Guenter H. Schoeller v. Walter Dunbar, Director, California Department of Corrections

(dissenting) .

I respectfully dissent.

The failure of the state trial court to order an evidentiary hearing to determine appellant’s competency to stand trial and its acceptance of his plea of guilty when there was substantial evidence of appellant's incompetency were a denial of due process of law requiring the writ to issue, unless the state court vacates the sentence and permits appellant to withdraw his guilty plea.

The record reveals the following facts. On April 24, 1964, appellant shot and killed his girl friend and shot and wounded her landlady. The shooting fray occurred during a quarrel between appellant and the decedent after she had rejected his marriage proposal. The landlady intervened during the quarrel and threatened to call the police to eject the appellant. He shot her, then turned upon the decedent and shot her twice. Appellant surrendered to the police later in the day.

Appellant, represented by the public defender, was arraigned on May 15, *1187 1964, on charges of first degree murder and assault with a deadly weapon with intent to commit murder. He pleaded not guilty to both charges, but the public defender indicated that the plea might later be changed…

Appellant is critical of the judgment of the District Court denying his petition for a writ of habeas corpus.

In May, 1964, appellant was charged, by indictment, with violating Sections 187 (murder) and 217 (assault with a deadly weapon with intent to commit murder) of the California Penal Code. Appellant’s privately retained counsel arranged for his examination by a private psychiatrist. After reviewing these findings, appellant and his counsel concluded that there was no insanity defense available and that appellant was mentally competent to understand the nature of the proceedings against him and to cooperate in his defense with counsel. Subsequent to the examination, appellant, with his counsel present, withdrew his previous plea of not guilty and entered a plea of guilty to violating Sec *1184 tion 187. In turn, the prosecution dismissed the Section 217 charge. At the same hearing, it was agreed that appellant was entering his guilty plea to a second, rather than a first, degree murder charge.

Subsequently, on the trial judge’s own motion, and before sentence, a hearing was held on whether appellant’s plea of guilty was voluntarily made and on whether he was suffering from…

423 F.2d 1183 Guenter H. SCHOELLER, Petitioner-Appellant, v. Walter DUNBAR, Director, California Department of Corrections, et al., Respondent-Appellees. No. 23270. United States Court of Appeals, Ninth Circuit. February 24, 1970. Frederick P. Furth (argued), San Francisco, Cal., for petitioner-appellant. Jerome C. Utz (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., State of California, San Francisco, Cal., for respondent-appellees. Before BARNES, HUFSTEDLER and KILKENNY, Circuit Judges. KILKENNY, Circuit Judge. * 1 Appellant is critical of the judgment of the District Court denying his petition for a writ of habeas corpus. 2 In May, 1964, appellant was charged, by indictment, with violating Sections 187 (murder) and 217 (assault with a deadly weapon with intent to commit murder) of the California Penal Code. Appellant's privately retained counsel arranged for his examination by a private psychiatrist. After reviewing these findings, appellant and his counsel concluded that there was no insanity defense available and that appellant was mentally competent to understand the nature of the proceedings against him and to cooperate in his defense with counsel. Subsequent to…