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IN RE: Richard S. BUCKLEY (1973)

Court of Appeal, Second District, Division 5, California.

IN RE: Richard S. BUCKLEY, Public Defender, on Behalf of James Ray RUSSELL, on Habeas Corpus.

Cr. 22556.

Decided: April 25, 1973

Richard S. Buckley, Public Defender, James L. McCormick, Paul James, Steve Hough, and Leighton A. Nugent, Deputy Public Defenders, for petitioner. Joseph P. Busch, Dist. Atty., Harry Wood and Eugene D. Tavris, Deputy Dist. Attys., for real party in interest.

The issue raised in this proceeding is whether California is barred by principles of res judicata from making a second try to extradite James Ray Russell to the State of Oklahoma. We hold that, under the facts of this case, res judicata applies.

The procedural history here is relatively simple. Following the issuance of a warrant of arrest by the Governor of California1 Russell was taken into custody. Habeas corpus proceedings followed in the Superior Court of Orange County. Evidence in the form of affidavits and declarations was presented to the court. As might be expected there was a conflict. The Oklahoma offense involved was alleged to have occurred on or about March 25, 1972. The People presented an affidavit by a motel manager that Russell registered at the motel on March 24, 1972. In another affidavit a woman, identified by a defense declaration as Russell's former mother-in-law, stated that she talked to him in Oklahoma on March 25, 1972. Russell presented declarations by his wife and by three friends giving detailed information which, if believed, shows that they were with him in California all of the time on March 25, 1972.

Russell was given a polygraph examination by an experienced polygraph examiner for the district attorney's office of Orange County. It was stipulated that the examiner's report be admitted into evidence and the People further called the examiner as a witness and he testified under direct examination by a deputy district attorney. The examiner's testimony was that he was absolutely satisfied in his own mind that Russell was not in Oklahoma at the time in question and was not involved in the crime.2 No other evidence was presented.

The court stated that it was highly impressed with the testimony of the polygraph operator and that that testimony influenced its decision. The Orange County Superior Court thereupon issued a writ of habeas corpus which stated among other things that ‘it was found that petitioner [Russell] was not within the boundaries of the demanding State of Oklahoma at the time of the offense.’ Russell was ordered discharged.

Subsequently he was rearrested in Los Angeles County and taken before the magistrate as a preliminary step towards his extradition. (Pen.Code, § 1550.1.) Following an unsuccessful attempt to secure a writ of habeas corpus from the Superior Court of Los Angeles County, the instant petition was filed on Russell's behalf in this court.

After Russell's County arrest, the People appealed from the judgment of the Orange County Superior Court pursuant to their right to so do under Penal Code section 1506. During the pendency of this proceeding now before us, the Court of Appeal for the Fourth Appellate District, Division II, dismissed the People's appeal on the ground that it was sham and frivolous and that order of dismissal has since become final.

We are thus faced with the question whether California can bring a second extradition proceeding against Russell. In their initial presentation to this court the People conceded that the doctrine of res judicata was applicable here.3 That concession is a proper one, compelled by the decision of the Supreme Court in a habeas corpus matter entitled In re Crow, 4 Cal.3d 613, 94 Cal.Rptr. 254, 483 P.2d 1206. Despite that concession the People argue, however, that the orange County order was ineffective because the Orange County court acted in excess of its jurisdiction. We find that argument not to be well taken for reasons hereinafter discussed.

Subsequently, during the presentation of this case, the People urged that res judicata should not apply because they intended to produce different evidence at the second extradition hearing.4 That evidence was that following his release from custody after the Orange County proceedings Russell, in a long distance telephone call to his brother in Oklahoma, told his brother that he (Russell) had ‘beaten’ and ‘fooled’ the polygraph. The People indicated that this information was related by the brother to the latter's attorney and by the attorney to an Oklahoma district attorney. The district attorney stated that he and the brother would appear to testify to the matter in the Los Angeles County proceeding.

With this factual background we turn to a discussion of the applicability of res judicata to these proceedings. As indicated, In re Crow, supra, 4 Cal.3d 613, 94 Cal.Rptr. 254, 483 P.2d 1206 is of key importance. There the Supreme Court was faced with the question whether an order of the Superior Court of Sacramento County in a prior habeas corpus matter was binding on the People. The Sacramento court had ordered that Crow be given a new trial. The People failed to appeal at all.5 When the Los Angeles Superior Court to which the matter was referred did not accord a new trial to Crow another habeas corpus proceeding resulted. Discussing the doctrine of res judicata the Supreme Court said ‘The social policies which underlie the doctrine of res judicata and the high purpose of the writ of habeas corpus also conjoin in barring a governmental attempt to relitigate the grant of relief in habeas corpus. The writ of habeas corpus affords an efficacious means of vindicating an individual's fundamental rights. (See Peyton v. Rowe (1968) 391 U.S. 54, 58–59, 88 S.Ct. 1549, 20 L.Ed.2d 426 [429–430].) The doctrine of res judicata prevents the relitigation of issues determined by a final judgment in a prior action between the same parties or those in privity with the original parties. (Norris v. San Mateo County Title Co. (1951) 37 Cal.2d 269, 272, 231 P.2d 493.) A final order or judgment granting relief to a petitioner on habeas corpus is a conclusive determination that he is illegally held in custody; it is res judicata of all issues of law and fact necessarily involved in that result. (In re Bailleaux (1956) 47 Cal.2d 258, 261, 302 P.2d 801; Thuesen v. Superior Court (1932) 215 Cal. 572, 576, 12 P.2d 8; In re Begerow (1902), 136 Cal. 293, 298, 68 P. 773; 24 Cal.Jur.2d, Habeas Corpus, § 102, p. 588; cf. Martin v. Martin, supra, 2 Cal.3d 752, 761, 87 Cal.Rptr. 526, 470 P.2d 662 (citing Bailleaux with approval).)

In this case the People could have appealed the Sacramento order granting habeas corpus relief (Pen.Code, § 1506), but chose not to do so. Hence, after the judgment of the Sacramento County Superior Court became final, the doctrine of res judicata bound the parties to act in accordance with that judgment.' (4 Cal.3d at 623, 94 Cal.Rptr. at 262, 483 P.2d at 1214.)

The case of In re Bailleaux, 47 Cal.2d 258, 261, 302 P.2d 801, cited by the Supreme Court in the quotation set forth above is particularly apt to the problem at hand because it involved an extradition matter. There a California parolee violated his parole when he committed an armed robbery in the State of Washington. California attempted to extradite him from that state when he finished serving his Washington prison sentence. A federal court in Washington ordered his release on writ of habeas corpus, finding that Bailleaux was not a fugitive from California justice.

In some manner not disclosed in the opinion, Bailleaux who had gone to Oregon was returned from that state to San Quentin. Ordering his release from custody our Supreme Court held that the decision of the federal court in Washington, under the doctrine of res judicata, prevented the relitigation of the issue as to whether Bailleaux was a fugitive from California justice. Therefore his subsequent imprisonment was held to be unlawful.

It is now suggested that res judicata should not apply in this case for two reasons: First, it is argued that the Orange County court was without jurisdiction in an extradition hearing to inquire into the guilt or innocence of Russell. That is clearly true. (Pen.Code, § 1553.2; In re Murdock, 5 Cal.2d 644, 648, 55 P.2d 843.) Based on this premise the People urge that in inquiring whether or not Russell was in Oklahoma at the time of the alleged offense, the Orange County court was really determining his guilt or innocence. This argument is not at all well taken.

As the People concede, it is essential in the circumstances of this case that Russell was in Oklahoma on the date of the alleged offense in order to be subject to extradition.6 It is crystal clear that in an extradition hearing the court of the asylum state may inquire into the presence, vel non, of the alleged fugitive in the demanding state. In the Matter of Application of Shoemaker, 25 Cal.App. 551, 144 P. 985, the court long ago disposed of the argument now made when it said (at page 560, 144 P. at page 988) ‘. . . There is no merit in the contention of the Attorney General in the case at bar that the question whether the petitioner was or was not in the state of Illinois when the crime for which his extradition is requested by the latter state [was committed] cannot be reviewed upon habeas corpus because it involves the question of his guilt or innocence of said crime: that is, that by this proceeding he thus attempts to set up an alibi, an element which goes directly to the question of his guilt or innocence. The question presented in this proceeding is not whether the petitioner was present at the scene of the alleged crime when it was committed, but whether he was within the borders of the demanding state at the time said crime was committed. Obviously, if he was not in said state at said time, he cannot be a fugitive from justice . . .’ (See also In re Rock, 161 Cal.App.2d 723, 725, 326 P.2d 865, 866): ‘. . . the warrant of rendition issued by the Governor of this state may not be denied effect on habeas corpus except upon a convincing showing by the petitioner that he is not a fugitive from justice of the demanding state.’ Thus the Orange County Superior Court clearly could resolve the issue of Russell's presence in Oklahoma on the date in question.7

The People's second argument is based upon an annotation at 33 A.L.R.3d 1443.8 There it is said ‘Generally, whether a discharge on habeas corpus of one held for extradition bars a subsequent extradition proceeding depends on whether the court in the second proceeding is asked to pass upon the same matters or on matters different from those considered by the court in the earlier proceeding. Thus, a discharge in an earlier proceeding will bar a later one within the same jurisdiction based on identical issues and evidence. On the other hand, a discharge because of insufficient process or lack of evidence does not bar a subsequent extradition proceeding and is not res judicata in a subsequent habeas corpus proceeding where the process is corrected or additional evidence is presented.’ (33 A.L.R.3d at 1444.) The cases do not support the statement where the very issue of presence in the demanding state has been squarely decided in favor of the accused at the first habeas corpus hearing, and the only additional evidence goes to that very issue, as occurred here.

Absent any compelling California authority to the contrary, we can agree quickly that if a prior writ of habeas corpus has been granted because of a procedural defect in extradition proceedings, there is no bar to a subsequent proceeding. (Pen.Code, § 1496, subd. 2.) Many cases so hold: (E. g. Collins v. Loisel (1923) 262 U.S. 426, 43 S.Ct. 618, 67 L.Ed. 1062; In re White (C.C.Minn. 1891) 45 F. 237; People v. Doherty (1964) 42 Misc.2d 239, 247 N.Y.S.2d 759, reversed on other grounds in 21 A.D.2d 829, 251 N.Y.S.2d 596; People ex rel. Ritholz v. Sain (1963) 26 Ill.2d 455, 187 N.E.2d 241, 242; Ex parte Ray (1921) 215 Mich. 156, 183 N.W. 774; In re Kelly (C.C.D.Minn. 1886) 26 F. 852; State ex rel. Yarbrough v. Snider (1970) 2 Or.App. 97, 465 P.2d 739.)

However, the proposition that a second habeas corpus proceeding is not barred under res judicata principles where additional evidence is presented cannot, unfortunately, help the People here because the Los Angeles County magistrate is being ‘asked to pass upon the same matters' as have been finally ruled upon in Orange County. Some of the decisions cited in support of the People's argument (Desmond v. Eggers (9 Cir. 1927) 18 F.2d 503, Ex parte Schorer (D.C.E.D.Wis.1912) 195 F. 334, and People ex rel. Mark v. Toman (1935) 362 Ill.232, 199 N.E. 124) simply are cases where habeas corpus relief was granted at the first hearing because of purely procedural reasons. There was no determination of a question of law or fact of a final nature other than that the procedure theretofore had was bad. Other cases cited for this proposition (In re Kelly, supra. (C.C.D.Minn. 1886) 26 F. 852 and Ex parte Schorer, supra, (D.C.E.D.Wis.1912) 195 F. 334) involved either a holding or dictum concerning the effect of insufficient evidence in the first hearing (and in the case of Schorer also involved international considerations not present here).

Two of the cases (Ex parte Messina (1939) 233 Mo.App. 1234, 128 S.W.2d 1082 and Wells v. Sheriff, Carter County (Okl. Cr.1968) 442 P.2d 535) are in fact square holdings that a second proceeding is not permissible where extradition has been denied at the first hearing on the ground that the alleged fugitive was not in the demanding state at the time of the offense. In Messina, supra, Kansas tried to procure the extradition of an alleged fugitive from Missouri but extradition was denied at a habeas corpus hearing. Eight years later Kansas tried again. The court denied extradition, pointing out that no ‘new state of facts'9 justified a second try at extradition even though at the hearing held in connection with the second attempt ‘strong and cogent’ evidence was presented as to Messina's presence in Kansas at the time of the alleged offense. The parallel to the present case is obvious. While we are not told what evidence had been produced at the original habeas corpus hearing in Messina, res judicata applied despite the newly produced ‘strong and cogent’ evidence.

It is ironic that Wells v. Sheriff, Carter County, supra, (Okl.Cr.1968) 442 P.2d 535 is perhaps the strongest of the out of state cases illustrating the applicability of res judicata under facts such as those presented here. Wells was decided by the Oklahoma Court of Criminal Appeals. The principle that Oklahoma applied there operates here to bar Oklahoma's demand for Russell's extradition. In that case Arkansas sought to have Wells extradited from Oklahoma. In a habeas corpus hearing the District Court of Marshall County, Oklahoma, after hearing testimony, ordered Wells discharged from custody ‘for the reason that he was not within the state of Arkansas at the time the alleged crim was committed.’ The testimony presented to that court apparently consisted of seven witnesses who testified in Wells' favor. No witnesses appeared in behalf of Arkansas.

After the writ was granted and Wells was discharged from custody, Arkansas dismissed its earlier criminal information and withdrew its extradition request. It then filed a second information and presented a second information and presented a second request for extradition, based on the same offense. When Wells was arrested a second time he first applied to the District Court of Carter County, Oklahoma, for a writ of habeas corpus. That court denied him relief. He then petitioned the Court of Criminal Appeals and, in an original proceeding, that court took testimony. The testimony on behalf of petitioner was the same as that presented at the Marshall County hearing. The State of Arkansas produced a witness who testified that he was an accomplice with Wells to the crime charged and that he and Wells committed the crime together. The court said ‘However, notwithstanding the presentation of the testimony of the alleged accomplice, which would ordinarily be enough to create a conflict of testimony sufficient to deny the writ—concerning whether or not petitioner was in the demanding state on the date alleged—it presently appears that such testimony is directed to a fact already determined by the district court of Marshall County; and, if petitioner's contention is correct that the district court order is res judicata, then the testimony serves no purpose.’ (442 P.2d at 538.) The court continued ‘We are, therefore, of the opinion that public policy demands that the final judgment granted at the habeas corpus hearing on March 31, 1967 by the district court of Marshall County be accorded full faith and credit the same as any other final judgment rendered by a court of record of this State; this being for the reason that the said judgment was rendered on the positive finding of fact, that petitioner was not within the demanding State on the date alleged in the extradition papers. That judgment is therefore, res judicata to the present extradition proceeding which is based on the same facts, and the same charge heretofore adjudicated . . . ¶ . . . [T]his decision is not to be confused with those situations wherein the writ of habeas corpus is granted because of the insufficiency of the extradition papers, or other procedural defects which may be subsequently corrected; nor, those situations wherein other facts and issues are presented, which were not decided or not involved in the prior proceedings; for in those situtations the granting of a writ of habeas corpus may not be res judicata, as to a subsequent extradition demand.

‘We are, therefore, of the opinion, and so hold in this case, that the judgment rendered by the district court of Marshall County, on March 31, 1967 in that court's case No. 8790, is res judicata to the Governor's Warrant on Foreign Requisition issued January 17, 1968, based upon the request for extradition of petitioner, Robert Henry Wells, by the Governor of the State of Arkansas, in Columbia County Circuit Court case No. 4286, subject to the provisions herein stated.10

We do not know of course whether, but for the bar of res judicata, the People would actually be able to prove the statements attributed to Russell that he had ‘beaten’ and ‘fooled’ the polygraph examination. Assuming that they could prove such a statement by competent evidence and that the magistrate believed its truth, it would be galling to be unable to extradite Russell. However, as stated in Ex parte Messina, Supra, 233 M.App. 1234, 128 S.W.2d 1082 ‘The fundamental principles underlying res adjudicata are salutary. If the final judgment of a court having jurisdiction of the persons and of the subject matter be not final and conclusive between the same parties and involving the same dispute or offense then indeed are we drifting on an unchartered sea in a ship with neither sail or rudder.’ 128 S.W.2d at 1084.)

These same principles underlie In re Crow, supra, 4 Cal.3d 613, 94 Cal.Rptr. 254, 483 P.2d 1206 and In re Bailleaux, supra, 47 Cal.2d 258, 261, 302 P.2d 801 and those cases must control as the People originally conceded.

A writ of habeas corpus will issue ordering Russell discharged from custody.



1.  No contention is made in these proceedings that there are any procedural defects in either the papers received from the Governor of Oklahoma or in the warrant issued by the Governor of California. This is a matter of some import to the application of the doctrine of res judicata as we shall shortly show.

2.  ‘Q According to your report, . . . you asked four relative [sic] questions concerning the issue as to whether or not Mr. Russell was involved in a murder committed in Oklahoma in March of 1972; is that correct?‘A Yes, sir.‘Q And prior to asking him those four questions, did you lay a pattern of response out for Mr. Russell that satisfied you that you could detect or you could tell whether or not he was telling the truth to the four initial and essential questions?‘A Yes, sir.‘Q Could you relate which four questions you asked him relating to his activities in Oklahoma and the responses that you received?‘A Yes, the first question was: ‘Were you in Oklahoma at any time this year, 1972,’ and his answer was ‘no.’‘Did you kill a man in Oklahoma this year, 1972’ and his answer was ‘no.’“Have you seen your ex-wife since 1969,' and his answer was ‘no.’“Have you seen your ex-mother-in-law Nyna Leota Colwell since 1969' and his answer was ‘no.’‘There was no deception on any of those questions.‘Q Are you absolutely satisfied in your own mind, based on your experience, . . . that Mr. Russell was not in Oklahoma that time in question and was not involved in that crime?‘A Yes, sir.‘[DEPUTY DISTRICT ATTORNEY] Nothing further.‘THE COURT: . . ., any questions?‘[DEPUTY PUBLIC DEFENDER] No questions, your Honor.’

3.  Their concession was made at a time the Orange County order was not final and the People said that res judicata did not apply here because of that lack of finality. Since that order has become final, the concession must now be taken to be without qualification.

4.  Strangely enough while claiming that they had additional evidence to present, the People at first relied on the ‘official information’ privilege stated in Evidence Code section 1040 and declined to divulge the alleged confidential information except by way of in camera proceedings before us. The People have since publicly disclosed the ‘confidential’ information and stated their intention to introduce it in any subsequent proceedings.

5.  There obviously is no difference in legal result between the finality of an habeas corpus order where the People do not appeal at all and one where their appeal is dismissed and the dismissal has become final.

6.  This is not a case where it is alleged that an act was done in this or a third state resulting in a crime in the demanding state. (Pen.Code, § 1549.1.)

7.  The People also argue that res judicata should not apply because the Superior Court of Orange County should have rejected the stipulation which admitted evidence of the polygraph test. Since the evidence came in by stipulation we do not consider the current controversy as to whether such evidence is of enough scientific reliability to be admissible in the absence of stipulation. It is enough for us to recognize, as the People do, that prior California decisions (People v. Davis, 270 Cal.App.2d 841, 844, 76 Cal.Rptr. 242; People v. Houser, 85 Cal.App.2d 686, 694–695, 193 P.2d 937; cf. People v. Harrison, 129 Cal.App.2d 197, 199–200, 276 P.2d 188) hold that polygraph evidence is admissible pursuant to stipulation. As the People further recognize, the Superior Court of Orange County was bound by those decisions. We should not decline to follow them.

8.  ‘Discharge on Habeas Corpus of One Held in Extradition Proceedings as Precluding Subsequent Extradition Proceeding.’

9.  Seizing on the quoted words (‘new state of facts') the People make the curious argument that if allowed to proceed with their second try at extradition they will refuse to stipulate to the admissibility of the results of the polygraph examination into evidence and that this tactic will present such a ‘new state of facts' as to relieve them from the bar of res judicata. We think that argument deserves no more comment than this footnote gives to it.

10.  In both Ex parte Messina, supra, (Mo.1939) 233 Mo.App. 1234, 128 S.W.2d 1082 and Wells v. Sheriff, Carter County, supra, (Okl.Cr.1968) 442 P.2d 535 the court suggested that application could be made to the original habeas court for a writ of error coram nobis to correct its records. Unfortunately such an application to the Orange County Superior Court would be unavailing here. While the alleged new evidence to be produced in this case did not come into existence until after the Orange County proceedings an applicant for coram nobis, assuming that such relief is available to the People, ‘. . . must also show that the ‘newly discovered evidence [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.’ (People v. Tuthill, 32 Cal.2d 819, 822, 198 P.2d 505, 506 . . .)' (People v. Shipman, 62 Cal.2d 226, 230, 42 Cal.Rptr. 1, 3, 397 P.2d 993, 995.)

COLE,* Justice. FN* Assigned by the Chairman of the Judicial Council.

KAUS, P. J., and STEPHENS, J., concur.

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IN RE: Richard S. BUCKLEY (1973)

Docket No: Cr. 22556.

Decided: April 25, 1973

Court: Court of Appeal, Second District, Division 5, California.

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