619 F.2d 851 (10th Cir. 1980), 79-1003, Yanez v. Romero

Docket Nº:79-1003.
Citation:619 F.2d 851
Party Name:Willie YANEZ, Petitioner-Appellant, v. Levi ROMERO, Warden, Respondent-Appellee.
Case Date:April 07, 1980
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 851

619 F.2d 851 (10th Cir. 1980)

Willie YANEZ, Petitioner-Appellant,

v.

Levi ROMERO, Warden, Respondent-Appellee.

No. 79-1003.

United States Court of Appeals, Tenth Circuit

April 7, 1980

Argued Feb. 14, 1980.

Tova Indritz, Asst. Federal Public Defender, Albuquerque, N. M., for petitioner-appellant.

Andrea R. Buzzard, Asst. Atty. Gen., Santa Fe, N. M. (Jeff Bingaman, Atty. Gen., Santa Fe, N. M., with her on brief), for respondent-appellee.

Before McWILLIAMS, DOYLE and McKAY, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This cause is before us on writ of habeas corpus which challenges a state court conviction of guilty in a criminal case. It is brought pursuant to 28 U.S.C. § 2254. The embattled incident is an arrest which was made in a service station restroom by New Mexico police. The police had observed the defendant and another person enter the restroom and had followed them into the room by bursting into it where they saw a hypodermic needle which gave the appearance of having been used. There were fresh needle marks on the arm of the petitioner. Following their having made observations, petitioner was arrested and transported to a hospital and was then asked to give a urine sample. He refused, and the allegation is that he was threatened with being catheterized in order to secure the sample. He acknowledged that he submitted to the giving of the sample, but did so as a result of the threat. The result of the testing of the sample was positive. The petitioner was then charged with the unlawful possession of morphine. He was found guilty of unlawful possession of morphine and he sought relief in the U.S. District Court for New Mexico. This was denied, and it is this judgment which he seeks to reverse.

The cause was appealed from the state district court to the New Mexico Supreme Court. The conviction was there affirmed, and after exhausting state remedies the present petition for writ of habeas corpus was instituted. The federal trial court denied the petitioner's request for an evidentiary hearing and dismissed the petition.

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The contentions of the petitioner are as follows:

1. That the actual conviction was that of being a narcotics addict in that the morphine that he was convicted of possessing was found solely in his body fluids. The argument is that this conviction is in conflict with Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

2. That the search of his body by means of the urine sample was under threat of catheterization, and this constituted a violation of his constitutional rights.

3. That the court below erred in denying his motion for an evidentiary hearing in order to determine the circumstances under which the urine sample was taken.

I.

Was the conviction violative of Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), in that the defendant was in effect convicted of being an addict? Our answer is no.

Defendant contends that there was no evidence of his possession of narcotics other than that which established that he had morphine or heroin in his body. An effort was made by counsel (for the defendant) to have an evidentiary hearing in order to establish that the defendant was an addict at the time. This was denied.

The California statute under which Robinson was convicted provided that "No person shall use, or be under the influence of, or be addicted to the use of narcotics, excepting when administered by or under the direction of a person licensed by the State to prescribe and administer narcotics." The statute also requires the defense to prove that the case comes within the exception.

The evidence established in Robinson that the subject showed evidence of being an addict and that he had scar tissue and discoloration on the inside of his right arm. Also, the arm showed numerous needle marks and a scab just above the crook of the elbow. The Supreme Court recognized the breadth of the power of a state to regulate the drug traffic, a power which had been outlined in Whipple v. Martinson, 256 U.S. 41, 41 S.Ct. 425, 65 L.Ed. 819 (1921). The Court concluded:

This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the "status" of narcotic addiction a criminal offense, for which the offender may be prosecuted "at any time before he reforms." California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.

370 U.S. at 666, 82 S.Ct. at 1420. The possession of narcotics as a crime was held to be a valid approach and was distinguished. Addiction, on the other hand, was recognized as a disease which could not be the subject of prosecution; that the effort to prosecute violated the Eighth and Fourteenth Amendments.

In Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), the Supreme Court distinguished the situation in which the...

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