Petition — Duckworth v. Serrano

Office-Supreme Cort, U.S.

80-204] ’ FILED

Jo 2 1981

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

JACK DUCKWORTH,

Petitioner,

vs.

ISADORE SERRANO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LINLEY E. PEARSON

Attorney General of Indiana

DAVID A. ARTHUR

Deputy Attorney General

KERMIT R. HILLES

Deputy Attorney General .

Office of Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6332

Attorneys for Petitioner

Central Publishing Company, Inc., Indianapolis, IN 46206

QUESTIONS PRESENTED FOR REVIEW

Whether the Seventh Circuit erroneously held that

Respondent Serrano was not required to exhaust his state

court remedies before presenting the question of conflict of

interest on the part of his counsel to the federal courts

under 28 U.S.C. §2254, a holding directly in conflict with

the provisions of 28 U.S.C. §2254(b) and with prior

applicable decisions of this Court.

Whether the Seventh Circuit erred (1) in determining

that the uncontested facts show that, at the time of trial,

Serrano’s attorney was representing an important state’s

witness and (2) in establishing a per se rule that such

representation denies effective assistance of counsel.

TABLE OF CONTENTS

PAGE

Questions Presented for Review i

eee . baswens asses iv

GO „„ 1

aan... „„ 2

Constitutional and Statutory Provisions Involved... 2

aaa 4

Facts Material to the Consideration of

the Questions Nee 4

Reasons for the Allowance of the Writ ............. 6

The Seventh Circuit Erroneously held that

Respondent Serrano was not Required to

Exhaust his State Court Remedies Before

Presenting the Question of Conflict of Interest

On the Part of his Counsel to the Federal Courts

Under 28 U.S.C. §2254, a Holding Directly in

Conflict with the provisions of 28 U.S.C. §2254(b)

And with Prior Applicable Decisions of this Court. 6

The Seventh Circuit Erred (1) in Determining

That the Uncontested Facts Show that, at the

Time of the Trial, Serrano’s Attorney was

Representing an Important State’s Witness

And (2) in Establishing a per se Rule

That such Representation Denies Effective

aan... ... 9

e 12

„ b t eee A-1

Order of the Seventh Cireut .. A-1

Memorandum Opinion of the Distriet Court A-4

Judgment of the District Courtii . A-12

TABLE OF AUTHORITIES

CASES: PAGE:

Cuyler v. Sullivan, — U.S. —, 100 S.Ct.

rr 10, 11

Evans v. Lane, 419 F. 2d 1337 (7th Cir. 1970) ....... 8

Ex Parte Hawk, 321 U.S. 114 (1944) ............... 7

Ex Parte Royall, 117 U.S. 241 (1886)............... 7

Fay v. Nota, 372 U.S. 391 (1963)))): 7

Kidwell v. Phend, 26 Ind. Dec. 106 (S.D. Ind. 1971). 8

Langley v. State, 256 Ind. 199, 267 N.E.2d

%%ôͤwᷣ᷑ mms . vesvediess 8

Picard v. Connor, 404 U.S. 270 (19717779 ss‚ 7

Pitchess v. Davis, 421 U.S. 482 (1975̊/ 7) 5 7

Preiser v. Rodriguez, 411 U.S. 475 (1973) ........... 7

Ross v. Heyne, 638 F.2d 979 (7th Cir. 1980)......... 11

United States v. United States Gypsum Company,

. 10

Wilwording v. Swenson, 404 U.S. 249 (197177 7

OTHER AUTHORITY:

—. Ä ¶ͤK=A—»•³ßS F 2

e NR iv cbswencdavedertseectedssectnne 2

ED ib xin dss credsnsncveteccyssersescacns 2, 6

r 2, 8. 9

/ ͤ vk cossvconses 7

Rules of Supreme Court 17. 10ö aj)... 2

Rules of Supreme Court 20.ꝶ ).... 2

Indiana Post Conviction Remedy Rule 1.......... 3, 7,8

iv

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

JACK DUCKWORTH,

Petitioner,

vs.

ISADORE SERRANO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Jack Duckworth, respectfully prays this Court

issue a Writ of Certiorari to review the judgment of the

United States Court of Appeals for the Seventh Circuit

(hereinafter Seventh Circuit) entered in Cause Number 80-

1658 on March 5, 1981, which reversed the judgment of the

United States District Court for the Northern District of

Indiana, South Bend Division (hereinafter District Court).

OPINIONS BELOW

The order of the Seventh Circuit issued on March 5, 1981,

has not been officially reported. A copy of the order is

appended hereto at page A-1. The June 8, 1979,

memorandum and order of the District Court has not been

1

2

officially reported. A copy of said memorandum and order

is appended hereto at A-4.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1254(1) and Rule 17.1(a) of the Rules of this Court to

review a decision of the federal court of appeals that has

decided a federal question in a way which conflicts with 28

U.S.C. §2254(b) and applicable decisions of this Court.

The decision of the Seventh Circuit was entered on

March 5, 1981. This petition is timely filed in that it is filed

prior to the expiration of the ninety (90) day period allowed

by 28 U.S.C. §2101(c) and Rule 20.2.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the Constitution of the United

States provides as fellows:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be

confronted with the witnesses against him; to have

compulsory process for obtaining Witnesses in his

yet and to have the Assistance of Counsel for his

efense.

28 U.S.C. §2254 provides as follows:

§2254. State custody; remedies in Federal courts

(a) the Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application

for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court only

on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

3

(b) An application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment

of a State court shall not be granted unless it appears

that the applicant has exhausted the remedies

available in the courts of the State, or that there is

either an absence of available State corrective process

or the existence of circumstances rendering such

process ineffective to protect the rights of the prisoner.

(c) An applicant shall not be deemed to have

exhausted the remedies available in the courts of the

State, within the meaning of this section, if he has the

right under the law of the State to raise, by any

available procedure, the question presented.

R * *

The Indiana Rules of Procedure for Post- Convietion

Remedies provide as follows:

Section 1. Remedy To whom available Conditions.

(a) Any person who has been convicted of, or

sentenced for, a crime by a court of this state, and who

claims:

(1) that the conviction or the sentence was in

violation of the Constitution of the United States or the

constitution or laws of this state;

(2) that the court was without jurisdiction to

impose sentence;

(3) that the sentence exceeds the maximum

authorized by law, or is otherwise erroneous;

(4) that there exists evidence of material facts, not

previously presented and heard, that requires

vacation of the conviction or sentence in the interest of

justice;

(5) that his sentence has expired, his probation,

parole or conditional release unlawfully revoked, or

his is otherwise unlawfully held in custody or other

restraint;

4

(6) that the conviction or sentence is otherwise

subject to collateral attack upon any ground of alleged

error heretofore available under any common law,

statutory or other writ, motion, petition, proceeding,

or remedy;

may institute at any time a proceeding under this Rule

to secure relief.

R * *

STATEMENT OF THE CASE

This petition arises from the reversal, by the Seventh

Circuit, of a decision by the District Court in the case of

Serrano v. Duckworth, Cause Number 879-74, whereby the

District Court dismissed a petition for a writ of habeas

corpus filed by Respondent Serrano (petitioner below).

FACTS MATERIAL TO CONSIDERATION

OF THE QUESTIONS PRESENTED

Respondent, a prisoner at the Indiana State Prison, filed

a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

§2254, in the District Court, alleging that his conviction in

the state court was constitutionally infirm for several

reasons. Petitioner (respondent below) filed his Response to

Order to Show Cause on April 19, 1979. The District Court

issued its Memorandum and Order, dismissing the

petition, on June 8, 1979 (see, Appendix pages A4-A11),

Respondent Serrano appealed this determination to the

Seventh Circuit raising the issues of sufficiency of the

evidence and conflict of interest of his trial counsel in

violation of the Sixth Amendment. The Seventh Circuit

reversed this cause on the Sixth Amendment issue and did

not reach or decide the question of sufficiency of the

evidence.

Respondent, Isadore Serrano, was charged with the

murder of Debra Gomez. Miss Gomez was killed near the

hothouse in Sunnyside Park, East Chicago, Indiana. At

5

trial, the state presented testimony to the effect that

Serrano had been observed by a policeman shortly after the

murder approximately seven blocks from the park

wearing clothing generally matching the description of a

man seen running from the hothouse, and that he had

scratches on his hands. The state also called Norma

Hernandez, who had been arrested on a criminal charge,

unrelated to the Gomez slaying, and had made a statement

to the police to the effect that Serrano had told her that he

had killed Debra Gomez. Mrs. Hernandez testified about

that statement and the circumstances surrounding it. She

said that she had been arrested for robbery at the time she

made the statement and that Walker was her attorney. The

firm of Walker & Walker represented Serrano at trial. On

cross-examination by Mr. William Walker, Mrs.

Hernandez stated that the firm of Walker & Walker had

represented her on a traffic ticket in the past and that she

had asked Mr. Walker if he would represent her on the

pending criminal charge but that he did not represent her

up to that time.

Serrano was convicted of first degree murder and

murder in the perpetration of or attempt to perpetrate

rape. He appealed this conviction to the Indiana Supreme

Court which is reported in Serrano v. State, 266 Ind. 126,

360 N.E.2d 1257 (1977). He did not present the issue of

ineffectiveness of counsel to the state courts in that appeal

or at any other time. The Indiana Supreme Court affirmed

the conviction and Serrano subsequently filed a Petition for

Writ of Habeas Corpus in the District Court raising

essentially the same issues he presented on appeal. Serrano

‘ appealed the dismissal of this petition to the Seventh

Circuit where, for the first time, he alleged a conflict of

interest on the part of his trial counsel.

6

REASONS FOR ALLOWANCE OF THE WRIT

THE SEVENTH CIRCUIT ERRONEOUSLY HELD

THAT RESPONDENT SERRANO WAS NOT

REQUIRED TO EXHAUST HIS STATE COURT

REMEDIES BEFORE PRESENTING THE ~

QUESTION OF CONFLICT OF INTEREST

ON THE PART OF HIS COUNSEL

TO THE FEDERAL COURTS UNDER 28 U.S.C.

§2254, A HOLDING DIRECTLY IN CONFLICT

WITH THE PROVISIONS OF 28 U.S.C. §2254(b),

AND WITH PRIOR APPLICABLE

DECISIONS OF THIS COURT

The Seventh Circuit held that:

The uncontested facts here show that Serrano’s

attorney represented an important State witness

while representing Serrano.

We find that in view of the clear violation of

Serrano’s Sixth Amendment rights and in the interest

of judicial economy we should not delay our decision

3 to await the State court’s processing of Serrano’s

claim.

We reverse the district court’s finding that

—— Sixth Amendment rights were not violated.

3).

The Seventh Circuit cited no authority in support of its

decision to not permit the state courts to hear Serrano’s

effectiveness of counsel claim and this determination is

contrary to the statutory provisions of 28 U.S.C. §2254 and

the doctrines of federalism and comity as reflected in prior

decisions of this Court. It is well settled law that normally a

The District Court had made no finding concerning Serrano’s Sixth

Amendment rights relating to his counsel’s alleged conflict of interest

since that issue was not presented to the District Court. The District

Court did address and reject the Sixth Amendment speedy trial claim

presented by the petitioner.

7

state prisoner must exhaust available state remedies

before a federal court will entertain his petition for a writ of

habeas corpus. Eæ parte Royall, 117 U.S. 241, 6 S.Ct. 734,

29 L.Ed. 868 (1886). The doctrine of exhaustion of state

remedies reflects a policy of comity between state and

federal courts, “an accommodation of our federal system

designed to give the state an initial ‘opportunity to pass

upon and correct’ alleged violations of its prisoners’ federal

rights.” Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct.

407, 409, 30 L.Ed.2d 418 (1971); Picard v. Connor, 404 U.S.

270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Fay v. Nova,

372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Where

a state petitioner asserts a claim cognizable under federal

habeas corpus that was not presented to the state appellate

courts, but which could be heard in some form of state post-

conviction review proceeding, that remedy must be

pursued before federal habeas corpus will lie. 28 U.S.C.

§2254(c); Picard, supra, 404 U.S. at 277, n.3, 275-276;

Pitchess v. Davis, 421 U.S. 482, 487-488, 95 S.Ct. 1748, 44

L.Ed.2d 317 (1975); Ex parte Hawk, 321 U.S. 114, 64 S. Ct.

448, 88 L.Ed. 572 (1944). The exhaustion requirement is a

“strong policy.” Preiser v. Rodriguez, 411 U.S. 475, 490, 93

S.Ct. 1827, 36 L.Ed.2d 439 (1973).

On appeal to the Seventh Circuit, Serrano candidly

admitted that the effectiveness of counsel issue was being

presented for the first time and had not been presented to

the state courts or to the District Court. So long as there is

any avenue by which this issue may be raised in state

courts, than a state prisoner has not exhausted his state

court remedies. 28 U.S.C. §2254(c); Picard v. Connor,

supra; Pitchess v. Davis, supra. The State of Indiana

provides a procedure for post-conviction remedy by which

convicted persons may raise issues not presented in their

direct appeals. Section 1 of Post-Conviction Remedy Rule 1

specifically provides that:

—

8

(a) Any person who has been convicted of, or

——— for, acrime by acourt of this state, and show

claims

(1) that the conviction or the sentence was in violation

of the Constitution of the United States or the

constitution or laws of this state;

R * *

(4) that there exists evidence of material facts, not

previously presented and heard, that requires vacation

of the conviction or sentence in the interest of justice;

R * *

(6) that the convietion or sentence is otherwise

subject to collateral attack upon any ground of alleged

error heretofore available under any common law,

statutory or other writ, motion, petition, proceeding,

or remedy; may institute at any time a proceeding

under this rule to secure relief.

(emphasis added).

One of the purposes of the Indiana Post-Conviction

Remedy is to allow a convicted criminal defendant ample

opportunity to present claims for relief in state courts

before resort may be had to the federal courts. Langley v.

State, 256 Ind. 199, 267 N.E.2d 538 (1971). The Seventh

Circuit and District Courts have held that prisoners may be

able to obtain relief through the use of this procedure and

that resort to this remedy was necessary to fully exhaust

state remedies. Evans v. Lane, 419 F.2d 1337 (7th Cir.

1970); Kidwell v. Phend, 26 Ind. Dec. 106, (S.D. Ind. 1971).

Respondent Serrano has, at no time presented the

argument that resort to the Post-Conviction remedies

would be futile and the Seventh Circuit did not rely on this

theory.

Thus, Serrano did not present the question of

ineffectiveness of counsel to the state courts as required by

U.S.C. §2254(b). The decision of the Seventh C:rcuit not to

require Serrano to exhaust his state remedies is contrary to

9

the provisions of 28 U.S.C. §2254(b) and is in conflict with

applicable decisions of this Court.

II.

THE SEVENTH CIRCUIT ERRED (1) IN

DETERMINING THAT THE UNCONTESTED

FACTS SHOW THAT AT THE TIME OF TRIAL

SERRANO’S ATTORNEY WAS REPRESENTING

AN IMPORTANT STATE’S WITNESS AND (2)

IN ESTABLISHING A PER SE RULE THAT

SUCH REPRESENTATION DENIES EFFECTIVE

ASSISTANCE OF COUNSEL

The Seventh Circuit helu that Serrano’s attorney

represented an important state witness while representing

Serrano. The testimony of Norma Hernandez, the state

witness, on this question is:

Redirect Examination of Norma Hernandez

Q. Mrs. Hernandez, I believe you stated that you were in

custody at the time you gave that statement; is that

correct?

A. Yes.

Q. What were you in custody or arrested for?

A. We were arrested for robbery.

Q. Do you have an attorney?

A. Yes.

Q. Who is that?

A

Recross Examination by Mr. William Walker

Q. Is it a fact, isn’t it, Mrs. Hernandez, that we have

represented you on a traffic offense in East Chicago

City Court?

A. Yes.

10

And that is the extent of our representation of you up to

this point?

Well, and when I asked you if you will represent me for

going to court the 25th.

Up to this time, I do not represent you?

No.

>o > ©

The above constitutes all of the evidence pertaining to

representation of Mrs. Hernandez by Serrano’s attorney.

This testimony indicates that Serrano’s attorney had

represented the witness on a prior traffic ticket and that

she had requested representation by that firm on a pending

criminal charge, but that at the time of the trial, Serrano’s

atiorney was not yet representing her. The record does not

disclose whether the firm of Walker & Walker did, in fact,

ultimately represent her or whether any communications

had passed between them other than a simple request for

representation. Reviewing this, one is necessarily “left with

the definite and firm conviction that a mistake had been

committed” by the Seventh Circuit. United States v. United

States Gypsum Company, 333 U.S. 364, 395 (1948).

2.

Based upon the erroneous determination of the facts, the

Seventh Circuit held:

...that without an informed consent by a defendant

dual representation of his attorney of a prosecution

witness is a per se violation of such defendant’s Sixth

Amendment rights. (A-3).

This is directly in conflict with this Court’s decision in

Cuyler v. Sullivan — U.S. ——, 100 S.Ct. 1708 (1980), in

which this Court held that:

Absent special circumstances, therefore, trial courts

may assume either that multiple representation

entails no conflict or that the lawyer and his clients

knowingly accept such risk of conflict as may exist.

Id., at 1717.

11

While this Court has stated that there is a presumption that

there is no confliet, the Seventh Cireuit has held that there

is an unrebuttable presumption that there is a conflict and

that such conflict is a denial of Sixth Amendment rights.

In Cuyler v. Sullivan, supra, this Court also held that:

In order to establish a violation of the Sixth

Amendment, a defendant who raised no objection at

trial must demonstrate that an actual conflict of

interest adversely affected his lawyer’s performance.

Id., S. Ct. at 1718. (Emphasis added).

The Third Circuit was reversed in Cuyler because it had

relied upon a possible (as opposed to actual) conflict of

interest. In this present case, there is at most a possible

conflict. Respondent Serrano has certainly not demonstrated

a conflict, as no'conflict is apparent from the record and, as

stated in Argument I, it was for the first time in the

Seventh Circuit that the issue was raised. No record was

developed in the state courts due to the failure to exhaust.

No record was developed in the District Court because the

issue was not raised. This underscores the argument made

in Argument I, above.

The effect of the Seventh Circuit’s per se rule on dual

representation is being felt in other cases. On April 27,

1981, the District Court in a similar case, granted a writ of

habeas corpus based upon the per se rule of Ross v. Heyne,

638 F. 2d 979 (7th Cir. 1980), the very same case relied upon

by the Seventh Circuit in this case. William Cowell v. Jack

Duckworth, No. 881-93.

12

CONCLUSION

For these reasons, the Petition for Writ of Certiorari to

review the judgment and order of the Seventh Circuit

should be granted.

Respectfully submitted,

LINLEY E. PEARSON

Attorney General of Indiana

DAVID ... ARTHUR

Deputy Attorney General

KERMIT R. HILLES

Deputy Attorney General

Office of Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6332

Attorneys for Petitioner

Appendix

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Heard: December 10, 1980

March 5, 1981.

Before

Hon. LUTHER M. SwyYGERT, Circuit Judge

HON. WALTER J. CUMMINGS, Circuit Judge

HON. WESLEY E. Brown, Senior District Judge*

Isadore Serrano, ) Appeal from the United

Petitioner-Appellant, ) States District Court

) for the Northern District

No. 80-1658 vs. of Indiana, South Bend

)

Division.

Jack Duckworth, ) No. 79-C-74

Respondent-Appellee. ) Allen Sharp, Judge.

ORDER

This is an appeal from the dismissal of a pro se petition

for habeas corpus filed under 28 U.S.C. §2254.

Serrano was indicted, tried and convicted of two counts

of first degree murder by the State of Indiana. He was

sentenced to life imprisonment as to Count II of the

Indictment. He was not sentenced as to Count I. On appeal

the conviction was affirmed. Serrano v. State, 360 N.E.2d

1257 (Ind. 1977).

The trial court filed its Memorandum and Order on June

8, 1979 denying the writ. Serrano’s application for an

*The Honorable Wesley E. Brown, Senior District Judge of the United

States District Court for the District of Kansas, is sitting by

designation.

A-1

A-2

appeal, pursuant to Rule 22(b) F.R.Cr.P., was denied June

29, 1979. This Court granted Serrano’s request for issuance

of a certificate of probable cause. He was permitted to

proceed in forma pauperis and an attorney was appointed

to represent him in this Court.

Two issues are raised by Serrano:

First, his Sixth Amendment rights were violated

because his attorney also represented Norma Hernandez,

an important state witness, while defending Serrano.

Second, there was not sufficient evidence to have found

Serrano guilty beyond a reasonable doubt.

The State of Indiana contends that there was ample

evidence for the jury to find Serrano guilty and in addition,

Serrano has not exhausted his state remedies as required

by 28 U.S.C. §2254.!

After Judge Sharp had issued his Order this Court

rendered its decision in Magnolia Ross v. Robert Heyne and

Theodore L. Sendak, F.2d , decided December 10,

1980. There, the Court said,

“In order to establish a violation of the Sixth

Amendment, a defendant who raised no objection at

trial must demonstrate that an actual conflict of interest

adversely affected his lawyer’s performance. Cuyler v.

Sullivan, _—. U.S. at An actual conflict would

arise where defense counsel is unable to cross-examine a

1 §2254. State custody; remedies in Federal courts.

(b) An application for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

unless it appears that the applicant has exhausted the remedies

available in the courts of the State, or that there is either an absence of

available State corrective process or the existence of circumstances

rendering such process ineffective to protect the rights of the prisoner.

(c) An applicant shall not be deemed to have exhausted the remedies

available in the courts of the State, within the meaning of this section, if

he has the right under the law of the State to raise, by any available

procedure, the question presented.

A-3

prosecution witness effectively because the attorney also

represented the witness. United States u. Mavrick, 601

F.2d 921, 931 (7th Cir. 1979). The problem that arises

when one attorney represents both the defendant and the

prosecution witness is that the attorney may have

privileged information obtained from the witness that is

relevant to cross-examination, but which he refuses to

use for fear of breaching his ethical obligation to

maintain the confidences of his client. See Code of

Professional Responsibility, Cannon 4 & DR 4-101(BX2).

‘The more difficult problem which may arise is the

danger that counsel may overcompensate and fail to

cross-examine fully for fear of misusing his confidential

information.’ United States v. Jeffers, 520 F.2d 1256,

1265 (7th Cir. 1975). cert. denied, 423 U.S. 1066 (1976).”

Thus, it was held in Magnolia Ross that without an

informed consent by a defendant dual representation of his

attorney of a prosecution witness is a per se violation of such

defendant’s Sixth Amendment rights.

The uncontested facts here show that Serrano’s attorney

represented an important State witness while representing

Serrano.

We find that in view of the clear violation of Serrano’s

Sixth Amendment rights and in the interest of judicial

economy we should not delay our decision here to await the

State court’s processing of Serrano’s claim.

We reverse the district court’s finding that Serrano’s

Sixth Amendment rights were not violated.

In view of our determination on the Sixth Amendment

issue we need not and do not decide the sufficiency of the

evidence issue.

REVERSED and REMANDED for roceedings

consistent with the views expressed herein.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ISADORE SERRANO )

Petitioner

v. No. 8 79-74

JACK DUCKWORTH, ;

Warden )

Respondent

MEMORANDUM AND ORDER

In the petition for a writ of habeas corpus, petitioner

challenges his trial and conviction for first degree murder

and murder in the perpetration of or attempt to perpetrate

rape. On direct appeal to the Indiana Supreme Court his

conviction was unanimously affirmed in Serrano v. State,

360 N.E. 2d 1257 (1977). Petitioner alleges first, that the

trial court erred in overruling his motion for discharge

under Indiana Criminal Rule 4(B) dealing with speedy

trial; second, that the trial court erred in excluding from

evidence results of polygraph tests; and third, that the

evidence was insufficient as a matter of law to support a

guilty verdict.

The petitioner had the benefit of counsel both at trial and

on appeal. A full and complete state court record has been

submitted to this Court and carefully considered in regard

to all allegations. See Townsend v. Sain, 372 U.S. 293

(1963).

A-4

A-5

A. The Speedy Trial Issue

Petitioner’s first allegation is that he filed a motion for an

early trial on July 31, 1974 (R. 28) under Indiana Rule of

Criminal Procedure 4. Rule 4(B) provides if any defendant

shall move for an early trial, he shall be discharged if not

brought to trial within 70 days of the date of such motion,

except where the delay is caused by his act or the congestion

of the court. The trial did not commence until June 9, 1975

(R. 59), over ten months after the motion for an early trial.

Petitioner contends this was a clear violation of the 70 day

time limit imposed by Indiana Rule of Criminal Procedure

4. The Indiana Supreme Court held that Serrano failed to

object in a timely fashion to the setting of a trial date and

was therefore deemed to have acquiesced in and waived

that objection. Serrano v. State, supra, 360 N. E. 2d at 1259;

Utterback v. State, 261 Ind. 685, 310 N. E. 2d 552 (1974). The

Court found nothing in the record other than the filing of an

early trial motion, to indicate that the defendant’s claim

that he sought an early trial was bona fide. Serrano v. State,

supra, 360 N.E. at 1259. In effect that court found the

defendant had not been denied his right to a speedy trial

due to a procedural waiver.

The threshold question is whether the petitioner has

stated a cause cognizable in federal habeas corpus. This

relief is available to a prisoner only upon ashowing that the

State denied him his constitutional rights in a state

criminal proceeding. 28 U.S.C. §2254(a); Stone v. Powell,

428 U.S. 465 (1976); Mabra v. Gray, 518 F. 2d 512 (7th Cir.

1975), cert. den. 423 U.S. 1023(1975). Petitioner at trial and

on appeal, expressly relied on Indiana Rule of Criminal

Procedure 4 and the Indiana Constitution, Article I,

Section 12, claiming a violation of his generalized right toa

speedy trial. The success or failure of this claim was

predicated upon mathematical calculations of the 70 day

period and who was responsible for the various delays.

Examination of the entire record discloses no indication of

an attack upon the prosecution as violative of the Sixth

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Amendment speedy trial clause. Petitioner’s reliance on

Indiana Rule of Criminal Procedure 4 in no way asserted a

constitutional speedy trial claim. It is fundamental that the

interpretation of a state statute and Constitution by the

State’s highest tribunal is binding upon the federal courts

in a habeas corpus proceeding. Paterno v. Lyon, 334 U.S.

314 (1948). It has been held that interpretation of a state

speedy trial act is not a proper function for a federal court

under its habeas corpus jurisdiction. Israel v. Odom, 521 F.

2d 1370 (7th Cir. 1975); United States ex rel Little v.

Twomey, 477 F. 2d 767 (7th Cir. 1973), cert. den. 414 U.S.

846 (1973).

The Sixth Amendment right to a speedy trial is

applicable in state criminal proceedings by virtue of the

due process clause of the Fourteenth Amendment. Klopfer

v. North Carolina, 386 U.S. 213 (1967); Jones v. Morriss,

590 F. 2d 684 (7th Cir. 1979), cert. den. 99 S. Ct. 1513(1979).

In a habeas corpus proceeding the court can decide only

whether the petitioner’s federal constitutional right to a

speedy trial was violated. Jones v. Morris, supra, 590 F. 2d

at 770.

The petitioner is here pro se and accordingly such

complaints are held to less stringent standards than formal

pleadings drafted by lawyers. Haines v. Kerner, 404 U.S.

519 (1972), reh. den. 404 U.S. 948 (1972). On its face the

complaint relies on Indiana Rule of Criminal Procedure 4

which is a speed trial act, the essence of the claim is the

Sixth Amendment speedy trial clause. Under the

circumstances of over a ten month delay in trial and the fact

that this is a pro se complaint, Haines, supra, requires us to

give the petitioner the benefit and recognize his

constitutional claim. However, we find that the petitioner’s

constitutional claim was not fairly presented to the State

Court of Appeals in keeping with the policy of federal-state

comity. This is designed to give the State an initial

opportunity to pass upon and correct alleged violations of

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its prisoners federal rights. Picard v. Connor, 404 U.S. 270,

275 (1971); Fay v. Noia, 372 U.S. 391, 419-420 (1963).

It appears that no avenue of relief in state court remains

open to petitioner for his constitutional speedy trial claim.

The Indiana Rules of Appellate Procedure, Rule 8.3(7),

requires that each error appellant intends to raise on

appeal be set forth specifically and followed by the

argument thereto. Subsequent interpretation of this holds

that issues not argued in the brief are deemed waived.

Foster v. State, 262 Ind. 567, 320 N.E. 2d 745 (1974); Public

Service Commission v. Indiana Bell Telephone Co., 232 Ind.

322, 108 N. E. 2d 889 (1963). Accordingly, we cannot say he

has failed to exhaust his state remedies. Humphrey v. Cady,

405 U.S. 504, 516 (1972).

Therefore, we must consider whether petitioner’s failure

to raise on appeal a constitutional speedy trial claim

bypassed state procedures so as to preclude federal habeas

corpus review. A sequence of cases addresses this issue

beginning with Fay v. Noia, supra, and culminate with

Wainwright v. Sykes, 483 U.S. 72 (1977).

Petitioner Noia, in Fay v. Noia, supra, failed to bring an

appeal of his state conviction and his later coram nobis

action was therefore procedurally barred. The court held

he was still entitled to habeas review and would not be

barred by procedural defaults unless there had been a

“deliberate bypass”. Fay v. Noia, supra, at 439. The court

went on to enunciate the classic definition of waiver as “an

intentional relinquishment of a known right or privilege.”

Fay v. Noia, supra, at 439; Johnson v. Zerbst, 304 U.S. 458,

464 (1938). Subsequent decisions have limited the effect of

Fay. In Francis u. Henderson, 425 U.S. 536 (1976), the court

held that a habeas petitioner’s failure to raise pretrial his

objection to grand jury composition, as required by state

procedural rules, barred consideration of that claim in

federal habeas. Id. at 542. The standard enunciated

required the petitioner to show cause for the procedural

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waiver and actual prejudice flowing from it. Id. at 542. In

Wainwright v. Sykes, supra, the court expressly applied the

“cause and prejudice” test to contentions of federal law

which were not resolved on the merits in the state

proceeding due to respondent’s failure to raise them there

as required by state procedure and expressly rejected the

Fay test. Id. at 87-88.

It remains unclear which waivers are to be evaluated

under the Fay “deliberate bypass” standard and which are

under the Francis “cause and prejudice” standard.

Separate concurrences in Wainwright by Chief Justice

Burger and Mr. Justice Stevens clarify the question. The

court is more apt to find a habeas petitioner bound by a

bypass with respect to a tactical decision committed by

counsel, more so than decisions entrusted to the defendant

himself. Wainwright, supra, at 2508, n. 14 (concurring,

Burger); Estelle v. Williams, 425 U.S. 501 (1976); Ennis v.

LeVre, 560 F. 2d 1072, 1075 (2d Cir. 1977): Rinehart v.

Brewer, 561 F. 2d 126, 130 n. (8th Cir. 1977).

Both the Second and Eight Circuits have observed that

where waiver relates to counsel’s tactical decisions

concerning which legal issues will be urged on appeal is

uniquely within the lawyer’s competence and left to his

judgment. Ennis v. LeVre, supra, Rinehart v. Brewer,

supra. Lacking any showing of “cause and prejudice”,

Francis v. Henderson, supra, Wainwright v. Sykes, supra,

we find that the petitioner is bound by his counsel’s decision

not to press the constitutional speedy trial issue.

Accordingly, the claim is inappropriate for review.

Petitioner’s second allegation deals with the refusal of

the trial court to allow him to introduce the results of two

polygraph tests which had been administered to him. The

Indiana Supreme Court has held that the results of

polygraph tests are not admissible in court as evidence,

absent waiver or stipulation, because they are not

sufficiently accurate. See, Vacendak v. State, 262 Ind. 101,

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340 N. E. 2d 352 at 357 (1976). The court held that in

petitioner’s case there was no waiver or stipulation,

Serrano v. State, supra, 360 N.E. 2d at 1259, 1260, and the

evidence was properly excluded.

Evidentiary disputes relating to admission of polygraph

tests, where the state courts have held them inadmissible

because of unreliability, do not present questions of

constitutional magnitude. U.S. ex rel Sadowy v. Fay, 189 F.

Supp. 150(S.D. N. V. 1960), affirmed 284 F. 2d 426 (2d Cir.

1960), cert. den. 81 S. Ct. 814, 365 U.S. 850, 5 L. Ed. 2d 814

(1961). The trial court’s decision to exclude the results of the

polygraph testing, based on state law, did not violate

petitioner’s due process rights and the question is not

cognizable in federal habeas corpus proceedings. See, U.S.

ex rel Sadowy v. Fay, 284 F. 2d at 427.

Petitioner's final claim is that the evidence presented was

insufficient as a matter of law to support a conviction. The

question of sufficiency of the evidence is one of state law and

habeas relief on that ground is available only where the

state court conviction is totally devoid of evidentiary

support. Moore v. Duckworth, 581 F. 2d 639 (7th Cir. 1978);

Wilson v. Parrat, 540 F. 2d 415 (8th Cir. 1976). There is a

difference between a conviction based upon evidence

deemed insufficient as a matter of state criminal law and

one so totally devoid of evidentiary support as to raise a

question of due process, and it is only in the latter situation

that there has been a violation of constitutional rights

which afford a state prisoner a remedy in federal courtona

writ of habeas corpus. Faust v. State of North Carolina, 307

F. 2d 869 (4th Cir. 1962), cert. den. 83 S. Ct. 547, 371 U.S.

964, 9 L. Ed. 2d 511 (1962), see also, Mercado v. Massey, 536

F. 2d 107 (5th Cir. 1976). Federal habeas corpus will not lie

to inquire into the sufficiency of evidence in support of a

guilty verdict unless there is a total lack of credible

evidence. Wilson v. Parrat, supra; Talavera v. Wainwright,

547 F. 2d 1238 (5th Cir. 1977).

A-10

In this case the transcript and record of proceedings in

the state court establishes that there was circumstantial

evidence linking petitioner to the crime and the victim.

Witnesses placed petitioner near the scene of the murder at

about the time the crime was committed, wearing clothing

similar to that worn by a man seen running from the area

where the body was found (Tr. 292-294, 299-301, 304), and

witnesses established that petitioner had bruises and

scratches on his hand after the time that the crime was

committed. (Tr. 307, 314, 316-317). Norma Hernandez

testified that petitioner had told her that he had killed

Debra Gomez (Tr. 255). Petitioner also told her that Debra

Gomez was a former girl friend of his and that he hated her

(Tr. 267). At trial Norma Hernandez testified that she gave

the statement to the police while she was in their custody on

investigation of a criminal charge, that she did not believe

that petitioner actually killed Debra Gomez and that she

told the police about the incident only because she “wanted

to get out of there”, (Tr. 260-266). The jury was aware of the

circumstances of the confession and the fact that she

personally did not believe petitioner’s statement. The jury

was able to weigh these factors and observe the credibility

of the witness, and they chose to take petitioner’s statement

at face value.

Federal courts will only review sufficiency of the

evidence questions in state criminal convictions if the

record is totally devoid of evidentiary support, Wilson v.

Parrat, supra, Talavera v. supra, and that is not the case

here. The record of proceedings in this case establishes that

there was credible evidence to support petitioner’s

conviction.

For the foregoing reasons, petitioner’s due process rights

have not been violated.

A-11

As there are no questions raised which state a claim upon

which habeas corpus relief can be granted, it is hereby

ORDERED that the petitioner for writ of habeas corpus be

and hereby is DENIED.

Enter June 8, 1979.

/s/ Allen Sharp

Judge, United States District Court

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UNITED STATES DisTRICT COURT

For THE

NORTHERN DisTRICT OF INDIANA

SouTH BEND DIVISION

CiviL ACTION FILE No. 879-74

ISADORE SERRANO

JUDGMENT

v8.

)

)

)

)

JACK DUCKWORTH _)

This action came on for (hearing) before the Court,

Honorable Allen Sharp, United States District Judge,

presiding, and the issues having been duly (heard) and a

decision having been duly rendered,

It is Ordered and Adjudged that plaintiff Isadore

Serrano have and recover nothing from defendant, Jack

Duckworth, Warden, and Petition for Writ of Habeas

Corpus is denied, as set forth in the Memorandum and

Order entered this date.

Dated at South Bend, Indiana, this 8th day of June, 1979.

RICHARD E. TIMMONS

Clerk of Court

by /s / ELEANORE J. EUGSTROM

Deputy Clerk