George L. Smith v. B. J. Rhay, Warden of the Washington State Penitentiary

419 F.2d 160 George L. SMITH, Appellant, v. B. J. RHAY, Warden of the Washington State Penitentiary, Appellee. No. 22982. United States Court of Appeals Ninth Circuit. December 2, 1969. Rehearing Denied January 1, 1970. William L. Bennett (argued), Joseph M. Cooney, Spokane, Wash., for appellant. Paul J. Murphy (argued), Asst. Atty. Gen., John J. O'Connell, Slade Gorton, Atty. Gen., State of Washington, Olympia, Wash., for appellee. Before HAMLIN, KOELSCH, and ELY, Circuit Judges. ELY, Circuit Judge: 1 The courts of the State of Washington have sentenced appellant, George Smith, to life imprisonment as a result of his taking several articles of clothing from a store in which his wife worked. Because of his conviction for the crime of second degree burglary, he received the life sentence under Washington's "habitual criminal" statute. Wash.Rev.Code 9.92.090. 2 Smith's conviction for second degree burglary was affirmed by the Supreme Court of Washington in State v. Smith, 72 Wash.2d 479 , 434 P.2d 5 (1967). Having exhausted his state remedies as required by 28 U.S.C. § 2254 , Smith petitioned in the District Court for a writ of habeas corpus. He alleged as violative of his…

The courts of the State of Washington have sentenced appellant, George Smith, to life imprisonment as a result of his taking several articles of clothing from a store in which his wife worked. Because of his conviction for the crime of second degree burglary, he received the life sentence under Washington’s “habitual criminal” statute. Wash.Rev.Code 9.92.-090.

Smith’s conviction for second degree burglary was affirmed by the Supreme Court of Washington in State v. Smith, 72 Wash.2d 479 , 434 P.2d 5 (1967). Having exhausted his state remedies as required by 28 U.S.C. § 2254 , Smith petitioned in the District Court for a writ of habeas corpus. He alleged as viola-tive of his constitutional rights that (1) evidence used to convict him was illegally seized, (2) purported oral confessions were admitted as evidence despite improper warnings as to his rights and despite the lack of a knowing and intelligent waiver as to those rights, and (3) the jury was unduly prejudiced by acquiring knowledge concerning Smith’s previous criminality from the testimony of the relationship between Smith and his parole officer who was a material state witness as to ..the alleged illegal search. The…

(dissenting).

The court’s disposition of this habeas appeal is wholly unwarranted. Resolution of factual issues is not the business of an appellate court. That is a matter for the District Court.

Here, as the opinion notes, the District Court denied the writ without holding an evidentiary hearing. It concluded that all critical factual issues had been resolved by the Washington State Court and that the findings of that court were fairly supported by the record; consistent with the suggestion in Townsend v. Sain, 372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963) and pursuant to 28 U.S.C. § 2254 it deferred to the state court’s determinations.

However, we now not only hold that the District Court was mistaken, but in addition we grant the writ. We have, as the opinion shows, resolved conflicts in the evidence and made findings of our own, without of course holding a hearing. For example, the decision that Smith’s Fourth Amendment rights were violated is predicated upon this court’s factual conclusions that the parole officer’s entry into Smith’s room was in furtherance of the Sheriff’s “plan” to “pursue — his investigation by enlisting the aid and concerted action of Smith’s…