United States ex rel. Reed v. Anderson, 140.
Decision Date | 09 July 1971 |
Docket Number | No. 140.,140. |
Citation | 329 F. Supp. 15 |
Parties | UNITED STATES of America ex rel. Cleveland REED, Petitioner, v. Raymond W. ANDERSON, Warden, Delaware Correctional Center, Respondent. |
Court | U.S. District Court — District of Delaware |
Stanley C. Lowicki of O'Donnell, Hughes & Lowicki, Wilmington, Del., for petitioner.
Francis A. Reardon, James Erisman and Daniel A. Durkin, Deputy Attys. Gen., Wilmington, Del., for respondent.
Cleveland Reed ("Reed"), a State prisoner, has petitioned this Court for a writ of habeas corpus pursuant to 28 U. S.C. § 2254. He was permitted to proceed in forma pauperis.
Reed and a co-defendant1 were convicted by a jury in the Superior Court of the State of Delaware for armed robbery upon a Wilmington merchant. On May 23, 1969 Reed was sentenced to ten years imprisonment and placed in the custody of the respondent at the Delaware Correctional Center. His conviction was affirmed by the Delaware Supreme Court. Reed v. State of Delaware, 281 A.2d 142 (Del.Supr.1971).
This Court's jurisdiction is founded upon 28 U.S.C. § 2241. The requisite exhaustion of state remedies required by 28 U.S.C. § 2254 has been shown. Application to the United States Supreme Court for a writ of certiorari is no longer necessary for complete exhaustion of state remedies. Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). It is only necessary for a state prisoner seeking Federal habeas corpus to show that he has unsuccessfully appealed his conviction through the state appellate process, wherein he raised and presented the same Federal issues which he raises in his application before this Court. In re Thompson's Petition, 301 F.2d 659 (C.A. 3, 1962).
The basis for Reed's complaint is that following his arrest, while he was in custody, the alleged robbery victim made an out-of-court identification of Reed from photographs, without the presence of Reed's counsel. At the trial the details of this out-of-court identification were presented by the State as part of its case and were admitted in evidence before the jury.
In his appeal to the Delaware Supreme Court Reed relied upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and contended that his right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution were violated.2 In Wade and Gilbert the United States Supreme Court held that an accused has a constitutional right to counsel at any post-indictment lineup where the accused is brought before witnesses for the purpose of identification.
The Delaware Supreme Court rejected Reed's constitutional arguments and affirmed his conviction. In so holding, the Delaware Supreme Court stated, in part, as follows:
Reed advances the same constitutional claims here that he made in the Delaware Supreme Court. This federal trial court finds itself in the uncoveted and anomalous position of being compelled to respectfully disagree as a matter of law with the Delaware Supreme Court's holding, in light of the undisputed findings made by the latter court. When a controlling legal precedent has been announced by the Court of Appeals for the Third Circuit, this Court, unlike the Delaware Supreme Court, is not free to pick and choose the applicable law from competing decisions of other state or federal appellate courts. This Court is duty bound to follow legal precedent set by the Third Circuit Court of Appeals unless there is a clear and overriding United States Supreme Court decision to the contrary. In re Wilmington Speedway, 167 F.Supp. 630, 633 (D.Del. 1958); 1B Moore's Federal Practice (2d ed. 1965) ¶ 0.4021, pp. 61-62.
The Delaware Supreme Court found in this case (1) that the robbery victim made an out-of-court identification of Reed from photographs exhibited by the police to the victim at a time after Reed had been arrested and was in custody4 without Reed or his counsel being present,5 and (2) that "the details of the out-of-court identification were presented in evidence by the State" and considered by the jury.6 This Court must, under 28 U.S.C. § 2254(d), accept these factual findings as correct.7
In considering Reed's constitutional claims this Court is bound by the decision of the United States Court of Appeals for the Third Circuit in United States v. Zeiler, 427 F.2d 1305 (C.A. 3, 1970). The Zeiler case, supra, 427 F.2d at 1307, expressly held that an accused has a Sixth Amendment right to have counsel present at any photographic identification conducted after he is in custody. In this respect the Court of Appeals found that the considerations which led the United States Supreme Court in Wade and Gilbert to guarantee an accused the right to counsel at lineups applied equally to photographic identifications conducted after a defendant was in custody.8 Accordingly the Court of Appeals said, "We hold that the rule of the Wade case applies to pre-trial photographic identifications of an accused who is in custody." 427 F.2d at 1307.
The Court of Appeals further held that it was constitutional error, requiring reversal of the convictions there in question, for the prosecution to place the improper identifications before the jury as part of the prosecution's case. The Court of Appeals said:
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United States ex rel. Reed v. Anderson, 71-1816.
...by federal habeas corpus, the district court ruled that it was duly bound to apply the teaching of Zeiler, and granted the writ. 329 F.Supp. 15 (D.Del.1971). The State has Because Delaware's appeal squarely meets the constitutional issue, we agreed to en banc consideration. In so doing, we ......
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United States v. Ash, 22340.
...at 217. 34 For an opinion in accord with Zeiler I which I submit could quite properly be classified as "conclusionary," see Reed v. Anderson, 329 F.Supp. 15, 1971, U.S. District Court Delaware. Reed came before the District Court after the Delaware Supreme Court had affirmed Reed's convicti......
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Denny v. Anderson
...To support this argument Denny relies primarily upon United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970) and United States of America ex rel. Reed v. Anderson, 329 F.Supp. 15 (D.Del. July 9, 1971 (Latchum, J.). In Zeiler the court stated (427 F.2d at 1307) that it would apply to pretrial ......
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United States ex rel. Reed v. Anderson
...Court on July 9, 1970 granted a conditional writ of habeas corpus in this case for the reasons set forth in its opinion found in 329 F.Supp. 15 (D.Del. 1971). The writ issued based upon the holding in United States v. Zeiler, 427 F.2d 1305 (C.A. 3, 1970) which this Court was duty bound to f......