Crisp v. Mayabb

• Decision Date: 16 February 1982
• Docket Number: No. 81-1289,81-1289
• Citation: 668 F.2d 1127
• Parties: Richard CRISP, Warden, et al., Appellants, v. Paul MAYABB, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1127

668 F.2d 1127

Richard CRISP, Warden, et al., Appellants, v. Paul MAYABB, Appellee.

No. 81-1289.

United States Court of Appeals Tenth Circuit.

Argued and Submitted July 15, 1981.

Decided Sept. 29, 1981.

On Rehearing Feb. 16, 1982.

On Rehearing

Larry Oakes, Asst. Atty. Gen., Oklahoma City, Okl. (Jan Eric Cartwright, Atty. Gen., and Michael Avant-Pybas, Asst. Atty. Gen., Oklahoma City, Okl., with him on the brief), for appellants.

Fred P. Gilbert, Tulsa, Okl., for appellee.

Before McWILLIAMS and DOYLE, Circuit Judges, and TEMPLAR, ^* District Judge.

WILLIAM E. DOYLE, Circuit Judge.

The cause before us is an appeal by the State of Oklahoma through the Attorney General of that State, seeking reversal of the judgment of the United States District Court which granted a writ of habeas corpus to the petitioner-appellee herein. The trial court issued the writ and directed the release from custody of the petitioner-appellee Paul Mayabb. The appeal is pursuant to 28 U.S.C. § 1291.

The petitioner-appellee was convicted following a plea of guilty to the crime of murder on April 13, 1971, and was sentenced to life in prison by the Seventh Judicial District Court of the State of Oklahoma. No appeal was taken from the conviction, but Mayabb did file a petition for a writ of habeas corpus in the District Court of Oklahoma County. This petition was denied June 3, 1975 and the judgment was affirmed on appeal by the Court of Criminal Appeals of the State of Oklahoma. ¹

Mayabb's next step was to file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In that petition, it is alleged that Mayabb's constitutional rights were violated by reason of the fact that at the time of his conviction, males aged 16 to 18 who were charged with crimes in Oklahoma were tried as adults, while females in the same age group were treated as juveniles unless certified for trial as adults. At the time of the alleged murder petitioner was 17 years of age but close to 18. In his petition he alleged that the discriminatory treatment of males was unconstitutional. The denial of Fourteenth Amendment equal protection of the law is asserted, entitles him to have the conviction vacated and to be released from custody. Petitioner relied on this court's decisions in Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972) and Radcliff v. Anderson, 509 F.2d 1093 (10th Cir. 1974), cert. denied, 421 U.S. 939, 95 S.Ct. 1667, 44 L.Ed.2d 95 (1975).

The following points are made by the State of Oklahoma:

1. The federal district court was obligated to require habeas petitioner Mayabb to re-exhaust newly created state remedies which were not available when the petition was originally filed pursuant to 28 U.S.C. § 2254.

2. The United States District Court, sitting as an Oklahoma court, committed reversible error by suppressing the confession of Mayabb where it was in conformity with state juvenile law as well as constitutional Miranda requirements.

POINT ONE

WAS THE DISTRICT COURT COMPELLED TO SEND THE PETITIONER BACK

TO RE-EXHAUST NEWLY CREATED STATE REMEDIES NOT

AVAILABLE WHEN THE PETITION WAS

ORIGINALLY FILED PURSUANT TO

28 U.S.C. § 2254?

The trial court determined that re-exhaustion was not necessary. We affirm. This court's decision in the case of Lamb v. Brown, supra, held that the Oklahoma statute defining a delinquent child as a male under 16 years of age or a female under 18 years was unconstitutional. By virtue of that definition, all males over 16 years of age charged with crimes were treated as adults. On the other hand, females between In the case of Radcliff v. Anderson, supra, this court held that the Lamb decision should be applied retroactively, in spite of a statement to the contrary in the Lamb opinion. We found that the denial of a certification hearing before trial as an adult raised concern for basic fairness and essential justice. 509 F.2d at 1096.

the ages of 16 and 18 who were charged with crimes were dealt with as juveniles unless certified, after investigation and hearing, to be triable as adults. Because there was no logical justification for discrimination in the treatment of males and females, this court held § 1101(a) of 10 Okla.Stat. to be unconstitutional.

In Schaffer v. Green, 496 P.2d 375 (Okl.Crim.App.1972), the Oklahoma Court of Criminal Appeals ruled, in light of our decision in Lamb, that 10 Okla.Stat. § 1101 A was unconstitutional. On April 4, 1972, the Oklahoma Legislature amended § 1101 to define "child" as all persons below the age of 18, thus eliminating any discrimination in the treatment of males and females. The related § 1101A was repealed. An effort was made by the Oklahoma court in Dean v. Crisp, 536 P.2d 961 (Okl.Crim.App.1975), to revive the last preceding statute which contained a constitutional, non-discriminatory definition of "delinquent child." This was found in Compiled Laws of Oklahoma 1909, Chapter 13, Article I, § 594, which provided that all persons under 16 be classified as juveniles while all over 16 were considered adults. The Oklahoma court concluded that until the 1972 amendment to § 1101, certification hearings were not required.

In Bromley v. Crisp, 561 F.2d 1351 (10th Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 499 (1978), the defendant, while he was 17 and represented by counsel, entered a plea of guilty to a charge of assault and battery with a dangerous weapon. He received a suspended sentence. In March 1974, he plead guilty to two charges of second degree burglary after former conviction of a felony and one charge of robbery with firearms after former conviction of a felony. The sentence was three concurrent 22 year terms. The former conviction premising all three of these recidivist convictions was the assault and battery conviction in 1972 when he was prosecuted as an adult without certification for such treatment. Following the 1974 convictions Bromley sought post conviction relief in the state courts, asserting that the former conviction was invalid under the Lamb equal protection holding. He then brought his federal habeas corpus petition, in which his constitutional claim was rejected on the ground that the plea of guilty had waived the prior defects alleged. The appeal in Bromley followed.

The argument by the state on appeal was that the rulings were correct, because the guilty pleas prevented assertion of claims of earlier deprivation of constitutional rights. This court pointed out that although there are a number of cases which hold that where a guilty plea is voluntarily made it precludes subsequent attack on a conviction, the cases of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) and Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) hold that the preclusive effects of guilty pleas are not applicable where the constitutional claims go to the power of the state to bring the defendant into court to answer the charge brought against him. This court, however, did not rest its decision on that point, but rather took the narrower position that the specifics and merits of the equal protection claims were considered by the Oklahoma courts. Where that is the case, federal courts in habeas corpus suits should likewise entertain the claims.

In Bromley v. Crisp, this court also rejected the view that the reconstruction of state law offered in Dean v. Crisp, supra, cured any constitutional problems created by discrimination against males aged 16 to 18. We took notice that girls were, in fact, given preferential treatment before § 1101 was amended, and boys were, in fact, denied equal protection of the law. However, we recognized that a writ of habeas corpus need not be issued by the federal court in every case where a boy aged 16 to 18 had In Bromley it was also stated that in then-pending federal habeas cases, the district courts should withhold judgment "for a reasonable time to allow the determination to be made in state courts. If the state obtains in the Oklahoma courts a determination that certification would have occurred, the federal district court should deny the writ; if the state court finding is otherwise, the writ should issue." 561 F.2d at 1356, fn. 6. Should no determination be made in the state court, the federal courts were advised to hold hearings "and make the ruling as to whether or not the court is clearly convinced that petitioner would have been certified for trial as an adult * * *." Id. We also approved use of the state test, which provides for certifying "such child capable of knowing right from wrong and to be held accountable for his acts." Id. See, Sherfield v. State, 511 P.2d 598 (Okl.Crim.App.1973).

been tried and convicted as an adult without the benefit of a certification hearing. We found that if the federal habeas court "is clearly convinced that certification would have been made in the state court, the conviction need not be set aside * * *." 561 F.2d at 1357.

Based on the Bromley v. Crisp decision the trial court here, Judge Cook presiding, issued an order dated March 13, 1978 granting the appellant 120 days in which to obtain a state court determination as to whether defendant would have been certified to stand trial as an adult had a certification hearing been held. On May 23, 1978, however, a judge of the District Court of Oklahoma County entered an order in which he found that the state could not invoke the jurisdiction of that court to review the judgment. On November 13, 1980, a hearing was held in the federal district court to determine whether Mayabb would have been certified to stand trial as an adult. The state presented the testimony of one witness, Officer Richard Mullins of the Oklahoma City Police Department. Mullins was the primary investigator of the underlying murder case here.

When the state attempted to elicit testimony regarding certain statements allegedly made by petitioner Mayabb, counsel for petitioner objected and the suppression...