Clark v. Blackburn, No. 80-3093

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GEE, RUBIN and RANDALL; GEE
Citation632 F.2d 531
PartiesNorman CLARK, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee. Summary Calendar. . Unit A
Decision Date10 December 1980
Docket NumberNo. 80-3093

Page 531

632 F.2d 531
Norman CLARK, Petitioner-Appellant,
v.
Frank BLACKBURN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
No. 80-3093
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Unit A
Dec. 10, 1980.

Page 532

Maurice T. Hattier, Asst. Fed. Public Defender, New Orleans, La., for petitioner-appellant.

Brian Meissner, John H. Craft, New Orleans, La., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, RUBIN and RANDALL, Circuit Judges.

GEE, Circuit Judge:

On December 4, 1974, the petitioner in this habeas corpus proceeding, Norman J. Clark, was tried and convicted by a jury in a Louisiana state court for the distribution of heroin in violation of La.Rev.Stat.Ann. § 40:966 (West 1977). Less than a month earlier, his first trial on the same charge had resulted in a mistrial when the jury was unable to reach a verdict.

The transaction upon which Clark's conviction was based involved five persons: Clark, his sister Carolyn Clark, Special Agent Bernard Harry of the Drug Enforcement Administration, and two informants, Emmanual Stewart and Calvin Clark (no relation to petitioner). Special Agent Harry testified at trial that, while acting in an undercover capacity, he and the two informants went to Carolyn Clark's home to purchase narcotics. Petitioner answered the door and in the course of a subsequent conversation stated that his sister had heroin he had given her. After the terms of a sale were discussed with Carolyn and a price of $104 tentatively agreed upon, she looked at the petitioner, who nodded his head. She then left the room and returned with nine packets of heroin, which she gave to Calvin Clark for the $104.

Neither of the informants testified at trial; a New Orleans police officertestified

Page 533

at petitioner's first trial that the informants had been sent to Florida with spending money and at government expense through the combined efforts of state and federal officials. The officer further testified that it had been his suggestion to send the informants out of Louisiana despite the fact that he knew a subpoena had been issued to compel the informants to testify at the petitioner's first trial. 1

Petitioner's conviction was affirmed by the Louisiana Supreme Court, 340 So.2d 1302 (La.1976), after which his requests for habeas corpus relief were rejected by the state trial court in an unpublished opinion; the Louisiana Supreme Court, 347 So.2d 260 (La.1977); and the federal district court in an unpublished opinion. Petitioner's habeas appeal to this court resulted in an unpublished order remanding the case to the district court for an evidentiary hearing consistent "with the holding and direction of this Court in a companion case, Lockett v. Blackburn, 5 Cir. 1978, 571 F.2d 309."

In Lockett the same two informants who are involved in this case participated with

Page 534

government undercover officers in the purchase of heroin from the defendant. The defendant's efforts to subpoena the informants were unsuccessful because of the previously described conduct of the government in sending them to Florida. This court held that "the deliberate concealment of a named eyewitness whose testimony would admittedly be material constitutes a prima facie deprivation of due process." 571 F.2d at 313; Freeman v. Georgia, 599 F.2d 65, 69 (5th Cir. 1979). The case was remanded for an evidentiary hearing to determine whether, under United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), "the missing witnesses' testimony, when evaluated in the context of the entire record, would create a reasonable doubt of guilt that did not otherwise exist." 571 F.2d at 314. Guidance on the Agurs materiality question of what kind of testimony would create the requisite reasonable doubt was provided by the statements that "testimony by the missing witnesses that does not inculpate Lockett would require the district court to hold for Lockett. Such testimony would be material under any standard." Id. at 314 n.7.

At the evidentiary hearing held in this case, informant Stewart's testimony corroborated that of Special Agent Harry at petitioner's trial. Informant Calvin Clark, however, testified that petitioner was not in the room when the heroin was purchased from Carolyn Clark. Nevertheless, the magistrate recommended that the writ of habeas corpus be denied. This recommendation was based on the magistrate's determination that Stewart was a credible witness, while Calvin Clark was not.

According to the magistrate, Calvin Clark would not have testified at trial as he did at the evidentiary hearing. This conclusion was based on the fact that Calvin Clark recently had been incarcerated in the same prison where the petitioner is serving his life term; thus,...

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17 practice notes
  • U.S. v. Sammons, No. 88-6311
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 5, 1990
    ...in bad faith in denying the addresses. Were bad faith shown, we would be less willing to let the conviction stand. See Clark v. Blackburn, 632 F.2d 531 (5th Cir.1980); Freeman v. Georgia, 599 F.2d 65 (5th Cir.1979), cert. denied 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed.2d 641 (1980). Additiona......
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 9, 1986
    ...Cir.1980). In Taylor, it was held that a subsequent final judgment does not retroactively validate a premature notice of appeal. Taylor, 632 F.2d at 531. The premature notice in Taylor was filed from a non-appealable interlocutory order and no new notice of appeal was filed from the final j......
  • U.S. v. Fischel, No. 81-1453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 10, 1982
    ...a case in which the government deliberately concealed an eye-witness to the crime or otherwise acted in bad faith. See Clark v. Blackburn, 632 F.2d 531 (5th Cir. 1980); Freeman v. Georgia, 599 F.2d 65 (5th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed.2d 641 (1980). There ......
  • Lebowitz v. Wainwright, No. 80-5855
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 15, 1982
    ...U.S. 283, 292, 95 S.Ct. 886, 891, 43 L.Ed.2d 196 (1975). See also Sassoon v. Stynchome, 654 F.2d 371 (5th Cir. 1981); Clark v. Blackburn, 632 F.2d 531, 533 n.1 (5th Cir. 1980); Babers v. Estelle, 616 F.2d 178, 179 n.1 (5th Cir.), cert. denied, 449 U.S. 985, 101 S.Ct. 404, 66 L.Ed.2d 248 (19......
  • Request a trial to view additional results
17 cases
  • U.S. v. Sammons, No. 88-6311
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 5, 1990
    ...in bad faith in denying the addresses. Were bad faith shown, we would be less willing to let the conviction stand. See Clark v. Blackburn, 632 F.2d 531 (5th Cir.1980); Freeman v. Georgia, 599 F.2d 65 (5th Cir.1979), cert. denied 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed.2d 641 (1980). Additiona......
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 9, 1986
    ...Cir.1980). In Taylor, it was held that a subsequent final judgment does not retroactively validate a premature notice of appeal. Taylor, 632 F.2d at 531. The premature notice in Taylor was filed from a non-appealable interlocutory order and no new notice of appeal was filed from the final j......
  • U.S. v. Fischel, No. 81-1453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 10, 1982
    ...a case in which the government deliberately concealed an eye-witness to the crime or otherwise acted in bad faith. See Clark v. Blackburn, 632 F.2d 531 (5th Cir. 1980); Freeman v. Georgia, 599 F.2d 65 (5th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed.2d 641 (1980). There ......
  • Lebowitz v. Wainwright, No. 80-5855
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 15, 1982
    ...U.S. 283, 292, 95 S.Ct. 886, 891, 43 L.Ed.2d 196 (1975). See also Sassoon v. Stynchome, 654 F.2d 371 (5th Cir. 1981); Clark v. Blackburn, 632 F.2d 531, 533 n.1 (5th Cir. 1980); Babers v. Estelle, 616 F.2d 178, 179 n.1 (5th Cir.), cert. denied, 449 U.S. 985, 101 S.Ct. 404, 66 L.Ed.2d 248 (19......
  • Request a trial to view additional results

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