Lucille Miller v. Iverne R. Carter, Warden , 434 F.2d 824 ( 1970 )

PER CURIAM:

Petitioner was convicted of first degree murder in the Superior Court of San Bernardino County, California, and sentenced to life imprisonment. Her conviction was affirmed by the California District Court of Appeal, People v. Miller, 245 Cal.App.2d 112, 53 Cal.Rptr. 720 (1966). The Supreme Court of the United States initially granted certiorari, Miller v. California, 389 U.S. 968, 88 S.Ct. 460, 19. L.Ed.2d 459 (1967), but after hearing oral argument ordered the writ dismissed as improvidently granted, Miller v. California, 392 U.S. 616, 88 S.Ct. 2258, 20 L.Ed.2d 1332 (1968).

Petitioner then commenced this federal habeas corpus proceeding, contending, as she had in her petition for certiorari to the Supreme Court of the United States, that her constitutional rights were infringed by the government’s use of the testimony of an undercover agent placed in her jail cell after her arrest. The district court dismissed the petition, holding that petitioner, had deliberately bypassed state procedures, and, in any event, that the Supreme Court of the United States had adjudicated the merits of petitioner’s constitutional claim against her.

The court erred on both grounds.

The California District Court of Appeal reached the merits of petitioner’s claim, stating that it “would have no hesitancy in ordering a reversal,” except for its conclusion that petitioner had not been prejudiced by the inform-ant’s testimony. People v. Miller, supra, 245 Cal.App.2d at 141-144, 53 Cal.Rptr. at 720, 738-740. “Under these circumstances, the deliberate by-pass rule is not available. Warden, Md. Penitentiary v. Hayden, 1967, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782.” Curry v. Wilson, 405 F.2d 110, 112 (9th Cir. 1968). Nor does the record conclusively establish “waiver” in the Curry v. Wilson sense. In that case it appeared from the record that “counsel wanted the evidence to be before the jury because he believed that it would be valuable to Curry in support of the only defense that offered even a remote chance of success.” 405 F.2d at 113. Here, however, the record shows that petitioner’s trial counsel considered the evidence prejudicial rather than valuable and wanted it excluded. He objected to the evidence in chambers, but the trial judge erroneously, see People v. Schader, 62 Cal.2d 716, 727-728, 44 Cal.Rptr. 193, 401 P.2d 665 (1965), insisted that the objection be renewed in the presence of the jury. Counsel felt compelled to refuse, see Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964), believing that a successful objection might lead the jury to speculate that the excluded testimony was more incriminating than it actually was. See Miller v. California, 392 U.S. 616, 622-623, 88 S.Ct. 2258, 20 L.Ed.2d 1332 (1968) (Justice Marshall dissenting).

28 U.S.C. § 2244(c) provides that “a prior judgment of the Supreme Court of the United States on an appeal or review by a writ of certiorari brought by the prisoner will be conclusive as to all issues of fact and law * * * actually adjudicated by the Supreme Court” (emphasis added) when those issues are raised in a subsequent federal habeas corpus proceeding. In enacting section 2244(c) Congress “intended to give a conclusive presumption only to actual adjudications of Federal rights, by the Supreme Court, and not to give such a presumption to mere denials of writs of certiorari.” S.Rep. No. 1797, 1966 U.S.Code Cong. & Adm.News, p. 3664. The Supreme Court of the United States did not adjudicate petitioner’s claim; it merely dismissed the writ of certiorari, an action indistinguishable, in this instance, from a denial of certiorari.

Duncan v. Carter, 299 F.2d 179 (9th Cir. 1962), relied upon by the court below, is distinguishable. There the Supreme Court’s per curiam opinion dismissing the writs expressly adjudicated the merits. The court stated, “the totality of circumstances disclosed fails to support the substantial due process issues tendered in the petitions for certiorari * * Baldonado v. California, 366 U.S. 417, 81 S.Ct. 1355, 6 L.Ed.2d 380 (1961).

Reversed and remanded for further proceedings.