Patterson v. Lockhart
| Citation | 513 F.2d 579 |
| Decision Date | 03 April 1975 |
| Docket Number | No. 74-1670,74-1670 |
| Parties | Russell A. PATTERSON, Appellant, v. A. L. LOCKHART, Superintendent, Cummins Unit, Arkansas Department of Correction, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
H. Clay Moore, Little Rock, Ark., for appellant.
Jack T. Lassiter, Asst. Atty. Gen., Little Rock, Ark., for appellee.
Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired, * and LAY, Circuit Judge.
This is an appeal from the denial of a writ of habeas corpus sought by an Arkansas state prisoner. The petitioner Russell A. Patterson was convicted in an Arkansas state court of possession of stolen property and his conviction was upheld by the Arkansas Supreme Court. Patterson v. State, 253 Ark. 393, 486 S.W.2d 19 (1972). He based his claim for habeas relief on alleged constitutional deficiencies in the proceedings against him: (1) that the search of his farm house which produced the stolen property entered in evidence against him was illegal since the affidavit upon which the search warrant was granted failed to establish probable cause; (2) that discussions concerning items not offered or received in evidence occurred between law officers and jurors outside the courtroom during the course of his trial; and (3) that the sentence imposed upon him amounted to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. 1 The district court denied relief on the first and third grounds and found that petitioner had failed to exhaust his state remedies as to the second. We reverse and remand for further proceedings.
During oral argument before this court the State of Arkansas confessed error, conceding the invalidity of the affidavit which supported the search warrant. We agree that it was insufficient to demonstrate probable cause for the search warrant. 2 The Attorney General now points out, however, that at the time the warrant was issued, Arkansas law permitted the state to reinforce such an affidavit when attacked in a habeas proceeding by demonstrating that oral testimony establishing probable cause was also presented to the magistrate. The state now seeks permission to take additional testimony to show probable cause. The rule in Arkansas has been changed by statute and such reinforcement is no longer possible. See Ark.Stats.Ann. § 43-205 (1971); Cockrell v. State, 505 S.W.2d 204 (Ark.1974). Whether this statute bars reinforcement of a warrant for a search conducted prior to its enactment is essentially a question of state law which should be decided by an Arkansas court. Cf. United States v. Berkus, 428 F.2d 1148 (8th Cir. 1970).
Upon the confession of error, the district court's denial of the petition is therefore vacated and the cause is remanded to the district court. The district court shall request the State of Arkansas to immediately schedule a plenary hearing in the state court upon all questions pertaining to the validity of the search warrant, 3 as well as to the other constitutional issues alleged in the petition. The district court shall retain jurisdiction until the state has complied with this order. In the event of compliance the habeas petition should be dismissed without prejudice to the state court proceeding; in the event of noncompliance the petition should be granted and a writ of habeas corpus issued.
Judgment vacated and the cause remanded.
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Grigsby v. Mabry
...... McCree v. Housewright, 689 F.2d 797 (8th Cir.1982), cert. denied sub. nom., McCree v. Lockhart, ___ U.S. ___, 103 S.Ct. 1782, 76 L.Ed.2d 352 (1983). . The facts concerning the voir dire and challenges in the Grigsby capital ...Denno, 378 U.S. 368 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Boles v. Stevenson, 379 U.S. 43 85 S.Ct. 174, 13 L.Ed.2d 109 (1964); Patterson v. Lockhart, 513 F.2d 579, 581 (8th Cir.1975); United States ex rel. Fisher v. Driber, 546 F.2d 18, 22 (3d Cir.1976). The issues here are (1) ......
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Rivera v. Harris, 246
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Grigsby v. Mabry, s. 80-1262
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