Burkheart v. Eyman, 71-1722.

Decision Date01 August 1972
Docket NumberNo. 71-1722.,71-1722.
Citation462 F.2d 1335
PartiesBilly Gwinn BURKHEART, Petitioner-Appellant, v. Frank A. EYMAN, Warden, Arizona State Prison, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

John V. Riggs (argued), Tempe, Ariz., for petitioner-appellant.

William P. Dixon, Asst. Atty. Gen. (argued), Roderic A. Dietz, Albert M. Coury, Asst. Attys. Gen., Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for respondent-appellee.

Before CHAMBERS and TRASK, Circuit Judges, and CROCKER,* District Judge.

PER CURIAM:

This is an appeal from an order of the United States District Court denying petitioner's application for a writ of habeas corpus.

Petitioner had been convicted of second degree murder in a bifurcated trial as provided by the Arizona statute then in force. Ariz.Rev.Stat. § 13-1621.01. Later that statute was held to be unconstitutional, State v. Shaw, 106 Ariz. 103, 471 P.2d 715 (1970), but the unconstitutionality was prospective only. State ex rel. Berger v. Superior Court, 106 Ariz. 365, 476 P.2d 666 (1970).

Burkheart argues that the failure to apply the decision in Shaw retroactively so that his trial would be invalidated raises a substantial federal question. State v. Burkheart, 106 Ariz. 490, 478 P.2d 515 (1970). This is so because premeditation and malice aforethought are constituent elements of murder, and a reservation of investigation of mental condition to a second trial, separated from the guilt-finding trial, deprives a defendant of the right to have the jury pass upon criminal intent. Therefore, he asserts he has been denied federal due process.

This circuit in Benson v. Carter, 396 F.2d 319 (9th Cir. 1968), cert. denied, 393 U.S. 1080, 89 S.Ct. 852, 21 L.Ed.2d 773, rehearing denied, 394 U.S. 994, 89 S.Ct. 1451, 22 L.Ed.2d 772 (1969), decided that refusal to grant retroactivity to a particular decision did not deny federal constitutional rights, although the appellant there had advanced the same argument.

Assuming, arguendo, that he was entitled to have Shaw applied to him, appellant alleged no facts which would indicate he has been prejudiced. At the guilt phase of the trial he did not take the stand and offered no testimony or other evidence directly bearing on mental capacity or intent. Except for a proposed courtroom demonstration on the effect of not wearing his glasses, which was properly excluded, all of defendant's evidence was received. At the sanity phase of the trial, def...

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4 cases
  • Northrop v. Alexander
    • United States
    • U.S. District Court — Northern District of California
    • August 15, 1986
    ...its holding applies as well to criminal cases. Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973); Burkheart v. Eyman, 462 F.2d 1335, 1336 (9th Cir.1972); Benson v. Carter, 396 F.2d 319, 323 (9th Cir.1968), cert. denied, 393 U.S. 1080, 89 S.Ct. 852, 21 L.Ed.2d 773, rehear......
  • King v. Mintzes
    • United States
    • U.S. District Court — Western District of Michigan
    • March 14, 1983
    ...rule involving State law does not raise a federal question which is cognizable in habeas corpus proceedings. See, e.g., Burkheart v. Eyman, 462 F.2d 1335 (9th Cir.1972); Benson v. Carter, 396 F.2d 319, 323 (9th Cir.1968); Smith v. State of Maryland, 362 F.2d 763 (4th Cir.1966); Whalen v. Jo......
  • Flores v. State
    • United States
    • Wyoming Supreme Court
    • December 14, 1977
    ...Ariz. 365, 476 P.2d 666. Two of those cases surfaced in federal court, Mitchell v. Eyman, 9 Cir. 1972, 468 F.2d 856, and Burkheart v. Eyman, 9 Cir. 1972, 462 F.2d 1335, cert. den. 409 U.S. 1127, 93 S.Ct. 945, 35 L.Ed.2d 259, where the federal establishment showed very little concern about a......
  • State v. Howes
    • United States
    • Arizona Supreme Court
    • April 4, 1973
    ...365, 369, 476 P.2d 666, 670 (1970). The defendant alleged no facts which would indicate he has been prejudiced. Burkheart v. Eyman, 462 F.2d 1335, 1336 (9th Cir. 1972). Howes did not take the stand at the guilt phase of the trial and offered no evidence directly bearing on mental capacity o......

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