George Albert Curry v. Lawrence E. Wilson, Warden

Appeal from denial of a writ of habeas corpus. The opinion of the district court is reported at 269 F.Supp. 9 . We affirm.

Curry was charged in the Superior Court of Orange County, California, with murder in the first degree. At his trial in 1960, which lasted 14 days, he was represented by retained counsel. The result was a conviction of murder in the second degree. He appealed to the California District Court of Appeal, which affirmed. People v. Curry, 1961, 192 Cal.App.2d 664 , 13 Cal.Rptr. 596 . That court’s opinion sets out the basic facts at length, and this opinion assumes familiarity with it.

Curry has twice sought habeas corpus, unsuccessfully, in the California Supreme Court. Between those two attempts, he also sought habeas corpus in the United States District Court for the Northern District of California, which was denied. He did not appeal from that denial. This appeal is from denial of a second petition to that court.

In his petition, Curry raises the following issues: (1) that use at his trial of certain statements made by him after his arrest violated his constitutional right to counsel; (2) that the statements were involuntary because coerced; (3) that they…

(concurring in part, dissenting in part).

I

The majority correctly holds that since the state appellate court passed on the merits of appellant’s constitutional claim, the district court erred in rejecting the claim on the ground that at trial appellant had deliberately bypassed state procedures for raising it. See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 , 297 n. 3, 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967); Fay v. Noia, 372 U.S. 391, 438-439 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963).

The deliberate bypass rule allows a federal habeas court, in a proper case, to avoid subverting a state’s efforts to assure orderly criminal procedures by giving the court “a limited discretion” to refuse to hear a federal claim which, because of a purposeful procedural default by the applicant, has been forfeited in the state courts. Thus, the offender is punished for his default, and others are deterred from similar defaults in the future. Fay v. Noia, supra, 372 U.S. at 431-434, 438-439 , 83 S.Ct. 822 , 9 L.Ed.2d 837 .

If in a particular ease, however, the state court decides that the state’s interest in assuring orderly procedures does not require that the offender be denied review of the…

405 F.2d 110 George Albert CURRY, Appellant, v. Lawrence E. WILSON, Warden, et al., Appellee. No. 22030. United States Court of Appeals Ninth Circuit. December 13, 1968. Rehearing Denied January 31, 1969. James Harrington Jr., (argued) and J. Thomas Rosch, San Francisco, Cal., for appellant. John T. Murphy, (argued) Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, Cal., for appellee. Before BROWNING and DUNIWAY, Circuit Judges, and BYRNE, Senior District Judge * . DUNIWAY, Circuit Judge: 1 Appeal from denial of a writ of habeas corpus. The opinion of the district court is reported at 269 F.Supp. 9 . We affirm. 2 Curry was charged in the Superior Court of Orange County, California, with murder in the first degree. At his trial in 1960, which lasted 14 days, he was represented by retained counsel. The result was a conviction of murder in the second degree. He appealed to the California District Court of Appeal, which affirmed. People v. Curry, 1961, 192 Cal.App.2d 664 , 13 Cal.Rptr. 596 . That court's opinion sets out the basic facts at length, and this opinion assumes familiarity with it. 3 Curry has twice sought habeas corpus,…