Howard v. Hocker

• Decision Date: 01 October 1968
• Docket Number: No. 22353.,22353.
• Citation: 401 F.2d 502
• Parties: Larry N. HOWARD, Appellant, v. Carl G. HOCKER, Warden, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

401 F.2d 502 (1968)

Larry N. HOWARD, Appellant, v. Carl G. HOCKER, Warden, Appellee.

No. 22353.

United States Court of Appeals Ninth Circuit.

October 1, 1968.

Charles D. Glattly, Reno, Nev., for appellant.

Harvey Dickerson, Atty. Gen., Carson City, Nev., for appellee.

Before MERRILL and CARTER, Circuit Judges, and WHELAN, District Judge.

WHELAN, District Judge:

Appellant, a State court prisoner, appeals from an order of the United States District Court denying appellant's petition for habeas corpus after an evidentiary hearing. This Court has jurisdiction under Title 28, United States Code, Section 2253.

Appellant was convicted in the Nevada State court of attempted robbery. Among the witnesses against him at his trial was one Robert William Polidoro (hereinafter Polidoro). His present imprisonment results from such conviction.

As grounds for relief in the court below he asserted that Polidoro testified falsely at the State trial and that the prosecutor at such trial knew of the falsity of Polidoro's testimony but failed to correct it.

On appeal appellant contends: (a) the District Court erroneously found that Assistant District Attorney Berry (hereinafter the District Attorney) who prosecuted appellant in the State case had not promised Polidoro anything as a condition or inducement of the latter's statement of January 19, 1966, or testimony, and that therefore the answers given by Polidoro at appellant's criminal trial concerning the possibility of an offer of consideration were not false and consequently not known to be false to the District Attorney; and (b) that the District Court erroneously concluded that appellant was not denied due process of law in the State criminal trial.¹

We find no merit in the contentions of appellant; the record supports the findings and conclusions of the District Court.

The pertinent facts are as follows. Polidoro and appellant were charged with attempted murder. Polidoro after his arrest gave statements confessing his guilt of armed robbery but not implicating appellant. Then later, on January 19, 1966, Polidoro gave another statement implicating appellant. The District Attorney had no discussions with Polidoro before the giving of this latter statement;² after the completion of that statement the District Attorney stated to Polidoro he would advise the Oregon authorities, who were thought to have a hold on Polidoro, of the latter's cooperation and there would be no charge filed against Polidoro by the District Attorney concerning some allegedly fraudulent checks. The District Attorney at the same time told Polidoro that he had no authority over what Oregon would or wouldn't do.

In summary, Polidoro at the State trial testified that after he had given the statement on January 19th he, Polidoro, had discussed with the District Attorney the hold in Oregon and that the District Attorney had then told him that he, the District Attorney, had no authority over what Oregon would do. Polidoro also testified that after such statement had been given there was a discussion between him and the District Attorney concerning the checks and that it was mentioned that any complaint as to them would be dropped. He further testified that he had a good idea "that if he gave the statement the attempted murder charge would be dropped and he would be permitted to plead guilty to an armed robbery charge"; and testified that the attempted murder charge would have to be dropped because "Judge Gabrielli stated * * * the murder felony law didn't apply in this case." He said the reason he testified against appellant...