Reyes v. Slayton

• Decision Date: 01 September 1971
• Docket Number: Civ. A. No. 71-C-37.
• Citation: 331 F. Supp. 325
• Court: U.S. District Court — Western District of Virginia
• Parties: Emilio REYES, Petitioner, v. A. E. SLAYTON, Superintendent, Virginia State Penitentiary, Respondent.

331 F. Supp. 325

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

Civ. A. No. 71-C-37.

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

September 1, 1971.

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

OPINION and JUDGMENT

DALTON, District Judge.

This case comes before the court upon a petition for a writ of habeas corpus filed in forma pauperis by Emilio Reyes, a state prisoner, pursuant to 28 U.S.C. § 2241. The petition was filed in the United States District Court for the Eastern District of Virginia, and by order dated June 29, 1971 was transferred to this court.

Petitioner is currently serving a sentence of twenty years in the Virginia State Penitentiary, pursuant to a judgment of the Corporation Court of the City of Martinsville, imposed on December 13, 1967, for armed robbery. The conviction resulted after a trial by jury in which the petitioner, represented by court-appointed counsel, entered a plea of not guilty.

Following his conviction petitioner by counsel filed a notice of appeal and assignment of error to the Virginia Supreme Court of Appeals. Finding no reversible error, that court on June 17, 1969 refused petitioner's writ of error and supersedeas, and affirmed the conviction.

Petitioner alleges several constitutional errors in his petition: (1) his warrantless arrest, secured by police officers beyond their territorial jurisdiction, was illegal because the officers were not in close pursuit of the petitioner; (2) the arresting officers failed to advise petitioner of his constitutional rights; (3) since the arrest was illegal, the attendant search and seizure was also illegal; (4) the fruits of the illegal search were used to induce petitioner to confess; and (5) petitioner was denied an interpreter without which he could not have received a fair trial nor understood his constitutional rights even if he had been so advised.

The only error assigned on his appeal is the first claim on which petitioner relies. Having presented that claim to the state court on direct appeal, petitioner has exhausted his state remedies as required by 28 U.S.C. § 2254. He is not required to raise the same ground by collateral attack. Grundler v. North Carolina, 283 F.2d 798 (4th Cir. 1960).

The facts necessary to make a determination on the claim are not in dispute. Shortly before midnight on October 19, 1967 officers Creasy and Dodson of the Martinsville City Police received a report of an armed robbery committed moments before at Tucker's Sunoco Service Station in Martinsville. The report described the perpetrator as a slight, dark man wearing light pants, a dark shirt, and a green Sinclair hat. The officers, who were only a block from the station when they received the call, went directly to the station; when they arrived the attendant said nothing but indicated by pointing that the robber had fled east on Route 58. Unaware that a car was involved, the officers drove for several minutes around the streets nearest the station, and finding nothing, proceeded further on Route 58. They found a green Sinclair hat lying in one of the eastbound lanes of the intersection of routes 57 and 58, from which they opined that the felon was leaving the city. The patrol car accelerated and continued on Route 58. Just beyond the city limits of Martinsville the officers noticed oil smoke or mist on the highway left recently by a vehicle traveling very fast. The officers saw no east-bound traffic until they approached the Pittsylvania County line, where the taillights of a car a mile or so ahead appeared. Minutes later the policemen came upon two cars, one traveling rapidly and weaving between the eastbound lanes. As the patrol car closed to within four or five carlengths of the speeding vehicle and its lights fell on its driver, he threw paper currency from the window onto the highway. The officers engaged their siren and red lights, the other car slowed to a stop and the petitioner, sole occupant of the car, was immediately arrested.

Petitioner does not contend that there was no probable cause for his arrest. Rather he claims that the officers were not in close pursuit of the petitioner within the enabling provisions of Section 19.1-94 of the Code of Virginia. That section provides in pertinent part:

The authority of any officer of any county, city or town authorized by law to make arrests shall extend * * * throughout the State when in close pursuit of a person sought to be arrested on the ground that such person has committed a felony in this State, even though no warrant has been issued.

Close pursuit is pursuit instituted immediately and with intent to recapture or reclaim, as where a thief is fleeing with stolen goods. State v. Goff, 174 Neb. 548, 118 N.W.2d 625 (1962); People v. Sandoval, 65 Cal.2d 303, ...