James Earl Hines v. J. J. Enomoto, Director, California Department of Corrections, Respondent

658 F.2d 667 James Earl HINES, Petitioner-Appellant, v. J. J. ENOMOTO, Director, California Department of Corrections, Respondent- Appellee. No. 80-4311. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 11, 1981. Decided Oct. 5, 1981. Baron L. Miller, San Francisco, Cal., for petitioner-appellant. Ronald E. Niver, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee. Appeal from the United States District Court for the Northern District of California. Before ANDERSON and NORRIS, Circuit Judges, and TAKASUGI, * district judge. J. BLAINE ANDERSON, Circuit Judge: 1 James Earl Hines, currently incarcerated in a California state prison, appeals the judgment and order of the district court dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . We affirm in part and reverse and remand in part for an evidentiary hearing. I. BACKGROUND 2 Hines was convicted in 1976 in a California state court on charges of kidnapping for the purpose of robbery, assault with a deadly weapon, and attempted robbery. The convictions arose out of a robbery allegedly attempted by Hines and an unidentified confederate during which a delivery truck was…

James Earl Hines, currently incarcerated in a California state prison, appeals the judgment and order of the district court dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . We affirm in part and reverse and remand in part for an evidentiary hearing.

I. BACKGROUND

Hines was convicted in 1976 in a California state court on charges of kidnapping for the purpose of robbery, assault with a deadly weapon, and attempted robbery. The convictions arose out of a robbery allegedly attempted by Hines and an unidentified confederate during which a delivery truck was hijacked and its driver forced at gunpoint to accompany Hines for several blocks. On direct appeal, the California Court of Appeal reversed the attempted robbery conviction, but affirmed the other convictions. Hines subsequently filed a number of unsuccessful state habeas petitions, the most recent of which was denied by the California Supreme Court on February 25, 1981.

Hines filed his § 2254 petition with the district court on March 28, 1978. He alleged five grounds for relief: (1) a lack of subject matter jurisdiction; (2) a denial of his right to exercise peremptory challenges during voir dire;…

dissenting:

The majority holds that the state, by inadvertently providing only 13 of the 26 peremptory challenges to which a defendant in a capital case is entitled by state statute, violates the Due Process Clause of the United States Constitution. Whatever the merit of this conclusion, it has been foreclosed, I think, by the Supreme Court. Accordingly, I respectfully dissent.

I emphasize that I do not denigrate the importance of peremptory challenges. The use of peremptory challenges — challenges which may be exercised “without a reason stated, without inquiry and without being subject to the court’s control,” Swain v. Alabama, 380 U.S. 202, 220 , 85 S.Ct. 824, 836 , 13 L.Ed.2d 759 (1965) — has a long history, dating back to English common law. See Pointer v. United States, 151 U.S. 396, 408 , 14 S.Ct. 410, 414 , 38 L.Ed. 208 (1894). The practice “tends to persuade litigants of the fairness of juries and thus has an important role to play in the preservation of the jury system.” Comment, The Right of Peremptory Challenge, 24 U.Chi.L.Rev. 751, 762 (1957). It is one thing to say that peremptory challenges are important. That much is clear, as evidenced by the fact that every…