Johnson v. Walker

• Decision Date: 17 November 1961
• Docket Number: Misc. No. 583.
• Citation: 199 F. Supp. 86
• Parties: Ex parte Ben A. JOHNSON, Mover, v. Mr. Victor G. WALKER, Warden, Louisiana State Penitentiary, Angola, Louisiana, and the State of Louisiana, Respondents.
• Court: U.S. District Court — Eastern District of Louisiana

199 F. Supp. 86

Ex parte Ben A. JOHNSON, Mover, v. Mr. Victor G. WALKER, Warden, Louisiana State Penitentiary, Angola, Louisiana, and the State of Louisiana, Respondents.

Misc. No. 583.

United States District Court E. D. Louisiana, Baton Rouge Division.

November 17, 1961.

COPYRIGHT MATERIAL OMITTED

J. Minos Simon, Simon & Trice, Lafayette, La., for applicant.

Jack P. F. Gremillion, Atty. Gen. of Louisiana, Teddy W. Airhart, Jr., Thomas W. McFerrin, Scallan E. Walsh, Asst. Attys. Gen., for respondents.

WEST, District Judge.

This is an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner is presently incarcerated in the Louisana State Penitentiary at Angola, Louisiana.

On November 19, 1954, petitioner was sentenced to ten years at hard labor in the Louisiana State Penitentiary pursuant to a jury verdict of guilty entered on October 23, 1954, on the charge of violating Title 40, Sec. 962 et seq. of the LSA-Revised Statutes of Louisiana, in that "he had in his possession certain quantities of narcotic drugs".

A full and complete hearing was held before this Court on this application, both on the pending motions filed by respondents and on the merits on November 2, 1961. In order to have a complete understanding of the issues involved, it is felt that a recounting of the history of prior proceedings in this matter, as reflected by a review of the record of the Trial Court and the Appellate Court proceedings, is necessary.

The original trial of the petitioner on the charge of having possession of narcotic drugs began in the Nineteenth Judicial District Court for the Parish (County) of East Baton Rouge, State of Louisiana, on October 25, 1954. After presenting its evidence, the State rested its case at about 2:00 o'clock p. m. on October 27, 1954. During the entire presentation of the State's case, one Ford K. (Bobby) Dees, a witness under subpoena by the State was apparently present in the courtroom, and while he was so present in the courtroom, the defense attorney had him served with a subpoena on behalf of petitioner. The State had elected not to call Dees as a witness.

After the State rested its case, the first witness called by the petitioner was the said Ford K. (Bobby) Dees, but at that time, Dees was found to be not present. This was at about 2:00 o'clock p. m. on October 27, 1954. The Judge then recessed the Court until 4:00 o'clock p. m. and issued an order to have Dees picked up and brought into the Court pursuant to his subpoena. When the Court reconvened at 4:00 o'clock p. m., Dees was still missing, and thereupon the Court again recessed until 10:00 o'clock a. m. the following day, and a statewide pickup order was put out for Dees.

At 10:00 o'clock a. m. the following day, October 28, 1954, when the Court reconvened, Dees was still missing. At this time the petitioner filed a motion for a continuance, alleging that Dees was a witness necessary to his defense, and at the same time presented to the Court an eight page affidavit, previously executed before a Notary Public by Dees, the contents of which petitioner stated to the Court would be proved by him if Dees were present to testify, and that he would prove by Dees that he "framed" petitioner to the knowledge of and with the consent of the District Attorney and the officials of the State of Louisiana. Whereupon the attorneys for the State agreed to admit that if Dees were present, he would testify in accordance with the affidavit presented by the petitioner. The Trial Court ruled that inasmuch as the State agreed to admit the affidavit into evidence, and inasmuch as the State admitted that the witness, if present, would testify in accordance with said affidavit, that the motion for a continuance must be denied under the well settled law of the State of Louisiana. Thereafter, the affidavit of Dees was filed in evidence and presented to the jury. No other witnesses were called by the petitioner, and after certain rebuttal evidence was produced by the State for the purpose of showing that Dees did not "frame" petitioner, and that the State did not knowingly use any perjured testimony, the State rested and the evidence was closed.

Thereafter, on October 28, 1954, the jury found petitioner "guilty as charged" and he was, on November 19, 1954, sentenced to serve ten years at hard labor in the State Penitentiary at Angola, Louisiana.

A motion for a new trial was then filed on November 18, 1954, and another supplemental motion for new trial was filed by the petitioner on the same day. Both motions were denied by the Trial Court.

An appeal was taken by petitioner to the Supreme Court of the State of Louisiana, and on March 21, 1955, the Louisiana State Supreme Court set aside the conviction and sentence and remanded the case for new trial. State v. Johnson, 228 La. 317, 82 So.2d 24.

In this decision the Court gave its reasons in detail for a reversal of the Trial Court. The Supreme Court of Louisiana pointed out that two bills of exception had been reserved by the petitioner on the trial of the case, and that the petitioner had also urged before the State Supreme Court that there is "error patent on the face of the record". Bill of exception No. 1, the Court stated, was leveled at the fact that the District Court, or Trial Court, allowed the District Attorney to change the date of the alleged offense at the commencement of the trial. Petitioner alleged that this was error. The Court held that under the settled law of Louisiana, the Court may allow an amendment to the bill of information so long as the defendant can show no prejudice thereby. They held that since the Trial Judge had specifically given the petitioner an opportunity to show prejudice, and since the petitioner had failed to show any prejudice, the Trial Court properly refused a continuance and allowed the amendment made by the State to the bill of information. On this initial hearing on appeal before the Louisiana State Supreme Court, however, the Court held that bill of exception No. 2 was good and they set aside the conviction and sentence and remanded the case for a new trial. Bill of exception No. 2 had been leveled at the fact that the Court had allowed the State to introduce evidence of a violation of the Narcotic Statute on a date other than the date of the offense charged in the bill of information on the theory that the State was attempting to show intent, system and knowledge. The reason given by the Louisiana State Supreme Court for finding merit in this exception was that intent or motive were not necessary elements of the crime charged, and that consequently, it was error to allow the State to present evidence of violations other than the one charged in the bill of information.

However, a rehearing at the request of the State was then granted, and on June 30, 1955, the Supreme Court for the State of Louisiana reversed its prior position and held that intent, motive, or knowledge was an essential ingredient of the crime charged, and decreed that the conviction and sentence be affirmed. State v. Johnson, supra.

Since the Louisiana State Supreme Court specifically made mention in its opinion of the fact that the petitioner urged "defects" allegedly "patent on the face of the record", it is to be assumed that these contentions of the petitioner were considered by the Supreme Court of Louisiana. The mere fact that a specific and detailed disposition is not made by the Court in its written reasons of every contention urged by a petitioner before the Court cannot be construed to mean that such contentions were not considered by that Court. Indeed, on the contrary, it should be assumed that the Court did consider all arguments and issues presented, absent specific showing to the contrary. Furthermore, a careful review of the record in this case does not reflect any "defects patent upon its face" insofar as this Court can determine.

On April 8, 1958, petitioner filed an application for a writ of habeas corpus in this Court, which was denied on the grounds that he had not exhausted his State Court remedies, citing authorities therefor. On April 25, 1958, the petitioner filed an application for a writ of habeas corpus with the United States Supreme Court, which was also denied. On May 22, 1958, petitioner filed application for a writ of habeas corpus with the original Trial Court, the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana. Exceptions to the jurisdiction of that Court were then filed by the State, and in November of 1958, the Louisiana Supreme Court ruled that the original Trial Court no longer had jurisdiction over this matter, but that the District Court in the Parish where the petitioner was incarcerated had jurisdiction over such habeas corpus proceedings. Petitioner then applied to the Twentieth Judicial District Court, Parish of West Feliciana, State of Louisiana, the parish where the State Penitentiary is located, for writs of habeas corpus, which were denied by that Court on June 13, 1958. He then applied again to this Court, the United States District Court for the Eastern District of Louisiana, for a writ of habeas corpus and on March 16, 1959, this application was denied with a per curiam stating that the application was denied for failure of the petitioner to exhaust his State Court remedies.

Petitioner again applied to the Twentieth Judicial District Court for the Parish of West Feliciana, State of Louisiana, and after hearing, on March 28, 1959, this application was also denied. He then applied to the Louisiana State Supreme Court from this denial, and also filed an original application for a writ of habeas corpus with that Court. On April 27, 1959, his appeal and application were denied. A motion for a rehearing was filed and was denied by the Louisiana State Supreme Court. No writs of certiorari to the United States Supreme Court were applied for in connection with this...