Bastida v. Braniff
| Decision Date | 30 December 1970 |
| Docket Number | Misc. No. 1758. |
| Citation | 321 F. Supp. 273 |
| Parties | Leonard N. BASTIDA, Petitioner, v. Mathew S. BRANIFF, Jim Garrison, Shirley G. Wimberly, Jr., and Louis A. Heyd, Jr., Respondents. |
| Court | U.S. District Court — Eastern District of Louisiana |
George M. Strickler, Jr., John P. Nelson, Jr., New Orleans, La., for petitioner.
Numa V. Bertel, Jr., Asst. Dist. Atty., Parish of Orleans, for respondents.
On a previous petition for habeas corpus relief, this Court concluded that Leonard N. Bastida had been denied his constitutional right to effectively confront and cross-examine a witness against him in the state trial which resulted in his conviction for simple burglary. The State was accordingly ordered to vacate Bastida's judgment of conviction, reinstate his plea of not guilty and schedule a retrial within sixty days, failing which this Court would discharge him from custody. Bastida v. Henderson, Misc. No. 1549 . The State chose to retry Bastida, and he was again convicted on May 28, 1970. Bastida has again petitioned this Court for release from state custody and other affirmative relief on the ground that his reconviction was obtained in violation of his constitutional rights and this Court's order in Bastida v. Henderson, supra. The constitutional issues raised here have been sufficiently presented to and rejected by the Louisiana Supreme Court;1 the petition is properly before the Court. 28 U.S.C. §§ 2241 (c) (3), 2254.
The background facts in this case are essentially as follows: On September 9, 1966, Leonard N. Bastida was charged by bill of information with simple burglary in violation of LSA-R.S. 14:62. His case was allotted to Section "B" of the Criminal District Court for the Parish of Orleans, presided over by Judge Matthew S. Braniff. Bastida pleaded not guilty and his trial was set for November 29, 1966. Shortly before the date of trial, an impasse arose between Bastida and his attorney because of the attorney's advice that he plead guilty. Unable to resolve their differences, Bastida dismissed his attorney and retained new counsel. Feeling that he was unable to prepare an adequate defense in the time remaining before trial, Bastida's new counsel appeared in court on the day set for trial and moved for a continuance. In response, Judge Braniff threatened to raise Bastida's bail substantially if he persisted in his request for a continuance. Because of his inability to raise the threatened bond and his fear of incarceration in Orleans Parish Prison, Bastida instructed his attorney to withdraw the motion for a continuance and proceed with the trial.
The State's case against Bastida at this original trial consisted almost entirely of the testimony of a juvenile accomplice, Jeffrey Billeaud, who admitted complicity in the burglary and incriminated Bastida. Because Billeaud was a juvenile and under Louisiana law could not technically be "convicted" of a crime, and because only "convictions" may be used to impeach the credibility of a witness, Judge Braniff refused to allow Bastida's attorney to question Billeaud as to his previous juvenile record. Bastida was convicted by the jury and sentenced to serve nine years at hard labor, the maximum sentence under state law. Bastida appealed from this conviction, but the appeal was subsequently withdrawn when an assistant district attorney threatened to "double bill" Bastida under LSA-R.S. 15:529, and thus expose him to a doubling of his nine year sentence. See Bastida v. Henderson, supra, footnotes 1 and 3.
In September, 1968, Bastida petitioned the Criminal District Court for a writ of habeas corpus, alleging violation of his constitutional rights by the actions of Judge Braniff and the District Attorney's office. Among the issues raised in the petition was the effective denial of Bastida's motion for a continuance by Judge Braniff, and the denial to Bastida of the right to effectively cross-examine and impeach the testimony of the prosecution's juvenile witness. As prescribed by the rules of the Criminal District Court, the habeas petition was allotted to Judge Braniff's section, where a hearing was conducted on October 25, 1968. Although the evidence adduced at this hearing pertained only to the constitutional issues involved, and not to the circumstances of the burglary or to Bastida's guilt or innocence, at the conclusion of the hearing Judge Braniff made no findings of fact or conclusions of law on the constitutional questions, but merely reaffirmed his belief in Bastida's guilt and denied the petition. An application to the Louisiana Supreme Court for writs was denied in January, 1969, with the comment that "the showing made does not warrant the exercise of our original or supervisory jurisdiction." 253 La. 303, 217 So.2d 406.
Bastida subsequently petitioned this Court for a writ of habeas corpus, which was granted on May 5, 1970, on the ground that he had been denied the right to effectively confront and cross examine the State's key witness against him. Bastida v. Henderson, supra. On May 14, 1970, Judge Braniff issued a "Per Curiam" order severely criticizing this Court for granting the writ and directing that Bastida would be retried before him on May 28, 1970. Bastida was reconvicted on that date of simple burglary and was sentenced to serve five years and ten months at hard labor in the state penitentiary. A motion for a new trial was denied. A motion for appeal was filed and accepted, but Judge Braniff ruled that Bastida will receive no credit for any time served in Parish Prison awaiting his appeal. The present petition for habeas relief was filed on July 8, 1970; an evidentiary hearing was held on September 9, 1970. On December 1, 1970, after making several futile requests to the State to furnish this Court with a copy of the complete transcript of the second trial, I ordered the State to produce the transcript within fifteen days or the writ would be sustained. The State filed a motion in Judge Braniff's court for the production of the transcript in accordance with that order. Judge Braniff denied the motion on the ground that he was without jurisdiction because the order of appeal had been signed. Judge Braniff also again castigated this Court for what he termed "federal intrusion." The State has since filed a motion in this Court to vacate that portion of the December 1, 1970 order which would sustain the writ unless the transcript is furnished within the time specified.
This Court has a statutory obligation to conduct a plenary inquiry into the constitutional issues raised by the petition for writ of habeas corpus in order to "determine the facts, and dispose of the matter as law and justice require." 28 U.S.C. § 2243; Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963). Petitioner has made several allegations and has offered oral testimony and other evidence in support thereof which, if true, would require this Court to set aside his conviction. At the evidentiary hearing conducted in this matter, the State did not call a single witness to rebut the evidence introduced by the petitioner, but instead was content to let the transcript of the retrial speak for itself. Now the State has refused to furnish that same transcript to this Court. Under these circumstances I feel justified in sustaining the writ on that basis alone; but there are more compelling reasons why the writ must be sustained.
The evidence shows that after Judge Braniff issued his "Per Curiam" order on May 14, 1970, directing that Bastida would be retried on May 28, 1970, petitioner's mother contacted Mr. George Strickler, who had been appointed by this Court to represent petitioner in his first habeas action, concerning representation of petitioner at his retrial. Mr. Strickler advised petitioner's mother that he thought a more experienced criminal trial attorney should be retained to represent her son. Mr. John P. Nelson was retained by Bastida on Tuesday, May 19, 1970, to represent him at his retrial. Because of previous commitments, Mr. Nelson found that he would be unable to adequately prepare a defense in the short time remaining before trial and he immediately appeared before Judge Braniff and moved for a continuance of three weeks, or until June 9, 1970. This motion was denied.
During the conference of May 19, Mr. Nelson was informed for the first time that prior to Bastida's first trial a suppression hearing had been conducted on an incriminating statement allegedly made by Bastida to the arresting officers, that the statement had been ruled admissible by Judge Braniff and, although it had not been used at the first trial, the statement would be introduced at the May 28 trial. Mr. Nelson requested that he be furnished a copy of the transcript of that hearing and Judge Braniff assured him that it would be made available to him very quickly. Mr. Nelson was also informed at this time that Jeffrey Billeaud would again testify for the State.
On May 21, 1970, Mr. Nelson filed a second motion for a continuance on the ground previously urged and, in addition, on the ground that the suppression hearing transcript was still not available. Judge Braniff took this motion under advisement and finally denied it on the morning of May 25. Petitioner applied to the Louisiana Supreme Court for a writ of prohibition and mandamus to require Judge Braniff to grant the continuance.
On May 26, 1970, Mr. Nelson filed a motion to suppress the alleged incriminating statement. Judge Braniff denied this motion the next day without a hearing on the ground that the statement had already been ruled admissible at the previous hearing and "that transcript is available".2 On the same day, May 27, the Louisiana Supreme Court denied petitioner's application for writs and stated that "it does not appear that the trial judge has abused his discretion in denying the motion for a continuance." 256 La. 83...
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