Redford v. Smith
| Citation | 543 F.2d 726 |
| Decision Date | 09 September 1976 |
| Docket Number | No. 75-1305,75-1305 |
| Parties | Clark James REDFORD, Petitioner-Appellant, v. Samuel W. SMITH, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
James T. Massey, Salt Lake County Bar Legal Services, Inc., Salt Lake City, Utah, for petitioner-appellant.
Robert B. Hansen, Asst. Atty. Gen., Salt Lake City, Utah (Vernon B. Romney, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, Utah, on the brief), for respondent-appellee.
Before LEWIS, Chief Judge, SETH, Circuit Judge, and MORRIS, Chief District Judge. *
Clark James Redford is appealing from the district court's order denying him leave to proceed in forma pauperis in presenting his petition for habeas corpus. Redford was convicted of murder in the first degree. He appealed his conviction to the Supreme Court of Utah where it was unanimously affirmed. State v. Redford, 27 Utah 2d 379, 496 P.2d 884 (1972). In his petition for habeas corpus he raised in the district court the same four points as were raised in his appeal. The facts as reflected by the Supreme Court of Utah opinion and the order of the district court are as follows:
The murder victim's automobile was seen stalled upon a freeway. Redford was seen talking to her while his own automobile was parked immediately behind her car. Soon thereafter the victim's car was found empty, and sixteen days later her body was found near the only standing house in an old abandoned mining town about 40 or 50 miles away. The victim's shoes were found in another area nearby, and other personal items were found in still another area nearby. The house near which the victim's body was found had belonged to Redford's grandmother, and he was acquainted with the house. Entrance to the house had to be made through a window, and fibers from Redford's sweater were found on the windowsill. The victim had been raped and choked to death.
The night before the victim disappeared, Redford confronted another woman at a laundromat. He was wearing a distinctively colored sweater similar to the one he was wearing when he was seen talking to the victim. While at the laundromat Redford threatened this other woman with a knife, ordered her to leave the laundromat quietly with him and get into his automobile.
Following the discovery of the victim's body, the police obtained a warrant to search Redford's automobile but did not use the warrant because Redford willingly sold the car through the agency of his mother to a man who was a part time deputy sheriff. Redford did not know when the sale was made that the purchaser was a part time deputy sheriff.
A search of the automobile revealed strands of hair that were microscopically identical in all characteristics to hairs from the head of the victim. These hairs were found on the plastic and cloth seat covers and floor mats of the automobile.
Redford admits here "that the Utah Supreme Court adequately stated the facts upon which petitioner relies" and that "the facts are . . . accepted" although the conclusions drawn from those facts are not. Memorandum in Opposition to Summary Affirmance of District Court Order, Case No. 75-1305.
Redford's four claims before the district court were:
1. That his constitutional rights were violated when the state trial court admitted into evidence objects seized from the petitioner's automobile during a warrantless search;
2. That his constitutional rights were violated when the trial court permitted the prosecuting attorney over his objection to cross-examine him concerning facts not present in the record;
3. That his constitutional rights were violated when the trial court permitted the prosecuting attorney over his objection to engage in cross-examination that constituted a statement of the prosecuting attorney's belief in his guilt; and
4. That his constitutional rights were violated by the state trial court's improper dismissal of a juror.
The district court examined each claim, wrote an opinion setting forth its reasons in dealing with each claim, and concluded that Redford's motion for leave to proceed in forma pauperis "is frivolous within the meaning of 28 U.S.C. § 1915(d)" and denied him leave to proceed in that fashion. 28 U.S.C. § 1915(d) provides as follows:
"The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious."
On appeal Redford argues that the district court committed error in failing to follow the procedure laid down by this court in Ragan v. Cox, 305 F.2d 58 (10th Cir.1962). In Ragan the district court, without stating any reasons whatsoever, denied the petitioner leave to file in forma pauperis two petitions for habeas corpus. Thereafter, the district court, without stating any reasons and without any certificate that the appeal was not taken in good faith, denied petitioner leave to appeal in forma pauperis. In setting forth the procedure to be followed, we stated:
In several subsequent cases we have held that if there has been substantial compliance with the procedure specified in Ragan, the procedure is adequate. Thus, in Oughton v. United States, 310 F.2d 803 (10th Cir.1962) we stated:
In this instance the file, which was scrutinized by the district court, has been preserved among the records of that court, and is available for our review. While the procedure outlined in Ragan v. Cox, supra, should be followed, the requirements set forth there were substantially complied with in this instance, and we have considered the matter as though the motion to proceed in forma pauperis had been granted and the case then dismissed because it was found to be frivolous. 310 F.2d at 804.
More recently, in Harbolt v. Alldredge, 464 F.2d 1243 (10th Cir. 1972) we reached the same conclusion. Here, as in Harbolt and Oughton, the district court preserved the petition as if it had been filed, examined it and entered an order detailing his reasons for finding the petition frivolous and denied leave to proceed in forma pauperis. Therefore, as in Harbolt and Oughton, we treat the petition as if it had been filed and subsequently dismissed as frivolous. The question on appeal then is whether the action was properly dismissed as frivolous.
Redford has asserted four claims for habeas relief. The first asserts that critical evidence introduced against him was obtained in violation of the fourth amendment. The second and third claims allege that Redford was denied a fair trial because of the manner and content of the prosecuting attorney's cross-examination of Redford. The fourth claim is that he was denied a fair trial and due process because the trial judge dismissed a juror on the ground that the juror could not return a verdict recommending the death penalty. These claims will be discussed separately.
In his first allegation, Redford contends that an automobile search which yielded hairs from the head of the murder victim was unconstitutional. Specifically, Redford claims that a person representing himself as one Bart Holman approached Redford's mother with an offer to buy Redford's car to use as a parts source for a racing car; that Redford's mother did obtain his consent to the sale; that the person representing himself as Bart Holman was actually one Greg Newton and was a part time deputy sheriff. In his petition Redford asserts that Newton's discussion about purchasing the car was "merely a subterfuge for a warrantless search and seizure undertaken by Police Officers investigating the crime of which Redford was ultimately convicted." On appeal from his conviction, Redford argued that this search was improper because it was accomplished by consent which was obtained through deceit, relying on Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), and Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966).
In determining this claim to be frivolous, the district court invoked that portion of 28 U.S.C. § 2254(d) which provides:
"In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit (there follow eight specific exceptions, none of which are alleged or admitted here.)"
The district court examined the published opinion of the Utah Supreme Court affirming Redford's conviction, State v. Redford, 27 Utah 2d 379, 496 P.2d 884 (1972), noted that the Supreme Court had held that the sale of Redford's car "was voluntarily made, and once a sale is consummated, the seller cannot complain about any search which may be made thereafter" and held that the determination by the Supreme Court of Utah "shall be presumed to be correct unless the applicant shall establish" one of the eight circumstances delineated in the statute. The district court also held, in effect, that Redford's fourth amendment claim was groundless, citing Mr....
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