667 F.2d 1364 (11th Cir. 1982), 80-7780, Dickerson v. State of Ala.

Docket Nº:80-7780.
Citation:667 F.2d 1364
Party Name:Howard L. DICKERSON, Petitioner, v. STATE OF ALABAMA, Respondent.
Case Date:February 16, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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667 F.2d 1364 (11th Cir. 1982)

Howard L. DICKERSON, Petitioner,



No. 80-7780.

United States Court of Appeals, Eleventh Circuit

February 16, 1982

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[Copyrighted Material Omitted]

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Fulford, Pope & Minisman, B. G. Minisman, Jr., Mark Elliott Hoffman, Birmingham, Ala., for petitioner.

Elizabeth Ann Evans, Asst. Atty. Gen., Montgomery, Ala., for respondent.

Appeal from the United States District Court for the Northern District of Alabama.

Before TUTTLE, HENDERSON and HATCHETT, Circuit Judges.

TUTTLE, Circuit Judge:

Petitioner Dickerson, an Alabama state inmate, appeals from the denial of his petition for a writ of habeas corpus. Dickerson was arrested and charged with the robbery of approximately seventy-eight dollars worth of "Class A" drugs from a Scottsboro, Alabama drugstore. He was convicted in the Circuit Court of Alabama, Jackson County, and sentenced to imprisonment for a period of thirty years. This conviction was affirmed in a written opinion issued by the Alabama Court of Criminal Appeals. 362 So.2d 1322 (Ala.Cr.App.1978). The Alabama Supreme Court denied certiorari on January 16, 1979.

Dickerson then filed a petition for writ of error coram nobis, alleging fifteen grounds in support of his petition. Finding that all but two of these grounds had been decided against Dickerson on direct appeal, the state court took evidence on the remaining two issues and denied the petition on March 1, 1979. Such denial was affirmed without opinion by the Alabama Court of Criminal Appeals on August 21, 1979. The Alabama Supreme Court denied certiorari on September 25, 1979.

Having exhausted his state court remedies, Dickerson filed a pro se petition for writ of habeas corpus in the United States District Court for the Northern District of Alabama. This petition alleged seven grounds for reversal of his conviction. After ordering the State of Alabama to transmit a copy of the state court's coram nobis transcript, the district court entered a memorandum opinion denying Dickerson's petition without an evidentiary hearing. The district court found that six of these seven grounds 1 had been decided against Dickerson in his direct appeal to the Alabama Court of Criminal Appeals, and that the Alabama Court's written opinion was adequately supported by the record.

Dickerson now appeals from the denial of his petition raising two substantive issues. 2 First, he alleges that his Sixth and Fourteenth Amendment rights to compulsory process were violated when the state court refused to grant a continuance to enable him to procure the attendance of an alibi witness. Second, Dickerson contends that he was deprived of his constitutional right to an impartial jury when it was discovered after trial that one of the jurors who worked in the police department had typed the investigating officer's report in this case.


Before reaching the merits of Dickerson's claims, we must address the rather unusual problems which have arisen concerning the record in this case. In its order denying Dickerson's petition, the district court stated that the state appellate court's opinion was adequately supported by the record. Upon our review of the record on appeal, we discovered that the district court could not have properly made such a determination since the state court trial transcript in

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this case was never made a part of the habeas corpus record. Instead, the district court had before it only the transcript of the state coram nobis proceedings which did not contain an independent review of the issues decided by the state appellate court and raised in the federal habeas corpus action. 3 In his appellate brief, Dickerson recites several legally significant facts which can be found in the state trial transcript but which were omitted from the state appellate opinion on which the district court relied.

The State of Alabama has consistently urged us to decide this case on the basis of the materials which were originally presented in the record on appeal. Thus, the state would have us ignore the facts in the trial transcript in deciding the merits of this case. The state also contends that we may not correct the district court's oversight by supplementing the record on appeal. 4 Apparently, the bases for this objection are that the State has never commented on this transcript and that the district court has never had an opportunity to review it.

While federal appellate courts do not often supplement the record on appeal with evidence not reviewed by the court below, it is clear that the authority to do so exists. 5 See, e.g., Erkins v. Bryan, 663 F.2d 1048, 1052 n.1 (11th Cir., 1981); United States v. Aulet, 618 F.2d 182, 187 (2d Cir. 1980); Turk v. United States, 429 F.2d 1327, 1329 (8th Cir. 1970); Gatewood v. United States, 209 F.2d 789, 792-93 (D.C.Cir.1953). Whether an appellate record should be supplemented under the particular circumstances of a case is a matter left to the discretion of the federal courts of appeals. Cf. Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) (issues raised for the first time on appeal). For several reasons, we view it appropriate to include the state court trial transcript in the record of this case. First, we believe that the proper resolution of the substantive issues in this case, when viewed in the context of all of the relevant historical facts, is beyond any doubt. Id. Second, a decision to remand this case for the sole purpose of allowing the district court to review the several additional significant facts contained in the transcript would be contrary to both the interests of justice and the efficient use of judicial resources. At least one dispositive issue in this appeal raises a pure question of law and, thus, there is no need for an evidentiary hearing to be held. 6 Counsel for the State of Alabama

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cannot in good faith contend that they were without notice of the existence of this transcript or of its contents. Finally, it should be remembered that, in effect, we are here reviewing the district court's review of the habeas corpus claim of a state prisoner. 7


When reviewing a federal habeas petition made by a prisoner in state custody, a federal court is required to follow the statutory criteria set forth in 28 U.S.C. § 2254 (1976). This statute provides that federal courts are to accord a presumption of correctness to factual determinations made by a state appellate court unless one of eight specific circumstances is found to exist. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

The State of Alabama argues that we are foreclosed from finding a constitutional violation in this case because we must apply a presumption of correctness to certain determinations made by the state appellate court. The state's argument regarding the proper application of section 2254 to this case is two-fold. First, the state argues that section 2254 requires this Court to base its decision in this case solely on the facts contained in the state appellate court opinion. We disagree. The factual determinations of a state appellate court are to be accorded a presumption of correctness only to the extent that they are "fairly supported by the record." 28 U.S.C. § 2254(d) (8) (1976); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 769-70, 66 L.Ed.2d 722 (1981); Solomon v. Smith, 645 F.2d 1179, 1184, n.2 (2d Cir. 1981); Taylor v. Lombard, 606 F.2d 371, 375 (2d Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1346, 63 L.Ed.2d 781 (1980). Our independent review of the state trial transcript reveals that while the state appellate opinion correctly states most of the facts developed at trial, it fails to include several legally significant facts such as the identity of the alibi witness as a police officer and the three witnesses as Dickerson's close relatives or friends. Thus, at least to the extent of the omission of these legally sufficient facts, the state appellate court's decision is not "fairly supported by the record."

Second, the state argues that section 2254 requires this Court to presume that the state appellate court's holding is correct. The Alabama Court of Criminal Appeals held alternatively that either the defense counsel's statements were not definite enough to constitute a request for a continuance or that the trial court did not abuse its discretion in denying this request. 8 362 So.2d at 1324-25. We find that the presumption of correctness required by section 2254(d) is not applicable to this holding by the state appellate court. A federal court is not bound by a state appellate court's determination of a question of law or of a mixed question of law and fact. E.g., Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-1715, 64 L.Ed.2d 333 (1980); Panzavacchia v. Wainwright, 658 F.2d 337, 339 (5th Cir. 1981). Whether certain statements are sufficiently definite to constitute a request for continuance is, at the least, a mixed question of law and fact. A trial judge's discretionary power to deny a motion for continuance is necessarily limited by the Sixth Amendment right to compulsory process and any denial of an accused's attempt to present testimony in his behalf must be weighed against that right. United States v. Davis, 639 F.2d 239, 244 (5th Cir. 1981). The determination of

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whether the denial was such an abuse of discretion as to violate an accused's Sixth Amendment right is a question of law. Hicks v. Wainwright, 633 F.2d 1146 (5th Cir. 1981). Thus, it is necessary for us independently to apply the constitutional standards to the facts in this case and decide the appropriate questions of law.

We conclude that the...

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