Reyes v. Slayton, Civ. A. No. 72-C-5-D.

• Decision Date: 17 April 1972
• Docket Number: Civ. A. No. 72-C-5-D.
• Citation: 341 F. Supp. 926
• Parties: Emilio REYES, Petitioner, v. A. E. SLAYTON, Jr., Superintendent, Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Virginia

341 F. Supp. 926

Emilio REYES, Petitioner, v. A. E. SLAYTON, Jr., Superintendent, Virginia State Penitentiary, Respondent.

Civ. A. No. 72-C-5-D.

United States District Court, W. D. Virginia, Danville Division.

April 17, 1972.

William P. Robinson, Jr., Asst. Atty. Gen., Richmond, Va., for respondent.

OPINION and JUDGMENT

DALTON, District Judge.

Emilio Reyes petitions this court for a writ of habeas corpus to terminate his alleged illegal confinement in the Virginia State Penitentiary. Leave to proceed in forma pauperis has been granted.

Reyes was convicted of robbery in the Corporation Court of Martinsville on December 13, 1967, and sentenced to a twenty year term in the State Penitentiary. The conviction arose from a jury trial at which petitioner, represented by court-appointed counsel, pleaded guilty to the charge.

Although the petition is rather vague, it appears that several constitutional errors are alleged: 1) illegal arrest, as the police were not in close pursuit; 2) failure of the police to advise petitioner of his constitutional rights upon arrest; 3) illegal search and seizure; 4) failure of the police to conduct a pre-trial lineup; 5) failure of the court to provide an interpreter.

This court has considered Reyes' allegations in two prior unsuccessful habeas corpus petitions attacking the robbery conviction challenged here and also attacking burglary and larceny convictions, of which all claims arose from a single factual incident. Reyes v. Slayton, 331 F.Supp. 325, 71-C-37-D (D.C. 1971) (robbery);¹ Reyes v. Cox, 336 F.Supp. 829, 71-C-56-D (D.C.1971) (burglary and larceny). Before the conclusory effect of those decisions is invoked here, a brief review of the established facts is necessary. Around midnight, October 19, 1967, Reyes was lawfully arrested while fleeing from the scene of the robbery committed minutes before in Martinsville. Following his arrest the pursuing officers advised petitioner of his constitutional rights. Found upon petitioner's person and in his automobile was evidence indicating that he committed not only the robbery but also burglaries two days earlier. Several hours after he was returned to the Martinsville police station, the officers investigating the burglaries again advised him of his constitutional rights. Petitioner's claims relating to the arrest, warnings, and search and seizure were resolved against him in the two prior decisions, as noted, which to a large extent overlap. The court need not consider further the merits of these claims. 28 U.S.C. § 2244; see Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L. Ed.2d 148 (1963); Johnson v. Copinger, 420 F.2d 395 (4th Cir. 1969).

Because petitioner has not submitted his remaining claims to the Virginia Supreme Court on either direct or collateral appeal, he has not effectively exhausted his state remedies, within the meaning of 28 U.S.C. § 2254. Thomas v. Cunningham, 313 F.2d 934 (...