Gardner v. California/Opinion of the Court
Petitioner is a California state prisoner who filed pro se various papers with the State Superior Court alleging state action that interfered with h § 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 had not impaired petitioner's rights of access to the courts.
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 905, 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.  As 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, 88 S.Ct. 1656, 20 L.Ed.2d 417, to consider whether the rulings below squared with our decisions in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, and Long v. District Court, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290.
We reverse the judgment below. If this involved an appeal from the Superior Court's denial of habeas corpus, the rule of the Griffin 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 why. 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: 
'Every application for a writ of habeas corpus must be verified, and shall state whether any prior 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.  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  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 conscious 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 the appellate court as he would if the merits of an appeal were at stake. A layman hence needs the transcript even more.
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  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 and Long cases where a State granted appeals in criminal cases but in practical effect denied effective appellate review to indigents.
^1 Calif.Penal Code § 1506.
^2 See Calif.Const., Art. 6, § 10; Calif. Penal Code § 1475; Rules 50 and 190, Calif.Rules of Court.
^3 Calif.Penal Code § 1475.
^4 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.'
See also S. Weigel & L. Burke, State-Federal Post Conviction Problems, 1 Federal Judicial Center Report 101 (1968).
^5 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.