Allen v. Rhay

• Decision Date: 22 October 1970
• Docket Number: No. 24699.,24699.
• Citation: 431 F.2d 1160
• Parties: Gordon M. ALLEN, Petitioner and Appellant, v. B. J. RHAY, Superintendent of the Washington State Penitentiary, Respondent and Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

431 F.2d 1160 (1970)

Gordon M. ALLEN, Petitioner and Appellant, v. B. J. RHAY, Superintendent of the Washington State Penitentiary, Respondent and Appellee.

No. 24699.

United States Court of Appeals, Ninth Circuit.

September 11, 1970.

Rehearing Denied October 22, 1970.

COPYRIGHT MATERIAL OMITTED

Gordon M. Allen, in pro. per.

Ronald L. Hendry, Pros. Atty., Joseph D. Mladinov, Special Counsel, Tacoma, Wash., Slade Gordon, Atty. Gen., Olympia, Wash., for respondent-appellee.

Before BARNES, HAMLEY and CARTER, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

Petitioner, serving time for a conviction in a state court of Washington in 1966 for the crime of robbery, petitions for his release by habeas corpus. The Supreme Court of Washington affirmed the conviction in State v. Allen (1967) 72 Wash.2d 42, 431 P.2d 593. Following an escape and conviction therefor he was adjudged an habitual criminal. Again the conviction was affirmed on appeal. State v. Allen, 75 Wash.2d 17, 448 P.2d 332 (1968).

On March 8, 1968, the Washington Supreme Court denied petitioner's application for relief in habeas corpus in its cause No. 40087. This proceeding involved only the robbery conviction referred to above. The United States Supreme Court denied certiorari. Allen v. Berry, 391 U.S. 924, 88 S.Ct. 1821, 20 L.Ed.2d 662 (1968).

Petitioner then filed a petition for a writ of habeas corpus in the district court below, case No. 3746, practically a word for word duplicate of No. 40087. The district court denied relief by a written memorandum without an evidentiary hearing. Petitioner does not contest the escape conviction resulting from the entry of a guilty plea. Petitioner's contentions are as follows:

1. That the police refused to honor a request to contact counsel immediately after arrest.

2. That identification witnesses from the scene of the crime, were seated on benches in the corridor outside the courtroom as petitioner was escorted handcuffed into the courtroom prior to an in-court line-up.

3. That the court permitted the jury to view an in-court line-up of the prosecution witnesses, but ordered that an in-court identification by defense witnesses be held in the absence of the jury.

4. That compulsory process for obtaining witnesses was denied, in that although a subpoena was issued for a defense witness, the witness was late for the in-court line-up and the court refused a continuance.

5. That the court allowed the admission of pretrial line-up identification to bolster the courtroom identification.

6. That petitioner's "counsel should have been notified and counsel's presence required as a prerequisite to the out-of-court identification by picture, held prior to the out-of-court line-up."

7. That the state trial court did not grant a hearing on a motion by petitioner for the dismissal of an habitual criminal information, which was based upon petitioner's allegations that he was deprived of his right of appeal through the courts of the State of Washington "without being hampered from coercion from the prosecutor's office."

8. That the clerk of the Washington Supreme Court did not file or present to the court a motion made by petitioner for a writ of habeas corpus while the state court appeal was pending.

9. That copies of law material mailed to him by a friend outside the prison were not delivered to him while his appeal was pending.

The first six contentions are properly before us, having been raised in his habeas corpus proceeding No. 40087 to the Supreme Court of Washington. Contention No. 7 was raised in the same court in habeas corpus proceeding No. 39814, and denied. We consider it here.

Contention No. 8 was not presented to any state court. Petitioner so admits Tr. p. 18. Contention No. 9 was not presented to the state courts. Petitioner has not exhausted his State remedies, but the contention is easily disposed of. It consists of claims that petitioner did not receive copies of law material mailed to him and alleged to be needed in this habeas corpus proceeding below, No. 3746. An inspection as to what was alleged to be missing shows it to be a copy of pages 34, 35 and 36 from the case of Rabinowitz v. United States, 5 Cir., 366 F.2d 34. The case involves questions of jury qualifications and has no bearing on petitioner's claim below or in the circuit. The contention is frivolous.

We proceed to consider petitioner's first seven contentions in detail.

I.

We assume, for the purpose of decision, that the police refused to honor petitioner's request for counsel after his arrest. He was advised of his right to counsel at his arraignment the following day, and stated he intended to employ counsel. Petitioner does not contend he ever made any statements or confessions or that any were ever used against him in his trial. Miranda v. Arizona, 384 U. S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was decided June 13, 1966, after petitioner's trial that resulted in a conviction on April 8, 1966. Miranda does not apply retroactively. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The refusal to honor petitioner's request for counsel at his arrest, standing alone, is not a ground for relief.

Petitioner's contentions are tied in with an out-of-court identification by photo, and an out-of-court line-up. These matters will be considered later herein.

Suffice it to say that United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) apply only to those cases and future cases after the date of those decisions. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Appellant was convicted in 1966.

Petitioner must then rely not on the bare fact of lack of counsel at a lineup, but upon whether as stated in Stovall v. Denno, supra, "* * * the confrontation * * * was so unnecessarily suggestive and conducive to irreparable mistaken identity that he was deprived of due process of law." (p. 301-302, 87 S.Ct. p. 1972). The solution to this problem depends on "* * * the totality of the circumstances surrounding * * *" the confrontation. (p. 302, 87 S.Ct. p. 1972).

Petitioner then has a heavier burden than the mere showing of lack of counsel as in Wade and Gilbert.

II.

In the discussion of the following contentions of petitioner, it should be borne in mind that petitioner's first trial, which commenced in November 1965, resulted in a conviction, but a new trial was granted. There is no contention that the motion for a new trial was granted because of any of the matters complained of in this habeas proceeding. The second trial, commenced in March 1966, resulted in the robbery conviction and the sentence that is under attack in this proceeding. The petition for the writ and petitioner's brief is replete with reference to matters at the first trial. They are only significant insofar as they possibly had an effect on the second trial, which resulted in his conviction and the sentence for robbery. We have heretofore noted that thereafter petitioner plead guilty to an escape and was sentenced as an habitual criminal. We are not concerned with any problems concerning the second conviction.

Petitioner, in contention No. 2, alleged that at both trials, the prosecutor placed his identification witnesses, from the scene of the alleged crime, on benches in the hallway outside the courtroom to view petitioner when he was escorted to the courtroom handcuffed by an armed deputy sheriff prior to the in-court line-up identification parade.

The Supreme Court of the State of Washington considered petitioner's contention. It based its decision on alternate grounds; (1) "No rights of Petitioner were violated by his having been seen in the courthouse corridor in handcuffs by identification witnesses immediately prior to their testimony at trial"; and (2) an affidavit of the prosecuting attorney stating the witnesses were placed in another room or called into court when petitioner was already there.

We think the first ground for the court's decision was correct and need not consider the alternative ground, the reliance on the affidavit.

This was not a line-up as discussed in Wade and Gilbert, supra, which in any event do not apply. It was an opportunity for witnesses to view petitioner if they chanced to notice him.

We search the record in vain for any allegation that the witnesses at either trial actually observed petitioner in the hallway. Neither his petition nor his "Supplementary and Additional Information Brief" contain such an allegation.

Petitioner at the trial had an opportunity to make a record concerning the various contentions he has presented. This could have been done by his testimony in chief, by other witnesses called by him, or by cross examination of the state's witnesses as to whether they observed the petitioner in the hallway as he was escorted to court, and as to the facts concerning the out-of-court line-up and the out-of-court photographic identification which we discuss later.

As far as we can ascertain from the record, none of these facts were developed at the trial by petitioner. In his petition, he refers to his "inability to reconstruct at trial effectively any unfairness that occurred at the pretrial line-up." In his brief he states he "was hesitant to testify in his own behalf because of prior convictions and therefore unable to reconstruct the prejudices and unfairness that occurred at the illegal, compelled pretrial line-up * *".

Regardless of petitioner's excuses there was available to him the opportunity to examine witnesses as to the photographs, the line-ups, and what observations the witnesses relied upon. As shown above, petitioner concedes no record was made. Nor can we find any fact alleged to show the surrounding circumstances.

Witnesses at the courthouse for a pending trial are within the control of the trial judge. Many courts have witness rooms where witnesses...