Paul Manning Walker v. O. A. Loggins, Superintendent

dissenting:

One of my colleagues responded to a proposed opinion in another case as follows: “The burden [of preparing a dissent] overcomes my outrage [at the holding of the opinion]. I concur.”

Although I have let this case simmer for a considerable time, I cannot say I concur.

The dissent is directed to the failure of my colleagues to ask for an en banc but instead merely following Bittaker v. Eno-moto (9 Cir. 1978), 587 F.2d 400 .

The following material is submitted in an attempt to demonstrate that the decisions in Bittaker v. Enomoto, supra, and in this case, which follows Bittaker , are not compelled by precedent; and to show that the panels could have chosen other alternatives for a contrary holding.

The cases held that a state prisoner who had been denied the right to represent himself by a state court before the Supreme Court decided Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 on *735 June 30, 1975, has a constitutional right of self-representation and is entitled to relief by habeas corpus in the federal courts.

Bittaker did not consider the impact of its decision on cases in the state courts when, before Faretta , defendants had been…

This is an appeal from the district court’s denial of Paul Manning Walker’s petition for habeas corpus relief from a California conviction. Walker makes two arguments: (1) his conviction for both manslaughter and assault with a deadly weapon for the same act violated his Fifth Amendment right not to be twice placed in jeopardy; and (2) the trial court’s denial of his request to represent himself violated his constitutional right to self-representation under the Sixth Amendment.

Walker’s first contention is without merit. The recent decision of another panel in Bittaker v. Enomoto, 587 F.2d 400 (9th Cir. 1978), requires that we vacate and remand for reconsideration of Walker’s claim of denial of his right to self-representation.

I. FACTS

On August 8, 1974, appellant Walker was convicted by a jury in the Superior Court of the State of California for the County of Solano of voluntary manslaughter, assault with a deadly weapon, three counts of selling cocaine, and one count of conspiracy to sell cocaine. He had shot and killed an undercover narcotics agent during a bungled narcotics bust. The trial judge merged Walker’s sentences for manslaughter and assault with a deadly weapon…

608 F.2d 731 Paul Manning WALKER, Petitioner-Appellant, v. O. A. LOGGINS, Superintendent, Respondent-Appellee. No. 77-3603. United States Court of Appeals, Ninth Circuit. Feb. 1, 1979. Rehearing Denied June 12, 1979. Dennis Roberts (argued), Oakland, Cal., for petitioner-appellant. Ramon M. de la Guardia (argued), Sacramento, Cal., for respondent-appellee. Appeal from the United States District Court for the Eastern District of California. Before BROWNING, CARTER and ANDERSON, Circuit Judges. PER CURIAM: 1 This is an appeal from the district court's denial of Paul Manning Walker's petition for habeas corpus relief from a California conviction. Walker makes two arguments: (1) his conviction for both manslaughter and assault with a deadly weapon for the same act violated his Fifth Amendment right not to be twice placed in jeopardy; and (2) the trial court's denial of his request to represent himself violated his constitutional right to self-representation under the Sixth Amendment. 2 Walker's first contention is without merit. The recent decision of another panel in Bittaker v. Enomoto, 587 F.2d 400 (9th Cir. 1978), requires that we vacate and remand for reconsideration of Walker's…