Sepulveda v. State of Colorado, 7732.
| Decision Date | 28 July 1964 |
| Docket Number | No. 7732.,7732. |
| Citation | 335 F.2d 581 |
| Parties | Frank Edward SEPULVEDA, Appellant, v. The STATE OF COLORADO, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Arnold C. Wegher, Denver, Colo., for appellant.
John E. Bush, Asst. Atty. Gen. (Duke W. Dunbar, Atty. Gen., and Frank E. Hickey, Deputy Atty. Gen., State of Colorado, on the brief), for appellee.
Before PHILLIPS, BREITENSTEIN and SETH, Circuit Judges.
This is an appeal from an order dismissing an action brought by Sepulveda against the State of Colorado for a declaratory judgment under the Federal Declaratory Judgment Act (28 U.S.C. § 2201).
In his amended complaint, Sepulveda alleged that he was in the custody of the United States in the Federal Penitentiary at Leavenworth, Kansas; that on October 23, 1959, he was convicted in a state court of Colorado of unlawful possession of a narcotic drug and was sentenced to imprisonment in the Colorado Penitentiary; that such conviction was obtained by the use of evidence procured through an unlawful search and seizure; that such evidence was inadmissible under the decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); that he was released to federal authorities pursuant to an agreement between them and the State of Colorado, whereby such federal authorities agreed that when he was released from federal custody they would return him to the State of Colorado for incarceration under his state sentence.
He prayed for a declaratory judgment, adjudging that such conviction was obtained by the use of evidence procured in an unlawful search and seizure in violation of his federal constitutional rights and adjudging and directing that the State of Colorado "take such action necessary to * * * afford the Plaintiff the right to a new trial, to be conducted consistent with his Constitutional guarantees, or release all further claims to the person of the Plaintiff." The trial court held that in the exercise of his discretion he should deny the relief and dismiss the action.
Wholly apart from the question, not raised below, that this is an action against the State to which it has not consented, we are of the opinion that the order should be affirmed.
The trial court in his order recited that Sepulveda had not exhausted the state remedies still available to him, particularly the remedy granted by Rule 35(b) of the Colorado Rules of Criminal Procedure.
Rule 35(b) in...
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