Thomas A. Eisentrager v. Carl Hocker, as Warden, Nevada State Prison

450 F.2d 490 Thomas A. EISENTRAGER, Petitioner-Appellant, v. Carl HOCKER, as Warden, Nevada State Prison, Respondent-Appellee. No. 26254. United States Court of Appeals, Ninth Circuit. Oct. 21, 1971. Thomas A. Eisentrager, in pro per. Harvey Dickerson, Atty. Gen. of Nev., Carson City, Nev., for respondent-appellee. Before DUNIWAY, ELY and HUFSTEDLER, Circuit Judges. DUNIWAY, Circuit Judge: 1 Eisentrager appeals from the denial of his petition for a writ of habeas corpus. He was convicted of murder in the State of Nevada, and the facts of the case are stated in the opinion of the Supreme Court of Nevada affirming his conviction. Eisentrager v. State, 1963, 79 Nev. 38 , 378 P.2d 526 . We affirm. 2 This is Eisentrager's third petition to the District Court for a writ of habeas corpus. In the first, which he filed on May 27, 1964, the only facts stated are: "(a) Unlawful search and seizure of evidence. (b) Failure to provide petitioner with counsel at preliminary hearing, or advise him of his rights to counsel at said hearing." The District Judge denied the petition, referring to the decision of the Supreme Court of Nevada, and holding that the petition was "patently without merit."…

Eisentrager appeals from the denial of his petition for a writ of habeas corpus. He was convicted of murder in the State of Nevada, and the facts of the case are stated in the opinion of the Supreme Court of Nevada affirming his conviction. Eisentrager v. State, 1963, 79 Nev. 38 , 378 P.2d 526 . We affirm.

This is Eisentrager’s third petition to the District Court for a writ of habeas corpus. In the first, which he filed on May 27, 1964, the only facts stated are: “(a) Unlawful search and seizure of evidence. (b) Failure to provide petitioner with counsel at preliminary hearing, or advise him of his rights to counsel at said hearing.” The District Judge denied the petition, referring to the decision of the Supreme Court of Nevada, and holding that the petition was “patently without merit.” Eisentrager did not appeal.

In his second petition, filed January 9, 1967, Eisentrager relied solely upon unlawful search and seizure of evidence used against him. He stated the facts on which he relied substantially as they are stated by the Supreme Court of Nevada in its opinion. The District Judge, in a brief opinion which assumed the accuracy of the facts stated, held that there was no…

(dissenting):

I respectfully dissent. Eisentrager has thrice sought an evidentiary hearing in the District Court. He has proceeded without the assistance of counsel, and I can see that his first two petitions were so inadequate as to justify their summary dismissal. The third, however, contains detailed allegations which, in my view, adequately raise serious claims of constitutional dimensions. The majority discusses only two, the alleged denial to Eisentrager of counsel during a critical stage of the Nevada proceeding and alleged unlawful searches and seizures by Nevada officers. There is, too, the suggested possibility that Eisentrager was impermissibly deprived of his right to a speedy trial.

Eisentrager’s third petition was filed on May 28, 1970, and summarily denied by the District Court on the same day. A federal court may not, in habeas proceedings, defer to the conclusions of law of a state court (Brown v. Allen, 344 U. S. 443 , 73 S.Ct. 397 , 97 L.Ed. 469 (1953)), and it may not rely on state court factual determinations absent its own independent review of the state court record. Selz v. California, 423 F.2d 702, 703 (9th Cir. 1970); cf. Linden v. Dickson, 287 F.2d 55…