Justus v. State of New Mexico, 9063.

• Decision Date: 27 July 1967
• Docket Number: No. 9063.,9063.
• Citation: 378 F.2d 344
• Parties: Milton Carl JUSTUS, Appellant, v. STATE OF NEW MEXICO, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

378 F.2d 344 (1967)

Milton Carl JUSTUS, Appellant, v. STATE OF NEW MEXICO, Appellee.

No. 9063.

United States Court of Appeals Tenth Circuit.

February 13, 1967.

Rehearing Denied July 27, 1967.

G. Stanley Crout, Santa Fe, N. M., for appellant.

L. D. Harris, Special Asst. Atty. Gen., Albuquerque, N. M. (Boston E. Witt, Atty. Gen., Santa Fe, N. M., with him on the brief), for appellee.

Before PICKETT and SETH, Circuit Judges, and BROWN, District Judge.

PER CURIAM.

The appellant is a prisoner in the New Mexico State Penitentiary, having been convicted in 1954. He filed a petition for a writ of habeas corpus with the United States District Court. An attorney was appointed, and an evidentiary hearing was held. The appellant then took this appeal which is concerned primarily with the voluntary nature of a confession.

Appellant asserts that his initial confession, a written and signed one, was obtained through the application of physical violence by a Texas Ranger during interrogation at Canadian, Texas. This confession was not introduced at the trial, but the officers who subsequently questioned appellant testified as to incriminating statements he then made to them, and testified that he changed his story from time to time. We do not decide whether this written confession carried over into the subsequent oral statements made by appellant or prompted them as this issue is not reached.

The record shows that a voir dire examination of the first witness who was to testify as to incriminating statements was held by the trial court before the testimony was to be presented before the jury. The trial court decided the testimony could be admitted, and it went to the jury. The requirements of Sims v. State of Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (U.S. January 23, 1967), were apparently complied with although they may not be applicable to this 1954 trial. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

The appellant was not able to appeal his case in the proper time, but was granted a delayed appeal. In the meantime he had filed several applications for post conviction relief in the state courts asserting various grounds. One of these petitions in 1956 raised, among others, the issue of a "coerced confession." The state trial court appointed an attorney for appellant, held a hearing on the merits, and denied relief. As indicated above, the New Mexico Supreme Court thereafter heard petitioner's appeal from his jury trial, and affirmed. State v. Justus, 65 N.M. 195, 334 P.2d 1104. The transcript of the trial as prepared for such appeal is a part of the record here. The issue of the voluntary nature of the confession was not discussed in the New Mexico Supreme Court opinion. The issue was not raised in the subsequent petitions for post conviction relief filed by appellant in the state courts. The record shows that some seven or eight petitions have been filed by appellant in the state district courts. Most of these were disposed of summarily. The state supreme court has also considered six or seven...