*2
оwn,
fault
his
if he
WINTER,
Before
BUTZNER and
successful
at the
either
initial proceeding or
Judges.
Circuit
appеal,
he
press
will then be
able
errors he assigns.
If the South Carolina
BUTZNER,
Judge:
Circuit
relief,
courts do not
him adequate
he
may reapply to the federal district court for
appeals
W. Miller
from the denial
a writ of
corpus.
corpus.
of a writ of habeas
He challenges
finding
the district court’s
that he has not
II
exhausted state avenues of
appeal
unconstitutionally
claim that he wаs
arrest-
During
the prosecuting
ed
deriving
from
witness testified that she had bitten her
was unconstitutionally
arrest
intrоduced
assailant on the arm
during
attack.
against him at trial. With respect
to the
of marks on Miller’s аrm taken
single issue on
he
which
has exhausted state
a few hours
time
attack
remedies,
disputes
the court’s conclusion were
evidence,
introduced into
and an ex
improper experiment allegedly
pert
witness
identified
by
during
the jury
ducted
its deliberations
marks
been made
human
justify granting
does nоt
the writ. We
teeth. The expert testified
nature
affirm.
marks was inconsistent with Miller’s
Accordingly,
judgment of
beеn
they
had
caused
explanation
link fence. Sev-
edge
a chain
court is
rough
affirmed.
verdict
returned a
after the
days
had con-
Miller learned
guilty,
WINTER,
Judge, dissenting:
which one of
respectfully
I
dissent.
arm. The
the foreman’s
bit
women
*3
sev-
resulting
the
bruises for
had observed
I have serious
that
v.
doubt
United States
By
returning a verdict.
before
hours
Welch,
(4
1974),
496 F.2d
Cir.
aff’g per
861
this
the basis of
new trial on
seeking a
curiam,
(D.S.C.1973);
F.Supp.
377
367
аnd
of his
the denial
appealing
incident
Beach,
(4
v.
296
United States
F.2d 153 Cir.
his state remedies
motion,
exhausted
Miller
properly
can
be declared inapplicable
concerning this claim.
ground
the
to the instant case on
assumed,
pur-
the
court
The district
supervisory
were decided
the basis of our
decision,
experiment
the
pose of its
Welch,
powers over district courts.
we
In
imрroper
and constituted
justified
by citing
the result
Chapman v.
not in
of matters
jury
the
sideration
California,
18,
824,
386
87
S.Ct.
17
сonvincing cir-
other
Noting that
evidence.
705
implying
thus
constitu-
the
Miller to
evidence linked
cumstantial
Moreover,
grounds
tional
for our decision.
that,
without a
crime,
concluded
inappo-
evеn if these two cases are deemed
doubt,
error did
the
beyond
site,
have
jury
we
held elsewherе that
the defendant.
prejudice
in a
state criminal
in Unit-
our decision
contends that
Miller
the levеl
of
of
process
rise to
of a denial
due
(4
Beach,
F.2d 153
Cir.
296
v.
ed States
prejudice
if it results
substantiаl
to
law
vacat-
conviction be
that his
1961), requires
Downey Peyton,
451 F.2d
the defendant.
experiment.
improper
ed because
(4
1971).
Cir.
also Parker
Glad-
236
See
Welch,
See also
468,
den,
17 L.Ed.2d
385 U.S.
curiam,
(D.S.C.1973),
pеr
aff’d
F.Supp. 367
Louisiana,
(1966);
379 U.S.
Turner
1974).
we
In Beach
F.2d
(1964);
product of a human true, appar- are it is allegations
If Miller’s photographs them-
ent that neither testimony persuaded expert
selves nor guilt. If such evidence jury of Miller’s unlikely it is persuasive,
had been would have submitted
foreman painful experiment.
to such bizarre and observing the bruise on the fore-
Only after *4 guilty return a
man’s arm did that Miller’s It is also
verdict. trial, free which was one
first alleged in the second of the sort for reason as a mistrial ended reach a verdict.
jury was unable
short, I think that process.
actionable violation this case to
I would remand to hold an evidentia-
court with instructions
ry hearing in accordance 28 U.S.C. 2254(d). court finds that If the the ex-
periment under the circumstances the writ of alleges,
that Miller habeas cor-
pus should issue. America, Appellee,
UNITED STATES BURNSED, Appellant.
William F. Court
Argued Nov.