Evans v. Eyman
| Decision Date | 13 July 1966 |
| Docket Number | No. 20260.,20260. |
| Citation | 363 F.2d 540 |
| Parties | Wilmer W. EVANS, Appellant, v. Frank A. EYMAN, Warden Arizona State Prison, and State of Arizona, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Wilmer W. Evans, in pro. per.
Darrell F. Smith, Atty. Gen. of Arizona, James S. Tegart, Asst. Atty. Gen., Phoenix, Ariz., for appellees.
Before HAMLEY and JERTBERG, Circuit Judges, and THOMPSON, District Judge.
Wilmer W. Evans, in Arizona penal custody following his state conviction and sentence for first-degree murder, appeals from a district court order, entered without hearing, denying his application for a writ of habeas corpus.
Nine asserted grounds for relief are set out in Evans' application for a writ. We agree with appellee, however, that only one of these presents a question cognizable in a federal habeas corpus proceeding by a state prisoner. That ground is stated in the application as follows:
No show cause order was issued, but the district judge wrote to several attorneys who had been connected with the case, soliciting their comments. Responsive to such a request, Harold A. Beelar, the County Attorney of Gila County, Arizona, who prosecuted Evans, filed an affidavit. He therein alleged that the two inmates to which Evans referred in his application were Raymond Jones and Wayne Munson, and that they had testified that, while a prisoner in the Gila County jail, Evans told them that he was guilty of the crime. Beelar alleged that he had tried to locate these witnesses for interrogation in connection with the charge made by Evans in his application for a writ, but that they could not be found. Beelar alleged that, at the time of Evans' trial, Jones was serving a jail sentence in the Gila County jail for drunken driving, and Munson was serving a sentence in the Arizona State Prison.
Beelar further alleged in his affidavit that he did not promise these men immunity as contended by Evans, immunity being impossible because they were already serving sentences. Beelar denied Evans' allegation that neither Jones nor Munson went to prison after they testified, asserting that they were already serving their sentences. Beelar also alleged that there was never a conspiracy between the prosecutors and Jones and Munson, of the kind referred to in Evans' application. The prosecutor alleged, in addition, that these witnesses volunteered their information to the sheriff immediately before and during the trial.
On the day that the Beelar affidavit was filed, the district court denied the application without hearing. In this order, the court stated that it had "investigated" Evans' contention, referred to Beelar's affidavit, and noted that the court had been unable to locate Jones or Munson. The court further stated that in the face of Beelar's affidavit "* * * the Court can only presume that witnesses who testify under oath are telling the truth, and that therefore there existed no conspiracy to lie as urged by petitioner." While this sounds like a determination of fact, the court then went on to state in its order that Evans "* * * has failed to set forth facts which would entitle him to relief." The application was "(a)ccordingly" denied.
Upon learning of this order, Evans advised the court that he had not submitted all of the information in his possession. The court thereupon set aside the order of denial "* * * pending receipt of answering affidavits from petitioner. * * *" Evans then filed an affidavit in which he asserted that Beelar's affidavit is completely false. Referring to Beelar's allegation that Jones was serving a jail sentence in Gila County jail during the murder trial, Evans alleged that the trial record would show that he was in Maricopa County during that time. With regard to Beelar's statement that Munson and Jones volunteered their information to the sheriff immediately before and during the trial, Evans alleged that Jones was serving time in Maricopa County jail and Munson was in Arizona Prison.
Evans also asserted, in effect, that Beelar had made an inadequate effort to locate Jones and Munson, alleging among other things that no inquiry had been made of the newly-elected sheriff who had...
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