Delph v. Slayton

• Citation: 343 F. Supp. 449
• Decision Date: 08 May 1972
• Docket Number: Civ. A. No. 72-C-17-H.
• Parties: David Lee DELPH, Petitioner, v. A. E. SLAYTON, Jr., Superintendent, Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Virginia

343 F. Supp. 449

David Lee DELPH, Petitioner, v. A. E. SLAYTON, Jr., Superintendent, Virginia State Penitentiary, Respondent.

Civ. A. No. 72-C-17-H.

United States District Court, W. D. Virginia, Harrisonburg Division.

May 8, 1972.

COPYRIGHT MATERIAL OMITTED

Burnett Miller, III, Asst. Atty. Gen., Richmond, Va., for respondent.

OPINION and JUDGMENT

DALTON, District Judge.

David Lee Delph, proceeding under 28 U.S.C. § 2241, has petitioned this court for a writ of habeas corpus. Leave of court has been granted to proceed in forma pauperis. His state remedies exhausted petitioner has complied with the provisions of 28 U.S.C. § 2254.

The facts in this case are as follows. Petitioner and a friend on the night of August 5, 1965 hitch-hiked a ride from a passing sailor. After travelling for a few miles, petitioner and his companion at gunpoint forced the sailor to stop his car, whereupon the sailor was seriously shot by the friend. The pair then robbed their victim and stole his car. The two were arrested on August 18, 1965 for attempted murder and robbery. A preliminary hearing was held, and both men were thereafter indicted at the September, 1965 term of court on the two counts charged. Although trial was set for December 20, 1965, it was continued without rescheduling pending the outcome of medical examinations and observation at a state hospital during January, 1966. Petitioner returned from hospital confinement in March, 1966, his case was called on the docket in April, and trial was set for June 23, 1966.

On the day of the trial all necessary parties were present except the victim, who after discharge from the Navy, had moved several times and had been located only a few days prior to trial in Detroit. He had not been served with the proper papers which would command his attendance at the June trial and had apparently told the Detroit police that he did not plan to return to Virginia. The prosecution before the trial began moved for an order nolle prosequi which the court granted over the objections of the defendant.

Having no further Virginia suits pending against him, the petitioner was released into the custody of federal authorities for prosecution on a federal charge. He was tried, convicted, and sent to a federal prison outside Virginia. No further action was taken on the state charges until the January, 1968 term of the Winchester Corporation Court, when a new indictment was procured for petitioner's two 1965 offenses. Notice of the indictment was sent to him at his Illinois prison. In February, 1968 he notified his defense counsel that he desired to have a speedy trial on these matters.

A hearing was held in May, 1968 to determine the status of the case. The Commonwealth's Attorney moved that the case be continued because the petitioner was in an Illinois federal prison. Defense counsel moved the court to set the matter for trial. After arguments were heard for both sides, the Commonwealth withdrew its motion for a continuance and requested a date for trial far enough in advance to allow time to procure the petitioner. At this point defense counsel apparently withdrew his motion to set a date for trial and requested that the date not be set until the accused could be present. The following is the motion made before the trial court by defense counsel.

If the court please, I defense counsel think he has raised a question that whether or not it can be set in his absence, and although counsel Commonwealth's Attorney has moved, that the case be set, I think we may be on dangerous ground, and I don't know whether or not perhaps some order directing that he be produced in court pursuant to his request so that the matter may be brought on in his presence.

Thus just prior to the order of the court, the Commonwealth's Attorney had moved that a trial date be set and defense counsel requested that the matter be postponed until it could be conducted in the petitioner's presence. The court did not set a trial date, but requested the Commonwealth's Attorney to begin proceedings to obtain custody of the petitioner.

No further court proceedings on the matter were held until the November, 1968 term of court at which time defense counsel was appointed for petitioner and the necessary writ was issued by the court to the proper federal authorities. While there was an allegation in the record that petitioner had in September again requested a speedy trial, the defense attorney, who had represented petitioner on his first indictment and at the May hearing made no mention of this fact, nor was there a request either for a speedy trial or that a trial date be set.

On April 10, 1969 the petitioner was returned to Virginia, immediately taken before the court, and arraigned. Having elected to try the two offenses separately, trial dates were set for May 29, 1969 and June 5, 1969. On April 17, 1969 motions to dismiss the case were heard and denied.

This petition for writ of habeas corpus alleges the following errors:

1) that the trial court erred in admitting and considering evidence of one witness concerning the identification of petitioner because he had been held by police and never given a police lineup,

2) that the trial court lost jurisdiction by releasing the petitioner to federal authorities,

3) that petitioner has been placed in double jeopardy,

4) that the petitioner was not afforded a speedy trial,

5) that the evidence produced at trial did not prove defendant's guilt beyond a reasonable doubt.

Petitioner first contends that not having been given a lineup, evidence given by one witness who identified him was wrongfully admitted and considered. According to 28 U.S.C. § 2254(d), any factual issue made by a State court of competent jurisdiction will be presumed correct. Eight exceptions are then listed as methods of rebutting this presumption. Unless one of the eight methods is employed then according to the language of § 2254(d) "the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous."

Petitioner has not based his first argument on any of the eight enumerated methods of rebutting the presumption, nor has he established by convincing evidence his allegation. The trial transcript reveals no objections made by defense counsel to any witness's identification of the petitioner. It reveals only that all witnesses, who did identify petitioner at his trial did so because they had either seen him or knew him. In the absence of substantial proof of this allegation, it must fail.

Irrespective of § 2254(d), this argument must fail for a second reason. Petitioner alleges that this error occurred with only one witness. The prosecution, however, had at least six other witnesses including the victim, who identified the petitioner in open court before the jury. At the very most, if this error did occur, it was not in the least prejudicial to his interests.

Petitioner's second claim of error relates to his release by Virginia authorities to federal authorities. He contends that by knowingly and voluntarily dismissing Virginia jurisdiction over him in a capital offense crime to the federal courts where he was charged with a lesser crime, Virginia has forever lost her right to proceed against him in this case. On this point petitioner has advanced no authority to support his contention. The necessity of determining this question based on statutes and case law, however, is unnecessary. The point raised is not one that can be considered by a federal court. 28 U.S.C. § 2254(a) specifically states that a district court may entertain a writ of habeas corpus from a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." By this section Congress has in effect incorporated the nonmonetary terms of 28 U.S.C. § 1331(a) for civil suits to review of state criminal prosecutions and procedure. Whether or not Virginia lost jurisdiction is a matter of state law exclusively. Rogers v. Peck, 199 U.S. 425, 26 S.Ct. 87, 50 L.Ed. 256 (1905); Storti v. Commonwealth, 183 U.S. 138, 22 S.Ct. 72, 46 L.Ed. 120 (1901); Booker v. Arkansas, 380 F.2d 240 (8th Cir.1967).

The third allegation of error raises the question of double jeopardy in violation of the Fifth and Fourteenth Amendments. While petitioner has not argued this point very aggressively, it appears that his theory is based on the reindictment of petitioner on the same offense as charged in his first indictment which had been nolle prossed.

In Virginia this order is still a common law procedure. The court in Rosser v. Commonwealth, 159 Va. 1028, 167 S. E. 257 (1933) was faced with the question. In that case the defendant waived a jury trial. After the prosecutor had begun to offer evidence before the court, the Commonwealth's Attorney entered a nolle prosequi to the indictment because he realized he could not prove his case. The case was dismissed without the defendant's consent. Upon being reindicted for the identical offense, he pleaded double jeopardy. The trial court denied his motion to dismiss, but the State Supreme Court reversed and held that

after a trial has commenced the commonwealth's attorney, though he has the power, has not the right to terminate the prosecution without a verdict, and his refusal of record to further prosecute the indictment has the effect of, and amounts to, an acquittal of the defendant, unless it is done with his consent.

The court proceeded to hold that the demarcation line determining when a nolle prosequi amounted to an acquittal commenced when the jury was sworn or in a trial without a jury when evidence was first offered before the court. Nolle prosequi before this point does not result in an acquittal. See Wortham v. Commonwealth, 5 Rand. (26 Va.) 669 (1827); Lindsay v. Commonwealth, 2 Va.Cas. 345 (1823).

According to the trial record no jurors were ever sworn. It appears...