Paul Goodwin v. Ray H. Page, Warden, Oklahoma State Penitentiary, 418 F.2d 867, 10th Cir. (1969)
Uploaded by
Scribd Government DocsPaul Goodwin v. Ray H. Page, Warden, Oklahoma State Penitentiary, 418 F.2d 867, 10th Cir. (1969)
Uploaded by
Scribd Government Docs418 F.
2d 867
Paul GOODWIN, Appellee,
v.
Ray H. PAGE, Warden, Oklahoma State Penitentiary,
Appellant.
No. 303-69.
United States Court of Appeals Tenth Circuit.
Nov. 18, 1969.
H. L. McConnell, Asst. Atty. Gen. (G. T. Blankenship, Atty. Gen., and W.
Howard O'Bryan, Jr., Asst. Atty. Gen., on the brief), for appellant.
Milton Keen, Oklahoma City, Okl. (Max Moulton, Oklahoma City, Okl.,
on the brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit
Judges.
LEWIS, Circuit Judge.
This is an appeal taken on behalf of appellant Warden of the Oklahoma State
Penitentiary, from an order and judgment granting relief to Goodwin, a state
prisoner, on his petition for habeas corpus filed in the United States District
Court for the Eastern District of Oklahoma. Similar relief had earlier been
denied to Goodwin by the Court of Criminal Appeals of Oklahoma after an
evidentiary hearing. Goodwin v. Page, 444 P.2d 833. However, it clearly
appears that the material facts were not adequately developed at the state court
hearing and that the federal court properly held an independent evidentiary
hearing. 28 U.S.C. 2254(d)(3). The multiple federal constitutional problems
involved in the 1936 state court pre-trial and trial proceedings are reflected in
the district court's exhaustive findings and conclusions. 296 F.Supp. 1205.
Included in such findings and dispositive of Goodwin's claim to relief from the
1936 conviction is the following:
The Court further finds that at the trial of the petitioner, upon the co-defendant
Lindsey's refusal to testify, the Trial Court permitted the prosecution to
introduce into evidence a confession of Lindsey, read to the jury by the Chief
of Police, in which it was stated that the petitioner shot the deceased Whitson,
and which statement further related other acts of robbery, grand larceny,
burglary, etc., and refused to admit into evidence after the prior admission of
the damaging statement by Lindsey, an earlier confession of Lindsey wherein
he stated that he was the one that killed the officer; petitioner was not
confronted by the co-defendant Lindsey as a witness against him and had no
opportunity to cross-examine him.
3
The Trial Judge compounded the effect and prejudice created by the written
statement admitted into evidence and added dignity to it by permitting it to be
read to the jury by the Chief of Police of Seminole County, Oklahoma. Id. at
1211.
The finding is amply supported in the record. It is undisputed that Goodwin and
one Lindsey were charged with the 1936 murder of a Seminole City police
officer; that at the trial court level each of the accused was represented by
counsel, Goodwin by Attorney Hill and Lindsey by Attorney Billingsley; that
separate trials were ordered and that the state elected to try Goodwin first.
Although there is now no record transcript of Goodwin's trial and many of the
participants in the trial are now dead, two witnesses testified at the federal
hearing as to what transpired at that trial. Attorney Billingsley was present with
his client Lindsey and R. E. Criswell, a prosecutor at the trial, was an active
participant at the trial. Both witnesses testified that an extra-judicial statement
of Lindsey, accusing Goodwin of firing the fatal shot, was admitted in evidence
and that another and earlier statement by Lindsey confessing that he was the
actual killer was refused as evidence. Billingsley also testified that he attended
the Goodwin trial for the very purpose of assuring that Lindsey did not testify.
Such procedure was a particularly abusive denial of Goodwin's constitutional
right to confrontation and demands federal relief under the mandate of Bruton
v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, given
retroactive effect in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20
L.Ed.2d 1100, and applicable to the states through the compulsion of Pointer v.
Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. The trial court was
manifestly correct in holding that Goodwin's 1936 conviction was
constitutionally void.
Goodwin was sentenced to life imprisonment on the 1936 murder conviction.
He was paroled in 1961, and while on parole, committed the crime of robbery.
His parole was revoked in 1962 and he was returned to the penitentiary. In
1963, after trial and conviction for robbery, he was sentenced to five years for
this offense. He had been incarcerated continuously since 1962 until released
by order of the trial court in 1969. Appellant now contends that the five-year
sentence, imposed as consecutive, begins to run only from the date the 1936
conviction is declared legally invalid. We do not agree.1 Where a petitioner is
serving a sentence which is held void, a later consecutive sentence based on a
different crime runs independently. E.g., United States ex rel. McKee v.
Maroney, 264 F.Supp. 684, 686-687 (M.D.Pa.), citing cases. Granting such
relief on habeas corpus is consonant with the expansive interpretation given 28
U.S.C. 2241(c)(3) by the Supreme Court. Peyton v. Rowe, 391 U.S. 54, 66-67,
88 S.Ct. 1549, 20 L.Ed.2d 426. See also Carafas v. LaVallee, 391 U.S. 234, 88
S.Ct. 1556, 20 L.Ed.2d 554. To hold otherwise would abuse due process, shock
the judicial conscience and effect the imposition of a cruel and unusual
punishment under the eighth amendment. Goodwin's five-year sentence has
been fully served.
6
Affirmed.
The only bar to the court's so holding, Meyers v. Hunter, 10 Cir., 160 F.2d 344,
cert. denied, 331 U.S. 852, 67 S.Ct. 1730, 91 L.Ed. 1860, was impliedly
discredited by the Supreme Court's overruling of McNally v. Hill, 293 U.S.
131, 55 S.Ct. 24, 79 L.Ed. 238 (attacks on future consecutive sentences not
allowed by habeas corpus), in Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct. 1549,
20 L.Ed.2d 426, since McNally was relied on in Meyers as authority that a
federal court could not 'modify' or 'revise' a judgment of a state court on habeas
corpus. 160 F.2d at 346
