Davis v. Campbell, No. 79-1207

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before HEANEY, STEPHENSON and McMILLIAN; PER CURIAM
• Citation: 608 F.2d 317
• Parties: Allan Frank DAVIS, Appellant, v. Jerry CAMPBELL, Acting Warden, Appellee.
• Decision Date: 02 November 1979
• Docket Number: No. 79-1207

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608 F.2d 317 Allan Frank DAVIS, Appellant,
v.
Jerry CAMPBELL, Acting Warden, Appellee. No. 79-1207. United States Court of Appeals,
Eighth Circuit. Submitted Oct. 31, 1979.
Decided Nov. 2, 1979.

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Allan Frank Davis, pro se.

Steve Clark, Atty. Gen. and Joseph H. Purvis, Deputy Atty. Gen., Little Rock, Ark., for appellee.

Before HEANEY, STEPHENSON and McMILLIAN, Circuit Judges.

PER CURIAM.

Appellant Allan Frank Davis, an inmate of the Cummins Unit of the Arkansas Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and appeals the district court's ¹ denial of relief. For the reasons indicated below, we reach the merits of claims which have been presented to state courts, reversing and remanding the remainder for exhaustion of state post-conviction remedies.

Appellant was tried for first-degree murder of his wife in Circuit Court of Garland County, Arkansas, and was convicted despite a defense of not guilty by reason of insanity. His conviction was upheld by the Supreme Court of Arkansas. Davis v. State, 246 Ark. 838, 440 S.W.2d 244 (1969). Eight years later, without resort to Arkansas post-conviction remedies, appellant in 1977 filed the present petition for federal habeas corpus relief.

Appellant's pro se petition ² realleged four claims previously considered by the Arkansas Supreme Court. ³ Davis v. State, 246 Ark. 838, 440 S.W.2d 244 (1969). Of these claims, the striking of jurors with scruples against capital punishment was rendered moot by the commutation of appellant's sentence of death to life imprisonment.

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Two of the other three claims are not cognizable under 28 U.S.C. § 2254, which affords relief to persons held "in custody in violation of the Constitution or laws or treaties of the United States."

The admissibility of evidence is usually a matter of state law and procedure and does not involve federal constitutional issues. A justiciable federal issue is presented in a habeas corpus proceeding only where trial errors infringe upon a specific constitutional protection or are so prejudicial as to amount to denial of due process. Cooper v. Campbell, 597 F.2d 628, 632-33 (8th Cir. 1979), Citing Hogan v. Nebraska, 535 F.2d 458, 460 (8th Cir. 1976); Nelson v. Hutto, 597 F.2d 137, 138 (8th Cir. 1979); Schleicher v. Wyrick, 529 F.2d 906, 911 (8th Cir. 1976).

In the present case, appellant objects to the introduction of photographs of the murder scene and of his mother-in-law's body. The murder of appellant's wife, for which he was convicted, and the shooting of his mother-in-law were part of a single occurrence. The photographs in question were admissible both to explain what had occurred and for the purpose of showing malice. We hold that the introduction of these photographs into evidence does not rise to the level of constitutionally cognizable error. Cooper v. Campbell, supra, 597 F.2d at 632-33.

Appellant next objects to "certain (jury) instructions." His petition does not pinpoint particular instructions, but we assume his objection is aimed at the instructions involved in his direct appeal. Davis v. State, supra,440 S.W.2d at 248-49. The Arkansas Supreme Court found that instructions on burden of proof and intent were given in accordance with the evidence in the case and the law of Arkansas. Id. In view of this finding and in view of appellant's scant presentation of his claim in this habeas corpus proceeding, ⁴ we see no error so fundamental as to raise a cognizable due process issue. As a general rule, improper jury instructions are not a basis for habeas corpus relief. Cooper v. Campbell, supra, 597 F.2d at 631, Citing DeBerry v. Wolff, 513 F.2d 1336, 1338-39 (8th Cir. 1975); Spratlin v. Solem, 577 F.2d 56, 60 (8th Cir. 1976). Cf. United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3d Cir. 1974) (en banc), Cert. denied sub nom. Cuyler v. Matthews, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975) (refusal of trial court to give requested instruction on voluntary manslaughter was denial of due process).

A closer claim, and one which rises to constitutional dimensions, is that evidence of insanity outweighed evidence of competency and, therefore, that appellant's conviction rests on insufficient evidence. The Arkansas Supreme Court rejected this contention, holding that "there was testimony from which the jury could have found either way." Davis v. State, supra, 440 S.W.2d at 248.

Our view of this claim is controlled by the Supreme Court's recent decision in Jackson v. Virginia, --- U.S. ----, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Court held that sufficiency of the evidence supporting conviction is cognizable as a federal constitutional claim under 28 U.S.C. § 2254. Id. 99 S.Ct. at 2790. Habeas corpus relief is warranted if the record shows that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. ⁵ Id. at 2792.

It is not dispositive that the Arkansas Supreme Court found sufficient evidence

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to support the jury's verdict. Under Jackson v. Virginia, the decision of the state court is not conclusive and does not bar a claim under § 2254,...