Peters v. Dillon

• Citation: 227 F. Supp. 487
• Decision Date: 03 January 1964
• Docket Number: Civ. A. No. 8174.
• Parties: Wendell Austin PETERS, Petitioner, v. Frank C. DILLON, Chief, Probation Department, City and County of Denver, State of Colorado, Respondent.
• Court: United States District Courts. 10th Circuit. United States District Court of Colorado

227 F. Supp. 487

Wendell Austin PETERS, Petitioner, v. Frank C. DILLON, Chief, Probation Department, City and County of Denver, State of Colorado, Respondent.

Civ. A. No. 8174.

United States District Court D. Colorado.

January 3, 1964.

Fugate, Mitchem, McGinley & Hoffman, Roger F. Johnson, Allen P. Mitchem, Denver, Colo., for petitioner.

Bert M. Keating, Dist. Atty., Second Judicial Dist., Colorado, Theodore A. Borrillo, Deputy Dist. Atty., Denver, Colo., for respondent.

ARRAJ, Chief Judge.

This matter is before the Court on petition for writ of habeas corpus. A Show Cause Order was issued on September 18, 1963, and respondent's answer and petitioner's traverse have since been filed. A hearing was had on December 18, 1963, at which counsel for both sides presented an able and complete argument on the questions raised.

Petitioner was convicted of the charge of larceny by bailee in the District Court in and for the City and County of Denver on May 16, 1961. The conviction was affirmed on November 5, 1962, by the Colorado Supreme Court, 376 P.2d 170 (Colo.1962). Petitioner contends here that evidence indispensable to that conviction was obtained by an illegal search and seizure and that by virtue of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), its use at trial constituted a violation of his rights to due process as guaranteed by the Fourteenth Amendment to the United States Constitution. Respondent takes no position concerning the legality of the search and seizure, but contends that petitioner has not exhausted his state remedies and is therefore not properly before this Court, and that even if this Court does have jurisdiction, Mapp v. Ohio cannot be applied retroactively in this case, relying on Gaitan v. United States, 317 F.2d 494 (10th Cir.1963).

In view of the disposition we have presently chosen to make of this matter, it is not necessary to set forth in detail the facts surrounding the alleged search and seizure. The objections of respondent, however, will be dealt with at some length.

I. Exhaustion of State Remedies.

28 U.S.C. § 2254 requires that all available state remedies be exhausted before habeas corpus can issue from this Court. Inasmuch as this requirement is jurisdictional in character, a determination must be made that it has been fulfilled.

Though respondent has not argued these questions in his answer, it seems proper to observe here that petitioner's failure to apply for certiorari to the United States Supreme Court or to apply for a writ of habeas corpus in the Colorado courts does not bar his petition here. As to the former, see Fay v. Noia, 372 U.S. 391, 435-438, 83 S.Ct. 822, 847-848, 9 L.Ed.2d 837 (1963). As to the latter, it seems clear that even a cursory review of Colorado law on habeas corpus indicates that it would not afford a remedy for this petitioner. As noted by Professor Austin Scott in a survey of post-conviction remedies in Colorado,

"The Colorado law, then, seems clear: habeas corpus will never lie to afford relief from a conviction obtained at a trial at which any of the defendant's federal or state constitutional procedural rights have been violated, so long as the trial court in question had jurisdiction over the crime and over the defendant and imposed a sentence within statutory limits. No matter how unfair the trial, no matter what constitutional rights were violated, habeas corpus cannot be used to remedy the wrong." Scott, Post-Conviction Remedies in Colorado Criminal Cases, 31 Rocky Mt.L.Rev. 249, 256-57 (1959).

Respondent's contention that petitioner may still avail himself of a motion under Colo.R.Crim.P. 35(b) raises a more difficult question, since it is clear that the Rule was intended to fill the void created by the narrowness of the Colorado concept of habeas corpus above described by creating an entirely new post-conviction remedy. See Symposium, The Colorado Rules of Criminal Procedure, 34 Rocky Mt.L.Rev. 66-78 (1961). However, a determination whether petitioner would come within the scope of that Rule is handicapped by the fact that the Rule is so new that the Colorado Supreme Court has not yet had an opportunity to fully construe it.¹

A recital of the procedural steps taken by petitioner in the Colorado courts to raise the question which is crucial to his petition here and the times such steps were taken should be helpful in reaching such a determination. The alleged search and seizure and the trial of petitioner both took place before the decision of Mapp v. Ohio was rendered; the jury returned its verdict on May 16, 1961, and Mapp was not decided until June 19, 1961. Sentence, however, had not been imposed on petitioner as of the time Mapp was decided, a motion for a new trial being pending at that time. An amended motion for a new trial was filed on August 2, 1961, in which petitioner requested a new trial or a special hearing to determine whether the evidence here complained of had been illegally seized. On September 8, 1961, after the amended motion for new trial had been denied but before judgment had been entered, petitioner filed a motion requesting the trial court to reopen the case for the taking of testimony relating to the competency and admissibility of the evidence which had been obtained by the search and seizure in question.

Petitioner made no motion to suppress this evidence before or during trial, nor was any evidence adduced at trial on the specific issue of the alleged illegal search and seizure "because," as petitioner alleges, "of the then status of Colorado local law permitting the admissibility of illegally seized evidence * * *." The trial court, therefore, heard no evidence on the search and seizure as such, and in denying petitioner's amended motion for a new trial it rejected an opportunity to hold such a hearing. It rejected a second such opportunity when it denied the motion made on September 8, just before petitioner was sentenced, that the case be reopened for the taking of testimony on this point. The Colorado Supreme Court, on the Writ of Error seasonably brought by petitioner, held as follows:

"We conclude that the decision of the Supreme Court of the United States went no farther than to exclude in the state courts the use of evidence obtained by way of an unreasonable search and seizure as forbidden by the Fourth Amendment to the United States Constitution. It does not exclude all evidence which might be obtained as an incident to a lawful arrest, nor does it preclude the admission of all evidence which may have been obtained without the sanction of a search warrant. The evidence before the court clearly indicated a permissive search and there is nothing whatever in the record to indicate `an unreasonable search and seizure' within the coverage of Mapp v. Ohio, supra." Peters v. People, 376 P.2d 170, 175 (Colo. 1963).

On petition for rehearing to the Colorado Supreme Court, petitioner objected to the above language noting that:

"Defendant merely seeks an opportunity for a hearing on the issues presented by his `motion to Suppress.' Defendant admits that the record does not specifically reflect an unreasonable seizure; the Defendant was never given the opportunity to present such evidence. (See Defendant's Opening Brief, p. 79 and Reply Brief, pp. 15-17.) The Trial Court ruled on the substantive merits of the Defendant's motion without allowing evidence to be offered in support of the motion (f. 1431). We would assert that the record taken as a whole shows that Defendant was not within 100 miles of Denver when his office was raided (the day after his home was searched) by police officers; Exhibits A, P and O, taken from the office without benefit of a warrant or any conceivable permission of the absent Defendant (ff. 588-598)."

The petition for rehearing was denied.

On February 14, 1963, a motion to suppress certain evidence was granted by Judge Keating of the Denver District Court in Criminal Action No. 48873 and that action was dismissed. Although that action was admittedly different from that of which petitioner was convicted, he contends that the evidence used to obtain the conviction complained of here was seized "* * * in the same raids * * * under the identical circumstances and at the same times and from the same locations as the searches which were made" with respect to the evidence in this case.

It is on the basis of this unusual set of circumstances that a decision must be made as to whether petitioner could succeed in bringing an action under Colo.R.Crim.P. 35(b) in the Colorado state courts. If it appears that petitioner could bring such an action, he has not exhausted his state remedies within the meaning of 28 U.S.C. § 2254. If he could not bring such an action, he may be deemed to have exhausted state remedies still available to him, and his petition for writ of habeas corpus would, therefore, be properly before this Court. Though it may be objected that only the Colorado courts can properly determine whether a 35(b) motion would lie, it is the duty of this Court to make an independent determination of whether petitioner has exhausted state remedies still available to him. This Court, therefore, especially in view of the short time in which this question may be resolved, a point which will be elaborated below, must proceed to determine what the Colorado courts would do if presented this question on a 35(b) motion.

Crucial to this question, we feel, is the holding of the Colorado Supreme Court above quoted. Although respondent has argued in his answer that the trial court was correct in denying petitioner's motion for a hearing on the legality of the contested search and seizure and that because of the improper procedure employed by petitioner the issue was never properly before the state courts, our reading of the Supreme Court opinion leads us to the conclusion that the question was decided not on a procedural basis, but that the Court reached a...