353 F.2d 119 (8th Cir. 1965), 17884, Harris v. Tahash

Docket Nº:17884.
Citation:353 F.2d 119
Party Name:Paul V. HARRIS, Appellant, v. Ralph H. TAHASH, Warden, Minnesota State Prison, Appellee.
Case Date:December 02, 1965
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 119

353 F.2d 119 (8th Cir. 1965)

Paul V. HARRIS, Appellant,

v.

Ralph H. TAHASH, Warden, Minnesota State Prison, Appellee.

No. 17884.

United States Court of Appeals, Eighth Circuit.

December 2, 1965

Page 120

John S. Connolly, St. Paul, Minn., filed typewritten brief for appellant.

Robert W. Mattson, Atty. Gen., of Minnesota, William B. Randall, Ramsey County Atty., and Henry W. Pickett, Jr., Asst. County Atty., St. Paul, Minn., filed typewritten brief for appellee.

Before VOGEL and MEHAFFY, Circuit Judges, and REGISTER, District judge.

MEHAFFY, Circuit Judge.

Appellant, Paul V. Harris, appeals from an order of the United States District Court of Minnesota denying his petition for a writ of habeas corpus. The issues presented to us are (1) whether the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), is applicable; and (2) whether the District Court erred in denying Harris' petition without a plenary hearing on his allegations.

The facts are more elaborately related in the affirmance of appellant's conviction by the Minnesota Supreme Court, State v. Harris, 265 Minn. 260, 121 N.W.2d 327 (1963), and are briefly summarized below.

At 12:45 a.m. on August 2, 1960, Columbia Heights, Minnesota patrolling police officers were attracted to an automobile parked at an odd angle in a residential area. The automobile was diagonal to the street with the rear end pointing into a driveway eighteen to thirty feet from a trailer holding a boat. The lone occupant was sitting in the driver's seat but was looking to the rear, thus arousing the officers' suspicion that an attempt was being made to steal the boat and trailer. The officers stopped to investigate and were advised by appellant that he had become lost while en route to meet a friend at a nearby grocery store and was just 'sitting there trying to think it over.' A black bag was noticed on the back seat and inquiry was made as to the nature of its contents. Appellant told the officers the bag contained 'a bunch of old clothes,' but in actually concealed a loaded revolver, a 'T' shirt, three red bandana handkerchieves and a blackjack. Appellant was arrested and placed in the police car. A search of the automobile produced another loaded automatic pistol under the front seat, bank books, an extra 1960 license plate, and a key to a room in a Minneapolis hotel.

On December 6, 1960, appellant was convicted in the state court of first degree robbery and received a recidivist sentence for a mandatory term by reason

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of two prior felony convictions. 1 The Minnesota Supreme Court affirmed in State v. Harris, supra, and the Supreme Court of the United States denied certiorari, Harris v. Minnesota, 375 U.S. 867, 84 S.Ct. 141, 11 L.Ed.2d 94 (1963).

Appellant's initial habeas corpus application in the Federal District Court was denied for failure to exhaust available state remedies. Thereafter appellant's habeas writ was filed in the Minnesota Supreme Court, but was denied because the issues pressed had been decided in appellant's original appeal. 2

On August 8, 1964 the District Court again denied appellant's habeas writ without evidentiary hearing, reasoning that the same issues had been fully explored and properly disposed of by the Minnesota Supreme Court. After refusal by the District Court, a certificate of probable cause was granted by this Court on November 27, 1964.

The first issue presented is the applicability of Mapp v. Ohio,supra, since...

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