 BROWNING, Circuit Judge, announced the judgment of the Court in an opinion which sets forth his individual views: 2 The Warden of San Quentin Penitentiary appeals from an order of the district court setting aside appellee's State conviction on the ground that it was obtained in violation of the Due Process Clause of the Fourteenth Amendment. We affirm. 3 Appellee's petition for habeas corpus challenged his conviction upon the ground that he did not have effective assistance of counsel when he entered his guilty plea, and did not understand the nature of the charge or the consequences of the plea. In Rose v. Dickson, 327 F.2d 27 (9th Cir., 1964) we affirmed the denial of an earlier petition raising the same issues because they had not been presented to the California…