Charles E. Hart v. Frank Eyman, Warden, Arizona State Prison, State of Arizona ( 1972 )

IRVING HILL, District Judge:

In this opinion, we consider the extent of the obligation of a state to provide to an incarcerated prisoner who has filed a habeas corpus petition in the federal court a reasonable substitute for the transcript of his trial when the court reporter’s notes are lost. And we also consider the propriety of an order of a federal district judge in such a case which gives the state the alternatives of (1) holding the necessary hearings in the state court for the creation of a reasonable substitute for a trial transcript, (2) granting petitioner a delayed appeal in the state court, (3) releasing him from custody, or (4) setting aside his conviction and re-trying him.

Hart, the petitioner herein, was convicted of murder in an Arizona state court in 1961 and sentenced to life imprisonment. At his trial, he was represented by court-appointed counsel. No appeal was ever perfected because, ae-cording to Hart, he was transferred to state prison immediately upon being sentenced where he “did not know how to start an appeal” and was without counsel or law books. In 1966, Hart made his first application for post-conviction relief, an application for habeas corpus filed in the Superior Court of Pinal County, Arizona, in which his trial was held. Thereafter, habeas corpus petitions were filed in the Arizona Court of Appeals and in the Arizona Supreme Court. All were denied without a hearing and without opinion.¹ The District Court held that these various applications to the state courts constituted an exhaustion of state remedies. Before seeking the aid of the federal courts, petitioner in June 1967 filed a motion in the state trial court to obtain a copy of his trial transcript. His motion was immediately denied.

After this history, the instant petition for habeas corpus was filed in the federal District Court in November 1968. The filing was in pro per and in forma pauperis, as was the case in his state petitions. The principal ground asserted for relief is the introduction against petitioner of a confession which was alleged to have been obtained by coercion, fraud and threats. The District Court appointed counsel for petitioner who has served throughout without fee.

On motion of petitioner’s counsel, the District Court on March 5, 1969, ordered the state to produce a transcript of the petitioner’s trial for use by the petitioner and his counsel (R. 253). For some reason, the Arizona Attorney General, despite this unequivocal order from the federal court for the production of a transcript, felt it necessary to move in the Arizona Supreme Court for an order of that court directing that a reporter’s transcript be produced and provided to petitioner by the Arizona trial court.² Such a motion was filed March 16, 1969 (R. 276) and was immediately denied by the Arizona Supreme Court on the ground that it had no jurisdiction to order the Arizona trial court to furnish a transcript for the purpose of fulfilling the federal court order (R. 278). Petitioner informed the federal court of Arizona’s refusal to provide the reporter’s transcript and was permitted to add to his federal habeas petition, as an additional ground for relief, the state’s refusal to provide the transcript.

On August 7, 1969, the District Court entered an order granting the writ of habeas corpus unless a reporter’s transcript was produced within ninety days from that date or good cause was shown why the transcript could not be made available within said period (R. 310). The ninety-day period apparently expired without any transcript being furnished and the District Court apparently entered an order on November 6, 1969, for release of petitioner although a copy of that order does not appear in the Clerk’s transcript furnished to us. On November 7, 1969, Arizona moved in the District Court for a temporary stay of the order of release, alleging that the court reporter had been under a “misunderstanding” concerning the preparation of the transcripts which had now been straightened out and that the transcript would “be prepared forthwith.” A temporary stay of the release order was granted and a hearing was noticed for November 12, 1969, in the federal court. On that date, for the first time, the State Attorney General revealed to the petitioner and to the federal court that the reporter’s notes were lost.³

At the hearing on November 12, 1969, the Arizona Attorney General conceded (R.T. 22) that Arizona has an established substitute procedure (in the nature of an agreed statement of facts prepared by the attorneys, judge and other interested parties after a hearing) for use when a reporter’s transcript cannot be produced. But he informed the District Court that under Arizona procedure this could not be made available to petitioner except in connection with a delayed appeal in the Arizona Supreme Court and petitioner had never sought a delayed appeal therein.

In an obvious effort to accommodate the state, the district judge followed the suggestion of the Arizona Attorney General and by order of December 19, 1969, deferred further action until petitioner could file in the Arizona courts his motion for a delayed appeal and for a hearing (which the district judge called a “Norvell v. Illinois” hearing [373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed. 2d 456]) for the creation of a transcript substitute. The petitioner followed the district judge’s suggestion and made the appropriate motion for delayed appeal in the Arizona Supreme Court. His counsel apprised that court of the District Court’s order of December 19, 1969. But the Arizona Supreme Court, to the obvious embarrassment of the Arizona Attorney General, denied the motion without a hearing.

This led to the District Court’s order filed June 8, 1970, the order appealed from herein. That order came almost three years after petitioner’s first formal effort to obtain a reporter’s trial transcript, almost two years after his habeas corpus petition was first filed in the federal court and fifteen months after the District Court’s first order for the production of a reporter’s transcript. In the order appealed from (R. 353), the District Court gave the respondent Warden and the State of Arizona four alternatives, one of which was to be exercised within sixty days from the date of the order. As stated above, the specified alternatives as to the petitioner are: release him, grant him a delayed appeal by the state courts (which, under state procedure, would apparently automatically result in the preparation of a transcript substitute), afford him a “Norvell v. Illinois” hearing (another method whereby the federal court would have a transcript substitute upon which to act), or set aside his conviction and re-try him.

Arizona challenges this Order as being beyond the power of the District Court. In effect, Arizona contends that if the District Judge desires to have a transcript substitute prepared, he should himself hold the hearing necessary for its preparation and he cannot order the state courts to hold such a hearing, either directly or as an alternative to the granting of a writ of habeas corpus and release of petitioner.

The substantive law and the procedural requirements for criminal trials involving allegedly coerced confessions have now been well established. The landmark cases were decided after this petitioner’s trial but the requirements are retroactive. When the state seeks to use a confession which the defendant claims was coerced, a hearing outside the presence of the jury must be held as to the circumstances surrounding the confession and the trial judge must make a preliminary finding of voluntariness and non-coercion. Jackson v. Den-no, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Thereafter, if such a finding is made, the same testimony of the surrounding circumstances and the confession may be presented to the jury^* which must be instructed that it should determine the voluntariness of the confession and should disregard it unless they find voluntariness and non-coercion. As stated, these rules of law are retroactive. Gladden v. Unsworth, 396 F.2d 373, 376 (9th Cir. 1968). Even if the voluntariness issue was properly presented to the jury, if the record does not make it clear that the trial judge made the required preliminary determination, a federal court, acting on a habeas corpus petition, must return the case to the state courts with an order for release of the petitioner unless such a finding by the judge is presently made. Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964).

In the instant case, the clerk’s transcript indicates that there were some proceedings outside the presence of the jury concerning voluntariness of the confession (R. 54, 55) and that the question of voluntariness was apparently submitted to the jury under what appears to have been a proper instruction.⁴ But what is not revealed by the clerk’s transcript is whether the trial judge made the preliminary finding of voluntariness required by the cases cited above. That can only be determined by a reporter’s transcript or a transcript substitute. Until what transpired in the trial court and what finding, if any, the trial judge made, is shown by means of a reporter’s transcript or a transcript substitute, the federal court is unable to perform its proper function and unable to decide the case pending before it. Under the facts of this case, the burden of producing the necessary record to enable the federal court to decide the case is clearly on the state.

Arizona characterizes the trial court’s order as “nothing more than a remand with directions.”⁵ It urges that under proper standards of federalism and prompted by considerations of mutual respect of state and federal courts for the dignity and independence of each other, the order in question should be held to be beyond the power of a federal court.

We find no basis for declaring the trial court’s order to be one which violates principles of good federalism or is beyond its power. There are ample precedents in habeas corpus situations for the issuance of an alternative form of order by a federal court whereby the state is given various alternatives which include release of the petitioner as one of the alternatives or which provide for release of the petitioner if none of the alternatives is met. In Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed. 2d 109 (1964), a District Court had ordered release of the habeas petitioner unless the state court re-tried him within a reasonable time. The order was affirmed by the Supreme Court with the addition of another alternative to release of the petitioner, namely, a hearing in the state court as to whether the trial judge had made the necessary preliminary determination of the voluntariness of a confession under Jackson v. Denno. In Gladden v. Unsworth, supra, this court, in disposing of the habeas petition, issued an alternative form of order much like the one in question here. This court’s order provided that within a reasonable time the state court should either grant a new trial or conduct a present evidentiary hearing concerning the voluntariness of the confession at issue. The order went on to provide that if the state court did not undertake one of those alternatives within the time specified, the petitioner should be released. In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), a case heavily relied on herein by Arizona on another point, the Supreme Court affirmed a District Court order granting release of a habeas petitioner unless the state court granted him a new trial forthwith. 372 U.S. at 316, 83 S.Ct. 745.

Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957), is perhaps the most interesting precedent of all. There, the reporter at the state court trial had died after transcribing a small portion of the trial and there was great difficulty in reading his notes. The state court undertook a procedure for the creation by others of a purported transcript. The defendant was not represented during that procedure and challenged the accuracy of the purported transcript. After exhausting his state remedies, he applied to the federal court for a writ of habeas corpus. The Supreme Court held that the state court procedure in creating the purported transcript lacked the requirements of due process and remanded the case to the District Court with instructions to enter an order as prescribed by the Supreme Court in its opinion. The prescribed order permitted the state courts a reasonable time within which to comply with constitutional requirements in connection with the transcript, and, failing such action, ordered that the petitioner be discharged. 354 U.S. at 166, 77 S.Ct. 1127.

The instant order cannot be characterized as a remand to the state court with an order to conduct a hearing. It is a conditional order providing various alternatives to the state court, including the eventual sanction of release of the prisoner if one of the other alternatives is not complied with. We view the order as a proper exercise of federal jurisdiction and power in the field of habeas corpus.

Arizona apparently argues that even if the instant order lies within the jurisdiction and power of the District Court, it should be reversed under the teaching of Townsend v. Sain, supra. Arizona particularly relies upon the following language:

“Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the ha-beas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.

Of course, if because no record can be obtained the district judge has no way of determining whether a full and fair hearing which resulted in findings of relevant fact was vouchsafed, he must hold one.” 372 U.S. at 313 and 319, 83 S.Ct. at 757, 760.

We think Arizona misreads Townsend v. Sain and the above quoted language. Townsend concerned itself with the question of when the federal court must conduct its own evidentiary hearing on factual matters and when it may forego such a factual hearing of its own on the ground that there has been a proper factual hearing, meeting federal constitutional requirements, in the state court proceedings. We believe that the language in question was meant only to emphasize that where it cannot be determined from the record of the state court proceedings that a factual hearing there met all of the standards and requirements enunciated in Townsend, the federal court has no alternative but to conduct its own factual hearing.

The type of a hearing which is required to create a transcript substitute is not the type of factual hearing dealt with in Townsend. The hearing necessary to create a transcript substitute is one to determine what actually occurred at the state court trial. Under the facts of the instant case, the federal court is entitled to require the state court to take the steps necessary to inform the federal court as to what occurred at the trial on penalty of releasing or re-trying the petitioner.

Although the instant order is not a direct order to the state to conduct the hearing necessary for the creation of a transcript substitute, even if it were construed to be a direct order, it might well be valid. Such a holding would be a natural and logical extension of the principle enunciated by the Supreme Court in Young v. Ragen, 337 U.S. 235, 69 S.Ct. 1073, 93 L.Ed. 1333 (1949). In that case, the Court held that every state was required to provide some clearly defined method by which state prisoners could raise, within the structure of the state courts, their claims of denial of federal rights. In the instant case, it cannot be determined whether petitioner has been afforded his constitutional right to a preliminary judicial determination of the voluntariness of his confession unless and until a reporter’s transcript or a substitute therefor is provided. We think the obligation of providing one or the other devolves upon the state and the state alone. Until it is fulfilled, there is no way for the state court initially, and thereafter the federal court, to determine if petitioner’s federal constitutional rights were infringed.

Underlying this entire appeal and the events which preceded it, we detect a note of conflict and asperity in the relationships between the state and federal courts in Arizona. It seems incomprehensible to us that on this record the state can legitimately attack the acts and orders of the trial judge herein as an affront to the dignity and independence of its courts. To the contrary, throughout the long history of this matter the federal District judge appears to have abstained from acting, temporized his acts, and stayed their effect, so as to give the state every possible opportunity to afford the petitioner his undoubted constitutional rights without intervention of the federal courts. If the state had acted to provide a reporter’s transcript when one was first requested, or even when first ordered to do so, the reporter’s notes might then have been available. The facts of this case illustrate the wisdom of Mr. Justice Brennan’s statement in his concurring opinion in Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965), in which he said:

“None can view with satisfaction the channeling of a large part of state criminal business to federal trial courts. If adequate state procedures, presently all too scarce, were generally adopted, much would be done to remove the irritant of participation by federal district courts in state criminal procedure.” 381 U.S. at 345, 346, 85 S.Ct. at 1492.

Arizona has delayed much too long in doing what it should do and is obligated to do in connection with the instant ha-beas corpus proceeding. The order of the District Court is affirmed. The mandate will issue now. The sixty-day period referred to in the District Court’s order shall commence to run with the date of the filing of this opinion.

1 . There is a brief statement filed by the Arizona Court of Appeals but it does not deal at all with the point at issue in the present case, an allegedly coerced confession.

2 . The only possible explanation for this delaying maneuver, hinted at in the record, was the Attorney General’s concern that the reporter could not be paid for the transcript without such an order. R.T. 11/12/69, p. 19.

3 . The reporter’s testimony illustrates a laxity and lack of system and security governing the storage of court reporters’ notes which, it seems to us, is generally prevalent throughout the American court system. See as examples: United States ex rel. Smart v. Pate, 318 F.2d 559, 561 (7th Cir. 1963); Carden v. Henderson, 284 F.Supp. 1009, 1011 (E.D.Tenn.1967); Rambo v. Rambo, 84 Cal.App.2d 632, 634, 191 P.2d 480 (1948); Duarte v. Rivers, 90 Cal.App.2d 152, 155, 202 P.2d 612 (1949); Lilienthal v. Hastings Clothing Co., 123 Cal.App.2d 91, 92, 266 P.2d 56 (1954). The reporter testified that some reporters’ notes in her county are stored at seven different places, i. e., the County Hospital, the basement of the new courthouse building, the boiler room of the old courthouse building, the Adult Probation Office storage area, the old jail (two floors thereof), the storage warehouse at Fifth and Jefferson and the court reporters’ official storage area (Rep. Tr. 11/12/69, p. 5).

* Presentation to a jury is not a constitutional requirement. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

4 . See handwritten Instruction No. 9, transmitted to this Court by letter from the Arizona Attorney General dated September 2, 1971.

5 . In Carter v. Eyman, 265 F.Supp. 957 (D.Ariz.1967), a different federal judge in haec verba “remanded” a case involving a similar question of coerced confession to the Arizona Superior Court. The order was apparently not appealed and was accepted and acted upon by the Arizona courts. See Carter v. Eyman, 281 F.Supp. 776 (D.Ariz.1968).