Leavitt v. Howard

• Decision Date: 24 May 1972
• Docket Number: No. 72-1016.,72-1016.
• Citation: 462 F.2d 992
• Parties: Barry K. LEAVITT, Petitioner-Appellee, v. Francis HOWARD, Warden, Adult Correctional Institution, Respondent-Appellant.
• Court: U.S. Court of Appeals — First Circuit

462 F.2d 992 (1972)

Barry K. LEAVITT, Petitioner-Appellee, v. Francis HOWARD, Warden, Adult Correctional Institution, Respondent-Appellant.

No. 72-1016.

United States Court of Appeals, First Circuit.

Heard April 4, 1972.

Decided May 24, 1972.

Donald P. Ryan, Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellant.

Ira L. Schreiber, Providence, R. I., for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

Barry K. Leavitt, 20 years old, married, was living in March 1964 on the second floor of an apartment house in Providence, Rhode Island. On the morning of March 23, 12-year old Michael Pono, who lived on the first floor, came home from school because he had forgotten his lunch money, and was stabbed to death. Shortly thereafter, Leavitt called the police from a telephone in his mother-in-law's nearby house and reported that, attracted by screams, he had come down the stairs in the apartment house and that an assailant had cut him and escaped. After taking him to a hospital for treatment, the police invited Leavitt to the station to give assistance, but after a short questioning concluded, and told him, that he was a suspect. In the meantime, they had towed his wife's car, which he had driven to his mother-in-law's, to police headquarters. They asked for and received the keys to the car, and thereafter found in the trunk a knife, ultimately introduced as the weapon and used, effectively,¹ to convict Leavitt of the murder. The present habeas petition asserts, basically, that the car was illegally searched. The district court so found, 332 F.Supp. 845, and the state appeals.

The case presents an important question of habeas corpus procedure, and we must review the proceedings in some detail. Prior to his conviction Leavitt was given one full, and one partial opportunity to avoid being connected with the knife. The first was a voir dire examination held at his request when, during the course of the trial, the prosecution asked a police detective whether during interrogation Leavitt had admitted its ownership. Following two and a half days of testimony, the trial judge allowed this line of questioning, finding that Leavitt had been warned of his constitutional rights prior to being asked the series of questions during which he allegedly consented to the search and culminating in his admission that the knife was his, and finding that his rights were protected during this interrogation. When the knife was subsequently offered in evidence it was admitted over objection without further hearing. The court, however, did instruct the jury that unless it found that petitioner had been warned of his rights before being interrogated, they were to disregard any alleged admissions concerning its ownership.

Leavitt was convicted, and the conviction was upheld on appeal. State v. Leavitt, 1968, 103 R.I. 273, 237 A.2d 309. The Court recognized that the burden had been on the state to prove the defendant's consent to the search "by clear and convincing evidence," but held that the evidence adduced at the voir dire was sufficient to warrant the finding that Leavitt had voluntarily consented to the search and, therefore, that the decision to admit the knife and questions concerning it was not error. Certiorari was denied. Leavitt v. Rhode Island, 1968, 393 U.S. 881, 89 S.Ct. 185, 21 L.Ed.2d 155.

Leavitt next filed a habeas petition in the district court, but was told that he had not exhausted his state remedies because he had not alleged in state court the facts now advanced to contradict the police testimony at his trial that he had been warned of his rights. He responded by filing a petition in the superior court reciting that his confession to the police had not been voluntary—a matter of no consequence, as it had never been used—and that his consent to the search of the car was not voluntary. He asserted that although he had requested counsel, and lawyers retained by his wife were at the station for hours demanding to see him, they were not permitted to do so.² After an evidentiary hearing, the measure of which does not appear, the superior court denied the petition. Leavitt then filed a second district court petition. Again the court concluded that he had not exhausted his state court remedies. This was not because he had not appealed from the superior court findings. Under Rhode Island practice the superior court and the Supreme Court have concurrent jurisdiction of habeas petitions, and an appeal does not lie to the latter from the former. R.I.Gen.L. § 8-2-16 (1956); R.I. Gen.L. § 10-9-22 (1956); see Higgins v. Tax Assessors, 1905, 27 R.I. 401, 410, 63 A. 34, 38. It seems an act of supererogation to require a defendant to file in both courts. See Humphrey v. Cady, 405 U.S., & n. 18, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). Perhaps for this reason the Rhode Island Supreme Court denied the petition on the papers without a hearing. Leavitt v. Howard, R.I., 1971, 274 A.2d 905. The district court then proceeded to entertain Leavitt's petition. It took testimony, and in an opinion containing extensive discussion concluded that Leavitt had not consented to the search of the car.

Preliminarily, the court concluded that the fact that, before asking for the keys, the police had towed the car to the police station without a warrant, and without consent, although they had not opened it, "taints the evidence of the knife found in the trunk." 332 F.Supp. at 850. We cannot agree. If, when they searched the trunk, they had petitioner's permission, it is irrelevant whether prior thereto the car was in the station or on the street. See Phelper v. Decker, 5 Cir., 1968, 401 F.2d 232, 236. The significant question is whether petitioner consented to the entry.

The district court's finding that petitioner did not consent to the search raises grave problems. Although the question had previously been decided by the Rhode Island state courts following evidentiary proceedings, the district court decided to hold its own. Its jurisdiction to hold such a hearing, within its discretionary powers, is, of course, plenary. Townsend v. Sain, 1963, 372 U.S. 293, 311-312, 83 S.Ct. 745, 9 L.Ed.2d 770; Fisher v. Scafati, 1 Cir., 1971, 439 F.2d 307, 309, vacated on other grounds, 403 U.S. 939, 91 S.Ct. 2256, 29 L.Ed.2d 719. On the basis of this hearing the court, allegedly because it found that the state court's finding of consent was not fairly supported by the record, made its own independent findings of fact. In the course of so doing it expressed the view that the state had the burden of proving consent by clear and convincing evidence. It is impossible to determine to what extent it relied, in making these findings, upon that ruling, but it is clear that it placed a substantial burden on the state.³

The district court's analysis, while purporting to rely on the principles of Townsend v. Sain, ante, upsets the careful adjustment of the sensitive state and federal interests made by the Supreme Court in that and other cases, and by Congress in 28 U.S.C. § 2254. There is no question but that under Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, a federal habeas judge must independently apply the correct constitutional standard to the historical facts underlying petitioner's constitutional claim regardless of how fairly and completely the claim has been litigated in the state courts. 28 U.S.C. § 2254(d) provides, however, consistently with Townsend v. Sain,⁴ that in the absence of any of the circumstances there enumerated, 28 U.S.C. § 2254(d) (1)(8), making a hearing mandatory, the federal court is bound by the state court's finding of historical facts unless the petitioner offers convincing evidence that they are erroneous. Thus while, as the lower court correctly observed, the burden of proving consent is generally on the government, see Bumper v. North Carolina, 1968, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797, even in habeas cases, see Montana v. Tomich, 9 Cir., 1964, 332 F.2d 987, 989-990; Simmons v. Bomar, 6 Cir., 1965, 349 F.2d 365, when the state court, following a full and fair hearing, has found consent, the petitioner, under section 2254(d), has the burden of disproof.

Our first question must, accordingly, be whether the district court could warrantably find, as it did, that the state proceedings failed the only statutory test which it articulated, viz., that the state court's findings were not fairly supported by the record. See 28 U.S.C. § 2254(d) (8). On what the court based this finding is unclear. Its opinion shows no close examination of whether individual findings of fact were fairly supported, but suggests rather that it simply was convinced that the Rhode Island court's finding of consent was incorrect. The difficulty here is that such a conviction does not, of itself, warrant the conclusion that the state court's findings of historical facts were faulty. See Developments in the Law— Federal Habeas Corpus, ante n. 4, at 1137. Even if the state court's legal theory were incorrect, as the district court found, its findings of fact are nevertheless presumed correct unless its legal error either distorted the focus of its hearing, or made it impossible to infer the factual findings on which the court based its legal conclusions. The district court made no findings on these questions either way. We are convinced that the 1964 hearing suffers neither disability. The findings of fact on which the state court based its decision are either express, or easily inferred, see Leavitt v. Howard, ante, and, since the factual issues and most of the testimony presented in the district court were essentially the same, we can find no basis for faulting the state focus.

No useful purpose would be served by reciting in detail, although we have examined it in detail, the state court evidence. Suffice it to say that we cannot agree with the district...