Lucille Miller v. Iverne R. Carter, Warden

(dissenting):

It appears to me, as it did to the district court, that this case is governed by our decision in Curry v. Wilson, 405 F.2d 110 (9th Cir. 1968). I would therefore affirm the decision of the district court which denied the petition for habeas corpus.

In Curry a state court conviction had been obtained on evidence which it was claimed was secured in violation of the accused’s constitutional rights. No objection to the introduction of this evidence was made at the trial. In the District Court of Appeal Curry’s contentions were considered on the merits and rejected. The deliberate by-pass rule was therefore not available under Warden v. Hayden, 387 U.S. 294 , 297 n.3, 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967). On an appeal from a denial of writ of habeas corpus, this court then went on to consider whether or not there had been a deliberate waiver. Said the circuit court:

Waiver affecting federal rights is a federal question, Fay v. Noia, 372 U.S. 391, 439 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963). The majority here apparently recognizes and follows Curry v. Wilson to this extent. The majority states however, that the record does not “conclusively establish ‘waiver’ in the…

434 F.2d 824 Lucille MILLER, Petitioner-Appellant, v. Iverne R. CARTER, Warden, et al., Respondents-Appellees. No. 24365. United States Court of Appeals, Ninth Circuit. October 9, 1970. Rehearing Denied December 18, 1970. F. Lee Bailey (argued), of counsel, Boston, Mass.; Robert K. Steinberg, Beverly Hills, Cal., for petitioner-appellant. Philip C. Griffin (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen. of Cal., William E. James, Asst. Atty. Gen., for respondents-appellees. Before HAMLEY, BROWNING, and TRASK, Circuit Judges. PER CURIAM: 1 Petitioner was convicted of first degree murder in the Superior Court of San Bernardino County, California, and sentenced to life imprisonment. Her conviction was affirmed by the California District Court of Appeal, People v. Miller, 245 Cal.App.2d 112 , 53 Cal.Rptr. 720 (1966). The Supreme Court of the United States initially granted certiorari, Miller v. California, 389 U.S. 968 , 88 S.Ct. 460 , 19 L.Ed.2d 459 (1967), but after hearing oral argument ordered the writ dismissed as improvidently granted, Miller v. California, 392 U.S. 616 , 88 S.Ct. 2258 , 20 L.Ed.2d 1332 (1968). 2 Petitioner then commenced this federal habeas corpus…

Petitioner was convicted of first degree murder in the Superior Court of San Bernardino County, California, and sentenced to life imprisonment. Her conviction was affirmed by the California District Court of Appeal, People v. Miller, 245 Cal.App.2d 112 , 53 Cal.Rptr. 720 (1966). The Supreme Court of the United States initially granted certiorari, Miller v. California, 389 U.S. 968 , 88 S.Ct. 460, 19 . L.Ed.2d 459 (1967), but after hearing oral argument ordered the writ dismissed as improvidently granted, Miller v. California, 392 U.S. 616 , 88 S.Ct. 2258 , 20 L.Ed.2d 1332 (1968).

Petitioner then commenced this federal habeas corpus proceeding, contending, as she had in her petition for certiorari to the Supreme Court of the United States, that her constitutional rights were infringed by the government’s use of the testimony of an undercover agent placed in her jail cell after her arrest. The district court dismissed the petition, holding that petitioner, had deliberately bypassed state procedures, and, in any event, that the Supreme Court of the United States had adjudicated the merits of petitioner’s constitutional claim against her.

The court erred on both grounds.

The…