Boggs v. Evitts, 86-5617

• Decision Date: 11 May 1987
• Docket Number: No. 86-5617,86-5617
• Citation: 818 F.2d 534
• Parties: Roger BOGGS, Petitioner-Appellant, v. Ralph EVITTS and Attorney General of Kentucky, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 534

818 F.2d 534

Roger BOGGS, Petitioner-Appellant, v. Ralph EVITTS and Attorney General of Kentucky, Respondents-Appellees.

No. 86-5617.

United States Court of Appeals, Sixth Circuit.

Argued March 13, 1987.

Decided May 11, 1987.

C. McGehee Isaacs (argued), Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, Ky., for petitioner-appellant.

C. Lloyd Vest, II (argued), Asst. Atty. Gen., Frankfort, Ky., for respondents-appellees.

Before LIVELY, Chief Judge, WELLFORD, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

WELLFORD, Circuit Judge.

Petitioner-appellant, Roger Boggs, convicted in Kentucky state courts of trafficking in a controlled substance, appeals from denial of his habeas corpus petition by the district court. Boggs appealed from his conviction in 1982 to the Kentucky Court of Appeals, which affirmed the conviction and sentence imposed. The Kentucky Supreme Court denied his motion for discretionary review in 1984. Two issues, previously litigated, were presented to the district court as a basis for habeas corpus relief: (1) the trial court's denial of a continuance due to unavailability of a material witness, and (2) failure to grant Boggs' motion for a directed verdict based on his theory of entrapment. In addition, Boggs argued before the district court that application of a Kentucky rule of procedure in Kentucky courts amounted to violation of his constitutional right of confrontation.

The controversy was referred by the district judge to Magistrate Joseph M. Hood, who submitted his report and recommendation promptly on the two issues which are construed to be presented in the district court:

First, it is alleged that the trial court's refusal to grant him a second continuance in which to secure the presence of a missing witness violated rights secured under the Fifth and Sixth Amendments. Second, Boggs claims that the trial court abused his Fifth Amendment rights by failing to grant a directed verdict of acquittal based on the defense of entrapment.

The magistrate concluded that "the substance of both of these arguments has been fairly presented to, and rejected by, the Kentucky courts" and he made a report recommending denial of Boggs' petition. Timely objections were made to the report. Judge Wilhoit, in approving the report and recommendation, stated that "the first issue raised ... actually challenges the constitutionality of Rule 9.04 of the Kentucky Rules of Criminal Procedure." ¹ The district court found no constitutional violation with respect to either issue as postulated by the magistrate.

In the petition filed with the district court, Boggs described his appeal from his state court conviction to involve then two grounds:

1. Trial courts failure to grant a second continuance because of absence of a material witness. 2. Failure to grant a directed verdict or judgment notwithstanding the verdict where evidence showed entrapment.

In expounding upon ground one in the habeas corpus petition, Boggs did refer to his "Fifth Amendment due process rights and Sixth Amendment rights of confrontation."

Much of appellant's oral argument was directed toward the denial of Boggs' confrontation right in refusing to grant a requested continuance because a paid informant for the government who contacted Boggs about obtaining drugs could not be located for his trial testimony, which Boggs claimed would be favorable to him and would establish his claim of entrapment. Respondent's counsel, however, specifically denied that Boggs had raised the issue of the constitutionality of Kentucky Criminal Rule 9.04 before the Kentucky appellate courts. Whether Boggs had exhausted this issue was vigorously contested.

The Kentucky Court of Appeals' decision states that Boggs' principal argument on direct appeal was the alleged error in refusal to direct a verdict of acquittal based upon his defense of entrapment. The entire discussion of the failure to grant a continuance issue was as follows:

Finally, the appellant argues that the trial court abused its discretion in overruling his motion for a continuance. Again, we disagree. Although the trial court overruled the motion, it allowed an affidavit to be admitted into evidence setting forth what the missing witness' testimony would be. Given the fact that the Commonwealth agreed to the introduction of the affidavit, the trial court acted correctly in overruling the motion. RCr 9.04. As such, we find no error in this respect.

(No. 83-CA-735-MR, opinion rendered March 9, 1984, at 2).

Looking to appellant's brief filed in the Kentucky Court of Appeals, we find no specific reference to the United States Constitution but rather reference is made to the procedure set forth in RCr 9.04. (J/A 75). Appellant made reference to the use of the affidavit procedure under the rule in question as "ordinarily committed to the sound discretion of the trial court." (J/A 95). He contended that there was abuse of such discretion in this case amounting to prejudicial error, citing a Kentucky case. (J/A 95). In summary, Boggs contended in his appellate brief to the ...