Howard J. Kearns, B-3528 v. Harold v. Field, Warden

432 F.2d 68 Howard J. KEARNS, B-3528, Appellant, v. Harold V. FIELD, Warden, Appellee. No. 24631. United States Court of Appeals, Ninth Circuit. July 29, 1970. Supplemental Opinion on Denial of Rehearing September 23, 1970. Howard J. Kearns in pro. per. Thomas C. Lynch, Atty. Gen., Dannie H. Spence, Deputy Atty. Gen., Los Angeles, Cal., for appellee. Before BARNES and ELY, Circuit Judges, and JAMESON, District Judge * . PER CURIAM: 1 Kearns is a California state prisoner. He was charged in the state court with having issued a fraudulent check in the amount of $24.81, and after having pleaded guilty to the offense, he was given the sentence which he attacks. He petitioned for habeas corpus relief in the District Court, alleging that he pleaded guilty in the state court only because he had theretofore been promised that he would be given probation, and not imprisoned, if he did so. The District Court denied Kearns' petition after an evidentiary hearing, and this appeal followed. 2 We have concluded that the judgment must be reversed because of oversight on the part of counsel who appeared in the District Court. The basic factual issue was, as we have indicated, whether or not…

Kearns is a California state prisoner. He was charged in the state court with having issued a fraudulent check in the amount of $24.81, and after having pleaded guilty to the offense, he was given the sentence which he attacks. He petitioned for habeas corpus relief in the District Court, alleging that he pleaded guilty in the state court only because he had theretofore been promised that he would be given probation, and not imprisoned, if he did so. The District Court denied Kearns’ petition after an evidentiary hearing, and this appeal followed.

We have concluded that the judgment must be reversed because of oversight on the part of counsel who appeared in the District Court. The basic factual issue was, as we have indicated, whether or not Kearns’ plea was induced by a promise made by state officials and unfulfilled. The issue was sharply contested, and after receiving evidence, the District Court requested counsel to supply it with the record of the state court proceedings at the time Kearns entered his plea of guilty. California’s attorney stated to the court, in effect, that the record would be obtained and supplied, and the court apparently delayed its decision pending…

Supplemental Opinion and Order On Petition for Rehearing

In our original opinion herein, we remarked that a certain critical record “is not before this court [and] was apparently never received and considered in the District Court as an Exhibit * * *.” In his Petition for Rehearing, the appellee now advises us that while the record in question was not received as an Exhibit and hence was not presented to us, it was “supplied to the District Court * * * and was noted only in the clerk’s work docket rather than the court docket.” This representation is supported by the affidavit of a Deputy District Court Clerk, included in the Appendix of appellee’s Petition for Rehearing. Also included in that Appendix is the record in question, a transcript of the state court proceedings of June 28, 1966. This transcript purports to reveal the entire colloquy which occurred at the time the appellant withdrew his previous plea of guilty and substituted his plea of guilty. In pertinent part, the transcript reads:

In our original opinion we noted that it was “undisputed” that Kearns entered his guilty plea under the impression that the prosecuting officer “would recommend that the sentencing judge…