Kelley v. Swenson, 74--1394

Decision Date28 January 1975
Docket NumberNo. 74--1394,74--1394
Citation510 F.2d 264
PartiesRobert KELLEY, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Richard D. Schreiber, Clayton, Mo., for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, and ROSS and STEPHENSON, Circuit Judges.

PER CURIAM.

Robert Kelley, a Missouri state prisoner, appeals from the decision of the district court denying his petition for a writ of habeas corpus. That court's memorandum opinion and order is reported as Kelley v. Swenson, 376 F.Supp. 20 (E.D.Mo.1974). We affirm.

This is the second time that this petition has been before this Court on appeal. Kelley was convicted in state court of second degree burglary and stealing on February 20, 1970. A direct appeal was taken to the Missouri Supreme Court in which the sole issue presented was whether Kelley's initial arrest by St. Louis police was based on probable cause. This arrest and subsequent incarceration led ultimately to Kelley's confession to the burglary for which he was convicted. The confession was introduced into evidence at the trial over Kelley's objection that it was the product of an illegal arrest.

The state appellate court rendered its opinion on December 13, 1971, holding on that narrow issue that there was probable cause to make the arrest. State v. Kelley, 473 S.W.2d 707, 710 (Mo.1971).

Kelley then filed his petition for a writ of habeas corpus in federal court in which he predicated his right to relief on the basic allegation that his initial arrest had not been based on probable cause and that its product, the confession, was, therefore, inadmissible. The district court dismissed without prejudice on the grounds of failure to exhaust state remedies. This Court reversed and remanded on appeal with directions to vacate the dismissal and hear the petition on the merits. Kelley v. Swenson, 481 F.2d 86, 90 (8th Cir. 1973). After holding an evidentiary hearing on remand the district court denied the petition, and this appeal followed.

Before turning to the merits of the legality of Kelley's arrest, we deal with his argument on appeal that the district court erroneously failed to make an independent review of the state court record. This claim has its origins in events at the evidentiary hearing. After relating his version of the arrest, Kelley rested. The state proposed to call both arresting officers to the stand to testify as to their version; but the state's attorney, noting that their testimony would be identical to that given in the suppression hearing before the state trial court, offered the transcript of that testimony into evidence instead. The district court accepted this offer. Kelley's attorney then proposed to offer into evidence the entire state court trial transcript. The district judge rejected this offer 'because the whole thing is not pertinent to the arrest. . . . We are not concerned with the rest of the testimony of the trial.' He did, however, agree to accept any other specific portions which Kelley's attorney could point out as 'pertinent to this inquiry.'

While it is true under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, the District Judge has a right and duty . . . to review the entire record of the trial, that right and duty extends only to the consideration of federal constitutional questions.

Gemmel v. Buchkoe, 358 F.2d 338, 341 (6th Cir.), cert. denied, 385 U.S. 962, 87 S.Ct. 402, 17 L.Ed.2d 306 (1966).

In this case the only federal constitutional question which had been exhausted in the state courts and which was, therefore, before the federal court concerned the validity of Kelley's initial arrest. There was no reason to review the entire record for other possible constitutional infirmities; and, likewise, there was no duty to review those portions of the transcript which were totally irrelevant to the issue before the court. The trial court's refusal to accept the whole transcript into evidence was entirely justified under these circumstances and there is no merit to this aspect of Kelley's appeal.

The facts surrounding the disputed arrest are as follows: Two St. Louis police officers observed two known 'police characters,' Winter and Steagal, parked behind the house of another 'police...

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8 cases
  • United States ex rel. Rigsbee v. Parkinson
    • United States
    • U.S. District Court — District of South Dakota
    • February 19, 1976
    ...cause was enunciated in United States v. Peep, 490 F.2d 903, 906-907 (8th Cir. 1974), and expressly reaffirmed in Kelley v. Swenson, 510 F.2d 264, 266 (8th Cir. 1975). We assess probable cause in terms of the eyes of a reasonably cautious and prudent peace officer in the circumstances of th......
  • Davenport v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • September 14, 1978
  • Irwin v. Wolff
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • February 17, 1976
    ...(8th Cir. 1974). See also Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Kelley v. Swenson, 510 F.2d 264 (8th Cir. 1975).This Court recently reiterated the standard to be applied to the issue of probable cause in United States v. Peep, 490 F.2d 903, ......
  • U.S. v. Collins
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 5, 1976
    ...at the time the crime was committed. The rule on determining probable cause for arrest was recently set forth in Kelley v. Swenson, 510 F.2d 264, 266 (8th Cir. 1975), quoting United States v. Peep, 490 F.2d 903 (8th Cir. 1974), as We assess probable cause in terms of the eyes of a reasonabl......
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