Forrest S. Tucker v. Jacob B. Gunn, Warden

Tucker, a state prisoner, appeals from a district court order denying without hearing his petition for a writ of habeas corpus. We affirm.

In 1953 Tucker was convicted in state court at two trials of various counts of armed robbery and of being an habitual criminal. Since 1953 in various proceedings in state court, he has claimed that he did not receive adequate representation at his state trials.

In 1964 Tucker petitioned for a writ of habeas corpus in federal court raising this claim among others. That petition was denied without a hearing because the court determined as a matter of law that Tucker was not entitled to relief. The appeal was abandoned as it related to the first trial, the only one presently under review.

In 1971 Tucker again petitioned for a writ of habeas corpus in federal court. That petition was dismissed without a' hearing because of the 1964 dismissal. Again, no appeal was taken. He then filed the instant petition raising the same adequacy of counsel ground for the third time. The district court rested its dismissal on the two prior dismissals in 1964 and 1971.

Whether the instant dismissal is proper depends upon whether at least one of the two prior…

(dissenting):

Sanders v. United States, 373 U.S. 1, 15 , 83 S.Ct. 1068, 1077 , 10 L.Ed.2d 148 (1963) requires that “the ends of justice” be served before controlling weight is given to denial of a prior application for habeas corpus. It is not enough that “the prior determination was on the merits.” Id. The “ends of justice” must also be served. I can not escape the belief that the petitioner has not *1370 received the full and comprehensive hearing in the federal courts to which his claim entitles him even though the 1964 disposition can be said in a technical sense to be on the merits. Therefore, to accord it controlling weight does not, in my opinion, serve the ends of justice.

541 F.2d 1368 Forrest S. TUCKER, Plaintiff-Appellant, v. Jacob B. GUNN, Warden, Defendant-Appellee. No. 75-1450. United States Court of Appeals, Ninth Circuit. Sept. 9, 1976. Rehearing Denied Oct. 4, 1976. John J. Cleary (argued), of Federal Public Defender, San Diego, Cal., for plaintiff-appellant. Evelle J. Younger, Atty. Gen. of Cal. (argued), Sacramento, Cal., for defendant-appellee. Before WRIGHT and SNEED, Circuit Judges, and FITZGERALD, * District Judge. PER CURIAM: 1 Tucker, a state prisoner, appeals from a district court order denying without hearing his petition for a writ of habeas corpus. We affirm. 2 In 1953 Tucker was convicted in state court at two trials of various counts of armed robbery and of being an habitual criminal. Since 1953 in various proceedings in state court, he has claimed that he did not receive adequate representation at his state trials. 3 In 1964 Tucker petitioned for a writ of habeas corpus in federal court raising this claim among others. That petition was denied without a hearing because the court determined as a matter of law that Tucker was not entitled to relief. The appeal was abandoned as it related to the first trial, the only one…