Mason v. Dunbar (317 F.2d 358, 1963)

PER CURIAM.

Number 18,360

Appellant appeals from a refusal to grant him a writ of habeas corpus.

Appellant is in custody of appellees at the California Men’s Colony, Los Padres, California, pursuant to a judgment rendered by the Superior Court of the State of California for the County of Los Angeles. He was convicted of two counts of grand theft and six counts of violating the Corporate Securities Act in that he made unpermitted sales of stock to various persons for profit. Upon conviction, appellant was sentenced to be imprisoned for the term prescribed by law. The conviction was affirmed. People v. Mason, 86 Cal.App.2d 445, 195 P.2d 60.

Thereafter, upon motion of appellant, execution of sentence was suspended and probation was granted on January 4, 1949, conditioned on appellant making restitution and following the usual conditions of the probation department. The probationary period was ten years. People v. Mason, 184 Cal.App.2d 182, 185, 7 Cal.Rptr. 525.

On December 16, 1958, appellant’s probation was revoked. On February 24, 1959, a hearing on an alleged violation of the terms of appellant’s probation (the violation is the subject of the companion case in No. 18,361) was held. Probation was revoked and appellant was sentenced to be imprisoned for the term prescribed by law. (A copy of the judgment is attached to Appellant’s Opening Brief, at p. 74, as Exhibit “A 5” and is incorporated herein by reference and made a part hereof as though fully set forth.) People v. Mason, supra, 184 Cal.App. 2d 182, 186, 7 Cal.Rptr. 525.

An appeal from said judgment was taken to the District Court of Appeal of the State of California in and for the Second Appellate District, Division One. In that appeal the precise issue presented in the application for a Writ of Habeas Corpus, below, was presented and decided adversely to appellant’s contention. After a full hearing, by unanimous decision the District Court of Appeal affirmed the judgment. The opinion is reproduced in People v. Mason, supra. A rehearing was denied on September 12, 1960, and a hearing was denied by the Supreme Court of California on October 19, 1960. Appellant’s application for a writ of certiorari was denied without opinion, April 24, 1961, by the United States Supreme Court in 366 U.S. 904, 81 S.Ct. 1046, 6 L.Ed.2d 203.

In his application for a Writ of Habeas Corpus, appellant contended that he was deprived of his liberty in violation of the due process guaranty of the Fourteenth Amendment to the Federal Constitution when the sentencing court revoked his probation and imposed sentence after the expiration of the probationary period. (The District Court of Appeal found that appellant’s probation was revoked on December 16, 1958, well within the probationary period. People v. Mason, supra, 184 Cal.App.2d 182, 186, 188, 7 Cal.Rptr. 525.)

The basis of the due process argument was that the trial court, under California law as enunciated in Penal Code, Sections 1203.2 and 1203.3 and as construed in the decisions of California appellate courts, was in excess of its jurisdiction in imposing sentence after the expiration of the probationary period. The District Court of Appeal found “The jurisdictional fact is the timely revocation of probation.”

The appellate courts of the State of California have consistently construed the statutory law of California as permitting a hearing to the probationer after the expiration of the probationary period providing there was a timely revocation. See, People v. Williams, 24 Cal.2d 848, 151 P.2d 244; People v. Hubert, 204 A.C.A. 686, 687, 22 Cal.Rptr. 450; People v. Mason, supra, 184 Cal.App.2d 182, 7 Cal.Rptr. 525.

It is fundamental that the interpretation of local law by a state’s highest tribunal is binding upon the Federal courts in a habeas corpus proceeding. Paterno v. Lyons, 334 U.S. 314, 319, 68 S. Ct. 1044, 92 L.Ed. 1409.

No substantial Federal question having been presented by the petition herein, the district court’s dismissal of the petition, and its refusal to issue a writ of habeas corpus, are each affirmed.

Number 18,861

Appellant is a State court prisoner. He appeals from the denial in the district court of a petition for a writ of habeas corpus. He was convicted of conspiracy on one count; of violating the Corporate Securities Act of the State of California on seven counts; and of grand theft