Coleman v. Maxwell, 17582.
| Decision Date | 25 March 1968 |
| Docket Number | No. 17582.,17582. |
| Citation | 387 F.2d 134 |
| Parties | James Nelson COLEMAN, Petitioner-Appellant, v. E. L. MAXWELL, Warden, Ohio Penitentiary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William P. Streng (Court Appointed), Cincinnati, Ohio (John J. Dilenschneider, Columbus, Ohio, on the brief), for appellant.
Leo J. Conway, Columbus, Ohio (William B. Saxbe, Atty. Gen., Columbus, Ohio, on the brief), for appellee.
Before EDWARDS, CELEBREZZE and PECK, Circuit Judges.
Petitioner-appellant (hereinafter "appellant") was convicted in the state court under an indictment charging three counts of burglary and three of larceny of an inhabited dwelling arising out of the burglary of three separate residences. On appeal the judgment of conviction was affirmed by the Ohio Court of Appeals and the Supreme Court of Ohio and thereafter a petition for writ of habeas corpus was filed in the United States District Court. A dismissal by that court on the ground of failure to exhaust state remedies was reversed by this court and the cause was remanded for an evidentiary hearing, 6 Cir., 351 F.2d 285. After such hearing the District Court denied the petition for a writ of habeas corpus, but issued a certificate of probable cause and entered an order allowing an appeal in forma pauperis. Simultaneously with this appeal to this court from that order appellant filed a petition for writ of habeas corpus before a judge of this court which subsequently issued an order denying that petition but ordering that it and the supporting papers be filed as a part of the record in the present appeal. The matter is thus before this court for the third time.
Counts Nos. 3 and 4 of the indictment were related to the burglary of the residence of one Albert White. In connection with that burglary and to sustain its burden of proof against appellant under these two counts the State of Ohio offered items obtained by police officers who made a search of certain premises referred to throughout these proceedings as a "storefront." These items comprised evidence which was the subject of a motion to suppress which was heard by the trial court outside the presence of the jury. Following denial of that motion the articles were received in evidence, and it is their consideration by the jury which appellant here argues constituted a violation of his constitutional rights.
In considering that contention, the District Judge made findings of fact establishing that the storefront had been used by appellant in connection with his business as a registered investment counselor and his occupancy was based upon a lease drawn by his brother, an attorney, who represented him both in the preparation and execution of the lease. That lease was entered into July 10, 1961, and provided for monthly rental payments in advance of $130 per month. Simultaneously with the execution of the lease appellant made a payment to lessor as a security deposit, but the rental payment due August 10, 1961, was not made. The further findings of the District Court establish that after receiving an inquiry from police as to whether they could get into the storefront, the lessor called appellant's brother (the attorney who had represented him in connection with the lease), who told the lessor "to keep the security deposit, forfeit the lease and rent the storefront to someone else"; and that thereupon lessor "took possession of the storefront and placed a `For Rent' sign in the window" on August 10th or 11th.
The District Court further found that appellant had returned to the storefront on August 10, 1961, had pried the hasp off the door and had had the custodian admit him. He was arrested later that day and was in police custody from that time through the day of the search. At 5:30 p. m. on August 24, 1961, following the conversation with appellant's brother above mentioned, lessor met police officers at the storefront and admitted them into the same. The ensuing search disclosed that the premises were empty "except for some debris that the custodian had swept into a pile." A metal identification marker and an air line flight tag, both of which had been on luggage taken in...
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