Reese v. Frey, 86-1196
| Decision Date | 18 September 1986 |
| Docket Number | No. 86-1196,86-1196 |
| Citation | 801 F.2d 348 |
| Parties | Earl Lavann REESE, Appellant, v. Gerard FREY, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John B. Renick, St. Louis, Mo., for appellant.
John W. Simon, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.
Earl Lavann Reese appeals the denial of his 28 U.S.C. Sec. 2254 habeas corpus petition by the United States District Court for the Eastern District of Missouri. 1 For reversal Reese contends that the state prosecutor suppressed exculpatory evidence in the form of an arrest warrant, that his trial counsel was incompetent in failing to discover and use the warrant, that his appellate counsel was incompetent for failing to raise the warrant issue on direct appeal, and that he was entitled to an evidentiary hearing on his habeas petition. We affirm.
Shortly after a robbery in Kansas City, police found what they believed to be the getaway car parked in front of the home of Ms. Shekena Dabner, Reese's girlfriend. A police officer knocked on the door and asked Ms. Dabner a few questions. According to the officer, Ms. Dabner consented to a warrantless search of her home. The search revealed several items from the robbery and it also revealed Reese hiding in a crawl space in the attic. The officer then made a warrantless arrest of Reese. In a pretrial suppression hearing in the Circuit Court of Jackson County, Missouri, the warrantless search and arrest were found to have been proper. Reese was convicted by a jury of robbery in the first degree under Mo.Rev.Stat. Sec. 569.020.
At the sentencing hearing, the judge discovered an arrest warrant for Reese in the court file. The warrant was for the same charge of robbery in the first degree and it was issued on the same day as Reese's warrantless arrest. The return on the warrant was signed by a different officer than the one who arrested Reese at Ms. Dabner's home. The judge found that the warrant was a matter to be taken up by the appellate court, and Reese was sentenced to life imprisonment as a dangerous offender pursuant to Mo.Rev.Stat. Secs. 558.016 and 557.036.3.
The warrant issue was not raised by Reese in his direct appeal, see State v. Reese, 625 S.W.2d 130 (Mo.1981), and he was not allowed to raise it in a subsequent appeal. Having exhausted all of his state remedies, Reese filed a 28 U.S.C. Sec. 2254 habeas corpus petition with the United States District Court for the Eastern District of Missouri. Reese claimed that the arrest warrant constituted exculpatory evidence suppressed by the prosecutor, that his trial counsel was incompetent for not discovering the warrant and using it to impeach the officer who made the warrantless arrest, and that his appellate counsel was incompetent for not raising the warrant issue on direct appeal. Pursuant to the Review and Recommendation of the United States Magistrate, 2 the court denied Reese's habeas petition. This appeal followed.
We note at the outset that Reese contends that we should remand this case for an evidentiary hearing on his claims. In support of this contention he recites several questions of fact regarding the arrest warrant which he says remain unresolved. "A habeas corpus petition may be properly dismissed without a hearing where facts are not in dispute or where the dispute can be resolved on the basis of the record." Riley v. Lockhart, 726 F.2d 421, 423 (8th Cir.1984). The issues in Reese's habeas petition can be resolved using only the undisputed facts in the limited record. The resolution of the factual disputes referred to by Reese would have no impact on the result, and a hearing therefore is not required. See Hill v. Lockhart, 731 F.2d 568, 573 (8th Cir.1984), aff'd, --- U.S. ----, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
Reese first argues that the arrest warrant was exculpatory material and that the prosecutor failed to disclose its existence to him. "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). Three things must be shown in order to make out a Brady claim: "the suppression of evidence, the evidence's favorable character to the accused, and the evidence's materiality." United States v. Smith, 538 F.2d 1332, 1334 (8th Cir.1976). We find that Reese has failed to make any of these showings.
It is unclear whether Reese made an evidentiary request to the prosecutor which would have covered the arrest warrant. Nevertheless, the court file in which the warrant was found was readily available to Reese and his attorney, and it can hardly be said that the prosecutor suppressed the warrant or failed to disclose its existence.
We also cannot find that the evidence was exculpatory and material. Reese claims that he would have used the warrant to impeach the officer who made the warrantless search and arrest. "When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within [the Brady ] rule." Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). Had the officer's credibility been impeached, the trial court possibly might have ruled that the warrantless search and arrest were illegal. This could have led to dismissal of the charges against Reese. However, it is very difficult to see how the arrest warrant could have reflected adversely on the officer's character. Even if the warrant had been issued shortly after the crime occurred, its existence would have had no bearing on the propriety of the subsequent warrantless search and arrest. 3 Indeed, no matter what the facts regarding the warrant were, its existence was irrelevant to the officer's credibility or to the propriety of his warrantless search and...
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