Thompson v. Peyton, 12936.

Citation406 F.2d 473
Decision Date19 December 1968
Docket NumberNo. 12936.,12936.
PartiesRobert Herman THOMPSON, Jr., Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

No appearance of counsel.

Before BOREMAN, BRYAN and WINTER, Circuit Judges.

PER CURIAM:

Robert Herman Thompson, Jr., seeks a certificate of probable cause to appeal from an order of the district court (Merhige, J.) dismissing his petition for habeas corpus for failure to exhaust available state remedies.

Thompson attacks the validity of two convictions for armed robbery obtained in the Richmond, Virginia, Hustings Court on June 27, 1966. Sentences of fifteen and ten years were imposed. Thompson contends that in each of his trials he was prejudiced by the introduction of testimony concerning line-up identifications, when he had been compelled to appear in the line-ups while being held on other charges, without having been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and without the presence of counsel as required by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and that in each trial he was prejudiced because witnesses for the several trials, including identification witnesses, were permitted to mingle together during the grand jury hearings and before and during the trials, which situation influenced the testimony of the witnesses. Each contention was presented in Thompson's petition for appeal to the Virginia Supreme Court of Appeals. Appeals were denied in both cases on April 26, 1967. The district court noted that Thompson had not sought state habeas corpus, which was then, and is now, available to him, and dismissed the petition in reliance on Ganger v. Peyton, 379 F.2d 709 (4 Cir. 1967).

We do not think that Ganger, properly read, supports the dismissal for failure to exhaust state remedies as to the first of Thompson's contentions. It is the general rule that after issues have been properly presented on direct appeal from a conviction to the highest state court to which resort may be had, a federal habeas petitioner will be deemed to have fully complied with the exhaustion requirement, since further resort to state courts may fairly be considered futile after the state's highest court has passed on the issues presented. Grundler v. North Carolina, 283 F.2d 798 (4 Cir. 1960); Edmondson v. Warden, 335 F.2d 608 (4 Cir. 1964); Massey v. Peyton, No. 11,280 memo. dec. (4 Cir., June 7, 1967). Ganger does not represent an exception to or an abrogation of this rule, but is an enunciation of what is meant by the requirement that the issues be "properly presented" on appeal. Under Ganger, a direct appeal will suffice to exhaust state remedies if the factual matters necessary for a determination of the questions presented "* * * appear on the face of the trial record without the necessity of developing the facts * * * in a supplemental proceeding." Ganger v. Peyton, 379 F.2d 709, 710. If the facts were sufficiently well developed at trial that the state appellate court can rule upon the issues presented without the necessity of further factual development, the issues may be considered to have been properly presented on appeal. If, on the other hand, it is necessary that an evidentiary hearing be held before a definitive ruling can be made on the merits of the issues, they are not considered to have been properly before the appellate court for decision and, therefore, it is necessary that resort be had to a collateral proceeding for proper development of the claims. In such a case, where the state provides an adequate and available method for bringing the necessary collateral attack on the conviction, Ganger requires that the state remedies must be pursued and utilized before a federal court will consider the merits of a habeas corpus petition in which the same contentions are raised.

In the instant case, Thompson presented both of his present contentions on appeal to the Virginia Supreme Court of Appeals. The facts necessary to a decision on his first contention, that regarding the line-ups, are contained in the transcript of his trials. Since the merits of this claim can be determined as a matter of law on the basis of already developed facts, he has exhausted his state remedies with respect to this contention in accordance with Grundler, Edmondson and Massey, supra. However, we deem it unnecessary to remand the case for further proceedings since, as a matter of law, Thompson is entitled to no relief on this claim. The absence of counsel from the line-ups does not afford him a basis for relief since the confrontations took place before the date of the decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967), which announced the rule requiring the presence of counsel at line-ups. The Supreme Court held in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), that the Wade rule would not apply retrospectively to cases where the confrontation occurred before (June 12, 1967) the date of the Wade decision. In cases involving line-ups conducted before that date, the validity of the line-ups would be determined on the basis of their fairness under the "totality of the...

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31 cases
  • Quillien v. Leeke, Civ. A. No. 69-475.
    • United States
    • U.S. District Court — District of South Carolina
    • September 5, 1969
    ...not been considered by the State Court. Ordinarily, this would warrant the dismissal of this proceeding as premature. Thompson v. Peyton (C.C.A.Va.1968) 406 F.2d 473, 476; Coleman v. Wilson (C.C.A.Cal.1968) 401 F.2d 536, 537, cert. denied, Nelson v. Coleman, 393 U.S. 1065, 89 S.Ct. 719, 21 ......
  • Bromwell v. Williams
    • United States
    • U.S. District Court — District of Maryland
    • December 30, 1977
    ...been useless. 28 U.S.C. § 2254; see Lefkowitz v. Newsome, 420 U.S. 283, 291 n.8, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Thompson v. Peyton, 406 F.2d 473 (4th Cir. 1968). However, in any event, the State has stated that it is not raising any issue herein concerning failure by petitioner to exh......
  • Williams v. State of Maryland
    • United States
    • U.S. District Court — District of Maryland
    • April 4, 1974
    ...to state courts may fairly be considered futile after the state's highest court has passed on the issues presented." Thompson v. Peyton, 406 F.2d 473, 474 (4th Cir. 1968) (emphasis supplied). An issue is "properly presented" on appeal only if "the factual matters necessary for a determinati......
  • United States ex rel. Graham v. Mancusi
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 28, 1972
    ...447, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Roberts v. LaVallee, 389 U.S. 40, 42-43, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Thompson v. Peyton, 406 F.2d 473, 474-475 (4 Cir.1968); Tyler v. Swenson, 440 F.2d 621, 623 (8 Cir.1971). In any event, the exhaustion requirement of 28 U.S.C. § 2254 is not ......
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