Harrison v. Boles

Citation307 F.2d 928
Decision Date13 September 1962
Docket NumberNo. 8532.,8532.
PartiesOscar A. HARRISON, Appellant, v. Otto C. BOLES, Warden of the West Virginia Penitentiary, Moundsville, West Virginia, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

John R. Morris, Parkersburg, W. Va. (Court-assigned counsel), for appellant.

C. Robert Sarver, Asst. Atty. Gen. of West Virginia (C. Donald Robertson, Atty. Gen. of West Virginia, on brief), for appellee.

Before SOPER and HAYNSWORTH, Circuit Judges, and CRAVEN, District Judge.

SOPER, Circuit Judge.

This appeal is taken from an order of the District Court whereby the petition of Oscar A. Harrison for writ of habeas corpus was dismissed without a hearing. Harrison is serving a life sentence in the West Virginia State Penitentiary imposed by the Circuit Court of Wayne County, West Virginia, on December 31, 1947, after a jury trial wherein he was found guilty of murder in the first degree.

He filed the instant proceeding in the District Court on November 13, 1961, and was allowed by the court to proceed in forma pauperis. The Judge considered the allegations of the petition but found them insufficient to justify the relief prayed for and dismissed the petition without a hearing. The prisoner appealed from this order and has been allowed to proceed in forma pauperis and has been represented on the appeal by an attorney appointed by this court. The question for decision is whether the allegations of the petition are sufficient to require an answer on the part of the Warden of the prison, and, if proved, to justify the issuance of the writ.

The case has been before the state and federal courts on a number of previous occasions. The prisoner was represented at his trial for murder in the state court by two lawyers selected by his brother and paid by him. After his conviction they filed a motion for a stay pending appeal but did not perfect the appeal. Thereafter no further action was taken until 1953, six years later, when the prisoner filed an application for a writ in the District Court below in which he made the incongruous allegations that he had been denied the right of trial but referred to the false testimony by one of the witnesses who took the stand against him. The petition was dismissed because the prisoner had not exhausted his state remedies. See Harrison v. Skeen, D.C., 114 F.Supp. 695; D.C., 114 F.Supp. 696.

Thereafter the prisoner sought relief unsuccessfully in the state courts and in 1954 filed a second petition for a writ of habeas corpus in the court below in which he asked for the appointment of counsel to represent him. This request was granted. An answer was filed and a hearing was held. It was shown that the prisoner had applied to the Supreme Court of West Virginia for a writ but had been denied and that he had not thereafter applied to the Supreme Court of the United States for writ of certiorari. The District Court dismissed the writ on November 22, 1954 (125 F.Supp. 547) on the ground that the prisoner had not exhausted his state remedies and also on the ground that the errors of which he complained related to the sufficiency of the evidence and the credibility of the witnesses produced at his trial that were reviewable only on appeal and not on petition for writ of habeas corpus. The prisoner's petition was also denied because the legality of his detention had been determined by the state courts. On appeal to this court, 4 Cir., 226 F.2d 217, the case was dismissed for failure of the prisoner to obtain a certificate of probable cause; but the court said that if the case were properly before it the decision of the District Court would necessarily be affirmed because the state court had passed adversely on the prisoner's contentions and because he had not exhausted the state remedies by seeking certiorari from the Supreme Court of the United States.

Three years later in 1958, that is to say eleven years after the conviction, the prisoner applied unsuccessfully to the Circuit Court of Wayne County, West Virginia, for copy of the transcript of the trial in 1947, under Chapter 51, Article 7, § 7 of the West Virginia Code which entitles an indigent person under indictment for misdemeanor or felony, upon written request, to a transcript of the testimony and proceedings at his trial, without charge, for use in seeking an appeal or writ of error. See Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740. This was the first time the prisoner had requested a copy of the transcript of the record of his trial for murder. The request was denied by order of the state court on March 10, 1958 on the ground that the statutory period of eight months, during which a petition for appeal or writ of error may be taken in a criminal case in West Virginia, had expired. See Chapter 58, Article 5, § 4 of the West Virginia Code.

Two years later in September 1960 the prisoner filed a petition for a writ of habeas corpus in the Supreme Court of West Virginia. Therein he alleged that the evidence upon which his conviction was based was proved to be false by witnesses offered on his behalf and he requested that the record of his trial be produced. This petition was denied by the Supreme Court of West Virginia and a petition for certiorari to the Supreme Court of the United States was also denied on March 20, 1961. Harrison v. Adams, 365 U.S. 846, 81 S.Ct. 808, 5 L.Ed.2d 811.

On November 13, 1961, the prisoner filed the instant proceeding in the court below. The petition invokes the jurisdiction of the District Court under 28 U.S.C. § 2241 relative to the grant of habeas corpus and alleges that the prisoner had exhausted his state remedies in compliance with 28 U.S.C. § 2254 first, by applying to the Supreme Court of West Virginia for a writ of habeas corpus, and, upon its denial, by filing a petition for certiorari with the Supreme Court of the United States, which was also denied. On the merits it was alleged in the District Court below that the prisoner was denied due process when the Circuit Court of Wayne County refused him a copy of the records in the criminal case, and when the Supreme Court of West Virginia refused him a writ of habeas corpus without a hearing, and the Supreme Court of the United States refused him a writ of certiorari. He alleges that his lawyer abandoned his case after he was taken to the Penitentiary in 1947 and thereafter the prison authorities would not allow him to file any proceeding in court until 1953. Filed with the petition are copies of the petitions and briefs in the proceedings in the Supreme Court of West Virginia and the Supreme Court of the United States. In these papers the allegations of fact on which the prisoner now depends are set forth in the following recital.

On August 17, 1947 the prisoner was living with one Mrs. Blake as a common law wife. She is the mother of Elizabeth Blake, who was then a sixteen year old girl. At midnight the girl had not come home and her absence was reported by the couple to the police. After 1 A.M. the girl returned accompanied by a man. An altercation followed during which the man struck the prisoner and a pistol went off which the prisoner had drawn from his pocket and the man was killed. At the trial of the case the state relied solely on the testimony of Elizabeth Blake which was false. She testified that the prisoner came down the steps from the house, faced the deceased, pulled out a pistol and fired it into his stomach without saying anything. She first made a signed statement in the prisoner's favor but later made five separate and distinct statements; she was frightened into testifying against the prisoner at the trial because she was a juvenile delinquent; and her testimony at the trial was contradictory and conflicting in itself and was proved false by medical and ballistic experts who testified on behalf of the prisoner.

In support of his position in this court the appellant contends first that the evidence at his trial was insufficient to support a verdict of murder in the first degree because the only credible evidence showed that the killing was unintentional or in self defense; and he says that the only evidence of guilt was the testimony...

To continue reading

Request your trial
18 cases
  • United States v. Reincke
    • United States
    • U.S. District Court — District of Connecticut
    • March 22, 1965
    ...v. People of State of California, 284 F.2d 827, 834 (9 Cir. 1960); Trujillo v. Tinsley, 333 F.2d 185 (10 Cir. 1964); Harrison v. Boles, 307 F.2d 928 (4 Cir. 1962); United States ex rel. Rooney v. Ragen, 173 F.2d 668 (7 Cir. Similarly, habeas corpus will not lie either to examine the failure......
  • Stallings v. State of South Carolina
    • United States
    • U.S. District Court — District of South Carolina
    • November 25, 1970
    ...Carolina (4th Cir. 1960), 283 F.2d 798, 800. 5 Grundler v. State of North Carolina, supra (283 F.2d at p. 802). 6 Harrison v. Boles (4th Cir. 1962), 307 F.2d 928, 931. 7 Grundler v. State of North Carolina, supra (283 F.2d, at p. 8 United States ex rel. Cannon v. Maroney (3d Cir. 1967), 373......
  • Stewart v. Dunn
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 28, 1966
    ...442, 445, 45 S.Ct. 522, 524, 69 L.Ed. 1036; Henry v. Henkel, 1914, 235 U.S. 219, 228, 35 S.Ct. 54, 56, 59 L.Ed. 203; Harrison v. Boles, 4th Cir. 1962, 307 F.2d 928, 931. That the Mississippi District Court went beyond these permissible limits of review by habeas corpus is clear. The basic h......
  • Parker v. Solem
    • United States
    • U.S. District Court — District of South Dakota
    • May 30, 1978
    ...fundamental fairness do they become proper allegations to set forth on federal habeas corpus. 28 U.S.C.A. Sec. 2241; Harrison v. Boles, 307 F.2d 928 (4th Cir. 1962); Grundler v. State of North Carolina, 283 F.2d 798 (4th Cir. 1960). "Errors of fact or law committed during the trial of a cri......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT