Hensely v. Municipal Court Appendix

    APPENDIX

Supreme Court of the United States
OCTOBER TERM, 1972 

No. 71-1428

KIRBY J. HENSLEY, 
PETITIONER,

v.

MUNICIPAL COURT, SAN JOSE-MILPITAS 
JUDICIAL DISTRICT, SANTA CLARA COUNTY,

RESPONDENT.

O N  W B IT  OF CERTIO RA RI TO T H E  U N IT E D  STA TES 

CO U RT O F A P P E A L S  FO R  T H E  N I N T H  C IR C U IT

PETITION FOR CERTIORARI FILED MAY 2, 1972 

CERTIORARI GRANTED OCTOBER 10, 1972



Supreme Court of the United States
October T erm , 1972

No. 71-1428

Ivirby J .  H ensley ,
Petitioner,

v .

M u n ic ipa l  Court, S an J ose-M ilpitas 
J udicial D istrict, S anta Clara County ,

Respondent.

on  w r it  op certiorari to t h e  u n ited  states 
court op  a ppea ls  por  t h e  n in t h  circu it

I N D E X

PAGE

Record from the United States District Court for the
Northern District of California

Docket Entries .......................... ............................  la

Petition for Writ of Habeas Corpus, filed June 
12, 1970 .......................... .................... ........... .....  4a

Return on Order to Show Cause, filed July 24,
1970 ........................................................... ......... 10a

Traverse by Petitioner, filed July 30, 1970 ........ . 19a

Order Denying Petition for Writ of Habeas Cor­
pus, dated July 31, 1970 ................. ................- 29a



11

PAGE

Order Denying Reconsideration, but Granting 
Certificate of Probable Cause, dated August 
4, 1970' .....................   30a

Notice of Appeal, dated August 7, 1970 ....... ...... 31a

Proceedings in The United States Court of Ap­
peals for The Ninth Circuit:

Opinion, dated January 19, 1972 ..................  32a

Order denying rehearing, dated February 18,
1972 .................    35a

Order Granting Petition for Writ of Certiorari .... 36a



Docket Entries

UNITED STATES DISTRICT COURT

C-70 1276 OJC REP

K irby J .  H ensley , 

vs.

M u n ic ipa l  Court, S an J ose-M ilpitas  J udicial D istrict 
Santa Clara County , P eople of t h e  State of California .

For Plaintiff:
P eter R. S tromer

515 North First Street, Suite 201 
San Jose, California 95112

For Defendant:
Louis P. B ergna, District Attorney 

190 W. Hedding Street 
San Jose, California 95110

Basis of Action:
Petition for Writ of Habeas Corpus

DATE PR O C EED IN G S

1970
6-16 1. Filed Petition for Writ of Habeas Corpus

12 2. Filed Appli. by Petnr. for Stay of Execution
in Connection with Petn. for Hab. Corp.



2a

DATE PR O C EED IN G S

1970
12 3. Filed O.S.C. returnable June 26, 1970 at 10

A.M. in San Jose; Resp. to File A Return by 
June 22, 1970; Petnr. May File a Traverse 
Prior to June 26, 1970:.

18 4. Filed motion by petnr, to Transfer to San Jose
and Assigned to Judge Peckham & to Con. Hrg. 
to July 24 ,1970, 10 A.M.

23 5. Filed Order Cont. to San Jose, Calif, for Hrg.
before Judge Peckham on July 24, 1970, 10 
A.M.

25 6. Filed Reassignment Order of Case to Judge
Peckham

7- 6 7. Filed Petnr’s Memo of Pts. &• Auths.
24 8. Filed Resps Ret to OSC, Pts & Auths in Oppos.

to Petn for Writ of HC.
24 Obd aft hrg. Mo for Convening T h ree  J udge 

Court not Given; Appli for OSC Submitted
29 9. Filed Petnr’s Traverse & Affidavit of Trial

Counsel, Robert C. Bienvenu
31 10. Filed Order Denying Petn. for Writ of Hab. 

Corp. Copies mailed.

8- 4 11. Filed petnr’s memo of pts & auths.
4 12. Filed Order granting Certificate of probable

cause to appeal
5 (Copies mailed to Parties of Record)

Docket Entries



3a

Docket Entries

D ATE

6 13.
7 14.

10 1.
7 15.

13 16.

9-16

PR O C EED IN G S

Filed defts proof of svc of memo of pts & autlis.
Filed notice of Appeal by Pltff under provision 
FRAP Rules 24 & 22-B
Mailed Clerk’s notice of filing appeal
Filed $250.00 Cost Bond on Appeal by Pltff
Filed designated for record on appeal by Pltff 
& No Reporter’s Transcript will be required

Made, Hand Carried Record on Appeal CCA

UNITED STATES DISTRICT COURT 
N orthern  D istrict of California 
S an F rancisco, California  94102

Name Peter R. Stromer 
Number 295-4430 
Address 515 North First Street 
Attorney for Petitioner



4a

No. C-70 1276 OJC

Petition lor Writ of Habeas Corpus
Persons in State Custody

K irby J .  H ensley , 

vs.

Mu n ic ipa l  Court, S an J ose-M ilpitas J udicial D istrict 
Santa Clara County , P eople of t h e  State of California .

[File Endorsement and Instructions Omitted]

1. Place of detention: released under own recognizance.

2. Name and location of court which imposed sentence : 
Municipal Court for the San-Jose Milpitas Judicial 
District, 200 West Hedding, San Jose, California.

3. The indictment number upon which and the offense 
for which sentence was imposed: No. 10511-C. Vio­
lation of California Education Code § 29007.

4. The date upon which sentence was imposed and the 
terms of the sentence: July 1, 1969 sentenced to one 
year in jail and fined $625.00.

5. A finding of guilty was made after a plea of not 
guilty.

6. That finding was made by a judge without a jury.

7. Did you appeal from the judgment of conviction or 
the imposition of sentence? Yes.



5a

8. If yon answered “yes” to (7), list
(a) Tlie name of each court to which you appealed: 

Appellate Department, Superior Court of the 
State of California in and for the County of 
Santa Clara (Appeal plus petition for rehearing 
and/or certification).

(b) The result in each such court to which you ap­
pealed: Affirmed conviction.

(c) The date of each such result: February 2, 1970. 
Petition for rehearing and/or certification to Dis­
trict Court of Appeal denied March 5, 1970.

(d) If known, citations of any written opinion or 
orders entered pursuant to such results: Opin­
ion #222 In the Superior Court of the State of 
California in and for the County of Santa Clara, 
Appellate Department.

9. [Not applicable].

10. State concisely the grounds on which you base your
allegations that you are being held in custody unlaw­
fully :
(a) Violation of U.S. Constitution, 1st Amendment.
(b) Violation of U.S. Constitution, 14th Amendment.

11. State concisely and in the same order the facts which
support each of the grounds set out in (10):
(a) The conviction herein is illegal and violative of 

petitioner’s free exercise of religious belief guar­
anteed by the U.S. Constitution, Amendment I. 
Petitioner is the chief presiding officer and direc­

Petition for writ of Habeas Corpus
Persons in state Custody



tor of a bona fide church and religious denomina­
tion. He has been convicted for exercising his 
religious beliefs whereby, in furtherance of its 
exclusively religious activities, his Church has 
awarded honorary Doctor of Divinity certificates 
to individuals who complete a course of instruc­
tion in the Church’s principles.
The United States Supreme Court as long ago as 
1872 decreed that controversies over church doc­
trine and practice were beyond the scope and 
jurisdiction of civil authorities.

“In this country the full and free rights to 
entertain any religious belief, to practice any 
religious principle, and to teach any religious 
doctrine which does not violate the laws of 
morality and property, and which does not 
infringe personal rights is conceded to all. The 
law knows no heresy, and is committed to the 
support of no dogma, the establishment of no 
sect.” Watson v. Jones, 13 Wall. 679, at 728- 
729 (1872), quoted with approval in Presby­
terian Church v. Hull Church, 393 U.S. 440 
(1969).

(b) Failure of trial counsel to appear and present any 
defense of fact or law that was available to peti­
tioner when the Trial Court re-opened the case 
prevented petitioner from obtaining evidence nec­
essary to his defense. It is respectfully submitted 
that such inadvertence by counsel effectively de­
nied petitioner a trial on the merits and consti­
tutes a denial of due process contra petitioner’s

Petition for writ of Habeas Corpus
Persons in state Custody



7a

Constitutional rights under the 14th Amendment 
to the U.S. Constitution.

12. Prior to this petition have you filed with respect to
this conviction.
(a) Any petition in a State court for relief from this 

conviction? Yes.
(b) Any petitions in State courts for habeas corpus? 

Yes.
(c) Any petitions in the United States Supreme Court 

for certiorari other than petitions, if any, already 
specified in (8) ? No.

(d) Any other petitions, motions or applications in 
this or any other court ? No.

13. If you answered “yes” to any part of (12), list with
respect to each petition, motion or application:
(a) the specific nature thereof: Petition for rehearing 

and/or certification to California District Court of 
Appeals.

(b) the name and location of the court in which each 
was filed: Superior Court Appellate Department, 
190 North Market Street, San Jose, California.

(c) the disposition thereof: Petition denied without 
opinion. State Habeas Corpus petitions denied 
without opinion by District Court of Appeal & 
California Supreme Court.

(d) the date of each such disposition: March 5, 1970 
—Petition for rehearing denied. March 20, 1970— 
Habeas Corpus denied by Court of Appeal.

Petition for writ of Habeas Corpus
Persons in state Custody



8a

June 10,1970—Habeas Corpus denied by Supreme 
Court.

(e) if know, citations of any written opinions or orders 
entered pursuant to each such disposition: NONE.

14. Has any ground set forth in (10) been previously pre­
sented to this or any other court, state or federal, in 
any petition, motion or application, which you have 
filed? Yes.

15. If you answer “yes” to (14), identify.
(a) which grounds have been previously presented: 

ALL.
(b) The proceeding in which each ground was raised: 

In petition for rehearing and in State Habeas 
Corpus petitions.

16. [Not applicable]

17. Were you represented by an attorney at any time dur­
ing the course of—
(a) your arraignment and plea? Yes.
(b) your trial, if any? Yes.
(c) your sentencing? Yes.
(d) your appeal, if any, from the judgment of con­

viction or the imposition of sentence? Yes.
(e) preparation, presentation or consideration of any 

petitions, motions or applications with respect to 
this conviction, which you filed? Yes.

Petition for writ of Habeas Corpus
Persons in state Custody



9a

18. If you answered “yes” to one or more parts of (17),
list:—

(a )  th e  nam e a n d  a d d re s s  o f each a tto rn e y  w ho re p ­
re se n te d  y o u :

I. Robert C. Bienvenu, Modesto, California.
II. Richard T. Tosaw, 928 12th St.,

Modesto, Cal.
III. Peter R. Stromer, 515 North First Street, 

Suite 201, San Jose, California 95112
(b ) th e  p ro ceed in g s a t  w hich each such a tto rn e y  r e p ­

re se n te d  y o u :

I. Trial.
II. Appeal.
III. Petition for rehearing & State Habeas Cor­

pus Petitions.

19. [Not applicable]
S tate o r  California ,
County  of Santa Clara, s s . :

P eter R. S tromer, being  firs t sw orn  u n d e r  oath , p re ­
sen ts  th a t  he h a s  su b scrib ed  to  th e  fo reg o in g  p e titio n  
an d  does s ta te  th a t  th e  in fo rm a tio n  th e re in  is  t ru e  an d  
co rre c t to  th e  b es t o f h is  know ledge a n d  belief.

/s /  Peter R. Stromer 
Signature of Affiant 
Attorney for Petitioner

[Jurat Omitted]

Petition for writ of Habeas Corpus
Persons in state Custody



10a

[File Endorsement and Caption Omitted]

Comes now Louis P. B ergna, District Attorney of Santa 
Clara County and his deputy, D e n n is  A lan L em pert  for 
the People of the State of California and for a return to 
the Order to Show Cause heretofore issued in the above- 
entitled matter on June 12, 1970.

I.
On February 14, 1969, a complaint was filed in the Mu­

nicipal Court for the San Jose-Milpitas Judicial District, 
accusing th e  defendant, K irby J. H ensley , Petitioner, of 
a misdemeanor, to wit, a violation of California Education 
Code Section 29007.

II.

Trial was had in the aforementioned court before his 
Honor, Judge E dward J. N elson , on May 19, 1969.

At the time of trial, the defendant and his attorney then 
being present, witnesses were called by the People and 
evidence was submitted.

At the close of the People’s case, after the People had 
rested, the defendant moved for a dismissal. Extensive 
argument was had regarding the court’s jurisdiction in the 
case, and the judge ruled that the court lacked jurisdiction 
to hear the ease and stayed further proceedings.

The following day, the People filed a Notice of Motion 
to re-open the case for further argument regarding juris­
diction. The defendant filed a Notice in Opposition to 
that motion.

Return to Order to Show Cause and Points and
Authorities in Opposition to Petition for

Writ of Habeas Corpus



11a

On May 27, 1969, the court set aside the stay and placed 
the matter back on calendar for June 11 to consider the 
People’s motion. The defendant was not present at that 
time although he had been notified and was aware of the 
proceeding.

On June 11, the defendant again absented himself from 
the proceedings when the court determined that it did in 
fact have jurisdiction pursuant to Penal Code Section 781.

III.
On June 25, the time the court had set for further trial 

in this matter, the defendant not being present, the judge 
found the defendant guilty and set the date of sentencing 
for June 27, 1969.

IV.
On June 27, 1969, the court continued sentencing until 

July 1, 1969, at the request of the defendant.
The defendant, with his counsel, appeared on July 1, 

1969, and sentence was imposed by the court.
Execution of this sentence was stayed at the request of 

the defendant pending his appeal.

V.
Notice of Appeal to the Appellate Division of the Supe­

rior Court was filed by the defendant on July 3, 1969.
On February 2, 1970, the Appellate Division of the Supe­

rior Court of Santa Clara County filed a written opinion, 
No. 222, which affirmed in all respects, the Petitioner’s 
conviction. Petition for re-hearing and or certification to 
the District Court of Appeal was denied by the Appellate 
Division on March 5, 1970.

Return to Order to Show Cause and Points and
Authorities in Opposition to Petition for

Writ of Habeas Corpus



12a

Return to Order to Show Cause and Points and
Authorities in Opposition to Petition for

Writ of Habeas Corpus

VI.
The Court of Appeals of the State of California in 1 

Grim. 1687 denied the Habeas Corpus Petition of the Peti­
tioner on March 20,1970.

The California Supreme Court in Crim. 14608 similarly 
denied Petitioner’s Habeas Corpus Petition on June 10, 
1970.

VII.
Each of the courts above mentioned were presented with 

basically the same allegations by the Petitioner and each 
of the Courts found that there had been no violation of 
either state or federal constitutional rights. In fact, there 
has not been a violation of any constitutional rights pos­
sessed by this Petitioner and the judgment is valid in all 
respects.

VIII.
This Petitioner is not presently in custody. He is at 

liberty on his own recognizance pending the outcome of 
this habeas corpus proceeding. Therefore, this court is 
not in a position, at this time, to hear, consider, or grant 
a Writ of Habeas Corpus.

P o i n t s  a n d  A u t h o r i t i e s

Title 28, U.S.C. Section 2241(c)(3), provides as follows:
“(c) The Writ of habeas corpus shall not extend to 

a prisoner unless—
“(3) He is in custody in violation of the Constitu­

tion or laws or treaties of the United States”.



13a

In the many cases that have construed the above sec­
tion with particular emphasis on the word “custody” there 
has been uniformity in holding that unless the individual 
is in physical custody, the Writ of Habeas Corpus is not 
available to him. Additionally, where an individual has 
been released either on bail or on his own recognizance, 
the status of that individual is not one of “in custody” to 
come within the purview of the Federal Habeas Corpus. 
Moss v. State of Maryland, 272 F. Supp. 371 (1967).

Historically, the Great Writ or Writ of Habeas Corpus 
is available to free an individual who is illegally incar­
cerated. However, as stated in Brown v. Johnston, 306 
U.S. 19, 26 (1939), there is no higher duty than to main­
tain [the Writ of Habeas Corpus] unimpaired. Here, 
where the Petitioner’s liberty has not been infringed upon, 
this great constitutional relief, should not be invoked un­
necessarily lest it be vitiated by its over broad use.

IX.
The Petitioner intentionally and deliberately bypassed 

an available state remedy. Therefore, Respondent feels 
in view of the fundamental nature of the defect, the peti­
tion should be summarily denied.

P o i n t s  a n d  A u t h o r i t i e s

Section 1043 of the California Penal Code provides in 
part that if a defendant in a misdemeanor action absents 
himself with full knowledge that a trial is to be or is 
being had, the trial may proceed in his absence. In so 
absenting himself from the trial and having the full knowl­
edge of its occurrence, the defendant knowingly relinquishes

Return to Order to Show Cause and Points and
Authorities in Opposition to Petition for

Writ of Habeas Corpus



14a

his right to defendant himself and to present such evidence 
as might lead to an acquittal.

In the case of Nelson v. People of the State of California, 
346 F.2d 73 (1965), decided by the Ninth Circuit Court of 
Appeals, the court stated, “If a habeas applicant, after 
consultation with competent counsel or otherwise, under­
standably and knowingly forwent the privilege of seeking 
to vindicate his federal claims in the state courts whether, 
for strategic, tactical, or any other reason that can fairly 
be described as a deliberate bypass of state procedures, 
than it is open to the federal court on habeas to deny him 
all relief if the state courts refuse to entertain his federal 
claims on the merits—though of course, only after the 
federal court has satisfied itself, by holding a hearing or 
by some other means, of the facts bearing on the appli­
cant’s defaults.” The courts went on to say, “If either 
reason motivated the action of Petitioner’s counsel, and 
their plans backfired, counsel’s deliberate choice (emphasis 
added) of the strategy would amount to a waiver binding 
on Petitioner and would preclude him from a decision on 
the merits of his federal claim either in the state court 
or here.”

Traveling slightly further back in time, we find in the 
case of Fay v. Noia, 372 U.S. 391, “We therefore hold that 
the federal habeas judge may in his discretion deny relief 
to an applicant who had deliberately bypassed the orderly 
procedure of the state courts and so doing has forfeited 
his state court remedies.”

“But we wish to make very clear that this grant of dis­
cretion is not to be interpreted as a permission to intro­
duce legal fictions into federal habeas corpus. The classic 
definition of waiver enunciated in Johnson v. Zerbst, 304

Return to Order to Show Cause and Points and
Authorities in Opposition to Petition for

Writ of Habeas Corpus



15a

U.S. 458, 464, ‘An intentional relinquishment or abandon­
ment of a known right or privilege’—furnishes the con­
trolling standard.” The attached affidavit by the under­
signed clearly demonstrates that the decision made by 
Petitioner’s counsel was a deliberate decision to remain ab­
sent from the proceedings, and by pass the right to defend 
oneself.

Here, it is clear that the benefit of the Writ of Habeas 
Corpus should not be available to the Petitioner who, but 
for his conscious choice, would have had other remedies 
available to him.

Return to Order to Show Cause and Points and
Authorities in Opposition to Petition for

Writ of Habeas Corpus

X.
With regard to the allegations contained in the petition 

regarding the status of the Petitioner, the so-called re­
ligious organization which he heads, and the nature and 
effect of the “Honorary Doctor of Divinity” Degree issued, 
the record before this court is barren of any scentilla of 
proof to substantiate the claimed ‘facts’ as set forth.

The Petitioner failed to present these “facts” in the ap­
propriate judicial tribunal to wit, Judge Nelson’s court 
and should not now be permitted to bring before the court 
without benefit of cross examination or otherwise items 
which were not heretofore sought to be proved.

C onclusion

The state courts refused to entertain the Petitioner’s 
assertions of the deprivation of his constitutional rights 
in view of his intentional and deliberate absence from the 
trial.



16 a

W herefore, we respectfully submit that the Order to 
Show Cause be discharged, habeas corpus be denied and 
the proceedings be dismissed.

D a ted : July 24, 1970, in San Jose, California

Loins P. B ergna, District Attorney 
Santa Clara County 
By /s /  D e n n is  A ran L em pert 

Dennis Alan Lempert 
Deputy District Attorney

Attorneys for the People

Return to Order to Show Cause and Points and
Authorities in Opposition to Petition for

Writ of Habeas Corpus



Affidavit of Dennis A lan Lempert

[Caption Omitted]

T, D e n n is  A lan L em per t , Deputy District Attorney, 190 
West Hedding Street, San Jose, California declare:

That I was the Deputy District Attorney responsible for 
the trial of K irby J. H en sley .

That after proceedings were stayed on May 19, 1969, 
I personally contacted the defendant’s attorney, Robert C. 
Bienvenu in Modesto. I advised Mr. Bienvenu of the pro­
ceedings pending in Judge Nelson’s court and was advised 
by Mr. Bienvenu that under no circumstances would he or 
his client, K irby J. H ensley , return to  this jurisdiction for 
any further proceedings.

I declare on information and belief and under penalty 
of perjury that the foregoing is true and correct.

DATED: July 24, 1970, at San Jose, California.

/ s /  D e n n is  A lan L em pert 
Deputy District Attorney 
Dennis Alan Lempert



18a

Affidavit o f Dennis A. Lempert

[Caption Omitted]

I, D e n n is  A lan L em per t , Deputy District Attorney, 190 
West Hedding Street, San Jose, California declare:

That between the period of June 14, 1970 through July 
10, 1970, I was attending National District Attorney’s Col­
lege at Houston, Texas.

That upon my return to the office, I was unaware until 
July 15, 1970 of the pendency of the Petition for Writ 
of Habeas Corpus.

That I have attempted to the greatest extent possible 
to complete the Return to Order To Show Cause. How­
ever, I was unable to complete said document until 9 :00 
a.m. this date.

That on Wednesday, July 22, 1970, I contacted attorney 
for the petitioner and advised him of my circumstances 
and requested a stipulated continuance. Mr. Stromer de­
clined to agree to a continuance and I at that time indi­
cated to him the general nature of the legal basis in the 
Return to Order To Show Cause.

That I therefore respectfully request the Court in its 
discretion to permit the filing of the Return to Order To 
Show Cause at this time in view of the unusual circum­
stances causing its delay.

I declare on information and belief and under penalty 
of perjury that the foregoing is true and correct.

Dated: July 24, 1970, at San Jose, California.

/ s /  D e n n is  A lan L em pert 
Dennis Alan Lempert 
Deputy District Attorney



19a

[File Endorsement and Caption Omitted]

Petitioner for his traverse of the return to the writ of 
habeas corpus, alleges:

Traverse by Petitioner and Affidavit of Trial Counsel,
Robert C. Bienvenu

I.
Answering the allegations of paragraphs I and II thereof 

petitioner admits all the material allegations thereof ex­
cept that allegation wherein it is stated that defendant 
had been notified and was aware of the proceedings either 
on May 27, 1969 or June 11, 1969, which allegation is ex­
pressly denied.

II.
Answering the allegations of paragraphs III, IV, V and 

VI thereof, petitioner admits the allegations therein.

III.
Answering the allegations of paragraph VII thereof, 

petitioner admits the allegations therein, except that peti­
tioner denies that there has not been a violation of his 
constitutional rights and further denies that judgment is 
valid in all respects.

IV.
Answering the allegations of paragraph VIII thereof, 

petitioner admits that he is released on his own recogni­
zance per a Stay of Execution granted by the Honorable 
Edward J. Nelson, Judge, Municipal Court, San Jose- 
Milpitas Judicial District pending the outcome of this 
habeas corpus proceeding. Except as herein admitted, peti­



20a

tioner denies that he is not presently in custody, being 
in constructive custody of the trial court, respondent here­
in, and further denies that this court is not in a position, 
at this time, to hear, consider, or grant a Writ of Habeas 
Corpus.

Traverse by Petition and Affidavit of Trial Counsel,
Robert C. Bienvenu

V.
Petitioner reiterates all of the facts stated in the peti­

tion and pleadings filed herein on his behalf as reasons 
why such detention is without warrant of law.

W herefore , K irby J. H en sley , the petitioner herein 
prays that the said Writ of Habeas Corpus be sustained 
and that he be delivered from the custody and restraint 
of said respondent as prayed for in the petition for said 
Writ and for his discharge from the custody, restraint 
and detention of his liberty as hereinabove set forth and 
for such other, further and different relief as to the Court 
may seem just and proper.

/ s /  P eter R . S tromer 
Peter R. Stromer 
Attorney for Petitioner

I, the undersigned, say:
I am the attorney for the Petitioner in this action; Peti­

tioner is absent from the County of Santa Clara, Cali­
fornia, where I  have my office, and I make this verification 
for and on behalf of that party for that reason; I have 
read the above document and know its contents; I am



21a

Traverse by Petition and Affidavit of Trial Counsel, 
Robert C. Bienvenu

informed and believe and, on that ground, allege that the 
matters stated in it are true.

Executed on July 27, 1970, at San Jose, California.
I declare under penalty of perjury that the above is true 

and correct.
/ s /  P eter R. S tromer 

Peter R. Stromer



22a

R obert C. B ien v e n u  says:
That I am an attorney at law, duly licensed to practice 

in the State of California. That I was the attorney of 
record for defendant, Kirby J. Hensley, at the trial held 
in the Municipal Court for the San Jose-Milpitas Judicial 
District on May 19, 1969.

That upon the completion of the prosecution’s case, a 
motion for acquittal was made pursuant to Section 1118 
of the Penal Code of the State of California. That, after 
argument by both sides, the Court ended the trial, bail was 
exonerated and defendant and all his witnesses left the 
courtroom without presenting a defense.

Subsequently, a telephone call was received from Deputy 
District Attorney Lempart stating that he was making a 
motion to reopen the case.

No authority was cited to declarant permitting the re­
opening of a criminal proceedings upon the completion of 
the prosecution’s case after jeopary had attached. Declar­
ant indicated that he would not and, in fact, did not, appear 
at the time of the motion but filed a written Memorandum 
in Opposition to the Notice of Motion.

The Court granted the motion, found defendant guilty 
and pronounced sentence on July 1, 1969. A Notice of 
Appeal was filed on July 2, 1969. On July 5, 1969, declar­
ant’s wife passed away and a substitution of attorneys was 
made and since that time, declarant has not been associated 
with the case.

Declarant at no time deliberately bypassed any estab­
lished state procedures in the case. Though declarant did 
not appear personally at the time of the hearing on the 
motion to reopen, a complete memorandum in opposition

Declaration of Robert C. Bienvenu.



23a

Declaration of Robert C. Bienvenu

thereto was timely filed. The memorandum before the 
Court contained everything declarant would have said in 
oral argument. Nothing further could have been added, 
and to travel to San Jose from Modesto to reiterate the 
contents would have taken a full day from declarant’s 
practice and wasted the Court’s time. It is a common 
practice to submit motions for the Court’s decision based 
upon a written memorandum when the attorneys involved 
practice in another city a long distance from the courthouse 
where the matter is to be heard.

The defendant was convicted in absentia on the mis­
demeanor charge but this too is in accord with established 
state procedure.

A timely motion of appeal was filed in the case and 
handled by another attorney. Therefore, from the begin­
ning of the case to the present time, every act performed 
by declarant was in complete accord with established state 
procedures.

I declare under penalty of perjury, that the foregoing 
is true and correct.

Executed on July 27, 1970, at Modesto, California.

/s /  R obert C. B ienventt 
Robert C. Bienvenu



24a

[Caption Omitted]

I
The Nelson case, Nelson v. People of the State of Cali­

fornia, 346 F.2d 73 is clearly distinguishable from the case 
at bar. In Nelson, the District Court, in its dismissal of 
Nelson’s habeas corpus proceeding, never did reach the 
merits of Nelson’s contention as to his constitutional rights 
for as the Court pointed out that Nelson’s claim to sup­
press evidence illegally obtained must first be raised at 
trial by appropriate objection and not raised for the first 
time on appeal, (emphasis supplied) (citations) Petitioner 
herein has not had a trial on the merits to this date. Absent 
such a trial, petitioner has not yet had an opportunity to 
present any defense to the charges made leading to this 
conviction.

Further, the District Court, in Nelson, concluded that 
Nelson had been competently represented by his counsel, 
that Nelson at no time contended that in handling the 
matter as he did, his counsel was acting contrary to Nel­
son’s wishes.

Petitioner herein emphatically denies that his trial coun­
sel advised him that the trial was to be reopened in San 
Jose and failure of petitioner to appear would lead to his 
conviction. As stated in the pleadings on file herein, peti­
tioner was advised contra, that the trial in San Jose was 
dismissed and that petitioner need not appear further. 
There was no deliberate by-passing of state procedure. 
As the Ninth Circuit Court of Appeals makes clear in 
Nelson, supra, there must be “strategic, tactical, or any 
other reasons than can fairly be described as the deliberate 
by-passing of state procedure, . . .” Icl, at 79. “At all

Points and Authorities



25a

events we wish it clearly understood that the standard 
here put forth depends on the considered choice of the 
petitioner. A choice made by counsel not participated i/n 
by the petitioner does not automatically bar relief.” Id., 
(emphasis supplied.)

II
Just as the facts herein show no deliberate by-pass of 

state procedures there is no evidence to show a waiver of 
a federally guaranteed constitutional right. The rules that 
govern the determination of whether a constitutional right 
has been waived are summarized in Brookhart v. Janis, 
384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) :

“The question of a waiver of a federally guaranteed 
constitutional right is, of course, a federal question 
controlled by federal law.”

There is a presumption against the waiver of constitu­
tional rights, see, e.g., Glasser v. United States, 315 U.S. 
60, 70-71, and for a waiver to be effective it must be clearly 
established that there was “an intentional relinquishment 
or abandonment of a known right or privilege.” Johnson 
v. Zerbst, 304 U.S. 485, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 
1461.

III
In Kuhl v. United States, (9th Cir.) 370 F.2d 20 (1966), 

a 5-4 decision, the majority opinion denied a motion to 
vacate judgment on grounds of deliberate by-passing of 
state criminal procedures by stating:

“It is urged in the dissent that we should order a hear­
ing on these questions. We think that to do so here, 
in a case in which a defendant had a fair trial and

Points and Authorities



26a

was represented by competent counsel, would be to 
reach out to find support for a collateral attack on 
Ms conviction . . Id, at 23. (emphasis supplied)

Herein, the facts are clearly distinguishable. There has 
been no fair trial, if any trial at all, due to inadvertence 
of trial counsel.

IV
Pursuant to 28 U.S.C. §2254(d)(6) petitioner has not 

had a full, fair, and adequate hearing in the state court 
proceeding. Not only were material facts not adequately 
developed in the state hearing, no facts were developed 
in petitioner’s defense. There is thus sufficient evidence 
to support a finding that petitioner was denied effective 
assistance of counsel. If counsel are sufficiently deficient in 
their performance, defendant may claim that his consti­
tutional right to effective representation has been lost; 
further even the fact that defendant has had a fair trial 
of that issue in the state court and lost does not mean 
that he cannot raise it again in federal court, since it is 
a federal right. 28 U.S.C.A. §42254, 2254(d) (3, 6) Leven- 
thal v. Gavin, 421 F.2d 270 (1970).

Points and Authorities

V
The U.S. Supreme Court’s decision in Townsend v. Sain, 

1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, requires 
that a federal court grant an evidentiary hearing to a 
habeas corpus applicant if . . . the state factual deter­
mination is not fairly supported by the record as a whole. 
Id., at 313, 83 S.Ct. at 757.

VI
In order to sustain a claim of ineffective counsel there 

must be an affirmative factual basis demonstrating coun­



27a

sel’s inadequacy of representation. In re Parker, 423 F.2d 
1021 (1970). It is respectfully submitted that the record 
herein conclusively shows that trial counsel’s failure to 
appear when advised by the District Attorney that the 
case was being re-opened constitutes a sufficient factual 
basis demonstrating counsel’s inadequacy of representation.

VII
By the express terms of 02254(d) the presumption of 

correctness of state court findings does not arise if the 
applicant establishes, among other things, that the state 
court hearing was not “full, fair, and adequate” or that 
“the material fact's were not adequately developed in the 
State Court hearing” Sets v. State of California, (9th 
Cir.) 423 F.2d 702 (1970).

Clearly, the factual record herein is devoid of any show­
ing that a fair trial was had on the merits. What the 
State is contending’ is that petitioner herein must be al­
lowed to serve a year in jail because his trial counsel’s 
inadvertence or incompetence in failing to appear and in 
failing to advise his client, petitioner herein, that such 
failure to appear by trial counsel and defendant therein 
would result in his conviction, must be construed as a 
“deliberate by-passing” of state remedies. It is respect­
fully submitted that such a contention must shock the 
conscience of this court. A review of the cases wherein 
the “deliberate by-passing” doctrine has been formulated, 
(Nelson, Kuhl, Sets, supra) shows that in every case the 
court made an independent finding that there was adequate 
representation by competent counsel before the “deliberate 
by-pass” rule was applied. As the U.S. Supreme Court 
stated in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, “(A)p-

Points and Authorities



28a

plication of the “deliberate by-pass” doctrine requires the 
resolution of factual issues.” Id.

Dated: July 27, 1970
/ s /  P et e r  R. S trom er  

Peter R. Stromer 
Attorney for Petitioner

Points and Authorities



Order

[File Endorsement and Caption Omitted]

Petitioner, convicted of a misdemeanor in the state court 
and presently out on O.R. (own recognizance), brings an 
action in habeas corpus challenging the constitutionality 
of the state conviction.

The petition must be denied, because this court does not 
have jurisdiction over the matter. 28 U.S.C. § 2241(c) (3) 
provides that the writ of habeas corpus shall not extend 
to a prisoner unless he is “in custody” in violation of the 
laws of the United States.

The law of this circuit is clear that one who is out on 
bail is not “in custody” for either habeas corpus or 28 
U.S.C. § 2255 purposes. Matyseh v. U.S., 339 F.2d 389, 
392-93 (9th Cir. 1964). A fortiori, a person out on O.R. 
would not be in custody either.

The petition for habeas corpus is denied.

I t is so obdeeed.

Dated: 7/31/70

/ s /  R obebt F. P eckham 
United States District Judge



30a

Order

[File Endorsement and Caption Omitted]

Petitioner’s motion for reconsideration of his habeas 
corpus petition is denied.

However, petitioner is granted a certificate of probable 
cause so that he may test this court’s reliance on Matysek 
v. United, States, 339 F.2d 389, 392-93 (9th Cir. 1964) in 
the Court of Appeals for the Ninth Circuit.

Certificate of probable cause granted.

I t I s So Ordered.

August 4, 1970.

/ s /  R o b e r t  F. P eckham  
United States District Judge



31a

Notice o f Appeal

[File Endorsement and Caption Omitted]

Notice is hereby given that K ibby J. H ensley , petitioner 
above named, hereby appeals to the United States Court 
of Appeals for the Ninth Circuit, from the order and judg­
ment rendered, made and entered herein on July 31, 1970, 
denying the petition for a writ of habeas corpus herein 
on the ground that this Court lacked jurisdiction over the 
matter.

D a ted : August 5, 1970

/ s /  P eter  R. S tromer

Attorney for Petitioner



32a

Opinion o f United States Court o f Appeals 
For the Ninth Circuit

UNITED STATES COURT OF APPEALS 
F ob t h e  N in t h  Circuit  

No. 26274

K irby H . H ensley ,

vs.
Appellant,

M u n ic ipa l  C ourt, S an J ose-M ilpitas  J udicial D istrict 
S anta Clara County , S tate oe California ,

Appellee.

[January 19, 1972]

Appeal from the United States District Court 
for the Northern District of California

B e f o r e  :

K oelsch a n d  Carter, Circuit Judges, an d  
S m it h ,* District Judge.

P er Curiam  :

The sole question on appeal is whether or not a person 
released on his own recognizance following trial, convic-

* Honorable Russell B. Smith, United States District Judge, 
Missoula, Montana, sitting by designation.



33a

Opinion of United States Court of Appeals 
For the Ninth Circuit

tion and sentence on a state criminal charge is within the 
purview of 28 U.S.O. §2241, which extends the remedy of 
habeas corpus to persons “in custody” in violation of the 
federal constitution.1 We conclude that he is not.2

Not long ago, this court squarely ruled on this question 
in Matysek v. United States, 339 F.2d 389 (1964), cert, 
denied 381 U.S. 917. We held that a person released on 
bail was not “in custody,” actual or constructive, so as to 
satisfy 28 U.8.C. §2241.3

Appellant Hensley urges that Matysek has been implic­
itly overruled by the recent Supreme Court cases of 
Walker v. Waimvright, 390 U.S. 335 (1968); Peyton v. 
Rowe, 391 U.S. 54 (1968) and Carafas v. LaVallee, 391 
U.S. 234 (1968). These cases are distinguishable because 
in each of them there existed actual or constructive cus­
tody. In Walker and Rowe, the petitioners were in actual 
custody and in Carafas, the petitioner was on parole. In 
Matysek, this court, while recognizing that release on 
parole constituted constructive custody, distinguished a

1 Hensley lias been at liberty on recognizance at all times since 
conviction. Initially the state court stayed execution of sentence. 
At the exhaustion of Hensley’s state remedies the district court 
issued a stay of exeeuiton pending habeas proceedings therein. 
Both the district court and this court denied a stay of execution 
pending this appeal. Subsequently, the Circuit Justice granted the 
stay.

2 We are unable to treat this petition as one seeking eoram nobis 
relief because Hensley seeks to challenge a state court proceeding 
in federal court. Coram nobis lies only to challenge errors occur­
ring in the same court. 7 Moore’s Federal Practice 60.14, p. U46.

3 The decisional rule is different in several other circuits. Capler 
v. Greenville, 422 F.2d 299 (5th Cir. 1970) ; Burris v. Ryan, 397 
F.2d 553 (7th Cir. 1968) ; Ouletta v. Sarver, 428 F.2d 804 (8th 
Cir. 1970).



34a

Opinion of United States Court of Appeals 
For the Ninth Circuit

bail situation holding that the attendant restrictions did 
not constitute custody. The Supreme Court has not, to 
this date, considered the express question posed herein.

We feel, therefore, constrained to follow Matysek v. 
United States, supra.

Affirmed.



[File Endorsement and Caption Omitted]

The panel as constituted in the above case has voted to 
deny the petition for rehearing and to reject the sugges­
tion for a rehearing in banc.

The full court has been advised of the suggestion for 
an in banc hearing, and no judge of the court has requested 
a vote on the suggestion for rehearing in banc. Fed. R. 
App. P. 35(b).

The petition for rehearing is denied, and the suggestion 
for a rehearing in bane is rejected.

Feb. 18, 1972
M. Oliver K oelsch 

United States CircuitJudge

Order Denying Petition for Rehearing and
Rejecting Suggestion for Rehearing In Banc



O rd er G ran ting  P e titio n  fo r  Writ of C ertio rari

SUPREME COURT OF THE UNITED STATES 
October T erm , 1972 

No. 71-1428

K irby H . H ensley ,

V.
Petitioner,

M u n ic ipa l  C ourt, S an  J ose-M ilpita s  J udicial D istrict , 
S anta Clara County ,

Respondent.

The petition for a writ of certiorari is granted.

October 10, 1972



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