Douglas v. Commonwealth of Virginia, Civ. A. No. 71-C-2-R.

• Court: United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
• Writing for the Court: Max Jenkins, Goldsmith & Jenkins, Radford, Va., for petitioner
• Citation: 327 F. Supp. 689
• Parties: Willie Edward DOUGLAS, Petitioner, v. COMMONWEALTH OF VIRGINIA and Circuit Court of Pulaski County, Respondents.
• Docket Number: Civ. A. No. 71-C-2-R.
• Decision Date: 26 May 1971

327 F. Supp. 689

Willie Edward DOUGLAS, Petitioner,
v.
COMMONWEALTH OF VIRGINIA and Circuit Court of Pulaski County, Respondents.

Civ. A. No. 71-C-2-R.

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

May 26, 1971.

Max Jenkins, Goldsmith & Jenkins, Radford, Va., for petitioner.

William P. Robinson, Jr., Asst. Atty. Gen., Richmond, Va., for respondents.

OPINION and JUDGMENT

DALTON, Chief Judge.

This case comes before the court upon a petition for a writ of habeas corpus, filed in forma pauperis by Willie Edward Douglas, a state prisoner, pursuant to 28 U.S.C.A. § 2241. The petition was originally filed in the United States District Court for the Eastern District of Virginia and was transferred to this court by order dated January 7, 1971.

Petitioner is currently serving a sentence of twenty years, ten of which have been suspended, pursuant to a judgment of the Circuit Court of Pulaski County imposed on August 4, 1969 for grand larceny. Petitioner, represented by court appointed counsel, entered a plea of not guilty and was tried by a jury. Following his conviction petitioner

327 F. Supp. 690

moved for a new trial based upon alleged jury impropriety and errors in the conduct of the trial. The motion was denied. His attorney then perfected an appeal to the Supreme Court of Appeals of Virginia which refused a writ of error and supersedeas

Petitioner alleges that his conviction is constitutionally defective of the grounds a) that an in court identification by an eyewitness had been tainted by a prior illegal identification by the same eyewitness immediately after the police had apprehended the petitioner; b) that the opening statement of the Commonwealth Attorney tended to prejudice the jury; c) that a statement by a juror tended to show that the jury had acted improperly in its deliberations; and d) that he did not receive effective assistance of counsel.

The opening statement of the Commonwealth Attorney was objected to at the time by counsel for the petitioner and the point was also raised on direct appeal to the Supreme Court of Appeals. Accordingly, the court feels that the petitioner has adequately presented his contention to the state courts and has exhausted his state remedies. 28 U.S.C. A. § 2254. In the statement complained of, the Commonwealth Attorney indicated that the evidence would show that the defendant was involved with two other men in the larceny in question. Petitioner's counsel objected that this statement was improper because his client was not charged with having taken part in a conspiracy. The court overruled the motion. Since the evidence did reveal that three men apparently acted in concert to accomplish the larceny, the court...