Application of Buffalo Chief
| Decision Date | 15 April 1969 |
| Docket Number | Civ. No. 68-109S. |
| Citation | 297 F. Supp. 687 |
| Parties | Application of Larry BUFFALO CHIEF for a Writ of Habeas Corpus. |
| Court | U.S. District Court — District of South Dakota |
Clinton G. Richards, Deadwood, S. D., for petitioner.
Walter W. Andre, Asst. Atty. Gen., Pierre, S. D., for Warden of South Dakota State Penitentiary and for the State of South Dakota.
This is a ruling on an application of Larry Buffalo Chief for a writ of habeas corpus pursuant to Title 28, Secs. 2241 and 2254 of the United States Code. A hearing was held on November 13, 1968, at which the petitioner appeared in person accompanied by his attorney, Clinton G. Richards. Assistant Attorney General Walter W. Andre appeared for the State of South Dakota. Having heard the testimony of witnesses Roubideaux and Buffalo Chief and the arguments and authorities cited by counsel for both sides, the Court makes the following findings of fact and conclusions of law.
1. The petitioner, Larry Buffalo Chief, is a citizen of the United States, and is presently imprisoned and restrained of his liberty and detained under the color of authority of the State of South Dakota, in the custody of Don R. Erickson, Warden of the South Dakota Penitentiary at Sioux Falls, South Dakota, in this district.
2. The claim and authority of which the petitioner is restrained of his liberty is a Judgment and Sentence of the Circuit Court in and for the County of Lawrence, South Dakota, rendered on April 21, 1966, by virtue of the removal of the case to that court from the Circuit Court in and for Pennington County, the county of the location of the alleged crime.
3. The petitioner was tried jointly in said Circuit Court with one Leon Gayton on a charge of murder, both men being represented by the same counsel. As a result of said trial, the jury returned a verdict of guilty of first degree manslaughter, and the petitioner was sentenced to serve twenty-five years in the South Dakota State Penitentiary.
4. During the trial, the testimony of State's witness Osborne indicated that the three men who were surrounding and kicking the victim, C. F. Thorn, were dressed as follows: (1) one wearing a white shirt, (2) one wearing a lightcolored shirt, and (3) one wearing a short-sleeved shirt. (Settled Record p. 454). At the time of this altercation, petitioner, Buffalo Chief, was wearing a dark-colored coat or jacket (Settled Record p. 584 and Defendant's Exhibit B).
5. The testimony of State's witness Osborne would tend to exclude petitioner from the kicking of Thorn, but would also further implicate co-defendant Leon Gayton in the kicking. Since both defendants were represented by the same counsel, a conflict then arose which in the absence of requesting a mistrial — which request was not made — prevented counsel from adequately utilizing Osborne's testimony in the defense of petitioner.
6. In its January 24, 1968, opinion in State v. Buffalo Chief, 155 N.W.2d 914, the South Dakota Supreme Court considered the petitioner's main contention before this Court today: the right to the effective assistance of counsel guaranteed by Amendment VI of the United States Constitution, claiming that the defendants had conflicting interests yet were represented by the same counsel. The contention was rejected by that Court and the petitioner's conviction was affirmed.
1. The petitioner has sufficiently exhausted his state remedies to be properly before this Court. The failure of petitioner to exhaust currently available state post-conviction remedies is inapplicable because the precise point petitioner relies on here has been presented to the Supreme Court of South Dakota and decided adversely to the petitioner on the merits. McCreary v. Sigler, August 22, 1968, United States Court of Appeals, Eighth Circuit.
2. The possibility of harm by a...
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Brown v. State
...215 Pa.Super. 41, 257 A.2d 367 (1969), California v. Fuller, 268 Cal.App.2d 844, 74 Cal.Rptr. 488 (1969), Application of Buffalo Chief, 297 F.Supp. 687 (U.S.D.C., S.D.1969), and Craig v. United States, 217 F.2d 355 (6th Cir. 1954). In Jones, Buffalo Chief and Craig, relief was granted since......
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State v. Gatewood
...United States v. Burkeen, 6 Cir., 355 F.2d 241, 243; United States v. Dardi, 2 Cir., 330 F.2d 316, 335; Application of Larry Buffalo Chief, District Court, S.Dak., 297 F.Supp. 687, 688; Lugo v. United States, 9 Cir., 350 F.2d 858, 859; United States ex rel. Williamson v. LaValle, District C......
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United States v. Youpee, 24722.
...of the several defendants. Lollar v. United States, 126 U.S.App.D.C. 200, 376 F.2d 243, 246 (D.C.Cir. 1967); Application of Buffalo Chief, 297 F. Supp. 687, 689 (D.S.D. 1969); United States ex rel. Williamson v. LaVallee, 282 F.Supp. 968, 971 (E.D.N.Y. There is no per se rule here; counsel ......
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Starte v. Goode, 10554
...would necessarily be one for determination in a post-conviction proceeding. Ch. 23--52 SDCL 1967. 1 However, see Application of Buffalo Chief, D.C., 297 F.Supp. 687. ...