Parker v. Solem
| Decision Date | 30 May 1978 |
| Docket Number | No. CIV 78-4039.,CIV 78-4039. |
| Citation | 450 F. Supp. 1150 |
| Parties | Robert J. PARKER, Petitioner, v. Herman SOLEM, Warden, and William J. Janklow, Attorney General, Respondents. |
| Court | U.S. District Court — District of South Dakota |
John N. Gridley III, of Gridley, Nasser & Arneson, Sioux Falls, S. D., for petitioner.
Harry W. Christianson, Chief Asst. Atty. Gen., Pierre, S. D., for respondents.
Petitioner Robert J. Parker seeks a writ of habeas corpus pursuant to 28 U.S.C. 2254, based upon his allegations that his state court conviction of two counts of distribution of marijuana presented error entitling him to relief by this court. In his petition, he specifically enumerates five grounds for relief. First, he contends that he was denied due process by the trial court's refusal to grant a continuance so that an expert in the field of hypnosis could recover from a stroke and testify on defendant's behalf. Second, petitioner argues that the trial court erred in not ruling that there was entrapment as a matter of law. Next, petitioner claims that his right to cross-examine was improperly restricted by the trial court's refusal to permit a psychiatric examination of the state agents involved as requested by defense counsel. Petitioner also alleges that he was denied due process as the result of remarks made by the prosecution in closing argument to the effect that the subpoena power was equally available to the defense and that therefore the state should not be solely held responsible for the failure of certain witnesses to be called to testify. Finally, petitioner claims that the charges to which he was convicted must be dismissed because certain evidence relating to an amphetamine charge against the petitioner which was dismissed were not made available to defense counsel on the marijuana charges.
These grounds for relief expressed by petitioner at this time are the same grounds alleged by him in state court in his appeal to the South Dakota Supreme Court of his trial court conviction. That appeal was unsuccessful as the South Dakota Supreme Court affirmed his conviction. State v. Parker, 263 N.W.2d 679 (S.D.1978). Petitioner then filed his application for a writ of habeas corpus with this court on April 27, 1978. An evidentiary hearing was held by this court on May 12, 1978, and both sides subsequently submitted briefs.
The evidence submitted at the hearing, aside from the introduction of the entire state court record, pertained solely to petitioner's claim that the prosecution lost or destroyed certain tablets pertinent to a subsequently dismissed amphetamine charge before defense counsel could properly examine the contents of the tablets for possible assistance in the entrapment defense being raised in the charges involving marijuana. Moreover, the brief submitted by counsel for petitioner in this court deals exclusively with that allegation. I will therefore address that issue at the outset.
Like the other issues raised in the petition, the issue regarding the loss or destruction of the white tablets was presented to the South Dakota Supreme Court on direct appeal. Because petitioner's claims raised in his petition for habeas corpus were all considered and rejected by the South Dakota Supreme Court on the direct appeal of his conviction, this court is of the view that petitioner has satisfactorily exhausted his state court remedies.1 Zemina v. Solem, 438 F.Supp. 455 (D.S.D.1977), affirmed 77-1899, 573 F.2d 1027 (8th Cir. 1978). Under South Dakota law, "when a defendant has taken an appeal from his conviction our postconviction statute cannot be used to secure a second review of issues finally decided on the appeal." Orricer v. State, 85 S.D. 293, 181 N.W.2d 461 (1970). There is, therefore, no further requirement under the exhaustion doctrine that petitioner pursue post-conviction remedies in state court. Maggitt v. Wyrick, 533 F.2d 383 (8th Cir. 1976), cert. denied 429 U.S. 898, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976); Edwards v. Swenson, 429 F.2d 1291 (8th Cir. 1970), cert. denied 406 U.S. 909, 92 S.Ct. 1619, 31 L.Ed.2d 820 (1972).
As previously mentioned petitioner's principal basis for relief from this court arises from the state's failure to produce certain evidence, four white tablets obtained from the defendant. These tablets originally formed the basis for an amphetamine charge against petitioner. However, once the state chemist determined that the tablets did not contain a controlled substance that charge against the defendant was dropped. Defendant, however, subsequently requested production of the tablets to have them examined by an independent chemist, whereupon the prosecution informed the defendant that the tablets had been lost or destroyed. On that basis, petitioner alleges that his two count marijuana conviction must be dismissed. He loosely charges that the chemical composition of those tablets would have been helpful to the establishment of an entrapment defense to the marijuana charges. This assertion is made despite the fact that defendant was furnished a copy of the state chemist's report that the tablets were not a controlled substance. That confirmed defendant's claim that the tablets were bogus amphetamines or "flash stash".
The South Dakota Supreme Court rejected defendant's claim that the failure to produce the tablets themselves to the defendant required the dismissal of the marijuana convictions. In doing so that court found that any evidence which the defendant could have obtained from an analysis of the white tablets was not clearly shown by defendant to be material to the issue of his guilt or innocence on the marijuana charges. I agree with the determination made by that court. Moreover, defendant has failed, in his presentation of additional evidence to this court, to demonstrate a case entitling him to habeas corpus relief.
As I recently noted in Zemina v. Solem, 438 F.Supp. 455, 469 (D.S.D.1977), affirmed 77-1899, 573 F.2d 1027 (8th Cir. 1978):
(O)rdinarily habeas corpus being a collateral attack is not considered to be a proper remedy for correcting errors in trial procedure. . . . It is only where the trial errors or irregularities infringe upon a specific constitutional protection or are so prejudicial as to amount to a denial of due process that a justiciable federal issue is presented in a habeas corpus proceeding. Atwell v. State of Arkansas, 426 F.2d 912, 915 (8th Cir. 1970), cited in, e. g., Ball v. Wyrick, 547 F.2d 78 (8th Cir. 1977); Hogan v. State of Nebraska, 535 F.2d 458 (8th Cir. 1976); Maggitt v. Wyrick, 533 F.2d 383 (8th Cir. 1976).
Although counsel for petitioner fails to even allege that any trial error with respect to the white tablets reaches a level of constitutional dimensions, this court has considered that issue in terms of constitutional error. In his brief, counsel for petitioner cites but one case to support the contention that petitioner is entitled to habeas corpus relief on the state's failure to produce the white tablets. United States v. Heath, 147 F.Supp. 877 (D.C.Haw.1957). His brief addresses only this issue. That case, which did not involve a petition for habeas corpus, was a tax evasion case where the defendant's records critical to that action had been lost by government agents. The court held that without those records the indictment had to be dismissed. There the relevancy of the lost evidence is clear.
This court is familiar with that case and in fact referred to that decision in United States v. Banks, 374 F.Supp. 321, 328 (D.S.D.1974), affirmed 513 F.2d 1329 (8th Cir. 1975). As I noted there, the Heath, supra, decision stands for the principle that an outright dismissal of a criminal case is justified "where the lost evidence is so vital to the defense of the case that a fair trial is impossible without it." In other words, in order for a defendant to be entitled to dismissal of a criminal charge on the basis of lost or destroyed evidence he must establish the critical nexus of materiality. And here, where a writ of habeas corpus is sought, the materiality must be shown to the extent that the lack of such evidence deprives the defendant of his fundamental constitutional rights to a fair trial.
In this respect, the conclusion reached by the District Court in Rice v. Coiner, 297 F.Supp. 1017 (N.D.W.Va.1969), is appropriate here. There the petitioner sought habeas corpus relief from his state court conviction on the basis that certain evidence, various articles of clothing, helpful to the preparation of his defense, was not made available to him by the prosecution. The court denied petitioner relief and stated, at 1022:
(O)nly where irregularities in the state trial court become so flagrant as to impair fundamental fairness do they become proper allegations to set forth on federal habeas corpus. 28 U.S.C.A. Sec. 2241; Harrison v. Boles, 307 F.2d 928 (4th Cir. 1962); Grundler v. State of North Carolina, 283 F.2d 798 (4th Cir. 1960). "Errors of fact or law committed during the trial of a criminal case, which do not involve the denial of a constitutional right, may be reviewed only on appeal and not in a habeas corpus proceeding." Harrison v. Boles, supra, at 931. It is the opinion of this Court that the evidentiary irregularity alleged by Petitioner here is not of the magnitude to involve violation of any fundamental right guaranteed by the United States Constitution.
Petitioner has failed to demonstrate where the unavailability of the white tablets amounted to a constitutional deprivation. Defendant's counsel received a copy of the state chemist's report. As to what additional assistance the actual tablets would be to the defense, petitioner has remained reticent. He states that the chemical composition of the tablets would help to show that those tablets were part of a stash of bogus amphetamines used by state drug agents. In that regard, I fail to see what additional help would be garnered from...
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