Burns v. Crouse, 8043.
| Decision Date | 26 November 1965 |
| Docket Number | No. 8043.,8043. |
| Citation | 353 F.2d 489 |
| Parties | Delphos B. BURNS, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Morrison Shafroth, of Grant, Shafroth, Toll & McHendrie, Denver, Colo., (Charles L. Saunders, Jr., Denver, Colo., with him on the brief), for appellant.
Richard H. Seaton, Asst. Atty. Gen., of Kansas, (Robert C. Londerholm, Atty. Gen., of Kansas with him on the brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and HILL, Circuit Judges.
The appellant Burns is a prisoner in the Kansas State Penitentiary where he is serving a sentence of not less than 5 years nor more than 21 years for the crime of first-degree manslaughter. In this habeas corpus action attacking the validity of the sentence, he alleges that myriad errors occurred during the trial in the state court, where he was represented by retained counsel. The court dismissed the petition after a hearing, at which Burns testified at length. Burns is represented before this court by eminent counsel, who contends only that the petitioner was not given a fair opportunity at the hearing below to produce evidence in support of his allegation that the prosecution had knowingly used perjured testimony to obtain his conviction, and that the case should therefore be remanded for further proceedings. We are satisfied that this is the only constitutional question to be considered. Habeas corpus cannot be used as a substitute for appeal. Miller v. Crouse, 10 Cir., 346 F.2d 301.
The record discloses that Burns has brought a number of habeas corpus actions in the Kansas state courts, but it does not show what issues were there considered and disposed of. The attorney general of the State of Kansas stated before the bar of this court that the most recent state action was now pending in the Supreme Court of Kansas. The Kansas statutes provide a remedy in the state courts, similar to that found in 28 U.S.C. § 2255, to test the validity of a state court judgment and sentence under which a prisoner is being held in custody. K.S.A. 60-1507. A state prisoner can maintain a habeas corpus petition in the federal courts only when it appears that the applicant has exhausted the remedies available to him in the state courts. 28 U.S.C. § 2254. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Wagenknecht v. Crouse, 10 Cir., 344 F.2d 920; Von Eiselein v. Taylor, 10 Cir., 344 F.2d 919; Henry v. Tinsley, 10 Cir., 344 F.2d 109. In federal habeas corpus proceedings brought by state prisoners, the district court should require a showing that the petitioner has exhausted his state remedies on the issues presented. Finan v. Crouse, 10 Cir., 352 F.2d 507; Wagenknecht v. Crouse, supra.
Judgments of state courts on constitutional questions are not conclusive,...
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Bradshaw v. State of Oklahoma
...S.Ct. 598, 19 L.Ed.2d 670; Dentis v. State of Oklahoma, 376 F.2d 590 (CA10 1967); Hall v. Page, 367 F. 2d 352 (CA10 1966); Burns v. Crouse, 353 F.2d 489 (CA10 1965). The petitioner's general claim of "accumulation of errors and prejudicial irregularities" adds nothing to his petition. He me......
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...adopted in federal courts only when made after a fair hearing on the merits. Hall v. Page, 367 F.2d 352 (10th Cir. 1966); Burns v. Crouse, 353 F.2d 489 (10th Cir. 1965); Pate v. Page, 325 F.2d 567 (10th Cir. 1963). Cf. 28 U.S.C. § 2254 as amended. In Cordova v. Cox, 351 F. 2d 269 (10th Cir.......
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Gist v. State of Oklahoma
...598, 19 L.Ed.2d 670; Dentis v. State of Oklahoma, 376 F.2d 590 (C.A.10 1967); Hall v. Page, 367 F.2d 352 (C.A.10 1966); Burns v. Crouse, 353 F.2d 489 (C.A.10 1965). However, in this case the federal constitutional question presented has been previously determined factually by the District C......
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Pope v. Turner, 277-69.
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