Charles E. Oliphant v. Theodore Koehler, Warden, Marquette House of Corrections and Branch Prison
594 F.2d 547
6th Cir.
1979
Check Treatment

*1 OLIPHANT, E. Charles

Petitioner-Appellant, KOEHLER, Warden, Marquette

Theodore

House of Corrections and Branch

Prison, Respondent-Appellee.

No. 78-1345. Appeals,

United States Court Circuit.

Sixth

Argued 1978. Dec. 6, 1979.

Decided March Rehearing En Banc

Rehearing and 4, 1979. May

Denied Flanagan, App.

Terance R. Asst. Defender, Detroit, Mich., petitioner-ap- pellant. Jr., pro se. Oliphant,

Charles Edward Atty. Michigan, Kelley, Frank J. Gen. Gen., L. Derengoski, A. Thomas Robert Sol. Gen., Mich., Casey, Atty. Lansing, Asst. respondent-appellee. EDWARDS,* Judge, Chief

Before CECIL, WEICK, Judge, and Senior Circuit Judge. Circuit WEICK, Judge. Circuit appealed has petitioner de District Court judgment from a habeas for a writ of nying application deny opinion corpus. The District Court’s Oliphant v. Koeh reported ing the writ is (W.D.Mich.1978). ler, Oli F.Supp. jury, phant had been convicted Ingham County, Circuit in violation charges rape, forcible 28.788, and § M.S.A. M.C.L.A. indecency, in violation M.C.L.A. gross Judge January * Judge Edwards became Chief *2 548 750.338b; 28.570(2) eigh-

§ M.S.A. of an the effect that on June she had year girl teen white a old who was fresh- grandparents dinner with her and on her Michigan University. man at His way campus during early back to the conviction a followed second trial on the evening she was shopping hours window charges. above He was on sentenced June man, Oliphant, a approached black 2, 1972 to a term of years’ four to five indicating that he desired to talk to her imprisonment on gross indecency con- problems. about his racial The two en- twenty thirty years’ viction and impris- gaged friendly in a conversation. Com- onment on the rape conviction. He served Oliphant plainant had never met before. gross his indecency sentence convic- At Oliphant’s accompanied invitation she discharged 19, tion and was nearby “prob- him to bar to discuss 1975 serving and is now unexpired sen- They glass lem.” each had a of beer. The tence on his conviction. His Oliphant two discussed race relations and resulted in a mistrial when the complained having dis- suffered racial unable reach a verdict. His conviction crimination in hometown. by affirmed Court subject sympathized him. She Appeals People Oliphant, Mich.App. 52 marijuana Thereafter, 242, was also discussed. (1974), 217 N.W.2d 141 invitation, complainant agreed at his People to ac- Oliphant, 399 Mich. 250 N.W.2d 443 company Oliphant place in his car to (1976). they might where find a band and dance. Upon entering Oliphant’s two-door Ford appeal

In his from the denial of the writ Mustang, complainant discovered that corpus, Oliphant habeas contends trial, missing door handle admission of from the inside of certain evidence Michigan’s under “similar acts” put statute passenger’s side door. Once inside the him in jeopardy double “same” of- open rolling car she could this door fense and was barred estoppel, using down the window and the outside citing Swenson, Ashe v. 397 90 U.S. door latch. S.Ct. (1970). 25 L.Ed.2d 469 Oliphant complainant to one bar drove Oliphant also essentially asserts an frivo- closed, which was second where she lous claim that there was invidious discrimi- was denied age, admission because of her against nation him in the eigh- exclusion of finally a third which did not have twenty-one teen year persons old Oliphant stopped band. gas several the Michigan petit jury array. He never Complainant stations and a car wash. testi- question raised this until after the com- on, evening fied that as the wore indi- mencement of his second trial. cated more than once her desire to return to We opinion, affirm. In our in his convic- dormitory. Oliphant’s She stated that tion there was no friendly demeanor remained until after violation of the doctrine of collateral friendly left the third bar when his estoppel. His complainant involved drastically changed. point attitude At that a different person than young women began driving through city he part complaining in the similar acts shown. We which was Oliphant unfamiliar to her. are opinion also of the Oliphant complainant then asked if he could “screw” too late in challenge petit jury her. After she said “no” and also declined array and that he waived it under the rule him, engage Oliphant oral sex with announced in Henderson, Francis v. began driving away U.S. campus from the L.Ed.2d 149 “go ordered her not to for the door.” Oli- phant then to sit on the

I console, center appear so that would The trial boyfriend in this case took testified that days. girlfriend. several She The testimony of the complainant was to he gun threatened that he had a knife aor attorney, Oliphant, na. not his of her if did not cross would “take care” injure wishes and he would also the doctor. follow his examined parents then sisters. off, dropped complainant After By the car a secluded area. parked Lansing proceeded he to the East Police com- means further threats ordered Department. He told officers *3 underclothing, remove her and plainant to girl evening. that engaged in sex with complied. Oliphant engaged then in she complained of Oliphant stated that when he penis sex with his in her mouth which oral with him. body angry her became odor she He then had made her sick. odor, however, not did alleged body Her her, lacerating hymen causing with her and committing seem Oliphant to deter excruciating pain profuse- to her bleed body. He indicated to atrocities her ly- might charge police that he feared no was were her At time she beaten or rape. Shortly report thereafter him with weapon torn. No exhibited. clothes was complaint rape came in of her to intercourse, Following complainant re- Oliphant arrested. police and was clothing directly was placed her driven behalf,1 Oliphant own Testifying his Oliphant to dormitory. back her advised engaged that he in acts fellatio admitted prosecute her not to to him for endeavor complainant. and sexual intercourse with stating prove rape. rape, that she could not however, claimed, He that all of these acts tape further he He had re- stated He also that he were consensual. admitted although corder the car was ever none was and had two children. Oli married sign agreement asked found. He her to an largely phant’s testimony corroborated that prosecute, to pencil. but could not find a complainant regarding the street encoun Oliphant complainant told he was nearby ter initial discussion in the bar. get- had As married and children. her of the He further corroborated version car, ting Oliphant’s out he her to bars, except that he to the three travels get plate sure to of his license number complainant ever insisted denied that Complainant car. then returned to her dor- dormitory. Oliphant also returning to her mitory crying telling girl friend his de agreed that when he indicated raped. campus po- that she had been sex, Their complainant sire refused. lice were called. She was taken to the Olin to testimony diverged Oliphant when drove University Center of Health He city. of the testi an unfamiliar section where she was examined the Center’s sex, agreed engage in oral fied that she attending physician. The testified doctor Finally, Oliphant and later intercourse. at trial that she in her had laceration angry became testified hymen three-quarters length; of an inch in about her only complained to her vagina that there was blood in Oliphant unpleasant body odor. denied absorbed sponges hy- and sutured attempted that he to orchestrate events stitches; by bringing men with two evening in order and circumstances edges together hymen he was alleged more size; proof to make to approximate original able its cunning Ordinarily rapist is not difficult. barely finger could have admitted a scheme thick; such an elaborate enough devise virgin; that she had been a escape Oliphant to con laceration, adopted by as opinion, occurred viction, nearly as is evi and he succeeded about an hour he examined her. before physician first trial. vagi- also found semen in her denced result of the Oliphant probably extensively old participated did not know in his own lawyer adage opening own has that one acts defense. He made the statement to who performance objected jury. His front a fool for a client. the against He to evidence made jury might arguments them to react have caused He examined court. cross so, counsel, no permitted have one him. If he would several witnesses. He however, complainant. to cross blame but himself. examine the rebuttal, In an pre- effort to planned carried out such a orches- viously upheld validity Michigan’s events, people proposed tration of Kelly, similar acts People statute in call Testimony three additional witnesses. (1971) Mich. 192 N.W.2d pursuant Michigan’s similar and cases cited therein. statute, acts which read as follows: People In Oliphant, supra, Mich. criminal case where the defend- 250 N.W.2d the Court stated: motive, intent, of, ant’s the absence mis- challenges applicability take or accident part, on his or the de- scheme, system

fendant’s of the statute in his doing or case where act, material, any an like acts other is consent. contested issue acts of the defendant which tend sophis- contend that the defendant had a motive, intent, of, show his the absence scheme, plan system whereby, ticated *4 mistake or part, accident on his or the resistance, his advances meet should scheme, plan system defendant’s or orchestrating would commit while act, doing question, may proved, preclude the circumstances so as to his contemporaneous whether are with proving victims from their nonconsent. thereto; prior subsequent or or notwith- The Court then summarized the testimo- standing proof such show or ny of the three rebuttal witnesses as fol- tend to show the commission of another lows: prior or subsequent by crime the de- fendant. M.S.A. [M.C.L.A. First, we must determine whether the § 28.1050] acts testified to reveal a Two of the rebuttal witnesses had been arrange scheme to the circumstances sur- complainants prior two trials involv way rounding episodes in such a toas ing Oliphant. both trials he had appear make it that the victim consented. acquitted. been testimony of these summary testimony A brief of the two Oliphant’s women is basis of three witnesses follows: estoppel and collateral claim.2 “A” on Witness testified that the morn- testimony Before the of the two women ing walking of December she was was offered the judge conducted approximately to work. When one mile hearing in the absence of the where destination, stopped defendant the matter was carefully considered and

resolved, car and her a ride. Because was particularly probative that its val- cold, ue substantially accepted was not and there outweighed by “A” ride potentially prejudicial unfair effect. Im- friendly conversation about the weather. mediately prior to the introduction of Upon reaching park- Eberhard’s food store testimony judge rebuttal the trial ing lot, destination, “A’s” defendant insist- jurors purpose advised of the limited “A” accompany ed him on a errand to short testimony was offered and for get marijuana. Though some “A” said she which it could be used. The court also didn’t go have time because had to she the jurors Oliphant’s acquittal advised work, defendant convinced her. The atmo- both testimony before and after the of re- sphere friendly. was still buttal witnesses. In his final instructions time driving After a short and fur- jury, judge the trial restated the marijuana, ther conversation about defend- purpose limited for which such evidence car, stopped ant “A” and reached across point could be considered. This was also pulled door on the prosecutor made off the inside handle closing argu- in his ment. car. then passenger side testimony testimony 2. The of a third rebuttal witness was of this third witness. All three wom- except college age, similar to that of the other two that no en one of were white ladies charge brought against Oliphant. University. was ever whom Oli- attended phant challenge does not now use crudely intentions. abruptly and stated to have inter- crudely stated his intention threats, “B” was forced By “A” that de- means course with “A”. testified made anything to do to make Defendant then fendant told dance the nude. with ordered or he intercourse angry him and to do her lie on the sofa and had her, her, time, threat- “shoot” and “kill” defendant During would “hurt” this her. after heroin so up her. “A” not leave auto “B” with could ened shoot doing, hand- suddenly had threaten- become not know what she would demanding, her, shotgun han- because the door cuff and referred man, dle He asked her if who had had been removed. closet. After second defendant, told had dated a black man and she with originally ever in the car “B”, giv- yes. she was him intercourse to East driven back en back her clothes and “A” lie the floor in the was ordered to on Lansing. back of the car take her slacks and off complaint underwear while defendant continued and the defendant “B” filed a car, re- parked then drive. Defendant on pants, into the back moved and moved rape May seat. with “A” and He Witness “C” testified clothing get replace then her to Lansing Communi- while a student at During back the entire into the front seat. hitchhiking Lansing College, ty she was beaten, episode nor “A” was not struck or picked up There defendant. weapon, though the did she ever see a *5 passenger the car and another male repeated. of harm were threats some seat. After “C” sat in the back conversation, he would drive her back said he friendly

Defendant stated defendant but, original On would Lansing to to her destination. if “C” quick had to run a errand countryside, apart- way, while “chick’s” along still with him to a ride rest apparently gas. ment, give car ran out of Defendant a ride the he would her began arriving house. When at Upon to walk to farm way to her home. alone, glove compartment “A” house, persuaded searched to come defendant “C” none, gun, for a left ear and found and three had meet “chick.” Once the and get help. to ran to a road commission truck apartment, entered the left car and took The men from the road commission was no “chick” apparent that there became who, turn, “A” took police to state told “C” he Defendant then there. hospital her com- to a for examination. No brought to have intercourse her there plaint ever filed. stripped naked and if she and leave. He she allowed to danced would “B” stu- Witness testified that she was a got minutes to take “[yjou’ve five told University. dent On or it’s all over.” your and dance off clothes hitchhiking she River to meet a friend Grand Avenue was struck on the to leave and “C” tried job. and Okemos and look for a Defendant tried to fist. “C” forehead defendant’s picked her inup another male defendant’s struggle. was a and there kick defendant they car told her take where and would “C” with death Defendant then threatened go. wanted to Conversation The male killed others. and said he had friendly subjects and touched the of mari- support defend- was called in passenger juana, job, white women defendant’s and had killed others. statement that he ant’s dating “B” black men. Defendant told up “good picking he said liked Defendant get job he could her a would having inter- looking white chicks” take her to boss’s house. she was testified with them. “C” course she took be killed so store, she would stopping afraid After arrived as defendant her clothes and danced Lansing in an to off house area unfamiliar pushed house, “B”. “B” thereafter Once inside the was told ordered. Soon and had not down on the sofa it was the boss’shouse. Defendant “C” suggested given home, with her. Defendant later “C” Three were ride witness police being “A” was driven home when she es- go to the to drive her caped from ear. gave college the defendant’s there. He “C” his identifica- tion card and asked her to remember his apparent In all of the cases there were name and address. Defendant then took opportunities for the women to flee from “C” to within two blocks of home and The women testified that when defendant. dropped her off. occurred, they not feel the these chances did need to flee because defendant was friend- and, “C” a complaint filed on October ly. frightening change in defend- After the the defendant was on the demeanor,- ant’s al- the women rape. escape. lowed chance people point alleged out all four told witness “C” that rapes during period, occurred a five-month go police should and furnished her and all four college-age involved women. college with his name and address and iden- began All four public'meet- incidents with a complain- tification card. Defendant told friendly conversation. In each case futile, ant going police would be discussed, race was either in the context of prove anything since she couldn’t dating prejudice. interracial or racial tape had a recorder in the car. He then conversations with all four women also get to be sure and marijuana. touched on went license number. Both women “A”, “B” Witnesses and “C” entered de- police alleging rape against station a man fendant’s car immediately, and complainant they apparently Knowledge de- knew. entered car soon after their initial meet- name, address, college fendant’s identifica- ing. All got four women into defendant’s numbers, along tion and car license voluntarily car and rode with him for a other facts such as the lack of bruises and expecting go time particular place to a apparent opportunities escape would but a deviation expect- was made from the credibility tend to lessen women’s route, upon ed one excuse another not story rape. told their likely to arouse part fear on the *6 agree We the with the trial court and women. All four were then driven an “A”, Appeals testimony that the area unfamiliar to them where the inter- “B”, tending goes beyond “C” show place. course took raped young that defendant other women. many Complainant similarities in all four cases tend “C” riding in a car plan to show a orchestrate with a scheme to seemingly man, friendly engaged surrounding the events the of com- light when, upon conversation finding plainant so that she could not show noncon- area, themselves in an unfamiliar the man sent es- thereby and the defendant could threatening became and demanding. Wit- plan cape punishment. Defendant’s made nesses “A” and “B” seemingly went with a appear ordinary it that an social encounter friendly man on an “errand” an unfamil- voluntary which culminated in sex had sim- apartment, iar whereupon the man became ply gone sour at the denouement due to his threatening demanding. All four were body unpleasant reference to told to submit they or would be harmed odor; seeking a vain bitter woman weapon with a though of some kind no at revenge against an innocent man. [Id. weapon produced. All four testified 483-88, 250 N.W.2d 447-449] they submitted to defendant’s sudden the The Court continued: “Here similar crudely spoken demands out of fear prove proposition— acts were offered to a would be possibly beaten and scheme, plan or probative which was killed if didn’t. Only attempted “C” a matter in issue—nonconsent. testi- physically fight back in the face de- meaning mony is material within the fendant’s threats. Aside from the short statute.” Id. 250 N.W.2d “C”, struggle the defendant did not beat or rip the clothes of of the women. The Court further stated: judge who basis to conclude that the

Certainly, that an individual the fact care, great a at one time has no bear- issue with commits addressed the ing whether another woman consented concluding his discretion abused Lovely a v. to intercourse at later time. substantially probative value was States, 4, 1948). (CA United 169 F.2d 386 by potentially unfair outweighed Here, however, people did not offer prejudicial effect. prior prove prior rapes, acts to or jury returned The fact that the instant man with criminal defendant is bad prior while a guilty, verdict propensities. pri- the evi- presented which had not been scheme, plan sys- or acts to show the unable to or scheme was plan dence of raping employed tem the defendant verdict, does not reach in a manner and under sug- unduly prejudicial, but evidence was gave appearance circumstances which than that the instant gests no more of consent should he meet with resist- probative. may have found [Id. ance. (footnote 494-95, 250 N.W.2d at 451-452 plan to orches- It is true that even if omitted).] appear make it trate events to shown, this is not woman consented is as to who testified young The three ladies proof that did not conclusive woman gain by nothing acts had similar plan, how- consent. Evidence of such a aid, They did doing except distress. so ever, along with the other evidence of however, function, namely, important in an surrounding inter- circumstances justice in the administration course, is both relevant and material rapists intending to discourage other proper- the issue of consent therefore girls attending Univer- ly admissible under M.C.L.A. § sity. 28.1050. M.S.A. § Johnston, Mich. People recently interpreted This statute was (1950) the N.W.2d 334 supra, People Kelly, this Court in general rule as follows: Michigan stated the where we held the trial court did not err admitting evidence of and subse subject is stat- general rule on the quent acts of defendant which tended to Law, p. in 22 Criminal ed C.J.S. scheme, plan system, show a even language: following prove pri where such acts also tended to show tending to “Similarly, evidence or crimes the defendant at 491- [Id. is ad- other offenses the commission of (footnote omitted).] 250 N.W.2d at 450 motive, sys- to show missible if it tends The Court further stated: conduct, tem, method, or course of *7 do, Concluding, as we that the testimo- crimes a series of or scheme to commit ny compliance was “material” in with the trial, or the intimate including the one on statute, stage upset we decline at this relations be- apparently confidential judgment the trial the bal- court’s as to the tween the and accused. On informer probative prejudicial ance of value hand, of other offenses other evidence The effect. facts summarized above ex- bribery prove the which not tend to does probative hibit such similarities as to be charge should be excluded. of a or scheme. The dearth of evi- was tried and that accused “The fact consent, dence on aside from the contra- not offense does acquitted of the other dictory testimony complainant of and de- thereof of evidence bar the introduction fendant, make evidence as to the circum- bribery where such prosecution in a particularly impor- of the incident stances sys- plan or general shows the evidence tant in this ease. We are not unmindful bribe, accused’s or illustrates tem of the danger evidence type of the of this of trial, throws on transaction acts in the jury against the the prejudicing defend- facts, however, the later evidence.” light

ant. these there is no on On 554 1, plainant

In the it two suggested instant case is on June 1971. The other in resulted incidents testified judicata the of doctrine res should acquittals part the same were not of preclude applied to of the introduction on nor did turn episode,11 criminal testimony offered and received in the issue of fact. the same crucial fact. An prosecution for conspiracy. The lan- prior An issue of trials fact in each of the guage paragraph of the second of the was whether “B” and “C” consented quotation directly above from is in C.J.S. intercourse, as or submitted the result the point on this issue. is on are the of issues threat force. These charged against trial for the offense him question of distinct from the whether prior question in the case. presently complainant to intercourse consented whether, charged at issue is the as the result of the threat submitted prosecution, accepted a bribe in viola- Assuming force. the rational basis tion of the statute on which the informa- prior acquittals for the was consent is Testimony tion based. tending legiti- defendant,12 determinátion favorable to mately offense, to establish such or some this way could in no bar the thereof, may element not be excluded proving part nonconsent on the of com solely ground on the it was offered plainant. prior bearing and received in the case as 11 1, allegedly raped February “B” was on allegedly raped 1971 “C” guilt on defendant’s of the offense there complainant raped while on June charged. 226-27, 43 N.W.2d [Id. 1, 1971. 340] In of “B” and trials the “C”, but defendant admitted he had intercourse contended that was consensual. the case II bar, people signed following stipula- tion: Oliphant relies on the decision of the Su- THE STIPULATION IN SUPPLEMENT OF preme Swenson, Court Ashe v. 397 U.S. RECORD 1189, (1970), S.Ct. 25 L.Ed.2d 469 hereby agreed stipulated It parties supple- the record in this case be support of his claim of following mented with the information: estoppel. reliance Such is mis- Ingham County That Circuit Court case placed. Supreme Oliphant, Number Charles defendant therein, acquitted by jury of distinguished stating: Ashe 750.520; May MCLA [MSA 28.788] keystone argument defendant’s 12, 1971; [B], complainant being Swenson, is Ashe U.S. Ingham County That Court Circuit case Oliphant, 1189, 25 Number Charles defend- L.Ed.2d 469 Ashe in- therein, acquitted ant volved a conviction for robbery aof MCLA [MSA on October 28.788] participant game card after de- 1971; complainant being [C]. previously In each of the above cases Charles fendant judicially admitted sexual robbing another players in the place complain- took ant; between he and the [sic ] game. same held but such asserted that act occurred volun- tarily with the consent. had determined that In each of the above cases the the state had prove failed to claimed that sexual intercourse with had been one robbers the first Charles occurred as the result of was, therefore, trial and precluded from threat force. That in each of above cases the com- trying the same fact plainants age stated that over *8 second trial which identical all Oliphant 16 and Charles did not contest such aspects except the named victim. claim. jury An fact issue of in each case for the single Ashe involved a episode criminal resolve whether or not sexual the inter- relitigation and the fact same after voluntary result the course was the it had been decided defendant’s favor threat of force. foregoing stipulation approved as to is the first trial. form and content. bar, In the case at the had to 495-97, 452, at Mich. 250 at [399 N.W.2d decide raped whether defendant com 453.] 555 un- phant urges that the trial court In this ease the endeav state oring Oliphant engaged constitutionally eighteen that to twen- excluded similar, year jury array. acts the ty-one petit of “orchestration.” The olds from however, failed, this Michigan Oliphant present held Supreme that such day court the first proof was “material” under state law. It claim to the trial until Supreme the trial. The Court estoppel. was also not barred second timely juries Oliphant Michigan which held that this was not a could issue, trial presentation the the easily have Oliphant concluded both Re- court should not have considered it. surrounding the events the orchestrated claim, fusing the merits of the to consider prior sexual encounters and that women the Court stated: had in fact consented to his ultimate ad Ashe, 444, supra, vances. See We 397 U.S. at raised note that first prosecutor challenge day 90 S.Ct. 1189. Since the state this objec- issue relitigate did not seek when the basis for second trial apparent time. previously been determined in Oli tion had been for some Thus, favor, dis- objection, exhaustively phant’s estop claim of collateral by the cussed and denied on the merits pel is without merit. court, ought rejected to have King To the effect: v. same 600.1354; timely under MCLA MSA Brewer, (8th 1978); 577 435 Cir. F.2d 27A.1354. We decline disturb Estelle, (5th Douthit v. F.2d 800 Cir. 540 point. this MCLA verdict on 1976) Cross, distinguishing Blackburn 510 Mich, 501, 250 MSA 27A.1354. [399 (5th 1975); F.2d 1014 Cir. United States v. N.W.2d 455.] (10th Addington, 1973); 471 Cir. F.2d 560 is barred opinion Oliphant In our Moore, 1068, cf. United States v. 522 F.2d raising this issue on federal habeas (9th denied, 1975), 1079 Cir. cert. 423 U.S. corpus he has failed to make because 775, (1976). 96 637 S.Ct. 46 L.Ed.2d preju cause required showing of and actual argument of Oliphant’s The substance Henderson, 425 U.S. dice under Francis attempt an simply to raise to a federal 149 96 48 L.Ed.2d constitutional level his claim that certain Francis, In held such a show the Court evidence should have been excluded because involving required in cases would be jury might it. have misused This is composition of untimely challenges to the question solely a law on of state which the grand jury. We believe indicting Supreme Court of already has de orderly adminis state’s interest Moreover, against Oliphant. cided even if justice compelling is no less tration of Court, were properly the issue before this challenge composition is to the questions concerning we note that the ad Accord, Maggio, 557 petit jury. Evans v. unfairly mission of evidence 1977); (5th Cunningham v. F.2d 430 Cir. prejudicial are committed to the sound dis Estelle, (5th 1976) (per F.2d 82 Cir. cretion of the trial court. United States v. curiam). has Accordingly, since (6th Phillips, 1978); 575 F.2d Cir. for his excuse cause no valid v. Addington, supra, United States 471 F.2d law, and procedural under default state n.5; Fed.R.Evid. 403. Such discre allege since he failed to do more than has proceed tion is not reviewable in a habeas prejudice, is not entitled we believe ing. here.3 to raise merits of the issue Ill case sum, present his conviction in the third, ground As a Court independent was affirmed of Mich- corpus, Appeals issuance of writ habeas Oli- dy” meaning disposition U.S.C. 3. Because of our within the of the waiver is- sue, indecency charge. respondent’s gross we also do not consider presently claim that is not “custo- *9 igan carefully prepared and exhaustive

opinions. gave District likewise VALLEY MIAMI BROADCASTING careful to seven consideration claims of er- CORPORATION, (only ror two were advanced in this Court Petitioner-Appellant, appeal) opinion a well written corpus. denied the writ of habeas opinion

areWe the state COMMISSIONER OF INTERNAL issues decided courts are REVENUE, Respondent-Appellee. subject to collateral attack ain habeas No. 77-1147. petition filed in the federal court and that correctly courts decided the Appeals, United States Court jeopardy constitutional issues Sixth Circuit. estoppel which were decided in conformity great weight with the of au- Argued 1979. Feb. thority. Decided March judgment deny- of the District Court writ corpus of habeas is affirmed.

EDWARDS, Judge, dissenting. Chief respect my colleagues,

With all I do

not think this can case be decided without important

reference issue of federal presents.

constitutional law which it

Fifth Amendment to the United States says part,

Constitution “nor shall person subject be same offence to be ” . put jeopardy

twice life or limb. . .

Here, two witnesses were allowed to tes-

tify appellant (at places times and

totally charge) per- unrelated the instant (if testimony

formed acts which

believed) constituted crime of forcible

rape. Mich.Comp.Laws Ann. 750.520. problem posed by constitutional

fact that in both of these instances that

identical .filed each of witnesses, appellant

these two had been

subjected trial, to a jury and the

found him guilty.” “not To allow these complainants

same testify to these same

events to buttress another

charge of the same offense committed

against appears appel- me to allow put

lant be twice each Certainly

such instance. the state should estopped relitigating the forcible issue, as was done here. Ashe v.

Swenson, U.S.

L.Ed.2d 469

I dissent.