Beaver v. Hamby

587 F. Supp. 88

Opinions

MEMORANDUM OPINION AND ORDERS

NEESE, Senior District Judge,

Sitting by Designation.

The petitioner applied through pro bono publico-counsel to this Court for the federal writ of habeas corpus. He claims he is in the custody of the respondent-warden pursuant to the judgment of November 20, 1981 of the Criminal Court of Davidson County, Tennessee, division III, and that his detention is in violation of the Constitution of the United States. 28 U.S.C. § 2254(a).

Footnotes

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* Annexed to the petitioner’s application is his affidavit that he is unable to pay the costs of this proceeding or give security therefor and his statement of his belief that he is entitled to redress. 28 U.S.C. § 1915(a). Therefore, the applicant hereby is

AUTHORIZED to commence and prosecute this proceeding without prepayment of fees or costs or giving security therefor. Id.

The applicant claims the exhaustion of his available state remedies on direct review of his judgment of conviction; he claims such judgment was affirmed on January 18, 1983 by the Court of Criminal Appeals of Tennessee, and that his application to appeal further to the Supreme Court of Tennessee was denied May 9, 1983. (He makes no claim of having applied to the courts of Tennessee under its laws for post-conviction relief.)

If the applicant presented his federal claims on such direct review to the appellate courts of Tennessee, and such were rejected, it is not necessary that he apply again to such Courts for collateral relief on the same issues. Brown v. Allen, 344 U.S. 443, 450, 73 S.Ct. 397, 404[2], 97 L.Ed. 469 (1953). It is only where “* * * the States withhold effective remedy, [that] the feder al courts have the power and the duty to provide it * * Frazier v. Lane, 446 F.Supp. 19, 25[5] (D.C.Tenn., per Neese, J., E.D.T., 1977).

“* * * Before an application for the writ of habeas corpus may be granted by the federal court, it must appear in the application that the constitutional questions therein raised have been ruled upon by the state courts. * * *” Application of Ortega, 158 F.Supp. 946, 948[4] (D.C.Ill.1957), cert. den. sub nom. Ortega v. Ragen, Etc., 359 U.S. 928, 79 S.Ct. 612, 3 L.Ed.2d 630 (1959). No such showing is apparent in Mr. Beaver’s present application. See 28 U.S.C. §§ 2254(b), (c).

“* * t [T]he federal claim[s] must [have] be[en] fairly presented to the state court. * * * [I]t is not sufficient merely that the federal habeas applicant has been through the state courts. * * [0]nly if the state courts have had the first opportunity to hear the claim[s] does it make sense to speak of the exhaustion of state remedies. * * *” Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512[1], 30 L.Ed.2d 439 (1971). However, if the applicant does make it appear by amendment or supplement to his petition that such state courts had a full opportunity to determine the federal constitutional issues he seeks to present here, the policies served by the requirement of exhaustion of state-remedies would not be furthered by requiring him to resubmit the identical questions to the state courts. Francisco v. Gathright, 419 U.S. 59, 63, 95 S.Ct. 257, 259, 42 L.Ed.2d 226 (1974).

One ground urged by the applicant relates to the exclusion by the trial judge of certain evidence; the other two grounds relate to an instruction given and the refusal of a requested instruction to his jury. It should be understood that: “* * * The writ of habeas corpus has limited scope; the federal courts do not sit to re-try state cases de novo but rather, to review for violation of federal constitutional standards. * * ®” Milton v. Wainwright, 407 U.S. 371, 377, 92 S.Ct. 2174, 2178[3], 33 L.Ed.2d 1 (1972). A federal constitutional issue would appear not to be implicated in the judicial instruction of the trial judge to the jury, that proof by circumstantial evidence of an element of the crime charged against the applicant required the prosecution to have disproved every reasonable theory except that of the applicant’s guilt. Cf. United States v. Battista, 646 F.2d 237, 246[18] (6th Cir.1981), (citing Holland v. United States, 348 U.S. 121 [, 139-140], 75 S.Ct. 127 [, 137[23]], 99 L.Ed. 150 (1954)), cert. den., 454 U.S. 1046, 102 S.Ct. 586, 70 L.Ed.2d 488 (1981) (but with Justices Brennan and Marshall voting to grant cert. and reverse); cf. (as arguably contra:) United States v. Leon, 534 F.2d 667 (6th Cir.1976) (“[A] verdict of guilty cannot stand on appeal [emphasis added by this writer] where the evidence at most established] no more than a choice of reasonable probabilities"), distinguished in Battista, supra.

There are no indications on preliminary examination and consideration of the applicant’s petition, accordingly, that the petitioner is entitled to relief presently in this Court, if at all, Rule 4, 28 U.S.C. fob § 2254; but, as the applicant is under a sentence of life-imprisonment and represented by private counsel, this Court does not now order dismissal summarily, id. Law and justice seem to require, and it hereby is

ORDERED:

1. that the respondent-warden file an answer or other pleading within 43 days herefrom, 28 U.S.C. § 2243; Rule 81(a)(2), F.R.Civ.P., the slow movement of the mails noticed providing good cause for such additional time, Rule 4, supra;

2. that the petitioner address by brief, exhibits, etc., the questions posed herein-above within 20 days;

3. that the clerk serve forthwith a copy of the applicant’s petition herein and of this order by certified mail on the respondent-warden and the attorney general and reporter of Tennessee, id.; and,

4. the applicant may amend or supplement his original brief at will before further action of this Court.

Although unspecified on behalf of the petitioner, it appears that the claim is that he was denied in the trial which resulted in his current incarceration his federal right to due process of law, Constitution, Fourteenth Amendment, Due Process Clause: "No State shall * * * deprive any person of * * * liberty * * * without due process of law * * Id. "* * * 'A fair trial in a fair tribunal is a basic requirement of due process.' * * *” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642[3], 6 L.Ed.2d 751 (1961).