Myers v. State of Washington

Decision Date08 September 1981
Docket NumberNo. 80-3031,80-3031
Citation646 F.2d 355
PartiesGeorge E. MYERS, Petitioner-Appellant, v. STATE OF WASHINGTON et al., Respondents-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Samuel D. Ellis, San Francisco, Cal., for petitioner-appellant.

David R. Minikel, Olympia, Wash., for respondents-appellees.

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

Before PREGERSON, POOLE, and NORRIS, Circuit Judges.

PREGERSON, Circuit Judge:

George E. Myers appeals from the district court's denial of his petition, pursuant to 28 U.S.C. § 2254, for habeas corpus relief. Appellant advances several challenges to his conviction of second-degree murder in a 1957 Washington state trial.

I.

On the morning of May 18, 1957, passers-by discovered the body of Sigurd Oliver lying in a ditch in Kings County, Washington. Two days later, Myers was arrested. After a three and one-half hour session of police interrogation, Myers signed a statement admitting that he had beaten Oliver with his fists and a heavy metal object and left him lying alongside the road. The next day, in a television broadcast, Myers repeated essentially the same confession to a television news reporter.

Myers was tried in September 1957. The statement he signed was admitted into evidence against him. Myers testified at his trial, stating that he had beaten Oliver after Oliver had made a homosexual advance toward him. Myers was found guilty of murder in the second degree, and his conviction was affirmed on appeal. State v. Myers, 53 Wash.2d 446, 334 P.2d 536 (1959).

Two decades after his trial, Myers petitioned the Washington Supreme Court for release from personal restraint, 1 raising five grounds for setting aside his conviction. These were that: (1) his signed confession was involuntary and thus inadmissible; (2) he had been prejudiced by inflammatory publicity during the trial; (3) the prosecution failed to disclose favorable material evidence before trial; (4) he was denied counsel during the pretrial television interview; and (5) the jury instructions unconstitutionally shifted to the defense the burden of persuasion as to the intent element of the offense. Petition of Myers, 91 Wash.2d 120, 587 P.2d 532 (1979).

Myers had not raised any of these contentions in his direct appeal. The Washington Supreme Court held that this procedural default barred Myers from relying on the first four grounds in his collateral attack on his murder conviction. As to the allegedly unconstitutional jury instructions, the court acknowledged that "a slightly different question is presented," 91 Wash.2d at 123, 587 P.2d at 533, since the controlling law had changed many years after Myers had been convicted. But the court concluded that "the interest of the state in achieving a final judgment not subject to the frustrations associated with retrial years after the original proceeding outweighs any interest in readjudicating convictions according to subsequently developed legal standards," and therefore held that "failure to identify errors at trial or prosecute them on appeal" foreclosed raising them for the first time on collateral attack. Id. at 125-26, 587 P.2d at 535.

In January 1979 Myers filed a section 2254 petition in the United States District Court for the Eastern District of Washington, raising the same five grounds rejected by the state court. The State moved for summary judgment, arguing that Myers was not "in custody" under the murder conviction, 2 that the delay in raising the issues barred relief, and that the allegations of error lacked merit. The district court granted the State's summary judgment motion, and Myers appealed.

II.

Our consideration of this appeal must begin with the Supreme Court's ruling in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). There a state prisoner sought habeas corpus, arguing that because he had not understood the Miranda warnings, it was error to admit certain inculpatory statements at his trial. No objection to admitting those statements had been made at the trial, and the Supreme Court held that this failure to comply with the state's contemporaneous-objection rule 3 was an independent and adequate state procedural ground sufficient to bar federal habeas review absent a showing of "cause" for the failure and actual "prejudice" to the petitioner from the alleged constitutional violation.

Washington enforces a similar procedural rule on the appellate level: "issues which could have been raised on appeal but were not, may not be used as grounds for a collateral attack on a criminal judgment." Petition of Myers, 91 Wash.2d 120, 122, 587 P.2d 532, 533 (1979). We must decide whether appellant's failure to comply with this rule is an independent and adequate state procedural ground precluding federal habeas review. Under the "cause and prejudice" standard of Sykes, we believe that we are in fact precluded from considering the merits of all but one of appellant's contentions.

(A) The confession : Appellant claims that his signed confession was involuntary. In 1957, when appellant was tried, it was already well-settled law that involuntary confessions could not be admitted into evidence, and that reviewing courts would independently scrutinize "the totality of the circumstances" surrounding a confession, Fikes v. Alabama, 352 U.S. 191, 197, 77 S.Ct. 281, 284, 1 L.Ed.2d 246 (1957), to determine whether the confession was "the product of sustained pressure by the police" that had "overborne" the defendant. Watts v. Indiana, 338 U.S. 49, 53, 69 S.Ct. 1347, 1349, 93 L.Ed. 1801 (1949). 4 Appellant has presented no explanation for his failure to raise the voluntariness issue on appeal, and has thus failed to supply the "cause" showing required by Sykes.

(B) Publicity during trial : Appellant points to a newspaper article, appearing the evening after the first day of his trial, that described him as a "confessed slayer" and the victim as "father of seven children." Neither the "cause" nor the "prejudice" prong of Sykes is satisfied as to this ground for habeas.

Appellant cites four cases in his discussion of prejudicial publicity. Two of these were decided prior to his appeal. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1958); Griffin v. United States, 295 F.2d 437 (3d Cir. 1924). No "cause" has been given why appellant did not raise the issue of prejudicial publicity on his appeal a default all the more surprising because he did raise the issue at trial.

Nor has appellant demonstrated actual "prejudice" from the trial court's failure to grant a mistrial after a poll of the jury revealed that three jurors had seen the newspaper article. A news item publicizing in a brief and unsensational manner the fact that Myers had confessed could hardly have worked great prejudice to him when his confession itself was admitted at trial and corroborated by his own testimony.

(C) Suppression of Evidence : Appellant contends that the coroner's report, furnished to the defense before trial, did not indicate when the victim died. Only at trial, he says, did he learn that the coroner believed that the death occurred some two to three hours after the victim was beaten, not immediately afterwards (as appellant claims the police had told him).

We leave aside the question whether this course of events actually amounted to suppression of evidence. 5 What is decisive is that appellant has not made an adequate showing of "prejudice" from the alleged suppression. The assistant coroner who performed the autopsy on Sigurd Oliver testified at trial that he believed death had probably occurred between three and four A.M. Trial Transcript at 120. On cross-examination, appellant's counsel was able to convey his theory that Oliver's death could have resulted from being struck by an automobile sometime after the beating. Id. at 121-22. And the defense counsel was able to exploit the apparent time lapse between the beating and the death in his closing argument. Id. at 275-76. Appellant's only argument now is speculation that, had he known of the time-of-death findings even earlier, he could have exploited that time lapse more effectively. We do not believe that argument adequately demonstrates actual prejudice to appellant.

(D) Lack of counsel : Appellant complains that he was not represented by counsel when he made inculpatory statements during a television interview broadcast the day after he signed his confession (and four months before trial). We will not dwell on the merits of appellant's novel characterization of the television interview as "a public hearing and a significant stage in the process which ultimately led to petitioner's incarceration." We simply observe that appellant has not made out the showing of "prejudice" demanded by Sykes with respect to the interview. At most, that interview publicized the fact that appellant had confessed but since the signed confession itself was introduced in evidence at trial, and was corroborated by appellant's own testimony, it is hard to see how he was prejudiced by the broadcast.

(E) The jury instructions : As the Washington Supreme Court recognized, appellant's challenge to the constitutionality of certain jury instructions given at his trial creates problems different from those raised by his other contentions. Petition of Myers, 91 Wash.2d at 123, 587 P.2d at 533 (1979). The contention that the jury instructions at appellant's murder trial violated due process is based on recent decisions invalidating instructions that shift to the defense the burden of persuasion as to any element of the crime charged. Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); State v. Roberts, 88 Wash.2d 337,...

To continue reading

Request your trial
18 cases
  • Lambright v. Lewis
    • United States
    • U.S. District Court — District of Arizona
    • July 9, 1996
    ...review if the claim not raised on appeal was a constitutional issue unknown at the time of the appeal. Myers v. Washington, 646 F.2d 355, 359-60 (9th Cir.1981), judgment vacated on other grounds, 456 U.S. 921, 102 S.Ct. 1964, 72 L.Ed.2d 436 (1982). Appellate counsel cannot be expected to "a......
  • Hueso v. Barnhart
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 9, 2020
    ...in Engle v. Isaac nor the Ninth Circuit in the omitted citation above (a dissenting opinion by Judge Poole in Myers v. State of Wash. , 646 F.2d 355, 364 (9th Cir. 1981) ) were discussing the preclusive effect of a circuit court’s decisions. The Supreme Court in Engle was explaining that a ......
  • Engle v. Isaac, 80-1430
    • United States
    • U.S. Supreme Court
    • April 5, 1982
    ...of the factual and legal basis for an objection, simply because he thought objection would be futile"); Myers v. Washington, 646 F.2d 355, 364 (CA9 1981) (Poole, J., dissenting) (futility cannot constitute cause if it means simply that a claim was "unacceptable to that particular court at t......
  • Tempest v. State
    • United States
    • Rhode Island Superior Court
    • July 13, 2015
    ...9(a), federal courts refused dismissal even where the habeas petition was brought decades after conviction. See e.g., Myers v. Wash., 646 F.2d 355, 361-62 (9th Cir. 1981) aff'd on remand, 702 F.2d 766 (9th Cir. 1983) (internal citations omitted) (reaching merits despite twenty-year delay wh......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT