Bizup v. Tinsley

• Citation: 211 F. Supp. 545
• Decision Date: 06 December 1962
• Docket Number: Civ. A. No. 7771.
• Parties: John BIZUP, Jr., Petitioner, v. Harry C. TINSLEY, Warden of the Colorado State Penitentiary, Respondent.
• Court: U.S. District Court — District of Colorado

211 F. Supp. 545

John BIZUP, Jr., Petitioner, v. Harry C. TINSLEY, Warden of the Colorado State Penitentiary, Respondent.

Civ. A. No. 7771.

United States District Court D. Colorado.

December 6, 1962.

Roland E. Camfield, Jr., Denver, Colo., for petitioner.

Duke W. Dunbar, Atty. Gen., for State of Colorado, John E. Bush, Asst. Atty. Gen., Denver, Colo., for respondent.

DOYLE, Judge.

The petition herein seeks the issuance of a writ of habeas corpus pursuant to Title 28 U.S.C. § 2241(c) (3). It alleges that following conviction and death sentence for felony-murder the petitioner's motion for new trial was denied on December 9, 1960; that thereafter, on May 28, 1962, the judgment of the District Court was affirmed by the Supreme Court of Colorado; that a petition for writ of certiorari was filed in the Supreme Court of the United States within the time required and that this petition was denied 1962, 83 S.Ct. 144. It further appears that the petitioner was tried in the District Court of Pueblo County on an information which charged murder but which did not specify felony-murder; that petitioner tendered an instruction which would have authorized the jury to render a verdict of second-degree murder but that the trial court refused to give it. The failure of the trial court to instruct the jury that if it found the evidence to establish premeditated malice to be lacking, the verdict of the jury would have to be murder in the second degree is said to be not only erroneous but also in violation of petitioner's rights guaranteed by the Fourteenth Amendment, Constitution of the United States, in that the Fourteenth Amendment guarantees a jury trial and contemplates that the jury shall have been correctly instructed.

The points advanced by appointed counsel are somewhat more comprehensive and at the same time more specific. They contend that the Fourteenth Amendment problem is one of both procedural and substantive due process; that petitioner's rights were infringed as a result of failure of the prosecution to charge felony-murder specifically and by reason of the Colorado definition of felony-murder, which definition excludes jury consideration of second-degree murder.

I.

JURISDICTION TO ENTERTAIN THE PETITION.

The first inquiry is whether the petitioner has exhausted his state remedies as required by Title 28 U.S.C. § 2254. This latter section provides that:

"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."

Ordinarily, an applicant has exhausted state remedies after final determination by the State appellate court and following denial of writ of certiorari in the Supreme Court. See Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 and Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469. In this latter case the Supreme Court said that it is not necessary that a petitioner pursue a collateral remedy in the State court based on the same issues and evidence previously determined. However, it is not apparent that the exact issue now posed was decided by the Supreme Court of Colorado. See Bizup v. People, 371 P.2d 786, 788. The Colorado Supreme Court there determined that the failure of the trial court to instruct on second degree murder was not error. Petitioner argues that the circumstances in this case are such as to render collateral process in the Colorado courts ineffectual since habeas corpus in Colorado is available only where the lower court is shown to have lacked jurisdiction, or where the sentence imposed was in violation of the law; he argues that habeas corpus is not available in Colorado to review an erroneous conviction even though incident thereto the Fourteenth Amendment may have been violated. See Medberry v. Patterson, D.C., 174 F.Supp. 720; D.C., 188 F.Supp. 557; 10 Cir., 290 F.2d 275. Cf. Litchfield v. Tinsley (10 Cir.), 281 F.2d 486; Moore v. Tinsley, 142 Colo. 516, 351 P.2d 456.

In view of the foregoing, it is to be concluded that the petitioner has satisfied the exhaustion of remedies requirement of section 2254, supra, and the question remaining is whether "he is in custody in violation of the Constitution or laws or treaties of the United States." (Title 28 U.S.C. § 2241c 3).

II.

THE QUESTION OF VALIDITY OF THE JUDGMENT.

The facts which bear upon the instant question are detailed in the opinion of the Supreme Court (371 P.2d 786, etc.) and in the transcript of the trial. From these it appears that on March 25, 1960, petitioner hailed a taxi and told the driver, Roy Don Bussey, that he wanted to go to the airport. While en route, petitioner fired a shot from his pistol through the floor of the cab and, after ordering Bussey to stop at the side of the road, demanded his money. Bussey then handed over a plastic pouch which contained money and his driver's license. He then, at the direction of the petitioner, drove until they came to a dirt road and followed this some distance, after which he turned around, stopped, and turned off the lights and ignition, all at the direction of the petitioner. Petitioner told Bussey that he would not be shot and following further conversation handed the driver's license back to him. Petitioner then started to get out of the cab and as he did so, he turned, pointed the pistol at the back of Bussey's head, and shot and killed him from this pointblank range. Petitioner then pulled the body out of the cab and left it at the side of the road. He then drove the cab back to Pueblo and abandoned it. Petitioner was apprehended two days later as he was attempting to hitchhike out of Pueblo.

Petitioner's contentions are: first, that the robbery and homicide were distinct transactions and that the robbery transaction had been completed and was fully terminated at the time that he pulled the trigger. This being so, the argument goes, it was essential that the jury, in order to find guilt of murder in the first degree to find that the homicide was accompanied by actual malice rather than the imputed malice which is the necessary ingredient of the felony-murder statute (C.R.S.1953, 40-2-3); and secondly, that the information herein failed to charge felony-murder and consequently deprived petitioner of his right to be apprised of the particular crime for which he was charged. See Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240; De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644.

a. The Alleged Denial of Procedural Due Process.

The information herein simply charged that on the date in question the petitioner "did feloniously, wilfully and of his premeditated malice aforethought, kill and murder one Roy Don Bussey."

The Colorado statute dealing with sufficiency of an information, C.R.S.1953, 39-4-4, provides:

"The information shall be sufficient if it can be understood therefrom:

"(1) That it is presented by the person authorized by law to prosecute the offense.

"(2) That the defendant is named therein, or described as a person whose name is unknown to the informant.

"(3) That the offense was committed within the jurisdiction of the court, or is triable therein.

"(4) That the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case."

And still another of the Colorado statutes (39-3-7) provides:

"* * * In any indictment for murder or manslaughter it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, willfully and of his malice aforethought kill and murder the deceased. It shall be sufficient in every indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased."

The defendant's argument going to the sufficiency of the charge necessarily brings into question the validity of the above statutes since the procedure followed here was in accord with the legislative policy expressed in the quoted provisions. He does not, however, mention them specifically.

In an early Colorado case, Jordan v. People, 19 Colo. 417, 36 P. 218, the validity of the last-quoted section was carefully considered. The Supreme Court of Colorado upheld it, saying:

"It is urged that the information in this case does not charge murder in the first degree. Our statute declares it `shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, willfully and of his malice aforethought kill and murder the deceased. * * *' Gen. St. § 926. Each count of the information contains all the averments required by the statute, and the additional charge that the killing was premeditated. The statute, taking its origin in England, has been adopted in a number of our states; and, so far as we are advised, whereever the question has been raised, the statute has been held constitutional, and indictments in the form provided held sufficient to charge murder of the first degree. 2 Bish. Cr.Proc. (2d Ed.) §§ 523-539, and cases cited. The act is not in conflict with the section of the bill of rights providing that `in criminal prosecutions the accused shall

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