Craig Fowler, Charles Jordan and Larry Johnson v. A. R. Jago, Superintendent

683 F.2d 983, 1982 U.S. App. LEXIS 17299

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 20, 1982
• Docket: 80-3583
• Status: Published

Opinions

GILMORE, District Judge.

Habeas petitioners, Craig Fowler, Charles Jordan, and Larry Johnson, with Asa Harris, were indicted by a Cuyahoga County Grand Jury on 33 counts charging them with kidnapping, aggravated burglary, aggravated robbery, and attempted aggravated murder. After a lengthy jury trial in the Court of Common Pleas, petitioners were found guilty of six counts of the indictment: the aggravated burglary and robbery of Andrew Johnson, the aggravated burglary of Judy Winegardner, the aggravated burglary of Catherine O’Brien, the attempted aggravated murder of patrolman William Beranek, and the attempted aggravated murder of Sergeant Richard Spahr. Asa Harris, who had asserted an alibi defense, was acquitted. Substantial sentences were imposed on petitioners.

Circumstances underlying the charges are bizarre. In the evening of May 29, 1974, petitioners forced their way into the home of Judy Weingardner in East Cleveland. Inside were Andrew “School Boy” Jackson and several others. At gun point, everyone was forced to lie down on the floor, and the petitioners proceeded to take money, jewelry, clothing, and household appliances from the home. They loaded all of this material into two automobiles, one belonging to Jackson and the other belonging to petitioner Fowler. All the victims were tied up, except for Jackson and a small child, who were forced into one of petitioners’ cars.

Petitioners then drove to Jackson’s home, which was also in East Cleveland. Upon entering it, they took money, jewelry, guns, and other items that apparently belonged to Jackson. One of the occupants of Jackson’s home was able to telephone the police, who responded to the call. Meanwhile, petitioners started to leave the Jackson home, taking Jackson with them. Jackson, however, broke free and ran to the police, whereupon defendants fled on foot and eventually broke into the home of a family named O’Brien. An extensive police search of the area was commenced and finally focused on O’Brien’s house where the petitioners were hiding. When two officers went to the door, one of the occupants told the police that the men they were looking for had been there but had left. The police, however, remaining suspicious, asked if they could search the house. Upon entering the doorway, the police heard someone inside shout that the defendants were inside. The officers tried to run off the porch but rifle fire from the house forced them to take cover. Two other officers, approaching the O’Brien home by automobile, were hit with rifle fire.

The area was quickly saturated with police. The ensuing gun battle lasted nearly an hour and several police officers were wounded. ' The home was tear gassed, and petitioners eventually fled, taking some of the O’Brien family with them. Two of the O’Briens were shot and wounded. It is not clear who fired the shots, but petitioners assert the police fired the shots hoping to kill petitioners. Fowler, Jordan, and Johnson were arrested around 1:00 a. m. on the morning of May 30 and taken to the East Cleveland Police Station. All were booked and interrogated throughout the morning. Johnson apparently made an oral statement between 4:30 a. m. and 7:00 a. m., and Johnson and Fowler gave oral and written statements some time between 4:00 a. m. and 7:00 a. m.

The petitioners’ version of the events differ substantially from those of the Prosecution. Petitioners claim first that “School Boy” Jackson was a known drug pusher and they had gone to visit Jackson to convert him to their Sunni Muslim religious faith and to persuade him to cease his drug trafficking. It was their claim that Jackson had voluntarily accompanied the defendants from the first house to his own in order to rid himself of certain guns which he had stored there. As they were preparing to leave, Jackson pushed Fowler and started running towards the police, who began to fire. Petitioners claim that Jackson, with the aid of the police, had set them up in order to eliminate the petitioners and to protect his narcotic business, which they claimed he operated with the benefit of paid police protection. It was their claim that the exchange of gun fire which occurred in the evening was initiated by the police, and that they had originally fled from the area and sought refuge at the O’Brien house in fear of their lives. They insisted that they at all times believed that the police were in league with Jackson and that, at Jackson’s instigation, the police were determined to set up and eliminate the petitioners.

Petitioners exhausted all appeals and now appeal the District Court’s denial of their several petitions for writ of habeas corpus filed under 28 U.S.C. § 2254. They raise seven issues on appeal, but one, the admissibility of confessions made by the petitioners, is dispositive, and requires reversal and remand to the District Court for a hearing on the voluntariness of the confessions.

Petitioners claim that they were abused, both mentally and physically, and thus the confessions which were received into evidence were the product of coercion. The police dispute the allegations of abuse. These is clear evidence from photographs that defendants Fowler and Johnson suffered injuries between approximately 1:00 a. m., at the time of their arrest, and 4:00 to 5:00 a. m., when photographs were made. The police admit that injuries occurred, but state that they occurred during arrest scuffles.

Although it is lengthy and tedious, we must look at the conflicting testimony of the parties to resolve the issue. We start with petitioner Jordan. He testified that he was hit with a gun, struck in the face with the butt of a shotgun, and subjected to racial slurs and profanity shortly after he arrived at the police station. He says that upon arriving at the station he was taken to a room where he was beaten. Later, he was booked and taken to a cell. After about 15 minutes, he was removed for questioning and taken back to this cell. He states that Officer Bayerl was largely responsible for his beating. Jordan also testified that he saw Officer Bayerl strike petitioner Fowler with a shotgun; breaking the handle of the gun.

Petitioner Johnson says he was abused at the time of his arrest. He testified that the police tried to break his arm, stepped on his hands, kicked him, hit him in the stomach with a shotgun butt, and threatened him. He claims that ddring the ride to the station, he was hit in the head with a blackjack and in the face with a pistol and a flashlight. While entering the station, he states that his head was rammed into a steel door. He further claims that he was beaten after he got into the station, that a gun was put in his mouth, that an officer spit upon him, and that he was told he would be denied medical attention until after a statement was made. It is undisputed that he suffered injuries to his right eye, had a chipped tooth, and was taken to the hospital several hours after his arrest and received seven stitches in his head. He claims several officers were responsible for his mistreatment.

Petitioner Fowler claims that he was beaten and choked at the arrest scene, and that a cigarette was put out on his leg. He states that he was beaten in the police station with a blackjack, and that a shotgun handle was broken across his jaw. He further claims he saw Jordan being beaten at the station, and that threats were made against his family during the interrogation process.

Mrs. Larry Johnson testified on behalf of the petitioners and said she was not permitted to see her husband until four days after his arrest. When she finally saw him he had a black eye, stitches over his eyebrow, and blood clots around his eye.

In addition to the above testimony, it is undisputed that the petitioners were the subjects of a tear gas bombardment which necessitated medical treatment for some individuals present at the scene. The petitioners received no medical attention prior to their interrogation.

The time sequence of all of the alleged beatings is not totally clear. Petitioners were arrested around 1:00 a. m. and were then taken to the East Cleveland Police Station where they were booked and placed in single-man cells. Formal interrogation seems to have started around 3:00 a. m., and confessions were obtained between 4:30 a. m. and 7:00 a. m.

The police officers’ versions of the events dispute most of the petitioners’ claims. Officer Staimpel, Bayerl, and Freshwater, among others, testified that they did not abuse the petitioners. The facial marks and bruises observed on petitioners Jordan and Johnson were explained as the product of legitimate encounters at the time of arrest, or at the station house. For example, while Officer Horval admits that he pushed petitioner Johnson against a steel door at the station, he claims he did it to prevent Johnson from escaping.

The transcript of the state court’s evidentiary hearing does not explain the injuries received by petitioner Fowler. Not only do some of Fowler’s allegations remain undisputed, the various officers presented conflicting testimony regarding Fowler’s arrest and interrogation. There is nothing in the record disputing the allegation that Fowler, as well as the other two petitioners, was suffering from the effects of tear gas at the time of his interrogation. Officer Copeland testified that he first saw Fowler around 4:30 a. m.; he acknowledged that Fowler had already been interrogated. Copeland stated that he took a written statement from Fowler at about 7:30 a. m. Copeland said that Fowler had a cut on his face and was suffering from the effects of tear gas. Copeland admitted that it is possible that Fowler had a black eye, was bruised around the nose, and had a broken and bleeding nose. He admitted that the police probably hit the petitioners.

Officer Farmer’s testimony does not coincide with that of Officer Copeland. Farmer testified that he interrogated Fowler for about 45 minutes at 3:30 a. m. while Officers Copeland and Dugan were present. Farmer said that he noted nothing unusual about Fowler’s appearance. He claims that Fowler voluntarily agreed to give an oral statement, but would not give a written statement without a lawyer.

The record also reveals undisputed events surrounding petitioner Johnson’s arrest which could indicate that his confession was not voluntary. For example, Officer Look took a statement from Johnson at 4:15 a. m. and admitted that Johnson had a cut over his right eye. Look acknowledged that Johnson was later taken to the hospital. It is not clear from the testimony on the record how this injury occurred. Officer Horval, Johnson’s arresting officer, testified that Johnson was knocked to the ground during apprehension. Horval stated that Johnson suffered a bruised head. Officer McIntosh, who helped remove Johnson from the shoot-out scene, testified that he noticed injuries to Johnson’s eye before Johnson got in the car. However, McIntosh stated that, if his testimony conflicted with Horval’s, he (McIntosh) was mistaken. Officer Kaminski, who interrogated Johnson around 4:00 a. m., said Johnson may have had a puffed eye.

Finally, it was undisputed that petitioner Johnson was stripped naked in the presence of a police woman.

In the face of these highly disputed facts and contradictory testimony, the state trial judge made only the following findings at the conclusion of the hearing: “With respect to the motion to suppress the statements, I find the statements were voluntarily given and were not given because of threats, coercion, and abuse.” No further findings were made.

The statements were admitted at trial, and petitioners were tried and found guilty, as indicated above. Substantial prison sentences were imposed and all state appeals were exhausted.

Petitioners then filed a habeas corpus petition in the United States District Court for the Northern District of Ohio. Judge Thomas, after reviewing the record made in the state court, denied the petition without an evidentiary hearing, concluding that the state court’s determination was fairly supported by the record. We find that the district judge erred in relying on the conclusions of the state trial judge, and that this matter must be reversed and remanded to Judge Thomas for a testimonial hearing by him on the voluntariness and admissibility of the confessions involved.

Federal courts reviewing state criminal convictions on writs of habeas corpus have broad power to hold de novo evidentiary hearings. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The decision to hold an evidentiary hearing is, in many cases, within the sound discretion of the trial judge. In certain situations, however, the exercise of the federal court’s power to try the facts anew is mandated. In Townsend, supra, the Supreme Court held that “a federal evidentiary hearing is required unless the state court trier of fact has after a full hearing reliably found the relevant facts.” 372 U.S. at 312-13, 83 S.Ct. at 756-57. The Court further held that an evidentiary hearing must be granted under the following circumstances:

“If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.”

372 U.S. at 313, 83 S.Ct. at 757.

Thus, in order to eliminate the need for an independent federal evidentiary hearing, the district court must examine the findings of the state court to determine whether the state trier of fact reliably found the material facts and rejected the claim on its merits. In some situations, where the state court has not articulated express findings, it may be possible for the federal court to reconstruct the findings of the state trier of fact. If these findings can be inferred from the record, the federal court need not hold its own evidentiary hearing.

In 1966, three years after the decision in Townsend, Congress codified a good part of the Townsend holding in 28 U.S.C. § 2254(d),¹ Act of November 2, 1966, 80 Stat. 1105. Although on its face the statute does not govern when a federal court must hold an independent evidentiary hearing,² it does require that state court findings of fact made after a full and fair hearing are entitled to a presumption of correctness. If the findings of the state court meet the indicia outlined in § 2254(d), the state court determination is presumed to be correct. Nevertheless, the presumption and special burden of proof do not operate at all if any one of the eight specified exceptions to the statute exists. These eight exceptions appear to subsume the six Townsend criteria. Thus, the determination that one of the six Townsend criteria exists necessarily resolves the § 2254(d) burden of proof issue. If one of the Townsend criteria is present, the district court must hold an evidentiary hearing and the presumption of correctness does not apply. Conversely, if the presumption is operative, an evidentiary hearing cannot be mandated.

Under both Townsend and § 2254(d), therefore, the district court must conduct an inquiry into whether the state court has adequately resolved the factual issues contained in the petitioner’s constitutional claim.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), at 323, the Supreme Court defined the broader duties of federal courts in dealing with state habeas cases. It said:

“The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. .. . What it does not presume is that these state proceedings will always be without error in a constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitutional error did occur — reflecting as it does the belief that the ‘finality’ of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right— is not one that can be so lightly abjured.” (emphasis added)

This language provides a succinct explanation of the role § 2254(d) plays in collateral view of constitutional error in state court findings of fact. It clearly points up the constitutional need for federal courts to know that state court findings are reliable.

Federal courts have an obligation to ascertain whether the state court found the relevant facts and applied the correct standard of law. As pointed out in United States ex rel. Williams v. LaVallee, 487 F.2d 1006 (2d Cir. 1973):

“[Tjhe habeas court must itself insure that the relevant facts were found and that the correct legal standard was applied to them, [cites omitted] It is only where ‘it can scarcely be doubted’ that the relevant factual issues have been resolved against the petitioner and that ‘there is no evidence that the state trier utilized the wrong legal standard’ that § 2254 requires the habeas court to dismiss a subsequent petition without an independent evidentiary hearing.” (emphasis in original)

Id. at 1010-11.

Thus, this court must examine the findings of the state judge to determine if they are adequate to support the presumption of correctness under § 2254(d). These findings must be sufficient to enable the district court to fulfill its obligation to determine that they are supported by the evidence and that the correct standards of law were applied. The federal district court may dismiss the petition without a hearing only if the findings of the state judge are sufficient to enable the federal district judge to determine that they are supported by the evidence and that the correct standards of law were applied.

In LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973), the Supreme Court discussed the adequacy of the state court’s findings under 28 U.S.C. § 2254(d).³ In LaVallee, the respondent’s conviction for murder was based on two confessions that were found to be voluntary in subsequent New York state court proceedings. The state court heard testimony and, after an extensive summary of the evidence, concluded:

“On all the evidence, both at the trial and at the hearing and after considering the totality of the circumstances, including the omission to warn defendant of his right to counsel and his right against self incrimination, I find and decide that the respective confessions to the police and district attorney were, in all respects, voluntary and legally admissible in evidence at the trial ...”

410 U.S. at 691, 93 S.Ct. at 1204.

In subsequent federal habeas proceedings, the district court felt unable to accord the state court the presumption of correctness because the state trial judge did not articulate to what extent he credited or rejected the respondent’s testimony. The district court held its own hearing, found the confession involuntary, and ordered the respondent discharged unless he was retried. The Court of Appeals affirmed on the ground that the state court’s factual determination on voluntariness did not meet the standards of 28 U.S.C. § 2254(d).

The United States Supreme Court reversed in a five to four opinion, holding that the state trial judge’s determination of the totality of the circumstances evidenced that he had applied correct voluntariness standards. The Court further noted that since the district court could have been reasonably certain that the state trial judge would have granted relief if he had believed respondent’s testimony, the federal courts erroneously concluded that the opinion of the state trial court did not meet the requirements of § 2254(d)(1).

In LaVallee, the petitioner relied primarily on his own testimony to prove involuntariness, and ended up contradicting his own claims. The state presented evidence directly refuting the petitioner’s allegations. The Supreme Court’s opinion says, in essence, that the district court was required to assume that the state court had found that the petitioner’s allegations were incredible. This assumption was based on the theory that the state court would have granted relief if it had decided to believe the petitioner, since there was every indication that the state trial judge applied the correct standards.

Although LaVallee emphasizes that federal courts must, in general, defer to the determination of the state trier of fact and assume that the state trier correctly resolved the facts, such an assumption is not warranted in all eases. In Townsend, supra, the Court anticipated the situation we face here.

“If the state court has decided the merits of the claim but has made no express findings, it may still be possible for the District Court to reconstruct the findings of the state trier of fact, either because his view of the facts is plain from his opinion or because of other indicia. In some cases this will be impossible, and the Federal District Court will be compelled to hold a hearing.

“Reconstruction is not possible if it is unclear whether the state finder applied correct constitutional standards in disposing of the claim. Under such circumstances the District Court cannot ascertain whether the state court found the law or the facts adversely to the petitioner’s contentions. Since the decision of the state trier of fact may rest upon an error of law rather than an adverse determination of the facts, a hearing is compelled to ascertain the facts. Of course, the possibility of legal error may be eliminated in many situations if the fact finder has articulated the constitutional standards which he has applied.

Unless the district judge can be reasonably certain that the state trier would have granted relief if he had believed petitioner’s allegations, he cannot be sure that the state trier in denying relief disbelieved these allegations. If any combination of the facts alleged would prove a violation of constitutional rights and the issue of law on those facts presents a difficult or novel problem for decision, any hypothesis as to the relevant factual determinations of the state trier involves the purest speculation. The federal court cannot exclude the possibility that the trial judge believed facts which showed a deprivation of constitutional rights and yet (erroneously) concluded that relief should be denied. Under these circumstances it is impossible for the federal court to reconstruct the facts, and a hearing must be held.”

372 U.S. 314 through 316, 83 S.Ct. 757 through 759.

Thus, Townsend clearly indicates that the district court’s ability to infer factual findings and the deference accorded state court decisions depends upon the facts of the individual cases.⁴ Indeed, the Court in LaVallee indicated the same standard when it said:

“Under these circumstances, we think the District Court could have been reasonably certain that the state court would have granted relief if it had believed respondent’s allegations.”

410 U.S. at 695, 93 S.Ct. at 1206.

As noted above, LaVallee indicates that the district court must accept the findings and conclusions of the state judge only if it “can scarcely be doubted” that the state court resolved all relevant factual issues against the petitioner and if “there is no evidence that the state trier utilized the wrong standards.” 410 U.S. at 692, 695, 93 S.Ct. at 1204, 1205. See United States ex rel. Williams v. LaVallee, 487 F.2d 1006, 1011 (2d Cir. 1973).

The state judge’s findings in the instant case cannot meet these exacting standards. The findings are conclusory and do not give assurance that the trier of fact applied the correct standards of law. Moreover, in contrast to LaVallee, the facts in the instant case do not mandate the assumption that the state court judge believed the police because he found that the confessions were voluntary. The question here is not just one of the petitioners’ credibility; rather, there is undisputed evidence that could indicate coercion, as well as an admission by the prosecutor that the petitioners “were not treated gently.”⁵

The testimony offered by the police was often contradictory and did not totally refute petitioners’ claims. For example, Officer Copeland conceded that Fowler had probably been struck. He also conceded that Fowler’s face showed evidence of some trauma. A comparison of pictures taken of Fowler at the time of his arrest with identification photos at the station indicates that Fowler’s face sustained some type of blow. These pictures and the testimony of Officer Copeland remain entirely unexplained.

Even if we assume that the state judge resolved all factual disputes against the petitioners, we still are faced with unexplained events that could possibly render the confessions involuntary. This indicates that the state court either did not resolve the merits or failed to apply the proper standard. Did the state court find, for example, that there was coercion and physical violence, but that the confessions were still voluntary? Or, did it conclude that no coercion was used against petitioners? If it reached the latter conclusion, the findings would be clearly erroneous, for there is clear evidence on the record indicating that force and coercion were used against petitioners, particularly with reference to Fowler. This court cannot evaluate the appropriateness of the state court’s conclusion because the state trial judge has given no indication that he applied the appropriate legal standard. The factual disputes in this case are so frequent and so dramatic that they call for specific credibility resolution by a judge.

Here we do not know the basis for the findings of the state court. This case is not like LaVallee, where the findings of the state court could be easily inferred because of a clear-cut conflict in testimony. The conflict here cannot be resolved by believing one witness against another. The fact situation presents far too many relevant conflicts in testimony.

Since we cannot determine the basis for the state court’s conclusion, we are of the opinion that the district judge should not have accorded the state trial judge’s findings a presumption of correctness, but should have held an evidentiary hearing. The need for such a hearing is compelled by the failure of the state trial judge to articulate the legal standard applied in making the determination of voluntariness, or the factual findings upon which it was based in light of the complex facts of this case.⁶

In reaching this conclusion, the court is cognizant of its responsibility to state reasons for concluding that one or more of the factors listed in § 2254(d) are present. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). We believe that the long reiteration of the questions raised by the testimony at the state court hearing fulfills this obligation.

Nor is the court unmindful of the admonition of the Supreme Court in its most recent decision in the Sumner case. Sumner v. Mata, - U.S. -, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). We are fully aware that the underlying facts as found by the state court are governed by a statutory presumption of correctness. As stated in Sumner II, we are bound to defer to the state court’s findings of fact, “unless one of the factors listed in § 2254(d) is found.” Sumner v. Mata, supra, at -, 102 S.Ct. at 1307. After a review of the facts in this case, we find that the state court failed to resolve the merits of the factual dispute as required by § 2254(d)(1).

This court cannot determine the basis for the state trial judge’s decision, and, we, therefore, cannot assume that the state trial judge did not reach an erroneous decision. The district court cannot infer findings and assume the proper standard was applied because the findings cannot be reconstructed from an examination of the record. Where findings cannot be inferred, and where there has been no articulation of the standards used by the state trier of fact, the district court must hold its own hearing.⁷

Further, the ultimate question as to the constitutional admissibility of the confession in this case is a mixed question of fact and law that is not governed by § 2254. The Supreme Court, in Sumner v. Mata, supra, said:

“We agree with the Court of Appeals that the ultimate question as to the constitutionality of the pretrial identification procedures used in this case is a mixed question of law and fact that is not governed by § 2254. In deciding this question, the federal court may give different weight to the facts as found by the state court and may reach a different conclusion in light of the legal standard.”

- U.S. at -, 102 S.Ct. at 1306-07.

Therefore, for the reasons given, this case is remanded to the district court for the purpose of holding a full testimonial hearing as to the admissibility of the confessions and making findings of fact and law thereupon. This court retains no further jurisdiction. Reversed and remanded.

1 . 28 U.S.C. § 2254(d) provides that in any habeas corpus proceeding a determination after hearing on the merits of a factual issue made by a state court of competent jurisdiction, evidenced by a written finding, or other reliable or adequate written indicia, will be presumed to be correct. There are eight exceptions to the presumption of correctness, including a finding that the merits of the factual dispute were not resolved by the state court hearing or that the factual determination of the state court was not fairly supported by the record.

2 . In the dissent to LaVallee v. Delle Rose, 410 U.S. 690, 701 n.2, 93 S.Ct. 1203, 1209 n.2, 35 L.Ed.2d 637 (1972), Justice Marshall says, "... [T]he question whether such a hearing is appropriate on federal habeas corpus continues to be controlled exclusively by our decision in Townsend v. Sain even after the enactment of § 2254(d). See Developments in the Law— Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1141 (1970). ...”

3 . As indicated above, state court findings must meet the same standards under both Townsend and § 2254(d).

4 . We are well aware that the opinion in Townsend states: “Thus, if third-degree methods of obtaining a confession are alleged and the state court refused to exclude the confession from evidence, the district judge may assume that the state trier found the facts against the petitioner, the law being, of course, that third-degree methods necessarily produce a coerced confession.” 372 U.S. at 315, 83 S.Ct. at 758. The problem in this case is that we do not know, because of the complexity of the record, that the state court necessarily found the facts against the petitioner.

5 . It is important to remember that the interrogation in this case took place under volatile and emotional circumstances. The petitioners were apprehended after a gun battle which lasted at least one hour and involved extensive tear gas bombardment, the wounding of two police officers and the wounding of two civilians.

6 . In reaching this conclusion, we are not unaware of Berry v. Cowan, 497 F.2d 1274 (6th Cir. 1974). There the Court found that the state court demonstrated that proper constitutional standards had been met. Here the record does not show that proper constitutional standards were met.

7 . We do not suggest that the conclusion of the state trial judge was wrong. We do not know. What was wrong was his failure to give articulated reasons for his conclusions in a case in which it was not obvious why he reached his conclusions.