Owens v. Eyman, 25149.

Decision Date18 November 1970
Docket NumberNo. 25149.,25149.
Citation434 F.2d 1062
PartiesAndrew OWENS, Appellant, v. Frank A. EYMAN, Warden, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Andrew Owens, in pro. per.

Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, Ariz., for appellee.

Before BARNES, ELY, and KILKENNY, Circuit Judges.

PER CURIAM:

Owens is an Arizona state prisoner. He appeals from an order denying his application for habeas corpus relief.

After his first state court trial resulted in jury disagreement and a mistrial, Owens was again tried for the charged offense, robbery, and, this time, convicted. At the second trial the state introduced, over objection, the reporter's transcript of the testimony of a witness who had testified for the prosecution during the first trial. Owens contends that this violated his Sixth and Fourteenth Amendment rights of confrontation and cross-examination.

When an unavailable witness has given testimony at previous judicial proceedings against the same defendant and was subject to cross-examination by that defendant, the introduction of that previously recorded testimony does not violate the confrontation requirement, provided "the prosecutorial authorities have made a good-faith effort to obtain the witness' presence at trial." Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968).

Here the District Court found, on an undisputed state court record, that the state had made a good-faith effort to locate the missing witness for production at the second trial. We are not persuaded that we should disturb that finding.

The facts surrounding the search for the absent witness were summarized by the Arizona Supreme Court in its affirmance of Owens' direct appeal. State v. Owens, 103 Ariz. 541, 447 P.2d 233 (1968). The District Court was not required to hold an evidentiary hearing because Owens' petition presented no factual dispute not already fully and fairly resolved in the Arizona courts. Townsend v. Sain, 372 U.S. 293, 309-313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Rainsberger v. Fogliani, 380 F.2d 783, 785 (9th Cir. 1967).

Affirmed.

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5 cases
  • United States v. Harless
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 12 Julio 1972
    ...an effort is all that is required. The facts here support the district judge's findings. We should not disturb his findings. Owens v. Eyman, 434 F.2d 1062 (CA9 1970). (2) Here appellant claims that his right to confrontation was denied because the judge did not have the opportunity to view ......
  • Rawlins v. Craven
    • United States
    • U.S. District Court — Central District of California
    • 17 Junio 1971
    ...dispute of facts, no hearing is necessary here. Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Owens v. Eyman, 434 F.2d 1062 (9th Cir. 1970). Petitioner has not demonstrated that he is "in custody in violation of the Constitution or laws or treaties of the United S......
  • United States ex rel. Stubbs v. Mancusi, 126
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 19 Abril 1971
    ...a reasonable effort to secure his presence. Cf. Gov't of Virgin Islands v. Aquino, 378 F.2d 540 (3rd Cir. 1967); Owens v. Eyman, 434 F.2d 1062 (9th Cir. 1970). Absence from the continental United States is not per se a sufficient reason to broaden the exception to the Confrontation Clause a......
  • State v. Carter
    • United States
    • Arizona Court of Appeals
    • 18 Febrero 1972
    ...under the facts of this case the specific Utah address of Huddelston was not reasonably available to the County Attorney. Owens v. Eyman, 434 F.2d 1062 (9th Cir. 1970); Approving, State v. Owens, 103 Ariz. 541, 447 P.2d 233 (1968). Appellant next contends that the trial court erred in permi......
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