Adkins v. Bordenkircher

• Decision Date: 22 June 1981
• Docket Number: Civ. A. No. 79-3128.
• Citation: 517 F. Supp. 390
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Jinks ADKINS, Jr., Petitioner, v. Donald BORDENKIRCHER, Superintendent, West Virginia State Penitentiary, Respondent.

517 F. Supp. 390

Jinks ADKINS, Jr., Petitioner, v. Donald BORDENKIRCHER, Superintendent, West Virginia State Penitentiary, Respondent.

Civ. A. No. 79-3128.

United States District Court, S. D. West Virginia, Huntington Division.

June 22, 1981.

COPYRIGHT MATERIAL OMITTED

Andrew S. Zettle, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, W. Va., for petitioner.

Richard H. Glaser, Jr., Asst. Atty. Gen., for State of W. Va., Charleston, W. Va., for respondent.

ORDER

DENNIS R. KNAPP, Chief Judge.

Upon consideration of the Findings and Recommendation of the United States Magistrate, Maurice G. Taylor, Jr., dated March 5, 1981, and the Supplemental Findings and Recommendations submitted by the Magistrate dated May 28, 1981, of the objections filed on behalf of the petitioner and those filed on behalf of the respondent, and upon de novo consideration, it is ORDERED:

(1) That the March 5, 1981 and the May 28, 1981 Findings and Recommendations, are accepted by the Court in all respects, the March 5, 1981, Findings and Recommendation being incorporated herein.

(2) That in addition to the Findings and Recommendation, the Court, after review of the record in this proceeding, finds those claims raised in the petition, but not decided by the Magistrate, to be without merit.

(3) That judgment shall be entered for petitioner and that petitioner's conviction be, and the same is hereby, declared null and void.

(4) The Court finding, in accord with the Findings and Recommendation of the Magistrate, that the Double Jeopardy Clause will not preclude retrial of petitioner, petitioner shall be released from custody to the extent that he is held as a result of the July 20, 1977 conviction for breaking and entering the Island Creek Store, provided, however, that petitioner may be continued in custody pending retrial within sixty days of the entry of this Order so that the State of West Virginia may, if it so choose, exercise its right to retry the petitioner.

(5) The Clerk is directed to mail a certified copy of this Order to petitioner, to respondent, and to all counsel of record.

FINDINGS AND RECOMMENDATION OF THE MAGISTRATE

"Jinks Adkins, Jr., a state prisoner, convicted and sentenced in the Circuit Court of Logan County after trial on an indictment charging him with breaking and entering, is presently before this Court on petition for writ of habeas corpus. Petitioner seeks relief under the provisions of 28 U.S.C. § 2254, et seq., alleging irregularities during the course of the state court proceedings claimed to be of constitutional magnitude.

Though a number of claims have been raised in this case, in light of the disposition of the constitutional issue arising from the giving of an alibi instruction, only the claims concerning the alibi instruction and the double jeopardy issue need be resolved. The facts, insofar as they are relevant to these two issues, may be summarized as follows:

In July of 1975 an Island Creek Company store was broken into and a safe was removed. A short time thereafter state police officers located the safe, which had been left, along with some tools, by the side of a creek in a rural area of Logan County. Believing that the thieves might return, the officers staked out the area. About two and one-half hours later a car with driver and two passengers approached the area and petitioner and the other passenger were let out. Petitioner's brother, driving the car, left the area, however, petitioner and his companion walked straight to the location of the safe. While petitioner acted as lookout, his companion attempted, without success, to break open the safe. After observing these activities for a period of time, the officers arrested both men. Subsequent investigation indicated that a car owned by petitioner had bits of grey paint on the trunk which, upon analysis, were found to be similar to the grey paint on the safe casing removed from the store.

On September 8, 1975, a Logan County Grand Jury returned a three count indictment charging petitioner and another with breaking and entering, entering without breaking, and grand larceny. In each count of this indictment, which was assigned Criminal No. 1707, petitioner was charged with taking a safe, currency and checks of the total value of $5,324.77 belonging to "Island Creek Stores Company, a corporation" from a building owned by the same corporation. Sometime thereafter petitioner's co-defendant was tried and convicted. Though not entirely clear from the record, it appears that after conviction it was determined that the owner of the building and property had not been properly named in the indictment and the codefendant, who was already serving another sentence, was not sentenced on this conviction. In any event, in January of 1976, a Logan County Grand Jury returned a second indictment against petitioner and the same co-defendant, charging an offense identical to that charged in the earlier indictment. The only difference between the earlier and the subsequent indictment was that in the later indictment the building and the property taken from the building were identified as belonging to "Island Creek Coal Company, a corporation, doing business in the Trade Name of Island Creek Stores Company". This later indictment was assigned Criminal No. 1723.

On December 16, 1976, a jury was impaneled and sworn to try petitioner on the charges contained in Criminal No. 1707.¹ Upon entry of a not guilty plea by the defendant, the jurors were excused, being directed to report at the beginning of the following week for trial. When the case was next taken up, one of the jurors failed to appear. It was determined that this juror's wife had been taken to the hospital and that he would not be able to report any earlier than the afternoon. The court informed counsel for defendant that a continuance would not be granted on motion of the prosecution but would be granted on motion of defendant. Counsel for the defendant then moved the court for a continuance. This motion was made with the understanding that the court would continue the case to a subsequent date at which time proceedings would begin anew, i. e., that the motion for a continuance would, in effect, result in a mistrial.² Though there is no order dismissing the jury or declaring a mistrial in the present record and, indeed, such an order may never have been entered, on July 20, 1977, trial commenced with a new jury being impaneled and sworn. This time, however, petitioner was tried on the charges contained in the more recent indictment, Felony No. 1723. The evidence of the prosecution, if believed, established essentially those facts set forth above. Petitioner's sole defense was based upon alibi witnesses, who testified concerning his whereabouts during the hours that the Island Creek Store was broken into and the safe stolen. Petitioner did not testify.

In response to the alibi evidence presented at trial, the state tendered and the Court gave the following instruction:

"The Court instructs the jury that where the state has established a prima facie case and the defendant relies upon the defense of alibi, the burden is upon him to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt as to the guilt of the accused."

Although counsel made a general objection to this instruction, there was no specific objection to the language imposing the burden of proving alibi on the defendant.

The grand larceny charge was dismissed by the court and the case was submitted to the jury on the counts charging breaking and entering and entering without breaking. The jury returned a verdict of guilty of breaking and entering and a one to ten year sentence was imposed by the Court. Thereafter, a petition for writ of error in the West Virginia Supreme Court was refused,³ as was a petition filed under West Virginia's Post Conviction Habeas Statute. Subsequent to the evidentiary hearing in this proceeding another petition for habeas relief was denied by the West Virginia Supreme Court in a published opinion, Adkins v. Leverette, 264 S.E.2d 154 (W.Va.1980). As a consequence of this decision, claims not previously exhausted, including petitioner's double jeopardy claim, are now properly before the Court.

EXHAUSTION OF AVAILABLE STATE REMEDIES

Before addressing petitioner's contention that the alibi instruction given at his trial impermissibly shifted the burden of proof, respondent's allegations of waiver and failure to exhaust must be considered.

A habeas petitioner is required to give state courts an opportunity to review constitutional challenges prior to seeking relief in the federal courts. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Where a claim has not first been presented to the state courts and, at the time of filing state remedies remain available, the doctrine of exhaustion normally requires dismissal. Exhaustion, however, is not a jurisdictional requirement, Fay v. Noia, 372 U.S. 391, 419-20, 83 S.Ct. 822, 838-39, 9 L.Ed.2d 837 (1963), and, though a claim has not been presented to the state courts and remedies remain available, nevertheless, under certain limited circumstances the doctrine will not bar consideration of the claim. In the present case, while a convincing argument can be made for the proposition that petitioner has not given the West Virginia Supreme Court a "fair opportunity" to consider the constitutionality of the alibi instruction, Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971),⁴ presentation of this claim to the West Virginia courts would clearly be futile. In a very recent decision, State v. Alexander, 245 S.E.2d 633 (W.Va. 1978), the West Virginia Supreme Court approved an instruction identical to that given at petitioner's...