Francis Hamilton Griswold v. Frank A. Eyman, Warden, Arizona State Prison

452 F.2d 923 Francis Hamilton GRISWOLD, Appellant, v. Frank A. EYMAN, Warden, Arizona State Prison, Appellee. No. 25930. United States Court of Appeals, Ninth Circuit. Nov. 30, 1971. Rehearing Denied Jan. 10, 1972. Paul Ulrich (argued), of Lewis & Roca, Phoenix, Ariz., for appellant. William P. Dixon, Asst. Atty. Gen. (argued), Gary K. Nelson, Carl Waag, Asst. Attys. Gen., Phoenix, Ariz., for appellee. Before KILKENNY and CHOY, Circuit Judges, and BYRNE, SR., District Judge. * KILKENNY, Circuit Judge: 1 Griswold appeals from the denial of his petition for a writ of habeas corpus. On March 18, 1966, he plead guilty to a charge of second-degree murder, reduced from the prior charge of murder in the first degree. His sentence was affirmed by the Arizona Supreme Court. State v. Griswold, 101 Ariz. 577 , 422 P.2d 693 (1967). 2 In April, 1968, appellant filed a petition for a writ of coram nobis in the Arizona Supreme Court. The court issued the writ and directed the superior court of Apache County to hold a hearing and decide two issues: (1) whether Griswold fully understood his rights and the consequences of his plea of guilty at the time it was entered, and (2) whether Griswold…

Griswold appeals from the denial of his petition for a writ of habeas corpus. On March 18, 1966, he plead guilty to a charge of second-degree murder, reduced from the prior charge of murder in the first degree. His sentence was affirmed by the Arizona Supreme Court. State v. Griswold, 101 Ariz. 577 , 422 P.2d 693 (1967).

In April, 1968, appellant filed a petition for a writ of coram nobis in the Arizona Supreme Court. The court issued the writ and directed the superior court of Apache County to hold a hearing and decide two issues: (1) whether Gris-wold fully understood his rights and the consequences of his plea of guilty at the time it was entered, and (2) whether Griswold voluntarily entered his plea of guilty to the crime of second-degree murder. The lower court held a full-fledged evidentiary hearing, made findings on the issues presented and returned them to the supreme court. Upon review of the entire record, the supreme court ratified the findings of the lower court, quashed the writ of coram nobis and affirmed the conviction. State v. Griswold, 105 Ariz. 1 , 457 P.2d 331 (1969). Since the state court’s decisions outline the facts, we need not here restate…

(dissenting):

I respectfully dissent.

The voluntariness of Griswold’s guilty plea was the sole subject of an evidentiary hearing, conducted after the Arizona Supreme Court issued a writ of cor-am nobis. In my opinion, the lower state court’s findings, which were affirmed by the state’s supreme court, are not entitled to the presumption of correctness provided by 28 U.S.C. § 2254 (d). At least two of the exceptions to the raising of this presumption are applicable here.

If “the material facts were not adequately developed at the State court hearing,” the findings are not presumed to be correct. 28 U.S.C. § 2254 (d) (3). Griswold has long alleged certain facts that were not adequately developed at the eoram nobis hearing.

Griswold, who was sixty-three years old at the time, was in poor health and in need of medical attention during the five month period from his arrest to the entry of his guilty plea. According to his petition, he was denied medical attention by the prosecutor, with the remark, “I hope he dies[;] it will save the State a lot of money.”

Although the lower court made a finding of fact to the effect “That Mr. Gris- *926 wold had a cardiac condition, ulcers and was…