Petitioner, a California state prisoner, filed a request for
habeas corpus relief, which the Superior Court denied. Under
California law, he has no right of appeal, but may file a new
petition for habeas corpus in the intermediate Court of Appeal or
the Supreme Court. Petitioner desired to file a new petition, and
asked for a free transcript of the evidentiary hearing before the
Superior Court, which was denied.
Under this system of repeated hearings, where
transcripts are readily available to judicial and prosecuting
officials of the State, and where no suggestion is made that there
is any adequate substitute therefor, they may not be furnished to
those who can afford them and denied to those who are paupers.
Griffin v. Illinois, 351 U. S. 12
Long v. District Court, 385 U. S. 192
393 U. S.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner is a California state prisoner who filed , various
papers with the State Superior Court alleging state action that
interfered with his access to the courts for determination of his
claims. The Superior Court, which granted a hearing and designated
the Public Defender's office to represent petitioner at that
hearing, treated the papers as requests for habeas corpus relief.
After hearing, it made findings and held that the State
Page 393 U. S. 368
had not impaired petitioner's rights of access to the
Under California law, while the State has an appeal from an
order discharging a prisoner in a habeas corpus proceeding,
] the prisoner has
no appeal where his petition is denied. See Loustalot v.
Superior Court, 30 Cal. 2d
, 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
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
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
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
"Every application for a writ of habeas corpus must be verified,
and shall state whether any prior
Page 393 U. S. 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
Page 393 U. S. 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 he appellate court as he would if the merits of an
appeal were at stake. A layman hence needs the transcript even
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
] 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
Page 393 U. S. 371
a State granted appeals in criminal cases, but, in practical,
effect denied effective appellate review to indigents.
MR. JUSTICE BLACK concurs in the judgment of reversal and all of
the Court's opinion except the statement at 393 U. S. 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
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
Calif.Penal Code § 1506.
Calif.Const., Art. 6, § 10; Calif.Penal Code §
1475; Rules 50 and 190, Calif.Rules of Court.
Calif.Penal Code § 1475.
Rule 60, Calif.Rules of Court, provides:
"When a petition for a writ of habeas corpus is filed in a
reviewing court, seeking the release from custody of one who is
confined under the process of any court of this State, and the
court, before passing on the petition, desires to obtain
information concerning any matter of record pertaining to the case
of such person, it may order the custodian of the record to produce
the same or a certified copy thereof to be filed with the clerk of
the reviewing court."
S. Weigel & L. Burke, State-Federal Post
Conviction Problems, 1 Federal Judicial Center Report 101
While petitioner had assigned counsel at the hearing before the
Superior Court, that assignment did not cover the preparation of
papers in further pursuit of relief.
Cf. Griffin v. Illinois, 351 U. S.
, 351 U. S.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins,
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 § 1476 of the California Penal Code, an applicant denied
habeas corpus relief in a lower state court may file an application
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
Page 393 U. S. 372
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. [Footnote
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. [Footnote 2/3
Cf. Draper v. Washington, 372 U.
, 372 U. S.
-496 (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 372 U. S.
Page 393 U. S. 373
Neither Long v. District Court, 385 U.
(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. [Footnote 2/4
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
"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.
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
393 U. S. 369
n. 4, the court may also order the transcript of the earlier
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,
7, Misc., and Gardner v. California,
No. 10, Misc.
Similarly, Smith v. Bennett, 365 U.
(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.