Charles E. Hart v. Frank Eyman, Warden, Arizona State Prison, State of Arizona

In this opinion, we consider the extent of the obligation of a state to provide to an incarcerated prisoner who has filed a habeas corpus petition in the federal court a reasonable substitute for the transcript of his trial when the court reporter’s notes are lost. And we also consider the propriety of an order of a federal district judge in such a case which gives the state the alternatives of (1) holding the necessary hearings in the state court for the creation of a reasonable substitute for a trial transcript, (2) granting petitioner a delayed appeal in the state court, (3) releasing him from custody, or (4) setting aside his conviction and re-trying him.

Hart, the petitioner herein, was convicted of murder in an Arizona state court in 1961 and sentenced to life imprisonment. At his trial, he was represented by court-appointed counsel. No appeal was ever perfected because, ae- *336 cording to Hart, he was transferred to state prison immediately upon being sentenced where he “did not know how to start an appeal” and was without counsel or law books. In 1966, Hart made his first application for post-conviction relief, an application for habeas corpus filed in the Superior Court…

458 F.2d 334 Charles E. HART, Petitioner-Appellee, v. Frank EYMAN, Warden, Arizona State Prison, State of Arizona, et al., Respondents-Appellants. No. 26347. United States Court of Appeals, Ninth Circuit. March 22, 1972. As Modified April 21, 1972. Certiorari Denied June 12, 1972. See 92 S.Ct. 2441 . Roderick A. Dietz (argued), Gary K. Nelson, Ariz. Atty. Gen., William P. Dixon, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellants. Richard A. Miller (argued), Philip F. Schneider, of Fennemore, Craig, Von Ammon & Udall, Phoenix, Ariz., for petitioner-appellee. Before HUFSTEDLER and TRASK, Circuit Judges, and HILL, * District Judge: IRVING HILL, District Judge: In this opinion, we consider the extent of the obligation of a state to provide to an incarcerated prisoner who has filed a habeas corpus petition in the federal court a reasonable substitute for the transcript of his trial when the court reporter's notes are lost. And we also consider the propriety of an order of a federal district judge in such a case which gives the state the alternatives of (1) holding the necessary hearings in the state court for the creation of a reasonable substitute for a trial transcript,…

(dissenting):

I respectfully dissent from the opinion of the majority in this case.

Petitioner’s original application for a writ of habeas corpus asserted as ground for release, the introduction against him in his state criminal trial for murder a confession which was alleged to have been obtained by coercion, fraud and threats. The district court ordered the respondent to produce a transcript of petitioner’s trial, but the State Attorney General was unable to do so because the court reporter’s notes were lost. The district judge then deferred action on the petition until petitioner could file in the Arizona state court a motion for a delayed appeal and hearing to create a transcript substitute. Petitioner’s appropriate motion before *341 the Arizona Supreme Court was denied without a hearing. The district court then filed the order the propriety of which is in question in this appeal. That order gave the State four alternatives: (1) hold the necessary hearing to create a substitute transcript; (2) grant petitioner a delayed appeal in the process of which a substitute transcript would be created; (3) release petitioner from custody; or (4) set aside petitioner’s conviction and…