Robert Hayward v. Walter T. Stone, Superintendent

On an earlier appeal in this habeas corpus proceeding, we remanded for further proceedings in the district court and expressed no opinion on the merit of Hayward’s claim. Hayward v. Stone, 496 F.2d 844 (9th Cir. 1974).

Upon remand, the district court issued an order to show cause, the respondents filed a return and lodged copies of the reporter’s and clerk’s transcripts on appeal of Hayward’s 1968 state court trial. Petitioner filed a traverse in opposition to the respondent’s return.

Hayward was convicted in state court of robbery with great bodily injury and assault with a deadly weapon. In his brief herein, appellant “acknowledges the fact that the record divulged that the victim had been shot.”

But Hayward’s habeas corpus petition alleges that he was denied effective aid and assistance of counsel on appeal in that counsel did not argue to the California appellate courts that the trial judge’s failure to instruct the jury sua sponte on what constituted “great bodily injury” was reversible error.

The district court, in rejecting the incompetent counsel argument, noted that Hayward’s former counsel on appeal vigorously and competently argued for reversal. It was…