Brown v. Crouse
| Citation | 395 F.2d 755 |
| Decision Date | 19 June 1968 |
| Docket Number | No. 9669.,9669. |
| Parties | Le Roy St. Clair BROWN, Jr., Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John H. Williamson, Denver, Colo., for appellant.
Daniel D. Metz, Asst. Atty. Gen. of Kansas (Robert C. Londerholm, Atty. Gen. of Kansas, on the brief), for appellee.
Before PICKETT, LEWIS and SETH, Circuit Judges.
Appellant Brown filed a petition for a writ of habeas corpus with the United States District Court for the District of Kansas seeking release from the Kansas State Penitentiary. The District Court denied his petition without a hearing on the ground that he had not exhausted his state remedies as prescribed by 28 U.S. C.A. § 2254, and this appeal was taken.
The Kansas statutes (K.S.A. § 60-1507) provide a Motion to Vacate, Set Aside or Correct Sentence as a method to collaterally attack state convictions. The appellant has not sought relief under this statute, nor has he sought any other post conviction relief except in the federal courts. The trial judge found that he had not exhausted his state remedies by reason of his failure to seek relief under the cited state statute.
The appellant urges in his petition before the trial court and on this appeal that it would be futile to initiate state post conviction proceedings, because the legal issues he raises were passed upon, among other points, by the Kansas Supreme Court in the direct appeal from his conviction. He also points out that the Kansas Supreme Court has held that it is not error for the post conviction trial court to refuse to consider petitions which raised "trial errors" which had theretofore been considered on a direct appeal. He urges that he comes within this rule and hence it would be useless to file a motion to vacate in the Kansas court.
The issues raised by the appellant in the petition before us include an assertion that his federal constitutional rights were violated at his state trial by reason of the admission of evidence obtained by an illegal search and seizure and of a confession wrongfully coerced from him; also by the failure of the Kansas officials to advise him of his rights to an attorney, and by their failure to provide him such an attorney. These issues, together with others, were in fact presented to the Kansas Supreme Court during the course of the appellant's direct appeal from his conviction. State v. Brown, 198 Kan. 473, 426 P.2d 129.
The appellant here relies principally on the recent decision of this court in Wood v. Crouse, February 9, 1968, 389 F.2d 747 (10th Cir.). We there held that it would be futile to require Wood to present an unlawful search and seizure issue to the Kansas Supreme Court by an appeal from a denial of his state post conviction motion since it had been there twice before, and he had raised the same issue to the state trial court in his post conviction Motion to Vacate. Thus in Wood v. Crouse, supra, the petitioner had completed the trial court portion of his state post conviction procedure. His petition was dismissed and thus the record and the issues remained the same as they were during the course of his direct appeal. He had an opportunity for a post conviction hearing but the trial judge held it was not warranted. Under the Kansas rule of Miles v. State, 195 Kan. 516, 407 P.2d 507, it was not error for the trial court to so refuse to consider the issues further, and the dismissal was in accordance therewith. Under these facts we held it would have been futile to require an appeal from the state post conviction court to the Kansas Supreme Court.
In the case at bar appellan...
To continue reading
Request your trial
-
Robinson v. State of Oklahoma, Civ. No. 75-0299-D.
...to the granting of habeas relief in the federal court even though the petitioner may have already had a direct appeal. Brown v. Crouse, 395 F.2d 755 (CA10 1968); Omo v. Crouse, 395 F.2d 757 (CA10 1968). It is only when the issue is clearly one of law and there are no facts to be developed t......
-
Gist v. State of Oklahoma
...granting of habeas relief in a federal court even though the petitioner may have unsuccessfully pursued a direct appeal. Brown v. Crouse, 395 F.2d 755 (C.A.10 1968) and Omo v. Crouse, 395 F.2d 757 (C.A.10 1968). An exception is made when there are no facts to be developed and the issue is p......
-
Hudson v. Crouse, 29-69.
...60-1507, which Hudson may follow, if he desires, in properly presenting his complaints to the courts of that state. See Brown v. Crouse, 395 F. 2d 755 (CA 10, 1968). We hold that state court remedies have not been exhausted herein and accordingly this appeal is premature. At no time has the......
-
Canales v. Baker
...court has reliably found the relevant facts, the federal district judge may defer to the state court's findings of fact * * *."8 Brown v. Crouse, supra, the case relied upon by Canales, was decided in the light of the Townsend case. This fact is made clear by the case of Maes v. Patterson9 ......