Houston v. Lane, Civ. No. 2-78-170.

• Decision Date: 23 October 1978
• Docket Number: Civ. No. 2-78-170.
• Citation: 501 F. Supp. 5
• Parties: William T. HOUSTON, Petitioner, v. Stonney R. LANE, etc. et al., Respondents.
• Court: U.S. District Court — Eastern District of Tennessee

501 F. Supp. 5

William T. HOUSTON, Petitioner, v. Stonney R. LANE, etc. et al., Respondents.

Civ. No. 2-78-170.

United States District Court, E. D. Tennessee, Northeastern Division.

October 23, 1978.

William T. Houston, pro se.

William M. Leech, Atty. Gen., State of Tenn., Nashville, Tenn., for respondents.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

The petitioner Mr. William Thomas Houston, a person in the custody of the respondent-warden pursuant to the judgment of April 29, 1977 in State of Tennessee v. William Thomas Houston, no. 12331 in the Criminal Court of Washington County, Tennessee, claims that he is in such custody in violation of the Constitution, First, Fifth, Sixth and Fourteenth Amendments. 28 U.S.C. § 2254(a). He claims the exhaustion of his state remedies, 28 U.S.C. § 2254(b), by the appeal of his judgment of conviction for the crime of murder in the first degree in William Thomas Houston, appellant, v. State of Tennessee, appellee no. 124, Washington County, in the Court of Criminal Appeals of Tennessee, judgment of April 17, 1978 affirming the judgment of the lower court, and by seeking certiorari to such Court in William Thomas Houston, petitioner, v. State of Tennessee, respondent, Washington Criminal, docket no. 124, C.C.A., in the Supreme Court of Tennessee, denied June 26, 1978.

This Court FINDS that the applicant so exhausted available remedies under the laws of Tennessee in the courts of Tennessee only as to his claims (in his 12½ page petition) of:

-the illegality of his extradition,

-the denial to him of a preliminary hearing,

-the denial of assistance of counsel,

-the denial of due process by:

-failure to provide him seasonably with an allegedly exculpatory out-of-court statement of a witness,

-through an in-court identification of him by the same witness, and

-denial of a continuance to enable him to procure the attendance of a witness in his behalf, and

-the threatened use against him in trial for impeachment of a stale conviction.

Other claims advanced in this Court by the applicant have not been presented fairly to the courts of Tennessee and thus cannot be considered by this Court. "* * * Exhaustion of state remedies is required as a prerequisite to consideration of each claim sought to be presented in a federal habeas corpus proceeding. * * *" Pitchess v. Davis (1975), 421 U.S. 482, 487, 95 S.Ct. 1748, 1751, 44 L.Ed.2d 317, 3221.

There is nothing in the federal Constitution that requires this Court to permit a guilty person convicted rightfully to escape justice merely because he was brought to trial by irregular extradition proceedings. Pettibone v. Nichols (1906), 203 U.S. 192, 205, 27 S.Ct. 111, 114, 51 L.Ed. 148, 153-154 (headnote 2); cf. also Frisbie v. Collins (1952), 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541, 545-546.

The Constitution, Fourth Amendment, required a timely judicial determination of probable cause as a prerequisite to the applicant's detention. Gerstein v. Pugh (1975), 420 U.S. 103, 126, 95 S.Ct. 854, 869, 43 L.Ed.2d 54, 72 1d. Tennessee provides by statute that an accused person who is indicted before he has been afforded a preliminary hearing on a warrant may abate such an indictment by motion within 30 days of his arrest. T.C.A. § 40-1131. It is undisputed in the state court record that the applicant did not object to the want of a preliminary hearing herein by motion or otherwise before entering his plea of not guilty to the indictment. Therefore, the applicant waived his right to a hearing and cannot now complain that he was denied a preliminary hearing. Dowdell v. United States (1911), 221 U.S. 325, 332, 31 S.Ct. 590, 592, 55 L.Ed.2d 753, 758 (headnote 4).

There was no federal constitutional violation of the applicant's rights under either the Sixth or the Fourteenth Amendment because of the delay in the appointment of counsel for him. Although an accused person is entitled to the assistance of counsel from the time of arraignment until the beginning of the trial "* * * when consultation, thorough-going investigation and preparation are vitally important, * * *" Powell v. Alabama (1932), 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158, 164 (headnote 4), the delay in this instance was only 20 days. The state court record reflects that, although Mr. Houston may not have had assistance of counsel from the time he showed his indigent condition, "* * * he had counsel in ample time to take advantage of every defense which would have been available to him originally. * * *" See Canzio v. New York (1946), 327 U.S. 82, 86, 66 S.Ct. 452, 453, 90 L.Ed. 545, 548.

Mr. Houston contends that his right to the assistance of counsel, Constitution, Sixth Amendment, was violated at a critical stage of the proceedings against him when the witness Mrs. Jayco identified him in the absence of counsel as the murderer of his victim. United States v. Wade (1967), 388 U.S. 218, 237, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149, 1162-116313. However, "* * * the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. * * *" United States v. Ash (1973), 413 U.S. 300, 321, 93 S.Ct. 2568, 2579, 37 L.Ed.2d 619, 63311.

The applicant insists that his federal right to notice from the prosecution of a witness whose testimony might tend to exculpate him was violated when the prosecuting attorney listed on the indictment herein the maiden name of a witness who testified against him. This does not state a federal constitutional claim. It is only the name of a witness known to the prosecution whose...