Jesse Ray Maxwell v. Frank A. Eyman, Warden, Arizona State Prison

429 F.2d 502 Jesse Ray MAXWELL, Petitioner-Appellant, v. Frank A. EYMAN, Warden, Arizona State Prison, Respondent-Appellee. No. 24655. United States Court of Appeals, Ninth Circuit. July 27, 1970. Jesse Ray Maxwell, in pro. per. Gary K. Nelson, Atty. Gen., Carl Waag, Deputy Atty. Gen., Phoenix, Ariz., for respondent-appellee. Before KOELSCH and HUFSTEDLER, Circuit Judge, and THOMPSON, 1 District Judge. PER CURIAM. 1 This appeal is one of many in which a district court has summarily denied habeas relief to an applicant on the basis of the factual conclusions appearing in a state appellate court's opinion affirming the petitioner's conviction on a criminal charge. 2 Such short-cutting is impermissible. The proper procedure to follow, in instances where the application contains allegations of substance, has been frequently outlined by this court-- see for example Wright v. Dickson, 336 F.2d 878 (9th Cir. 1964). And we should perhaps emphasize that a district court may not dispense with an evidentiary hearing unless satisfied from an inspection of the record in a state court proceeding that the 'state court trier of fact has * * * reliably found the relevant facts. Townsend v. Sain,…

This appeal is one of many in which a district court has summarily denied habeas relief to an applicant on the basis of the factual conclusions appearing in a state appellate court’s opinion affirming the petitioner's conviction on a criminal charge.

Such short-cutting is impermissible. The proper procedure to follow, in instances where the application contains allegations of substance, has been frequently outlined by this court — see for example Wright v. Dickson, 336 F.2d 878 (9th Cir. 1964). And we should perhaps emphasize that a district court may not dispense with an evidentiary hearing unless satisfied from an inspection of the record in a state court proceeding that the “state court trier of fact has * * * reliably found the relevant facts. Townsend v. Sain, 372 U.S. 293, 312-313 , 83 S.Ct. 745, 757 , 9 L.Ed.2d 770 (1963). A state appellate court’s opinion containing mere recitals of ultimate factual conclusions does not suffice. 28 U.S.C. 2254 (d). U. S. ex rel. Jennings v. Ragen, 358 U.S. 276 , 79 S.Ct. 321 , 3 L.Ed.2d 296 *503 (1959); Piche v. Rhay, 9 Cir., 422 F.2d 1309 (1970).

The judgment is vacated and the matter is remanded for further proceedings.

(dissenting).

I respectfully dissent. Some habeas corpus petitions do properly require an order to show cause and a return which exposes the entire state court record for review. This is not such a case. The petition here contains no allegations of substance.

In his petition, Petitioner stated four basic grounds for relief, (1) new evidence discovered after conviction; (2) denial of motion for continuance to permit production of alibi witnesses; (3) bias of appointed counsel; and (4) denial of a fair and speedy trial. The petition forthrightly acknowledges that grounds 1, 3 and 4 had not previously been presented to a state court for consideration. Ground 2, that is, denial of the motion for a continuance, had been the ruling of the trial court which was sustained on appeal. State v. Maxwell, 103 Ariz. 478 , 445 P.2d 837 . The district court denied the petition for failure to exhaust state remedies and because the denial of the motion for a continuance did not pose a question of federal constitutional significance.

The following quotation from Appellee’s Brief succinctly articulates the posture of this case:

In my view, petitioner certainly has not pleaded an abridgement of…