# Petition — Duckworth v. Serrano

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 1

## Text

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

A-8

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,

A-9

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

A-12

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2218%3A1. Public record. Not legal advice.