952 F.2d 1398 (7th Cir. 1991), 90-2362, Campbell v. Clark
| Citation | 952 F.2d 1398 |
| Party Name | Carl CAMPBELL, Petitioner-Appellant, v. Dick CLARK and Indiana Attorney General, Respondents-Appellees. |
| Case Date | December 18, 1991 |
| Court | United States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Page 1398
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)
Decided Jan. 22, 1992.
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division, 90 C 95, Allen Sharp, Chief Judge.
N.D.Ind.
AFFIRMED.
Before POSNER, COFFEY and RIPPLE, Circuit Judges.
ORDER
Carl Campbell appeals the district court's denial of his petition for a writ of habeas corpus. He is confined in the Indiana State Prison in Michigan City, Indiana, following a conviction after a jury trial for murder, robbery, and confinement. 1 Campbell argues that he was unconstitutionally convicted on five grounds: the evidence at trial was insufficient to support a conviction; his confession was the result of an illegal seizure; the police log book admitted at trial was impermissible hearsay evidence; the dismissal of an ill juror violated Campbell's right to an impartial jury; and the refusal of the trial court to grant a continuance when the prosecution filed a late witness list unfairly prejudiced the defense.
We affirm the judgment of the district court for the reasons stated in the district court's attached memorandum and order, and here merely express our concern about the unsworn affidavit of Sadie Reese which was attached to Campbell's petition for habeas corpus when filed in the district court. This affidavit states that the murder victim, Robert E. Rose, was seen alive after the occurrence of the events at issue in this case. The affidavit also suggests that this information may have been intentionally withheld from Campbell prior to trial. If the facts set forth in the affidavit are true, the state may have violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). Although Campbell has not explicitly alleged a Brady violation, he does maintain that Reese's testimony was not presented at trial because of the trial court's failure to grant a continuance after the prosecution presented its late witness list. Reese's name was included on this list although she did not testify.
We cannot rule on the merits of this additional evidence. 2 The affidavit was not presented to the Indiana state courts, and the district court properly refused to consider it. The state courts are entitled to the first opportunity to evaluate this new information. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 278 (1971).
Campbell argues that resort to the Indiana courts at this point would be "absurd" because Reese was available to testify at the initial trial, and the Indiana state courts have already declared they are convinced of Campbell's guilt. (Rec. 10, Memorandum in Support of Traverse at 10). We disagree with this assessment of the situation. The state courts were never given the opportunity to evaluate Reese's statement. Although she may have been available to testify at trial, Campbell had no reason to call her as a witness since he claims to have been unaware of the unique events within her knowledge until long after the Indiana Supreme Court affirmed his conviction. See Kimble v. State, 451 N.E.2d 302 (Ind.1983) (post-conviction relief process is not substitute for direct appeal, but is process for raising issues not known at time of original trial and appeal or for some reason not available to the defendant at that time). The new evidence that Campbell seeks to have the federal courts address through a habeas corpus petition should first be presented to the state courts. The Indiana Rules of Procedure for Post-Conviction Remedies permit him to do that. 3
AFFIRMED.
ATTACHMENT
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION
Carl Campbell, Petitioner
v.
Dick Clark, and Indiana Attorney General, Respondents
90-2362
Civil No. S 90-95
MEMORANDUM AND ORDER
(May 4, 1990).
On March 7, 1990, pro se petitioner, Carl Campbell, filed a petition seeking relief under 28 U.S.C. § 2254. The return filed on April 6, 1990, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). This court has examined the transcript of proceedings from the State of Indiana under the mandates of Townsend v. Sain, 372 U.S. 293 (1963).
This petitioner was convicted of one count of murder, one count of robbery and one count of confinement in the Franklin Circuit Court, Brookville, Indiana, on May 3, 1984, and was sentenced to a term of 30 years imprisonment for the murder, 20 years for the robbery, and 10 years for the confinement, all to run concurrently. The petitioner appealed directly to the Supreme Court of Indiana, which unanimously affirmed his conviction in an opinion authored by then Justice, now Chief Justice Shepard, and reported in Campbell v. State, 500 N.E.2d 174 (Ind.1986).
Although it is a close call, this court is not prone to adopt the suggestion of the Attorney General of Indiana that the issues that are argued here were not fairly presented to the state courts of Indiana. This conclusion is generous on the side of the petitioner. Justice Shepard, in a careful and elaborate opinion, dealt with five issues, which are basically the issues presented here, with the exception of a venue question.
The basic factual setting of the case is established as follows:
The facts most favorable to the judgment show that Campbell and three companions were driving around the town of Laurel in Campbell's vehicle on July 30, 1979. After hearing that one Robert Rose had several hundred dollars, the four youths decided to rob him. Rose subsequently accepted their invitation to join them in Campbell's automobile, and they drove about for a short time. They stopped in an area east of Laurel called Redgate. One of the youths, Mitchell Hurd, began beating the victim, who fell in some glass while attempting to escape. The assault continued until the victim was unconscious. All four men helped to...
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