In re Allison

Petitioner, an inmate of San Quentin Prison, complains by this application for habeas corpus of the conditions of his confinement. The allegations of the petition, prepared in propria persona, may be construed as charging that he has been denied the right to communicate with counsel and the opportunity to engage in legal research, and that he has been subjected to harassment and acts of brutality by prison personnel.

The writ of habeas corpus may be sought by one lawfully in custody for the purpose of vindicating rights to which he is entitled even in confinement. (In re Riddle (1962) 57 Cal.2d 848 , 851 [ 22 Cal.Rptr. 472 , 372 P.2d 304 ], and cases cited.) We issued an order to show cause and appointed coun

Right to communicate with counsel. Petitioner was convicted in the Sacramento Superior Court on two counts of forcible rape, two counts of oral copulation accomplished by threats of great bodily harm, one count of assault with intent to rape, and three counts of burglary. He appealed from the judgment, and Laurence L. Angelo, a Sacramento attorney, was appointed to represent him. Petitioner alleges that on July 7, 1966, while confined in San Quentin, he received a letter from Mr. Angelo asking him “to let him know about several errors in the Attorney General’s brief, before July 11, 1966”; that the only way a reply would have been timely was by telegram; and that a prison official refused him permission to send such a telegram, saying that petitioner was a “writ writer” and that he wasn’t sending anything for a writ writer. Petitioner alleges the official further told him that three letters petitioner had directed to Melvin Belli, a San Francisco attorney, had not been sent out of the prison. Finally, petitioner alleges that on September 1, 1966, while in isolation, he addressed a letter to Mr. Angelo, but that the letter was returned to him on September 7, with the notation, “postage denied. ’ ’

In In re Chessman (1955) 44 Cal.2d 1 , 9 [ 279 P.2d 24 ], we reaffirmed the rule that ‘ ‘ a prisoner is entitled to, and habeas corpus is available to enforce . . . [his] right, at reasonable times, to consult privately with his counsel in preparation for trial (In re Rider (1920) 50 Cal.App. 797 , 799 [ 195 P. 965 ]; In re Snyder (1923) 62 Cal.App. 697 , 699 [ 217 P. 777 ]; In re Qualls (1943) 58 Cal.App.2d 330 , 331 [ 136 P.2d 341 ]).” (Italics added.) The right to consult includes the right, at reasonable times, to communicate with counsel by mail and, when necessary in the circumstances, by telegram. These rights attach not only while preparing for trial, but also during the pendency of an appeal. When a prisoner is represented by an attorney of record, moreover, it is not unreasonable to limit his exercise of such rights to consultation with that attorney, and to deny him access to other attorneys not of record. (Ibid.) But when the appeal has been decided the attorney of record is ordinarily relieved of further duties in the ease, and this fact may not be used to

Here, however, petitioner has been accorded full measure of his right to communicate and consult with counsel. The prison mail records disclose that during the pendency of his appeal, i.e., until December 1966, letters from petitioner to Mr. Angelo were sent from the institution on at least 23 separate occasions, and replies were received with similar frequency. Contrary to petitioner’s allegation that a prison official refused him permission to send a telegram to Mr. Angelo by July 11, 1966, such a telegram was sent on that date; in it, petitioner instructed Mr. Angelo to “handle those errors the best way you see fit,” and indicated his confidence in his counsel. Other prison records show that during this same period Mr. Angelo made three visits to San Quentin from Sacramento to consult in person with petitioner. As a result of Mr. Angelo’s efforts, the Court of Appeal reversed the judgment against petitioner as to the three burglary counts, while affirming the remainder. (People v. Allison (1966) 245 Cal.App.2d 568 [ 54 Cal.Rptr. 148 ].)

Indeed, petitioner has abused his right to communicate with counsel. Even though Mr. Angelo was his active attorney of record until the denial of a petition for hearing in this court on December 7, 1966, petitioner continued to write letters of unspecified content to other attorneys throughout his appeal. Thus the prison records show letters, which generally went unanswered, mailed for petitioner to such unauthorized at

Opportunity to engage in legal research. Petitioner alleges that he was denied the use of the prison law library from May 25 to June 10, 1966, while his privilege card was suspended, and for the first two weeks of September 1966, while he was in isolation. He charges that on June 6, 1966, his cell was searched and his “legal papers were scattered" and “All the research petitioner had pertaining to his case on appeal was destroyed.” Finally, he complains generally of the inadequacy of the legal materials in the prison library and the hours at which he is permitted to use them. He prays that the warden be restrained from confiscating “any and all papers and legal materials” in his possession and from suspending his privilege card, and show cause why he is depriving petitioner of his “legal rights" to “Daily use of the law library,” “Access to any and all legal reference volumes necessary to aid petitioner on his appeal,” and in the event these facilities prove unsatisfactory, “use of the Marin County Law Library twice weekly, all day. ...”

The fundamental right in issue here is that of reasonable access to the courts. Denial or undue restriction of this right is a denial of the due process of law guaranteed to state prison inmates by the Fourteenth Amendment. (Cochran v. Kansas (1942) 316 U.S. 255 , 257-258 [ 86 L.Ed. 1453 , 62 S.Ct. 1068 ]; Ex parte Hull (1941) 312 U.S. 546 , 549 [ 85 L.Ed. 1034 , 61 S.Ct. 640 ]; De Witt v. Pail (9th Cir. 1966) 366 F.2d 682 , 685; Hatfield v. Bailleaux (9th Cir. 1961) 290 F.2d 632 , 636.) The primary function of the right is to insure full and timely judicial review, if desired by the prisoner, of his judgment of conviction; hence “the state has no power to deny a person the right to file in any court a petition or other document which purports to seek some remedy or relief relating to the offense for which he was imprisoned.” (Italics added.) (In re Robinson (1952) 112 Cal.App.2d 626 , 629 [ 246 P.2d 982 ]; accord, In re Chessman (1955) supra, 44 Cal.2d 1 , 9; People v. Howard (1958) 166 Cal.App.2d 638 , 642-643 [ 334 P.2d 105 ] ; In re Malone (1952) 112 Cal.App.2d 631 [ 246 P.2d 984 ].) A secondary function has developed coincident with the expansion of the scope of relief available to a prisoner on habeas corpus; in this respect the right of access permits

In the present ease the exhibits demonstrate that petitioner has not been denied access to the courts for either of the foregoing purposes. Manifestly he has obtained full judicial review of his judgment of conviction: a timely notice of appeal was filed, and through his attorney he filed opening and closing briefs, argued the case, and filed petitions for rehearing and hearing in this court. During the same period, moreover, he has been permitted to institute in propria persona a variety of proceedings complaining of the conditions of his confinement: thus between the months of June and September 1966, petitioner filed two applications for habeas corpus in the Marin Superior Court and one in the Court of Appeal, as well as two complaints in the United States District Court initiating civil rights actions against prison officials and various state judges, including the members of this court. The allegations of these pleadings are identical to those now before us; and each was denied or dismissed, with the exception of one in which a motion to dismiss is pending. In the same period he also filed the present petition in this court, followed by a supplemental petition making additional charges. Finally, prison mail records show that during the pendency of his appeal petitioner communicated with the clerks or officers of both state and federal courts on literally dozens of occasions.

The distinction between the fundamental right of access to the courts and the privilege here claimed by petitioner was clearly drawn in In re Chessman (1955) supra, 44 Cal.2d 1 , 10: “ prisoners have the right to prompt and timely access to the mails for the purpose of transmitting to the courts statements of facts which attempt to show any ground for relief, but they have no legally enforceable rights to engage in legal research. [Fn. omitted.]” (Accord, In re Ferguson (1961) supra, 55 Cal.2d 663 , 677, fn. 1.) There is no statutory right to engage in such research; nor is there any constitutional duty laid upon the states to provide facilities for that purpose, so long as access to the courts is not thereby unrea

"Inmates have the constitutional right to waive counsel and act as their own lawyers, but this does not mean that a non-lawyer must be given the opportunity to acquire a legal education. One question which an inmate must decide in determining if he should represent himself is whether in view of his own competency and general prison regulations he can do so adequately. He must make the decision in the light of the circumstances existing. The state has no duty to alter the circumstances to conform with his decision.

"Underlying the conclusions stated above is the fact, not to be overlooked, that inmates of a penitentiary are undergoing punishment for crimes of which they have been convicted. ‘ Lawful incarceration, ’ as the Supreme Court said in Price v. Johnston, 334 U.S. 266 , 285 [ 92 L.Ed. 1356 , 1369, 68 S.Ct. 1049 , 1060], ‘brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. ’ ’ ’

The United States Supreme Court denied certiorari ( 368 U.S. 862 ), and subsequent federal decisions are in accord (see, e.g., Lee v. Tahash (8th Cir. 1965) 352 F.2d 970 , 973-974; Roberts v. Pepersack (D. Md. 1966) 256 F.Supp. 415 , 433-434; United States ex rel. Wakeley v. Commonwealth of Pennsylvania (E.D. Pa. 1965) 247 F.Supp. 7 , 13; Austin v. Harris (W.D. Mo. 1964) 266 F.Supp. 304 , 307; but see Johnson v. Avery (M.D. Tenn. 1966) 252 F.Supp. 783 ). As summarized in Siegel v. Ragen (7th Cir. 1950) 180 F.2d 785 , 788, "Obviously the right to practice law or to maintain a law department within the confines of a state penitentiary is not a right secured by the Constitution of the United States.”

In California, nevertheless, legal research facilities have been made generally available to inmates of our state

In Hatfield v. Bailleaux (9th Cir. 1961) supra, 290 F.2d 632 , 640, it was held to be “self-evident” that rules on legal research considerably more restrictive than the foregoing did not deny inmates reasonable access to the courts. The rules here applicable are reasonable; they are responsive to the practical limitations of space, materials, and staff available, and to the necessity of maintaining control over a large number of prisoners confined within narrow bounds. Equally reasonable are the 16-day suspension of petitioner’s library privilege card because of a breach of discipline (see In re Chessman (1955) supra, 44 Cal.2d 1 , 9) and the denial of his use of the library while confined for two weeks in isolation for a further violation of prison rules (see Hatfield v. Bailleaux, supra, 290 F.2d at pp. 637-638). Finally, it is not unreasonable to limit the legal research activities of a prisoner