# Gardner v. California/Concurrence Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Black
United States Supreme Court
393 U.S. 367
Gardner v. California
Argued: Nov. 20, 1968. --- Decided: Jan 20, 1969
Mr. Justice BLACK concurs in the judgment of reversal and all of the Court's opinion except the statement at 370 that a full stenographic transcript is required here. He is of the opinion that, as stated in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, there may be no necessity for a full stenographic transcript in state habeas corpus cases, and for that reason he would not automatically require the State to supply one in cases like this case.
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
The Court holds today that petitioner, whose application for a writ of habeas corpus was denied in the California Superior Court, is automatically entitled to a free transcript of that proceeding, to aid him in 'preparing' and 'presenting' an entirely new application in the State Supreme Court. In so holding, the Court not only misconceives the nature of California's post-conviction procedure, but it imposes on the State a financial burden which is not offset by any appreciable benefit to the petitioner.
Under § 1475 of the California Penal Code, an applicant denied habeas corpus relief in a lower state court may file an application de novo in a higher court. As the Superior Court below noted, the petition is self-contained and independent of the prior proceeding. (Appendix 43.) The applicant is neither required nor requested to assign errors, or refer to testimony, in the prior proceeding. He must only inform the court that such a proceeding took place and supply collateral data, such as the court in which it was held, the disposition, etc. The initial question for the second court-as it is for any court examining an application for post-conviction relief is whether, taking the factual allegations as proved, the application states a claim upon which relief can be granted. If the court determines that a claim is stated, it will order a referee to conduct an independent evidentiary hearing.
Certainly there can be no constitutional requirement that a court hear, or review the transcript of, testimony in support of factual allegations which, even if proved, would not constitute grounds for relief. Cf. Draper v. Washington, 372 U.S. 487, 495 496, 83 S.Ct. 774, 778-779, 9 L.Ed.2d 899 (1963). Nor will a transcript of a prior habeas corpus hearing materially aid the applicant in framing the allegations in a subsequent petition. To be sure, a transcript of the prior hearing may be an incidental convenience-so, too, would a daily transcript at a criminal trial but the Fourteenth Amendment does not require a State to furnish an indigent with every luxury that a wealthy litigant might conceivably choose to purchase. Cf. id., at 496, 83 S.Ct. at 779.
Neither Long v. District Court, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (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. 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 the 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.

## Notes

* ↑ 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.
* ↑ 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.
* ↑ 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.
* ↑ Similarly, Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (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, 83 S.Ct. 768, 9 L.Ed.2d 892 (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.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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