Lockett v. Blackburn

• Decision Date: 12 April 1978
• Docket Number: No. 77-1730,77-1730
• Parties: Raymond LOCKETT, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 309

571 F.2d 309

Raymond LOCKETT, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

No. 77-1730.

United States Court of Appeals, Fifth Circuit.

April 12, 1978.

As Amended on Denial of Rehearing and Rehearing En Banc June 15, 1978.

Raymond Lockett, pro se.

J. Donice Alverson, Atty. (Court-Appointed) New Orleans, La., for petitioner-appellant.

Harry F. Connick, Dist. Atty., Louise S. Korns, William L. Brockman, Asst. Dist Attys., New Orleans, La., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, GODBOLD, and CLARK, Circuit Judges.

WISDOM, Circuit Judge:

This habeas appeal involves the effect of a state prosecutor's concealing two witnesses whom the petitioner had subpoenaed. We remand.

Raymond Lockett, convicted in a Louisiana criminal court of sale of heroin and sentenced to life imprisonment, brings this petition for habeas corpus. Lockett alleges that the State violated his sixth and fourteenth amendment rights to compulsory process for obtaining witnesses and to due process of law. The State's evidence at trial tended to show that Lockett sold heroin to an undercover agent in the presence of two confidential informants, Emmanual Stewart and Calvin Clark. Lockett alleges, and the State concedes, that the State encouraged and helped Stewart and Clark to leave Louisiana just before his trial. On the morning of trial, Lockett's lawyer attempted to locate and subpoena Stewart and Clark to serve as witnesses at trial. He was unable to do so, because the State had sent the witnesses to Florida.

Unaware of the State's tactics, Lockett's lawyer moved for a continuance to search for the missing eyewitnesses. The trial court denied this motion because it found that Lockett had failed to comply with procedural requirements of Louisiana law. The Louisiana Supreme Court affirmed the trial court's decision to deny the continuance. It also rejected Lockett's federal compulsory process and due process claims. State v. Lockett, 332 So.2d 443 (La.1976) (see dissenting opinion of Tate, J., id. at 448-49).

Lockett then brought this habeas petition. The district court found that Lockett was attempting to convert a procedural issue, the denial of the requested continuance, into a constitutional issue; it dismissed his petition. We find that the State's deliberate removal of the eyewitnesses constitutes a prima facie violation of Lockett's right to due process of law. We remand this case to the district court for an evidentiary hearing to determine whether the prima facie violation requires that Lockett's habeas petition be granted. ¹

I.

According to the State, on the afternoon of March 29, 1974, petitioner Lockett sold five bags of heroin to federal undercover agent Gayle Roberson. Roberson and two confidential informants, Emmanual Stewart and Calvin Clark, were passengers in a taxicab driven by undercover Detective James Lewis of the New Orleans Police. All four were part of a federal-state crackdown against narcotics in the New Orleans area that was called "Operation Checkmate", and that resulted in over sixty arrests. The cab stopped at the corner of South Rampart and Erato Streets in New Orleans, where Stewart got out and met with Lockett. Then Stewart returned to the cab for Roberson; the two huddled with Lockett at the side of a building. Roberson handed Lockett sixty dollars; Lockett handed Stewart five bags of heroin; and Stewart gave the heroin to Roberson.

The day before trial, Lockett informed his lawyer that Stewart and Clark would help his case. Lockett contends that he learned of the alleged involvement of the pair through the news media just before he asked his lawyer to procure their attendance. At trial, Lockett's lawyer made several motions. First, he asked that the trial be continued until Stewart and Clark could be produced. This motion was denied. Second, Lockett's attorney sought instanter subpoenas for the two witnesses. The State furnished addresses for these subpoenas, but they were returned unserved. Third, the defense asked that subpoenas be served on the federal Drug Enforcement Agency employees who had employed Stewart and Clark. The trial judge denied this request.

At the time the state trial judge denied Lockett's motions, he was unaware of the State's role in bringing about the absence of Clark and Stewart from the jurisdiction. A New Orleans Police Lieutenant has since testified about the State's activities in Lockett's case at the trial of another defendant who was among the sixty arrested as part of Operation Checkmate. That defendant was Norman Clark, no relation to the informant Calvin Clark. At the Norman Clark trial, the police lieutenant testified that the United States Attorney's Office bought airline tickets for Stewart and Calvin Clark for a flight to Florida on October 18, 1974, six days before Lockett's trial. ² The New Orleans police officer testified that he gave the two witnesses $130 in cash as spending money for their Florida trip even though he knew they were under subpoena at the time. The officer had suggested the idea of sending the witnesses out of town to the Orleans Parish District Attorney's Office, and that office approved the plan, in which the United States Attorney's Office also participated.

The state trial court's rulings were affirmed by the Louisiana Supreme Court. That court affirmed the denial of Lockett's motion to continue the trial because it found that Lockett had failed to comply with Louisiana law in two respects. First, it decided that Lockett's allegation that "neither (Stewart nor Clark) observed any criminal activity on the part of the accused" was not specific enough. The allegation did not state "specifically the grounds" for continuance as required by La.Code Crim.Pro. art. 707. Moreover, the motion did not allege "(f)acts to which the absent witness (was) expected to testify" as required by art. 709(1). Second, the Court found that by informing his attorney of his request only the day before trial, Lockett had failed to exercise the "due diligence" required by art. 709(3). 332 So.2d at 445-46.

In ruling on Lockett's federal constitutional claims, the Louisiana Supreme Court may not have known the details of the State's scheme that came out at the Norman Clark trial. A majority of the Louisiana Supreme Court found no violation of due process or compulsory process in this concealment. The court was aware, however, that "(t)he State refused to produce the witnesses" and that the State "willfully" "conceal(ed) the whereabouts" of the two. 332 So.2d 448, 449 (Tate, J., dissenting). Justices Tate and Calogero, however, would have found that the State's tactics "violate(d) fundamental due process rights of fairness, and a defendant's right . . . to secure witnesses he alleges are needed for his defense". Id.

When Lockett petitioned the United States District Court for the Eastern District of Louisiana, that court held that he was entitled to no relief, because his habeas petition was foreclosed by a valid state procedural default. The district court found that Lockett was attempting to convert a procedural issue the denial of a continuance into a constitutional question.

II.

At the outset, we find that the district court erred in holding Lockett's habeas petition barred by a procedural default. We accept, as we must, the Louisiana Supreme Court's holding that Lockett's motion to continue the trial was properly denied under Louisiana law. But Lockett's habeas petition has other aspects. The Louisiana courts did not find that Lockett's allegations of denial of compulsory process and due process were barred by any procedural default. Their procedural rulings reached only his motion to continue the case. Moreover, the parties now agree that the State willfully concealed Stewart and Calvin Clark from the trial court. Neither Lockett nor the state trial judge knew that the State had deliberately made key witnesses unavailable for defendant's trial. The State's concealment of the witnesses, not the denial of the continuance, compels an evidentiary hearing in district court. ³

We are not bound by the decision of a state court on federal constitutional questions in habeas proceedings. ⁴ 28 U.S.C. § 2254(d). Our study of the record convinces us that Lockett has established a prima facie due process violation, and that the contrary decision of the Louisiana Supreme Court cannot stand. We reach this conclusion notwithstanding our respect for that court.

The deliberate concealment of a named ⁵ eyewitness whose testimony would admittedly be material constitutes a prima facie deprivation of due process. Although we have found no case squarely on point, similar cases compel this conclusion.

Deliberate hiding of favorable evidence requires habeas relief. In Boone v. Paderick, 4 Cir. 1976, 541 F.2d 447, the Court of Appeals for the Fourth Circuit granted habeas relief after a prosecutor knowingly elicited false testimony in the petitioner's trial. Similar misconduct elicited a similar result in Powell v. Wiman, 5 Cir. 1961, 287 F.2d 275, 279. A defendant who pressed a like withholding of favorable evidence claim did not obtain habeas relief, however, when he "failed to show that the prosecution knew any more than he did". Clarke v. Burke, 7 Cir. 1971, 440 F.2d 853, 855, cert. denied 1972, 404 U.S. 1039, 92 S.Ct. 718, 30 L.Ed.2d 731.

Armstrong v. Collier, 5 Cir. 1976, 536 F.2d 72, is relevant. In Armstrong, the prosecution lost files that possibly pertained to the habeas petitioner's case. This Court denied relief because the petitioner expressly disclaimed any allegation that the State misplaced the files intentionally or in bad faith. Armstrong relied on United States v. Augenblick, 1969, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537. The Government in Augenblick had made tape recordings of important interrogations...