Peter Saunders v. Frank A. Eyman, as Warden, Arizona State Prison

600 F.2d 728 Peter SAUNDERS, Petitioner-Appellant, v. Frank A. EYMAN, as Warden, Arizona State Prison, et al., Respondents-Appellees. No. 75-3485. United States Court of Appeals, Ninth Circuit. April 18, 1977. Tom Karas, Federal Public Defender, Tom O'Toole, Asst. Federal Public Defender, argued, Phoenix, Ariz., for petitioner-appellant. Bruce E. Babbitt, Atty. Gen., Phoenix, Ariz., W. Michael Smith, Deputy Atty. Gen., Yuma, Ariz., argued, for respondents-appellees. Appeal from the United States District Court for the District of Arizona. Before ELY and WALLACE, Circuit Judges, and CRARY, * District Judge. WALLACE, Circuit Judge: 1 Saunders, an Arizona state prisoner, filed a petition for habeas corpus seeking release from prison. Initially, the district court ordered that a writ should issue on Saunders behalf. The state appealed. We vacated the order and remanded the case for reconsideration in light of our intervening decision in Harris v. Procunier, 498 F.2d 576 (9th Cir.) (en banc), Cert. denied, 419 U.S. 970 , 95 S.Ct. 235 , 42 L.Ed.2d 186 (1974). On remand the district court correctly determined that because Saunders was represented by retained counsel at the time he…

Saunders, an Arizona state prisoner, filed a petition for habeas corpus seeking release from prison. Initially, the district court ordered that a writ should issue on Saunders behalf. The state appealed. We vacated the order and remanded the ease for reconsideration in light of our intervening decision in Harris v. Procunier, 498 F.2d 576 (9th Cir.) (en banc), cert. denied, 419 U.S. 970 , 95 S.Ct. 235 , 42 L.Ed.2d 186 (1974). On remand the district court correctly determined that because Saunders was represented by retained counsel at the time he pleaded guilty in state court, he was precluded from alleging deprivation of constitutional rights that occurred prior to entry of the plea. See Tollett v. Henderson, 411 U.S. 258, 267 , 93 S.Ct. 1602 , 36 L.Ed.2d 235 (1973). The issue on remand was accordingly narrowed to whether the advice of Saunders’ counsel to plead guilty was “within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771 , 90 S.Ct. 1441, 1449 , 25 L.Ed.2d 763 (1970). After a hearing, the district judge found that Saunders had failed to carry his burden of showing that he did not have effective assistance of counsel.…

(dissenting):

I respectfully dissent.

The facts of this case should lead to no other conclusion except that the advice of the petitioner’s counsel was “[not] within the range of competence demanded of attorneys in criminal cases”. McMann v. Richardson, 397 U.S. 759, 771 , 90 S.Ct. 1441, 1449 , 25 L.Ed.2d 763 (1970).

*732 It is first necessary to supplement, to some extent, the facts as set forth by the majority. There is some dispute in the record as to when Saunders, as he attempted to sell Fenton’s vehicle, was. first apprehended by the police. A newspaper article written at the time reported that Saunders was arrested on March 6, 1951 and questioned for a week thereafter by the Phoenix police. Even assuming that Saunders was not arrested until March 15, however, the evidence is undisputed that he adamantly declared the shooting of Fenton to be accidental. This initial version of the facts was not altered by Saunders until he had been held and continuously questioned by the Yuma sheriff’s office for a period of three days. Then, while Saunders yet remained without counsel, he “confessed” under interrogation by a prosecuting attorney. He further obliged the State by…