U.S. Supreme Court GARDNER v. CALIFORNIA, 393 U.S. 367 (1969) 393 U.S. 367

[Page 393 U.S. 367, 368]

had not impaired petitioner's rights of access to the courts.

Under California law, while the State has an appeal from an order discharging a prisoner in a habeas corpus proceeding,[Footnote 1] the prisoner has no appeal where his petition is denied. See Loustalot v. Superior Court, 30 Cal. 2d 905, 913, 186 P.2d 673, 677-678. But he may file a petition for habeas corpus either in the intermediate Court of Appeal or in the Supreme Court.[Footnote 2] As petitioner in the instant case desired to pursue his remedy in the higher courts, he asked for a free transcript of the evidentiary hearing before the Superior Court. His motion was denied and he sought review of that denial by certiorari to the District Court of Appeal. It was denied, as was a timely petition for a hearing in the Supreme Court. We granted the petition for a writ of certiorari, 391 U.S. 902, to consider whether the rulings below squared with our decisions in Griffin v. Illinois, 351 U.S. 12, and Long v. District Court, 385 U.S. 192.

We reverse the judgment below. If this involved an appeal from the Superior Court's denial of habeas corpus, the rule of the Griffin case would prevent California from not allowing petitioner, an indigent, access to the record which makes any appellate review meaningful, while according full review to all who have the money to pay their own way. This, however, is not an appeal but the drafting of a new original petition for habeas corpus to the higher court. That new petition must reflect what had transpired in the Superior Court. The statute provides:[Footnote 3]

[Page 393 U.S. 367, 369]

application or applications have been made for a writ in regard to the same detention or restraint complained of in the application, and if any such prior application or applications have been made the later application must contain a brief statement of all proceedings had therein, or in any of them, to and including the final order or orders made therein, or in any of them, on appeal or otherwise."

It is argued that since petitioner attended the hearing in the Superior Court, he can draw on his memory in preparing his application to the appellate court. And that court, if troubled, can always obtain the transcript from the lower court.[Footnote 4] But we deal with an adversary system where the initiative rests with the moving party. Without a transcript the petitioner, as he prepared his application to the appellate court, would have only his own lay memory[Footnote 5] of what transpired before the Superior Court. For an effective presentation of his case he would need the findings of the Superior Court and the evidence that had been weighed and rejected in order to present his case in the most favorable light. Certainly a lawyer, accustomed to precise points of law and nuances in testimony, would be lost without such a transcript, save perhaps for the unusual and exceptional case. The lawyer, having lost below, would be conscious

[Page 393 U.S. 367, 370]

of the skepticism that prevails above when a second hearing is sought and would as sorely need the transcript in petitioning for a hearing before the appellate court as he would if the merits of an appeal were at stake. A layman hence needs the transcript even more.

It is said that the appellate court may send for the transcript and deduce from it whether there is merit in this new application for another hearing. That philosophy would make the appellate tribunal parens patriae of the indigent habeas corpus litigant. If that would suffice for appellate hearings in habeas corpus, why not in review of cases on appeal? Since our system is an adversary one, a petitioner carries the burden of convincing the appellate court that the hearing before the lower court was either inadequate or that the legal conclusions from the facts deduced were erroneous. A transcript is therefore the obvious starting point for those who try to make out a case for a second hearing. The State can hardly contend that a transcript is irrelevant to the second hearing, where it specifically provides one, upon request, to the appellate court and the State attorney. So long as this system of repeated hearings exists and so long as transcripts are available for preparation of appellate hearings in habeas corpus cases, they may not be furnished those who can afford them and denied those who are paupers.

There is no suggestion that in the present case there is any adequate substitute[Footnote 6] for a full stenographic transcript. We conclude that in the context of California's habeas corpus procedure denial of a transcript to an indigent marks the same invidious discrimination which we held impermissible in the Griffin and Long cases where

[Page 393 U.S. 367, 373]

Neither Long v. District Court, (1966), nor any other decision of this Court, suggests that California's procedure is constitutionally defective. The State in Long simply made "no provision [on an appeal from the denial of habeas corpus] . . . for the furnishing of a transcript without the payment of fee . . .," or for an independent evidentiary hearing at the appellate level. For all practical purposes, an indigent could not effectively obtain review.4 In contradistinction, the California indigent who alleges facts which entitle him to relief is afforded the same opportunity as any other applicant to prove those facts.

In purpose and effect, California's procedure is not dissimilar to the federal rule whereby an indigent appealing the denial of an application for collateral relief is provided a transcript only if "the trial judge or a circuit judge certifies that the . . . appeal is not frivolous and that the transcript is needed to decide the issue presented by the . . . appeal." 28 U.S.C. 753 (f) (1964 ed., Supp. III). Both the state and federal procedures are responsive to the immense volume of frivolous habeas corpus applications and appeals filed in the respective systems. Both procedures are sensible and practical. Both are equitable and fair.

I would affirm.

[Footnote 1] See Form for Petition for Release from or Modification of Custody, as amended effective January 1, 1966, approved by the Judicial Council of California for use under Rules 56.5 and 201 (f) of the California Rules of Court.

[Footnote 2] Under Rule 60 of the California Rules of Court, ante, at 369, n. 4, the court may also order the transcript of the earlier proceeding.

[Footnote 3] In this connection, it is worth noting that petitioner's affidavit in support of his motion for a free transcript stated that the Superior Court ruled against him, "not on the facts of his claims, but as to the interpretation of rights secured by the Fourteenth Amendment." (Appendix 41-42.) The State Supreme Court apparently reached the same conclusion as the lower court, and denied petitioner's subsequent application for a writ of habeas corpus on the merits. I express no view on the merits of petitioner's claims, which are the subject of petitions for certiorari pending this Term in Gardner v. California, No. 7, Misc., and Gardner v. California, No. 10, Misc.

[Footnote 4] Similarly, Smith v. Bennett, 365 U.S. 708 (1961), held it impermissible for a State to condition docketing of a habeas corpus application or allowance of an appeal on the payment of a filing fee; and Lane v. Brown, 372 U.S. 477 (1963), held invalid a procedure under which an appeal from the denial of coram nobis could be perfected only by filing a transcript in the appellate court, when it was within the public defender's exclusive discretion whether or not to request that a free transcript be prepared. The distinctions between these cases and the instant one are too obvious to merit discussion.

[Page 393 U.S. 367, 374]