Dell v. State of Louisiana
| Decision Date | 29 March 1972 |
| Docket Number | Civ. A. No. 71-217. |
| Citation | 339 F. Supp. 888 |
| Parties | Herbert Joseph DELL v. STATE OF LOUISIANA. |
| Court | U.S. District Court — Eastern District of Louisiana |
John I. Moore, Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for petitioner.
Cheney Joseph, Jr., 19th Judicial Dist. of La., Baton Rouge, La., for respondent.
Petitioner, Herbert Joseph Dell, presently incarcerated in the Louisiana State Penitentiary, Angola, Louisiana, after having exhausted available State Court remedies, petitions this Court for a writ of habeas corpus. An evidentiary hearing was held on October 1, 1971, and after due consideration of the evidence adduced at that hearing and after careful consideration of the record in this case, it is the opinion of this Court that petitioner's application for a writ of habeas corpus must be denied.
Petitioner, Herbert Joseph Dell, bases his application for a writ of habeas corpus on two grounds: 1.) That he was not properly arraigned before his trial on an armed robbery charge and that he believed instead that he was being tried for driving without a driver's license, and 2.) That there was an illegal search and seizure at the time of his arrest. Substantial testimony on the first issue was elicited at the evidentiary hearing before this Court. The second issue was previously litigated in the State Courts, and it was agreed and stipulated that the records of those proceedings, including testimony given in the State Court trial, constitute sufficient evidence for this Court to rely on in deciding the second issue.
On December 16, 1969, an armed robbery of a gas station occurred in Baton Rouge, Louisiana, at about 2:30 a. m. An officer, who was dispatched to the scene, noticed a car driving slowly by the station with the two occupants thereof acting in a suspicious manner. The officer flagged the car down with some difficulty and asked them to get out. The driver was the petitioner, Herbert Joseph Dell. When petitioner opened the car door the officer could plainly see a .25 caliber automatic weapon, similar to one which had been taken from the service station during the robbery, and an envelope, similar to one that had been stolen from the service station. The officer then asked for identification. When petitioner could provide no identification, and could show no driver's license, he arrested him for driving without a license. A search of petitioner's person then yielded a two dollar roll of nickels. Such a roll of nickels was part of the sixty-five dollars which had been taken during the robbery. Petitioner was then handcuffed, put in a police car and, after other police arrived, items of evidence which were visible from outside the car were removed by the arresting officer. Petitioner was then charged with armed robbery and later tried and convicted on that charge.
Petitioner now alleges that he believed he was charged only with not having a driver's license. He was in jail for almost five months before his trial. He knew that there was a $10,000 bond set in his case. When asked whether he thought this seemed a little excessive if he was charged only with driving without a license, petitioner said he did not know since he was ignorant of the procedures of the law. But Mr. Dell was convicted of vagrancy in 1962, of theft in 1963, of simple burglary in 1964, of not having a driver's license and driving while intoxicated in 1966. Also it should be noted that his bond on the 1966 charge was only $500 and petitioner was well aware of this. In trying to decide whether petitioner really believed that he was charged only with no driver's license, his earlier personal experiences in connection with breaking the law cannot be ignored.
Petitioner stated that he had several meetings with his court appointed attorney and that there was "discussion about" the armed robbery charge, but he was never told that he was charged with it. He admitted discussing "articles that was removed out of my car and what might happen and what could happen." Dell's attorney, meanwhile, stated that after being appointed by the Court he talked with the petitioner who told him "he Dell was booked with no driver's license and armed robbery." It was the attorney's belief that Dell fully realized counsel had been appointed for the purpose of representing him on the armed robbery charge and not on a driver's license charge. And he also felt sure that Dell knew the attorney was concentrating his attention on the armed robbery charge.
Subsequent to his arrest, a preliminary hearing was held on January 5, 1970, at ...
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Dell v. State of Louisiana
...and GOLDBERG and MORGAN, Circuit Judges. GOLDBERG, Circuit Judge: In this appeal from the denial of habeas relief by the district court, 339 F. Supp. 888, petitioner alleges that (1) he was denied due process because he was neither formally arraigned nor given actual notice of what he was c......