Harkins v. Perini, 19021.

• Citation: 419 F.2d 468
• Decision Date: 23 December 1969
• Docket Number: No. 19021.,19021.
• Parties: Walter D. HARKINS, Petitioner-Appellee, v. E. P. PERINI, Superintendent, Marion Correctional Institution, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

419 F.2d 468 (1969)

Walter D. HARKINS, Petitioner-Appellee, v. E. P. PERINI, Superintendent, Marion Correctional Institution, Respondent-Appellant.

No. 19021.

United States Court of Appeals Sixth Circuit.

December 23, 1969.

Leo J. Conway, Atty. Gen. of Ohio, Columbus, Ohio, for respondent-appellant; William B. Saxbe, Atty. Gen. of Ohio, Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, on brief.

Gerald B. Lackey, Toledo, Ohio, on brief for petitioner-appellee.

Before O'SULLIVAN, EDWARDS and COMBS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Appellant Perini, Superintendent of the Ohio Correctional Institution, appeals from an order of the United States District Court for the Northern District of Ohio granting a writ of habeas corpus to appellee, Walter D. Harkins. Harkins was, on October 9, 1962, convicted in the Common Pleas Court of Lucas County, Ohio, of unlawful possession of marijuana in violation of an Ohio statute. His conviction has been affirmed and he has been denied habeas corpus relief by the courts of Ohio. He has exhausted available Ohio remedies.

This cause began with Harkins' petition to the United States District Court for habeas corpus relief, asserting among other claims of deprivation of federally granted constitutional rights, that perjury known to be such by the prosecuting attorney was used to convict him. His petition was initially dismissed without an evidentiary hearing. On appeal to this Court we found that his other grounds were adequately considered and disposed of in the District Court, but remanded that matter to the District Court as follows:

"We are of the opinion, however, that the petition for writ of habeas corpus presented a factual issue as to whether or not the prosecuting attorney knowingly used perjured testimony to bring about petitioner\'s conviction. The resolution of this issue required an evidentiary hearing.

"We find no other error in the District Court\'s order and, therefore, remand the case for evidentiary hearing only upon the question of whether perjured testimony was used to convict the petitioner. The burden of establishing such claim will be upon the petitioner." (Emphasis supplied.)

The evidentiary hearing was held, and at its conclusion the District Judge granted a new trial upon a finding, not that the prosecuting attorney knowingly used perjured testimony, but that a police officer's testimony used to convict Harkins was perjurious.

We reverse.

With great respect for the careful consideration given this matter by the learned District Judge, we find error in his legal conclusions and that in critical regard his findings of fact were clearly erroneous.

On June 29, 1962, police officers of Toledo had "staked out" the location of Harkins' car which was suspected of having been driven from Chicago with a supply of heroin. The officers had a search warrant. Included among the officers participating in this stake out was Daniel Perzynski. When Harkins was observed entering his car, the officers closed in. Harkins' fists were closed and one of the officers obtained a marijuana cigarette from one hand and a slip of paper with a Chicago address on it from the other. Harkins immediately started shouting that the officer was framing him, and had planted marijuana on him. The contraband thus seized was the subject matter of Ohio's prosecution of Harkins. At trial, a Toledo police officer by the name of Zsigray testified that he participated in the arrest of Harkins and the seizure of the marijuana. It was Zsigray's testimony that was found to be perjurious.

The following is the material out of which the finding of perjury was made. When first arrested, lawyer James B. Simmons, III, was retained by Harkins. Ultimately, Simmons unsuccessfully tried to persuade Harkins to plead guilty and was discharged from the case. Called as a witness for Harkins at the evidentiary hearing on remand, he gave testimony which is described in the District Court opinion as follows:

"He testified that at the time of the preliminary hearing, the city police prosecutor asked him if he wanted the hearing to get his client off, or for discovery purposes. Simmons said he only wanted discovery of the testimony of the arresting officers. The police prosecutor then suggested that they shorten proceedings by Simmons cross-examining officer Perzynski outside the courtroom and then entering a plea of not guilty and having petitioner bound over. Simmons testified that this was a common police court practice. Thereupon he, the police prosecutor, administered an oath to the policeman, and in response to questioning, the officer stated that he alone had searched petitioner; that the only other policeman in the immediate vicinity was an Officer Pfeiffer; and that Pfeiffer could not see him take the cigarette from petitioner\'s hand, because he was back of Perzynski."

This questioning under oath occurred in a restaurant over a cup of coffee. Simmons also testified that he told this story to Harkins and later to the attorney who succeeded him as attorney for Harkins. Whatever the importance of this coffee cup exchange, Simmons later told Harkins that the story of the marijuana cigarette being planted on him by the officers would not be believed by anyone,¹ and urged Harkins to plead guilty. At the time of trial in the Common Pleas Court, Officer Perzynski was away from Toledo at a convention so ...