Scalf v. Bennett

• Decision Date: 28 April 1969
• Docket Number: No. 19342.,19342.
• Citation: 408 F.2d 325
• Parties: Martis C. SCALF, Appellant, v. John E. BENNETT, Warden, Iowa State Penitentiary, Fort Madison, Iowa, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

408 F.2d 325 (1969)

Martis C. SCALF, Appellant, v. John E. BENNETT, Warden, Iowa State Penitentiary, Fort Madison, Iowa, Appellee.

No. 19342.

United States Court of Appeals Eighth Circuit.

March 11, 1969.

Rehearing Denied April 28, 1969.

Rehearing Denied April 28, 1969.

John L. Sloane, Des Moines, Iowa, for appellant and filed briefs.

William A. Claerhout, Asst. Atty. Gen. of Iowa, Des Moines, Iowa, for appellee; Richard C. Turner, Atty. Gen., of Iowa, was on the brief with William A. Claerhout, Des Moines, Iowa.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and BRIGHT, Circuit Judges.

Rehearing En Banc Denied April 28, 1969.

MATTHES, Circuit Judge.

Martis C. Scalf, an Iowa state prisoner, has appealed from the order of the United States District Court, Southern District of Iowa, The Honorable Roy L. Stephenson, denying his petition for habeas relief.

At the outset we note the chronology of the proceedings. On March 29, 1962, an indictment was filed in the district court of Polk County, Iowa, charging appellant with statutory rape in violation of § 698.1 of the 1958 Iowa Code. The victim was Joan Knight, who was on the date of the offense, September 22, 1961, eleven years old. At the time appellant was apparently 53 years of age.

Appellant was represented in the 3-day trial, which ended on April 26, 1962, by two court appointed attorneys. The jury found appellant guilty as charged. On May 25, 1962, he was sentenced to imprisonment for a term of 35 years. The judgment of conviction was affirmed. State v. Scalf, 254 Iowa 983, 119 N.W.2d 868 (1963).

The appellant filed a petition for a writ of habeas corpus in the district court of Iowa on October 30, 1963. He was represented in that proceeding by the same lawyer, apparently retained, who represents him here. A full hearing was held by the state court on the habeas petition. On September 29, 1965, the petition was dismissed. This action was also affirmed. Scalf v. Bennett, 147 N.W.2d 860 (Iowa 1967).

On July 18, 1967, appellant filed a petition for writ of habeas corpus in the federal district court. In the lengthy petition prepared by counsel, to which numerous exhibits were attached, appellant alleged many errors in the state court trial and averred they were of such dimensions that he was denied due process in violation of the First, Fifth, Sixth and Fourteenth Amendments to the Constitution.

On October 23, 1967, the district judge filed a memorandum opinion in which he reviewed the grounds relied upon for relief. After due consideration of appellant's claimed violations of his constitutional rights, Judge Stephenson stated: "Petitioner in the most part complains of matters which, if true, amount to nothing more than procedural errors. None of these alleged errors are of sufficient character to constitute a denial of due process or a deprivation of the constitutional right to a fair trial, and may not be reviewed in this proceeding. Durham v. Haynes, 368 F.2d 989 (8th Cir. 1966)," cert. denied, 390 U.S. 959, 88 S.Ct. 1054, 19 L.Ed.2d 1154 (1968).

Thereafter, appellant filed a motion for relief from the court's order of October 23, alleging that the indictment upon which he had been tried was fatally defective. In response to the motion the court reconsidered and set aside the denial of the petition for habeas corpus entered on October 23, and scheduled a hearing to afford appellant an opportunity to offer additional evidence relating to the claimed invalidity of the indictment. On February 15, 1968, a full hearing was held relating to this question. Included in the evidence were depositions taken pursuant to authorization by the court. On April 3, 1968, Judge Stephenson filed another order and memorandum opinion denying habeas relief in which he exhaustively reviewed the grounds relied upon by appellant. He found that the indictment was not subject to any infirmities, that it was valid in all respects and accordingly ruled the issue against appellant. Appellant persisted in filing additional motions, all of which were denied, and in due time, upon the granting of a certificate of probable cause by the district court, appellant perfected his appeal.

Although appellant's brief fails to conform to Rule 28(a) (2) of the Federal Rules of Appellate Procedure, effective July 1, 1968, in that it does not contain a "statement of the issues presented for review," our liberal consideration of the brief indicates that under appellant's "points and authorities" the issues which he presents are:

(1) The trial court erred in allowing the prosecutor to "introduce the question of appellant's religion", which "resulted in depriving appellant of due process and the equal protection of the law."

(2) Appellant was deprived of an effective appeal from the judgment of conviction for the reason that only one typewritten 220 page transcript was filed in the Supreme Court of Iowa, and because he was ineffectively represented on appeal.

(3) The state trial court erred when it permitted testimony to be given by a newspaper reporter.

(4) The prosecutor suppressed evidence favorable to appellant.

(5) The indictment was fatally defective.

The character of the asserted errors relied on to annul the conviction prompts us to direct attention to the deeply rooted principle that habeas corpus does not serve as a substitute for a review of nonconstitutional trial irregularities, and to once again recognize the limitations on the function of the courts in post conviction proceedings collaterally challenging the legality of a conviction.

More precisely, on petition for writ of habeas corpus by state prisoners errors of the state trial court are not reviewable on federal habeas corpus unless there has been a deprivation of constitutional rights such as to render the judgment void or to amount to a denial of due process. Durham v. Haynes, supra, 368 F.2d at 990; Trujillo v. Tinsley, 333 F. 2d 185, 186 (10th Cir. 1964); Wilson v. Nebraska, 316 F.2d 84, 85-86 (8th Cir. 1963). Habeas corpus relief on the ground of incompetency of counsel or denial of effective counsel will be granted "only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation." White v. McHam, 386 F.2d 817, 818 (5th Cir. 1967); Williams v. Beto, 354 F.2d 698, 704 (5th Cir. 1965); See Maye v. Pescor, 162 F.2d 641, 643 (8th Cir. 1947). And the writ will not be used to test an indictment unless it is constitutionally defective. Knewel v. Egan, 268 U.S. 442, 446, 45 S.Ct. 522, 69 L.Ed. 1036 (1925); Bergemann v. Backer, 157 U. S. 655, 659, 15 S.Ct. 727, 39 L.Ed. 845 (1895); Johnson v. Beto, 383 F.2d 197, 198 (5th Cir. 1968); Roth v. United States, 295 F.2d 364, 365 (8th Cir. 1961), cert. denied, 368 U.S. 1004, 82 S.Ct. 639, 7 L.Ed.2d 543 (1962); Keto v. United States, 189 F.2d 247, 251 (8th Cir. 1951). Compare Fay v. Noia, 372 U.S. 391, 412, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

THE RELIGIOUS ISSUE

This contention calls for a brief resume of the evidence. At the time of the offense, and prior thereto, appellant was, by his own admission, a self-ordained pastor in a religious sect denominated Elijah Ministry. The mother of Joan Knight and Judi Knight, 9 years old, was a member of the Elijah Ministry. Joan and Judi, according to their testimony, were generally familiar with some of the doctrines of that cult. They and their mother, Mrs. Knight, testified that it was a part of the creed of the Ministry that members would be joined to each other by acts of intercourse. Evidence of this nature was given in connection with the assaults by appellant upon Joan and Judi. They testified that appellant came to their apartment on the evening of September 22. Joan and Judi were in their bedroom when appellant entered. He began discussing the Ministry. Judi left the room. Scalf told Joan to remove the bottom part of her pajamas. She complied "because I was afraid of him." Appellant informed Joan that if she resisted "he would tell us what God would do to us, and usually it would mean dying or being away from your mother; that's what he told us." At appellant's instruction, Joan lay on the bed and the act of intercourse followed. Then appellant followed a similar procedure with Judi.

We have engaged in this brief resume to show how the matter of appellant's religion entered the case. Counsel for appellant at the trial made no objection to this line of questioning by the prosecution. In fact, on cross-examination and by use of defense witnesses, including appellant himself, the defense attorney delved more deeply into the religious issue than did the prosecution. Appellant, in addition to denying the act of intercourse, testified that the Elijah Ministry did not practice intercourse as a religious ritual and that it adhered to the Ten Commandments. To rebut this testimony and to impeach the credibility of appellant and his character witnesses, the prosecution produced witnesses who testified that the Ministry did practice intercourse and believed in only the two commandments: Thou shalt love thy Lord and thy neighbor as thyself.

While we do not doubt that a defendant would be deprived of due process if his religion were improperly introduced to his prejudice in a proceeding where it had no bearing, this is not such a case. We agree with the district court that the record does not disclose anything amounting to an "attack" on the appellant's religion, and that the "religious organization of petitioner was inextricably wound into the events which developed that night." The prosecution's injection of the tenets of the Elijah Ministry was for the purpose of showing "one of the many relevant circumstances surrounding the commission of the crime which the prosecutor must necessarily refer to in order to present a logical and...