Barber v. Page

Decision Date03 January 1966
Docket NumberNo. 8207.,8207.
Citation355 F.2d 171
PartiesJack Allen BARBER, Appellant, v. Ray H. PAGE, Warden, Oklahoma State Penitentiary, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

David K. Petty, McAlester, Okl., for appellant.

Jack A. Swidensky, Asst. Atty. Gen. (Charles R. Nesbitt, Atty. Gen. of Oklahoma, with him on the brief), for appellee.

Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.

SETH, Circuit Judge.

Petitioner is a state prisoner, who filed an application for a writ of coram nobis with the United States District Court. The court considered it as a petition for writ of habeas corpus, appointed an attorney for petitioner, and held a hearing. Relief was denied and this appeal taken. The petition presents several issues, but the one here concerned relates to his right to be confronted by the witnesses against him.

The record shows that petitioner and a coaccused by the name of Woods were both represented by the same attorney, Mr. Ed Parks, during a preliminary hearing on the charge of robbery. At this hearing the coaccused Woods was called as a witness. He was advised of his right to claim the privilege against self-incrimination by the attorney, Mr. Parks. A brief recess was called in the hearing, during the course of which Woods decided to testify. When the hearing was resumed, Mr. Parks requested the court that he be permitted to withdraw as attorney for Woods and the request was granted. The witness Woods then testified as to his participation in the robbery and that of the petitioner. He was not cross-examined by petitioner's attorney, Mr. Parks, but was questioned by an attorney for another of the several accused.

The transcript of testimony of Woods given at the preliminary hearing was introduced at the trial of the petitioner Barber over his objections. The witness Woods was in prison in Texas and did not appear at the trial. Petitioner was convicted and appealed to the Oklahoma Court of Criminal Appeals, Barber v. State, Okl.Cr., 388 P.2d 320, which affirmed his conviction. The appellate court there held that the Oklahoma rule relative to the non-availability of witnesses had been complied with, and that the transcript of the testimony of the witness Woods was properly admitted. The issue of confrontation as a constitutional matter, now raised by the petitioner, was not presented to, or passed on by the state court as it considered only the issue of whether or not the Oklahoma rule as to absent witnesses had been complied with. The opinion of the Oklahoma court recites that the attorney for the petitioner cross-examined the witness Woods during the course of the preliminary hearing. This did not occur, as the state now concedes. The decision by the Oklahoma Court of Criminal Appeals was handed down prior to the decision in Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.

The petition of appellant contains no allegation relating to the exhaustion of state remedies. No showing was made on this point before the United States District Court, and, of course, there was no finding on this point. The state in its brief makes the following statement: "There was no allegation, pleading, or showing by evidence before the lower Court that the petitioner had exhausted his state remedies." The point is not urged further in the state's brief and is not mentioned by the petitioner. The question which first arises is whether or not on such a record we can pass on the issue of availability of state remedies.

It would appear that the question as to whether or not the state remedies had been...

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6 cases
  • Roberts v. Pepersack
    • United States
    • U.S. District Court — District of Maryland
    • 29 Junio 1966
    ...rel. Henson v. Myers, 244 F.Supp. 826 (E.D.Pa.1965); Barber v. Page, 239 F.Supp. 265 (E.D.Okl.1965), reversed on other grounds, 355 F.2d 171 (10th Cir. 1965). Cf. United States ex rel. Gabor v. Myers, 237 F.Supp. 852 (E.D.Pa.1965), where relator was awarded summary judgment after he alleged......
  • Johnson v. Champion
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 26 Abril 2002
    ...of fact to be determined by the [district] court as a prerequisite to a consideration of the petition on its merits." Barber v. Page, 355 F.2d 171, 172 (10th Cir.1966). Here, Johnson contends the district court erred in finding that the ineffective assistance claim was not raised in his fir......
  • Barber v. Page
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 9 Octubre 1967
    ...Circuit Judge. For the second time, appellant appeals from a judgment denying him, a state prisoner, habeas corpus relief. In Barber v. Page, 10 Cir., 355 F.2d 171, we remanded because the record did not show that appellant had exhausted his state remedies. The district court held a second ......
  • Watson v. Patterson, 8398.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 25 Marzo 1966
    ...2 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Patterson v. Hampton, 10 Cir., 355 F.2d 470; Barber v. Page, 10 Cir., 355 F.2d 171; Burns v. Crouse, 10 Cir., 353 F.2d ...
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