Rogers v. Meeks, Civ. No. FS-74-127-C.

• Decision Date: 11 December 1974
• Docket Number: Civ. No. FS-74-127-C.
• Parties: Lois ROGERS, Plaintiff, v. Donald MEEKS, Sheriff of Johnson County, Arkansas, Defendant.
• Court: U.S. District Court — Western District of Arkansas

385 F. Supp. 593

Lois ROGERS, Plaintiff, v. Donald MEEKS, Sheriff of Johnson County, Arkansas, Defendant.

Civ. No. FS-74-127-C.

United States District Court, W. D. Arkansas, Fort Smith Division.

December 11, 1974.

Kenneth C. Coffelt, Atty., Little Rock, Ark., for plaintiff.

Michael Gorman, Asst. Atty. Gen., for defendant.

MEMORANDUM OPINION

PAUL X WILLIAMS, Chief Judge.

On November 20, 1974, an amended petition for writ of habeas corpus was filed in this Court, having been transferred to the Fort Smith Division of the Western District of Arkansas by an order of Honorable J. Smith Henley, Chief Judge of the Eastern District of Arkansas from the Pine Bluff Division where it has borne the number PB-74-C-356.

The entire subject matter of the application has been communicated to this Court by Hon. Kenneth Coffelt, Attorney for the Petitioner and the Court afforded an opportunity to Mr. Coffelt and to the Petitioner to present evidence in support of the application.

Through his attorney the Petitioner states that he does not care to present testimony, but desires that the matter be presented to the Court upon the opinions of the Arkansas Supreme Court, the transcript of the case of Rogers v. State, 257 Ark. 13, 513 S.W.2d 908 (1974) under the designation CR-73-141, with filing dates of Oct. 2, 1973 and April 29, 1974; and the per curiam order of the Arkansas Supreme Court (Nov. 4, 1974) stating that the appellant, Lois Rogers' Motion to proceed under Criminal Procedure Rule 1 and stay mandate is denied.

Each of these instruments has been examined and a copy thereof made a part of the record in this Court. In addition, the Court has caused Ark. Supreme Court transcript 5561 (the transcript of the original appeal) to be made a part of the record herein and has carefully examined the same.

A brief statement of the factual background is as follows: In 1971, Lois Rogers was convicted of unlawful possession of a stolen tractor in the Circuit Court of Johnson County, Arkansas. The conviction and resulting 5 year sentence was appealed to the Arkansas Supreme Court which affirmed the judgment of the Circuit Court. The opinion is reported in 250 Ark. 572, 466 S.W.2d 252 (1971), and is as follows:

"George Rose Smith, Justice. The appellant, along with two other men, was charged with the crime of having unlawfully possessed a stolen tractor. Tried separately, the appellant was found guilty and was sentenced to imprisonment for five years. For reversal the appellant contends only that the trial court erroneously allowed police officers to narrate to the jury an admission of guilt which the officers wrongfully obtained by threatening to charge the appellant's father with the offense, which the appellant himself had allegedly committed.

"A study of the record shows that the appellant's argument is based upon a misconception of what happened at the trial. The defense vigorously argued that the appellant's admission of guilt was improperly obtained because the officers resorted to a threat against the elder Rogers, as we have indicated. According to the record, however, the court sustained the argument of defense counsel and permitted the jury to hear only an admission made by the younger Rogers before the threat in question was made. We agree with the trial court's conclusion that the earlier admission was voluntarily made. The court properly ruled that all statements elicited by means of the threat were involuntary and were not to be submitted to the jury. In the circumstances the record is simply devoid of prejudicial error with respect to the only point for reversal that is before us.

Affirmed."

It is noted that Honorable Kenneth Coffelt was the Attorney of record.

Pending appeal to the Arkansas Supreme Court, Lois Rogers was released to Federal custody to serve a federal prison sentence. When paroled by the federal authorities, he was returned to the authorities of the State of Arkansas to serve the previously imposed State 5 year sentence.

A petition to suspend the State judgment was presented to the Circuit Court of Johnson County, Arkansas (Hon. Russell C. Roberts, Judge), the judge and Court that had imposed the sentence. That court, after a hearing, refused to suspend the sentence. Lois Rogers appealed to the Arkansas Supreme Court from the refusal to suspend and on September 16, 1974 the Arkansas Supreme Court affirmed the action of the State Circuit Court. That opinion is reported at 257 Ark. 13, 513 S.W.2d 908 (1974) and is as follows:

"Frank Holt, Justice. Appellant was convicted by a jury of possessing stolen property and his punishment was assessed at five years imprisonment in the Department of Correction. We affirmed Rogers v. State, 250 Ark. 572, 466 S.W.2d 252 (1971). Pending his appeal, appellant was released to serve a federal prison sentence. Upon being paroled he was returned to the proper state authorities, pursuant to a detainer, to serve the previously imposed state sentence. At that time eleven of the twelve trial jurors asked the court by written petition to suspend the three year old judgment. These jurors personally appeared before the court in support of their petition. During this hearing, one of the jurors testified that she had consistently voted for the minimum sentence of one year. However, in the belief that a majority vote of the jurors controlled, she agreed to the five year verdict. The trial court refused to suspend the sentence. Thereupon the appellant filed a motion to vacate the judgment and set aside the jury verdict on the basis of this juror's testimony. On appeal from a denial of that motion, appellant asserts that the jury verdict was invalid and a nullity because the juror's testimony is uncontradicted that she agreed to the verdict in the belief that `she thought the majority ruled.' Consequently, appellant argues the verdict was not unanimous. We cannot agree.

"Ark.Stat.Ann. § 43-2204 (Repl. 1964) reads:

A juror cannot be examined to establish a ground for a new trial; except it be to establish, as a ground for new trial, that the verdict was made by lot.

"A verdict by lot is defined as involving an element of chance. Blaylack v. State, 236 Ark. 924, 370 S.W.2d 615 (1963); Speer v. State, 130 Ark. 457, 198 S.W. 113 (1914). See also 457, 198 S.W. 113 (1914). See also S.W.2d 291 (1959); Patton v. State, 189 Ark. 133, 70 S.W.2d 1034 (1934); Arnold v. State, 150 Ark. 27, 233 S.W. 818 (1921); and Fain v. Goodwin, 35 Ark. 109 (1879). In the case at bar, we cannot construe the juror's testimony as tending to establish that the jury verdict resulted from any element of chance. To hold otherwise would subvert the public policy upon which the statute is based; i. e., shielding the stability and sanctity of a jury verdict. If a juror is permitted to impeach a verdict, as in the case at bar, the juror would be permitted to nullify the solemn action under oath of that juror as well as the other fellow jurors.

"Furthermore, it does not appear that the appellant availed himself of the right to poll the jury upon rendition of its verdict to ascertain if the verdict was that of each juror as provided by § 43-2160. The statute provides that the verdict cannot be received if a juror says it is not his verdict. Neither do we deem it of any significance that the juror's testimony was elicited by the state upon cross-examination. The answer was not responsive to the question. Even so, the statute plainly safeguards a jury verdict from impeachment by the testimony in the case at bar.

Affirmed."

It will be noted again that Lois Rogers' attorney was Hon. Kenneth Coffelt, the same as in the original case.

There is no controversy but that on November 4, 1974 the Arkansas Supreme Court denied Mr. Rogers' motion to proceed under Criminal Procedure Rule 1 and also his request to stay mandate.

While Mr. Rogers is — or was — out on bond there is no question but that he is in State custody; and there is no question but that he has exhausted State remedies.

This action is a 28 U.S.C. 2254 proceeding and this court has jurisdiction of the parties and the subject matter.

2254(a) provides that a United States District Court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the constitution or laws or treaties of the United States.

The burden of proving a violation of the Constitution or laws or treaties is on the applicant petitioner. Hawk v. Olsen, (1945) 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61; Harris v. Tahash, (8 Cir. 1965) 353 F.2d 119; Williams v. Smith (5 Cir. 1970) 434 F.2d 592.

2254(d) provides that:

In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit —

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the fact finding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

(6) that the applicant did not receive a full,

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