Timothy E. Dess v. The State of Montana, and Its Agents, I. E., W. J. Estelle, Jr., Warden of the Montana State Prison

Ninth Circuit

Timothy E. Dess v. The State of Montana, and Its Agents, I. E., W. J. Estelle, Jr., Warden of the Montana State Prison

450 F.2d 939, 1971 U.S. App. LEXIS 7339

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 1, 1971

Docket26105

StatusPublished

This text of 450 F.2d 939 (Timothy E. Dess v. The State of Montana, and Its Agents, I. E., W. J. Estelle, Jr., Warden of the Montana State Prison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Timothy E. Dess v. The State of Montana, and Its Agents, I. E., W. J. Estelle, Jr., Warden of the Montana State Prison, 450 F.2d 939, 1971 U.S. App. LEXIS 7339 (9th Cir. 1971).

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Opinion

PER CURIAM:

The district court, without a hearing, denied appellant’s petition for a writ of habeas corpus, 312 F.Supp. 1325. He appeals. We affirm.

The main thrust of appellant’s appeal is that he has standing to challenge the legality of the search and seizure which, in large measure, led to his conviction. The entire record of the Montana trial court was before the Montana Supreme Court, State v. Dess, 154 Mont. 231, 462 P.2d 186 (1969), and was examined by the United States District Court. Any possible issue of fact on the question of standing was resolved against appellant in the state court. We, too, have examined the entire record and find it supports the decision of the Montana Supreme Court. In these circumstances, we are required to invoke the provisions of 28 U.S.C. § 2254(d), which provide, with some exceptions, for the presumptive correctness of factual determinations made by the state courts. Appellant has failed to bring himself within any of the eight exceptions mentioned in the statute.

Inasmuch as appellant has no standing to challenge the search, we need not reach the issue of consent.

Consequently, the judgment of the lower court must be, and is, affirmed.

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PER CURIAM:

The district court, without a hearing, denied appellant’s petition for a writ of habeas corpus, 312 F.Supp. 1325. He appeals. We affirm.

The main thrust of appellant’s appeal is that he has standing to challenge the legality of the search and seizure which, in large measure, led to his conviction. The entire record of the Montana trial court was before the Montana Supreme Court, State v. Dess, 154 Mont. 231, 462 P.2d 186 (1969), and was examined by the United States District Court. Any possible issue of fact on the question of standing was resolved against appellant in the state court. We, too, have examined the entire record and find it supports the decision of the Montana Supreme Court. In these circumstances, we are required to invoke the provisions of 28 U.S.C. § 2254(d), which provide, with some exceptions, for the presumptive correctness of factual determinations made by the state courts. Appellant has failed to bring himself within any of the eight exceptions mentioned in the statute.

Inasmuch as appellant has no standing to challenge the search, we need not reach the issue of consent.

Consequently, the judgment of the lower court must be, and is, affirmed.

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Bluebook (online)

450 F.2d 939, 1971 U.S. App. LEXIS 7339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timothy-e-dess-v-the-state-of-montana-and-its-agents-i-e-w-j-ca9-1971.

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