Robert Mata v. George W. Sumner, Warden of the California State Prison at San Quentin

649 F.2d 713 Robert MATA, Petitioner-Appellant, v. George W. SUMNER, Warden of the California State Prison at San Quentin, Respondent-Appellee. No. 78-2636. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 15, 1979. Decided June 29, 1981. Rehearing and Rehearing En Banc Denied August 6, 1981. * Lennie Stein, San Francisco, Cal., for petitioner-appellant; Dennis P. Riordan, San Francisco, Cal., on brief. Jamie Jacobs-May, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee. Appeal from the United States District Court for the Northern District of California. Before ELY and SNEED, Circuit Judges, and TAKASUGI, * District Judge. ELY, Circuit Judge: 1 This case is again before us, our previous disposition having been vacated and remanded by the United States Supreme Court for further proceedings consistent with its opinion. See 611 F.2d 754 (9th Cir. 1979), mandate stayed, 446 U.S. 1302 , 100 S.Ct. 1630 , 64 L.Ed.2d 216 (1980) (Rehnquist, Circuit Justice), cert. granted, -- U.S. --, 100 S.Ct. 3055 , 65 L.Ed.2d 1139 (1980), vacated and remanded, -- U.S. --, 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981). 2 As the Supreme Court did not quarrel with the merits…

This case is again before us, our previous disposition having been vacated and remanded by the United States Supreme Court for further proceedings consistent with its opinion. See 611 F.2d 754 (9th Cir. 1979), mandate stayed, 446 U.S. 1302 , 100 S.Ct. 1630 , 64 L.Ed.2d 216 (1980) (Rehnquist, Circuit Justice), cert. granted, - U.S. -, 100 S.Ct. 3055 , 65 L.Ed.2d 1139 (1980), vacated and remanded, - U.S. -, 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981).

As the Supreme Court did not quarrel with the merits of our prior decision, see 101 S.Ct. at 771-72 , we therefore adopt herein all of that opinion insofar as it discussed the merits of the controversy. The only basis for the Supreme Court’s action was our neglect in failing explicitly to apply the federal habeas corpus statute, 28 U.S.C. § 2254 (d), 1 which requires that

101 S.Ct. at 771 .

Having received additional briefing by the parties, we now seek to fulfill the “congressional mandate” of 28 U.S.C. § 2254 (d), essential to the “smooth functioning” of our federal system and the alleviation of “friction between state and federal courts.” Mindful of the Court’s admonition, and the example of Taylor v. Lombard, 606 F.2d 371, 372, 375…

dissenting:

For the second time in this case I respectfully, and to some degree sorrowfully, dissent.

It is obvious to me that the majority opinion in Sumner v. Mata, - U.S. -, 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981), treated the issue whether the photographic identification was impermissibly suggestive as a finding entitled to the “ ‘presumption of correctness’ which is mandated by the statute [ 28 U.S.C. § 2254 (d)] to the factual determinations made by the California state courts.” -U.S. at-, 101 S.Ct. at 769 . It is equally obvious that Justice Brennan’s dissenting opinion in Sumner v. Mata, supra, treated the same issue as not entitled to the presumption afforded by section 2254(d) because it was not one of fact but rather one concerning the “constitutional significance of the facts.” -U.S.-, 101 S.Ct. at 774 .

*718 Judge Ely, speaking for the majority of this court, has adopted Justice Brennan’s characterizations of the issue of impermissible suggestiveness. I cannot join in this disregard of the Supreme Court’s authority.

On the merits I would remand this case to the district court to permit Mata another opportunity to rebut the presumption of correctness of the finding…