Lewis v. State of Oklahoma

• Decision Date: 17 September 1969
• Docket Number: Civ. No. 69-95.
• Citation: 304 F. Supp. 116
• Parties: Melvin Alphonzo LEWIS pro se, Plaintiff, v. STATE OF OKLAHOMA, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

304 F. Supp. 116

Melvin Alphonzo LEWISpro se, Plaintiff, v.STATE OF OKLAHOMA, Defendant.

Civ. No. 69-95.

United States District Court W. D. Oklahoma.

September 17, 1969.

COPYRIGHT MATERIAL OMITTED

Melvin Alphonzo Lewis, pro se.

H. L. McConnell, Asst. Atty. Gen., Oklahoma City, Okl., for defendant.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

DAUGHERTY, District Judge.

Petitioner, an Oklahoma State prisoner, proceeds under 28 U.S.C.A. § 2254, for habeas corpus relief complaining that his imprisonment by reason of his conviction of the crime of murder was accomplished in violation of his Federal Constitutional rights.He was represented by counsel throughout his state court proceedings.His conviction was appealed to the Oklahoma Court of Criminal Appeals which affirmed the conviction and modified the sentence from death to a term of life imprisonment.Lewis v. State, 451 P.2d 399(Okl.Cr.1969).

Petitioner has raised numerous allegations which he claims violated his Federal Constitutional rights and, thus, render his present imprisonment illegal.Petitioner's claimed violations of his Federal Constitutional rights are as follows:

1.Prejudicial remarks by the prosecution to the jury concerning Petitioner's motive for the crime of which he was convicted.

2.Suppression of evidence favorable to the Petitioner, which evidence was to be given by a witness and co-defendant, Donald Leo Pendleton, to the effect that another co-defendant committed the crime.

3.Deliberate and unnecessary interruption of the Petitioner's trial so that the Court could accept a plea of guilty from a co-defendant.

4.A plan or scheme on the part of the prosecution to deny Petitioner due process of law, in that the prosecution knew a co-defendant, Donald Leo Pendleton, would testify that a co-defendant other than the Petitioner committed the crime of which Petitioner was convicted.

5.In furtherance of said plan or scheme, sentencing of the co-defendant was deferred to lead Petitioner to believe that said co-defendant would testify that Petitioner committed the crime.

6.The Petitioner was required to not call the co-defendant, Donald Leo Pendleton, as a witness because of the tactics of the prosecution.

7.The failure of the prosecution to call said co-defendant to testify was fundamentally unfair.

8.The prosecution knew that Petitioner was not at the scene of the crime and that Petitioner did not shoot the victim.

9.The court's instruction to the jury describing the three degrees of murder was prejudicial and erroneous, misleading the jury as to what degree of the crime should apply to the Petitioner.

10.The court erred in its instruction on Petitioner's confession.

11.The written confession of Petitioner used by the State was not a confession and thus improper evidence.

12.The instruction on the three degrees of murder does not permit Petitioner to know under which theory he was convicted.

13.The prosecution, before the jury, equated Petitioner's confession with a plea of guilty, thus confusing the jury as to what law to apply to the case.

14.The court influenced the jury to the prejudice of the Petitioner in its statement of facts contained in its Instruction 15.

15.The Petitioner was entitled to have explained to the jury his theory of the case on the hypothesis that his testimony and that of his witnesses was true.

16.There was no evidence to support the instruction relating to the Petitioner's depositing the body of the victim on the public highway, there leaving him to die.

17.Prejudicial language was used by a witness with reference to the leaving of the victim's body on the highway, i. e., "dumped" or "dragged", before the jury, the effect of such words being to represent the Petitioner as a depraved individual to the jury.

18.Prejudicial references to the Petitioner's race in that a witness referred to the victim as a white man, thus emphasizing that Petitioner is a negro.

19.There is no evidence to support the prosecution's opening statement that the Petitioner shot the victim at a filling station, not killing him at that time, and took the victim to a car, and that the prosecution made this assertion in bad faith.

20.Petitioner was not indicted by grand jury.

21.Petitioner's sentence of life imprisonment is cruel and unusual punishment.

22.There is no evidence to support the verdict.

23.The repeated references by the prosecution to the victim as a white man prejudiced the Petitioner in the mind of the jury.

24.The county attorney, before the jury, expressed his personal opinion and stated facts not proved by evidence.

25.The prosecution deliberately excluded negroes from the jury.

26.Petitioner's arrest was illegal, in that he was arrested on suspicion.

27.Petitioner was not represented by a lawyer when he signed a statement at the police station.

28.Persons opposed to capital punishment were systematically excluded from the jury, resulting in a jury composed of only persons who believed in capital punishment.

The filed and records of this case include Petitioner's casemade or transcript of his trial which was submitted by the Respondent.In accordance with the provisions of 28 U.S.C.A. § 2254(d), the Court has reviewed the same with respect to Petitioner's habeas corpus claims, and, in the absence of a claim by Petitioner that factual determinations affecting his habeas corpus claims made by the state trial court and appearing in the Petitioner's casemade are not fairly supported by the record, the Court has presumed the same to be correct.SeeOrtiz v. Baker, 411 F.2d 263(Tenth Cir.1969);Maxwell v. Turner, 411 F.2d 805(Tenth Cir.1969).The Court has also considered those parts of the record relating to factual determinations by the state trial court affecting Petitioner's habeas corpus claims, as provided in 28 U.S.C.A. § 2254(d)(8), and its conclusions with respect to such parts of the record of Petitioner's trial are set out in connection with the Court's considerations of Petitioner's individual claims following.

The Court finds with reference to the grounds or complaints raised herein as follows:

Complaints (1), (3), (6), (7), (9), (12), (14), (15), (16), (17), (18), (19), (22), (23) and (24) do not raise Federal Constitutional questions.The most that could be said for each of them or all of them considered together is that they tend to deal with a question of denial of due process in that Petitioner was not provided a fair trial.However, the Court finds and concludes that these claims, either individually or collectively, do not fairly raise an issue of fair trial being denied Petitioner. "* * * if federal power is invoked to set aside what California regards as a fair trial it must be plain that a federal right has been invaded."Lisenba v. California, 314 U.S. 219 at p. 239, 62 S.Ct. 280 at p. 291, 86 L.Ed. 166 at p. 181(1941).None of the matters alleged by Petitioner in the above enumerated claims, as previously stated, show invasion of federally protected rights, therefore, there is no issue of denial of due process by an unfair trial of Petitioner.

With reference to complaints (2), (4), (5) and (8), Petitioner has alleged that certain evidence favorable to him was suppressed by the prosecution.In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963), the prosecution's suppression of an accomplice's confession, after Petitioner's request for evidence favorable to him, was held to violate the due process clause of the Fourteenth Amendment.This case holds as follows:

"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution."373 U. S. at p. 87, 83 S.Ct. at p. 1197, 10 L. Ed.2d at p. 218.

The question here is whether the Petitioner has alleged a factual situation which, if taken as true, raises a Brady issue of suppressed favorable evidence.To make out a case under the Brady rule, Petitioner must state facts showing: (1) Evidence which is favorable to him, (2) Such evidence was in the possession of the prosecution at some time during the Petitioner's trial, (3) The evidence was suppressed and not made available to the Petitioner on his request therefor, and, (4) The evidence was material either to the issue of Petitioner's guilt or punishment.

Of the four elements of a Brady situation set out above, Petitioner has made allegations satisfying only the first and second of them.At the trial Petitioner failed to made a request for evidence in the hands of the prosecution favorable to him, a matter which he now admits.However, he maintains that no request is necessary, citing United States ex rel. Meers v. Wilkins, 326 F.2d 135(Second Cir.1964).

The proponents of the "no request" rule have found only one adherent in the Supreme Court.In Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737(1967), Mr. Justice Fortas urged that the state is under a constitutional duty to voluntarily disclose favorable evidence (386 U.S. at pp. 101-102, 87 S.Ct. at pp. 810-811, 17 L.Ed.2d at pp. 760-761), but his position was vigorously opposed by Justices Harlan, Black, Clark and Stewart (386 U.S. at pp. 116-119, 87 S.Ct. at pp. 818-820, 17 L. Ed.2d at pp. 769-770).Had the Supreme Court desired to turn the Giles case on a rule of compulsory disclosure without request, it could have done so.Therefore, this Court takes the request requirement of the Brady case as the Supreme Court's definitive expression on the matter.Moreover, the Meers case is distinguishable from the instant case because the court held that the prosecution had a duty to make known to the defense the existence of two disinterested witnesses who would have testified that the defendant was not a participant in the robbery.In Meersthe defendant had not learned of the...