McCollum v. Sullivan

• Decision Date: 12 February 1981
• Docket Number: Civ. A. No. 79-609.
• Citation: 507 F. Supp. 865
• Parties: Ronald S. McCOLLUM, Plaintiff, v. John L. SULLIVAN, Director of the Division of Adult Corrections and the State of Delaware, Defendants.
• Court: U.S. District Court — District of Delaware

507 F. Supp. 865

Ronald S. McCOLLUM, Plaintiff, v. John L. SULLIVAN, Director of the Division of Adult Corrections and the State of Delaware, Defendants.

Civ. A. No. 79-609.

United States District Court, D. Delaware.

February 12, 1981.

L. Vincent Ramunno, Wilmington, Del., for plaintiff.

Francis A. Reardon, Deputy Atty. Gen., Wilmington, Del., for defendants.

OPINION

CALEB M. WRIGHT, Senior Judge:

Petitioner was convicted in 1976 of rape in the first degree, kidnapping in the first degree, conspiracy in the second degree, and two counts of robbery in the first degree in the Superior Court of the State of Delaware. The Delaware Supreme Court affirmed his conviction and the Superior Court's denial of two motions for a new trial. McCollum v. State, No. 153, 1976 (Sept. 29, 1977) and McCollum v. State, No. 249, 1978 (Nov. 24, 1979).

Petitioner has sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis of the following nine constitutional violations which allegedly occurred during his trial:

1) ineffective assistance of counsel;

2) incompetency of petitioner to stand trial;

3) convening of jury panel which was not an impartial jury of peers;

4) use of statements made at arrest which were not freely and voluntarily given;

5) absence of probable cause for arrest;

6) improper witness identification of petitioner;

7) incorrect denial of motion for new trial;

8) insufficiency of the evidence; and

9) suppression of evidence.

Petitioner has also requested an evidentiary hearing on the question of his competency to stand trial.

As a preliminary step, it is necessary to eliminate any claims which do not assert deprivation of freedom in violation of the Constitution or laws or treaties of the United States; violations of state law are not cognizable under 28 U.S.C. § 2254(a). U. S. ex rel. Choice v. Brierley, 460 F.2d 68 (3d Cir. 1972). All of petitioner's claims assert constitutional violations¹ except the claim concerning denial of his motion for a new trial. On its face this is a matter of state law and thus not a proper ground for habeas relief.² Review of this claim is denied.

I. Exhaustion of State Remedies

The threshold question in reviewing a petition for a writ of habeas corpus is whether petitioner has exhausted the remedies available in the state courts as required by 28 U.S.C. § 2254(b).³ In construing this requirement the Supreme Court has held that "the substance of a federal habeas corpus claim must first be presented to the state courts," Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). Thus a petitioner may raise a claim in the federal courts only if he has already raised it at all appropriate state court levels. United States ex rel. Wilson v. Anderson, 399 F.Supp. 41 (D.Del.1975). Petitioner has clearly exhausted his first two claims which were fully presented to the trial court in the evidentiary hearing⁴ held in connection with the second motion for a new trial, D.5A-71, and briefed and argued to the State Supreme Court, D.5A-Briefs in No. 249, 1978. Petitioner's ninth claim of suppression of evidence was similarly presented to the Superior Court in the evidentiary hearing, D.5A-55, 56, regarding the first motion for a new trial, D.5A-36, and then briefed and argued to the Supreme Court, D.5A-Briefs in No. 153, 1976.

Petitioner's remaining claims have not been exhausted. They cannot be reviewed, therefore, absent rare or extraordinary circumstances which would justify deviation from the exhaustion standard. U. S. ex rel. Trantino v. Hatrack, 563 F.2d 86 (3d Cir. 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978). Petitioner's third, fourth and fifth claims regarding the jury panel and the arrest procedure were raised only in his second motion for a new trial to the Superior Court. No evidence was presented at the succeeding evidentiary hearing, and the Superior Court neither considered nor ruled upon these claims. Nor did petitioner raise these claims in his briefs to the Delaware Supreme Court. Petitioner has also failed to do more than make bare allegations of constitutional deprivation as to these claims in his petition to this Court. His brief sets forth neither the allegations nor factual support. This in itself is an adequate basis for denying review. See Bernier v. Moore, 441 F.2d 395 (1st Cir. 1971).⁵ Thus, these claims were never fairly presented to the state courts, and review is denied.

Petitioner also failed to exhaust his claim of improper identification procedures in the state courts, for he never presented it to the trial court, D.5A-19, 20, 36, 71, though he did raise it on appeal to the State Supreme Court, D.5A-Appellant's Opening Brief in No. 153, 1976. As a result, this claim could not properly have been raised in the State Supreme Court, U. S. ex rel. Wilson v. Anderson, supra, and the Supreme Court made no mention of this question in its brief opinion. Moreover, though presentation of an issue to the highest state court may satisfy the exhaustion requirement even if that court does not expressly rule on it, see U. S. ex rel. Montgomery v. Brierley, 414 F.2d 552 (3d Cir. 1969), cert. denied, 399 U.S. 912, 90 S.Ct. 2206, 26 L.Ed.2d 566 (1970); Powell v. Keve, 409 F.Supp. 228 (D.Del.1976), petitioner's presentation was too sketchy for this Court to infer that the state court had an opportunity to evaluate the claim. Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976).⁶

Petitioner's eighth claim of insufficient evidence must also be denied for failure to exhaust state remedies. Petitioner argues that since the legal basis for this claim, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), was decided after the final Delaware Supreme Court decision in this case, he should not have to proceed through the state courts once again to raise this issue. Although the general issue has been raised in the state courts prior to the issuance of the United States Supreme Court opinion on which a petitioner relies, the exhaustion requirement entitles a state court to an opportunity to decide whether the newly-announced decision applies to the facts of the particular case, regardless of the petitioner's prior appearances in state court. Blair v. People of State of Calif., 340 F.2d 741 (9th Cir. 1965); Pate v. Holman, 343 F.2d 546 (5th Cir. 1965). Where, as here, a petitioner has not even raised the general issue in the state courts, return to the state courts is mandatory. Nor does this situation constitute a rare or extraordinary circumstance which might justify deviation from the exhaustion standard. U. S. ex rel. Trantino v. Hatrack, supra; United States ex rel. Sostre v. Festa, 513 F.2d 1313 (2d Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975). Since in the area of criminal procedure, small but significant changes in the law occur frequently, petitioner's situation cannot be considered rare or extraordinary. Review of the merits must therefore be denied.

II. Merits of the Remaining Claims

The Court must now consider the merits of the claims with respect to which petitioner has exhausted his state remedies.

A. Incompetency of Petitioner to stand trial.

Petitioner asserts that he was not competent to stand trial by reason of mental illness or mental defect, and requests an evidentiary hearing before this Court on this issue. The guidelines for granting an evidentiary hearing were laid down in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and codified in 28 U.S.C. § 2254(d). Petitioner seeks to present the testimony of a doctor who will both testify to petitioner's incompetence at trial and attempt to discredit the testimony of the state-appointed doctor, Dr. T. Richard Huxtable, Jr., who testified at the second evidentiary hearing held before the Superior Court. Petitioner has not referred to any particular ground stated in 28 U.S.C. § 2254(d) as the basis for his request, and the Court finds none applicable. Petitioner's competency was the subject of a post-trial evidentiary hearing, both the court-appointed doctor and petitioner's expert witness testified fully, and the trial court made a lengthy evaluation of the testimony on which he based his decision. Thus, an expert chosen by plaintiff has already testified as to petitioner's incompetence, and unless the Court is to regard every expert as a source of new evidence, petitioner's wish to present further medical testimony as to his incompetence is not a sufficient reason for granting an evidentiary hearing.

Petitioner also would have this expert testify to Dr. Huxtable's prejudice as a result of his position in a state hospital. At the previous hearing, however, the petitioner called Dr. Huxtable as a witness and examined him at length as to his evaluations of the petitioner prior to trial and afterward. Dr. Huxtable's position as a psychiatrist at Delaware State Hospital was disclosed, and petitioner sought throughout the hearing to suggest and demonstrate some prejudicial effect of Dr. Huxtable's position on his opinion. Under these circumstances the suggestion of additional testimony concerning Dr. Huxtable's prejudice hardly establishes that the petitioner did not receive "a full, fair, and adequate hearing in the State court proceeding."

The Court concludes that the petitioner was given a full and fair opportunity to present whatever evidence he wished at the trial court hearing and that the court fully considered the evidence in making its written determination. Consequently, this Court may not overrule the trial court unless an incorrect legal standard was applied or the trial court's factual determination is not fairly supported by the record as a whole. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); United States ex rel. Parson v. Anderson, 354 F.Supp. 1060 (D.Del.1972), aff'd, 481 F.2d 94 (3d Cir.), cert. denied, 414 U.S. 1072, 94 S.Ct. 586, 38 L.Ed.2d 479 (1973);...