Henry Clay Burks v. Charles Egeler, Warden, People of the State of Michigan

compensation workmen’s award due Hatt

ersley.29 O’Neill v. United (3d 1971); El Co.,

ston v. Industrial Lift 420 Pa. (1966);

216 A.2d 318 Dickey, Brown v.

397 Pa. (1959); 155 A.2d 836 Maio v.

Fahs, 339 Pa. 14 A.2d 105 Lazovitz’s liability limited,

Since is thus

we need not consider Lazovitz’s other damages.30

contentions as to the mo- reasons, Bollt’s foregoing For denied; judg- will be dismiss

tion vacat- be will ment remanded will be ed; case consistent proceedings further such includ- necessary, may be as opinion 59(e) mo- Rule Bollt’s disposition ing entry of above) and note (see tion shall Costs judgment. revised, final Bollt. appellee against

taxed BURKS, Clay

Henry

Petitioner-Appellant, Warden, People EGELER,

Charles Michigan, the State of Res

pondents-Appellees. 73-2003.

No. Appeals,

United States Circuit. Sixth

Feb. 1975. Strong public policy grossly inequitable impose would be Pennsyl- 29. underlies the limiting liability liability upon vania cases contribution common law him in the form of statutory employers. judgment permitting The Brown court char- contribution without interpose any Compensation acterized the him to Workmen’s Act defenses.” 397 Pa. at expression legislative “an 155 A.2d at will that 838. The court further not- employer’s liability, seeking involving ed that tortfeasor in a case contribution wronged by injury employee during was not to an this rule since the course of contribu- based, employment, strictly any right tion is not on his limited to the tortT feasor, equitable principle compensation amount “on the the workmen’s plaintiff employer award. should not recover Since the has been de- twice for the 462-63, wrong.” prived same Id. the Act of 155 A.2d at his common law defens- 840. es, contributory negligence, assump- such as See, g., e. 12 Purdon’s Pa.Stat.Ann. rule, tion of the risk and the fellow servant 2083(3). Burks, se,

Henry Clay pro William J. (Court Dammarell, Cincinnati, Ap- Ohio pointed), petitioner-appellant. Frank Kelley, J. Atty. Mich., 'of Gen. Derengoski, Robert A. son, Thomas A. Carl- Ryan, Mich., Jann C. Lansing, respondents-appellees. PHILLIPS,

Before Judge, Chief ENGEL, McCREE and Judges. Circuit ENGEL, Judge.

Henry Burks, Clay originally charged degree murder, second was convict- manslaughter ed of by a Detroit Record- er’s Court on July 25, 1968, and sentenced term of ten to fifteen years prison. Following denial of a motion for new Burks’ conviction was affirmed Supreme Court of Michigan.1 court for to thе district petition In a corpus under U.S.C. writ of habeas issues,2 alleged eight Burks Burks, eight 2. Mich.App. People claimed violations were: Burks, (1971); People 387 Mich. N.W.2d ‍​​​‌​‌​‌​‌‌‌‌​​‌​‌​​‌‌‌​​​‌‌​​​‌‌‌‌​‌‌​​‌​‌‌​‌​‌‍jurors petition- 1. The selection violated N.W.2d 777 rights er’s to a fair trial. prior of the record examination record of careful after Earls, for the purpose showing proceedings, state on the only two issues man with such a record would more like judge considered refusing ly to rule on merits, possession pistol, properly thus corroborating had failed to Burks’ Burks self-inflicted because wound remainder to them. theory. remedies as Admissibility of evidence his in a exhaust normally no merit state trial does not judge found raise The trial consti had exhaust- questions which Burks tutional impugns on unless it fun two issues agree and remedies. We damental fairness. Buchkoe, Gemmel v. ed his 1966), 358 F.2d 338 cert. affirm. denied 385 U.S. 17 L.Ed.2d Appellant’s conviction arose out of a 306, reh. denied 385 S.Ct. brawl at Gene’s Bar on East Jefferson 723, 17 L.Ed.2d 561. agree We with the Avenue in Detroit on March 1968. judge that no constitutional issue deceased, Earls, Burks and the Christy here, any and note that in had entered the shortly bar before elev- event the defense getting succeeded in en m. and Earls soon became involvеd the desired information jury before the in dispute patron, a with another one by other evidence. During LaFleure. the course of the en- Finally, Burks claims that he was de scuffle, suing Earls was shot in up- nied his Fourteenth right Amendment per thigh, left the bullet completely sev- because his conviction was ering the femoral vein partially sev- upon perjured based testimony and be ering the artery. femoral Earls bled to certain cause witnesses whom he had in death and charged Burks was with call tended to failed to up show at the degree, second unpremeditated, mur- being trial after proof threatened.3 In der. thereof, he submitted a number of affi At the trial was the state’s conten- davits in trial, of his motion for a new that tion Burks had shot, fired the fatal to the judge made state trial more it, intending however, for LaFleure and year than a after his conviction. Burks’ not for Earls. firing Burks denied brought counsel some of the affiants to shot. He claimed instead that Earls was hearing and while judge declined possession in gun at the time of testimony, to take their he indicated a the scuffle and that the wound was self- complete familiarity with the contents of inflicted when gun went off acci- affidavits, and Burks’ counsel indi dently as sоught Earls to hit LaFleure called, cated that if the witnesses would with the butt end of it. “re-testify put to what have in

Burks claims that their affidavits.” judge, he was The state trial wrongfully precluded denying motion, displayed from introducing tampering judge

2. There was that the trial abused his discretion witnesses 7. That deprived denying petitioner’s motion for a new further him of a fair trial. petitioner’s witness- 3. There was erroneous refusal trial without judge of of evidence introduction es. proceedings pertaining past petition- judicial to the record of all of the 8. That petitioner has been involved er’s victim. Sys- “corrupt Judicial in his instructions far evidence a 4. The erred thus tem,” jury credibility stated reasons. as to the of certain for the above witnesses, thereby jury. prejudicing deliberately Burks record shows falsely. 5. A witness for the state testified subpoena those determined judicial all officers from the court 6. That ad- subpoena have an “would because reporter to the Chief Justice of the Michi- judge denied The trial them.” effect verse practiced Supreme gan financial days’ adjournment to locate request two for against petition- discrimination and racial day witnesses, postpone triаl but did denying ap- him his trial record for er purpose. for that hours two peal. Holohan, healthy skepticism concerning the relia (1935), affidavits, L.Ed. 791 bility of the and commented: Court, denying while relief on Supreme notwithstanding this informa- “Now tion, grounds, made it clear that known to this has been if right Amendment to due Fourteenth period extended defendant time, prohibits and deliber that such no indication there is a state of ate use reported to was ever illegal conduct a conviction. And in in order to obtain County Prosecutor.” Wayne Pate, Miller v. Michigan Ap- Court of appeal On federal habeаs stated: peals, that protect peti was extended to as contained in the information “Such appeared prose that the tioner to be in the na asserted affidavits deliberately in the state court had cution evidence, new evidence. Such ture of represented to the court and discovered, the can form basis newly if clothing stains on the victim’s certain granting of a new if for the were blood when it knew were requirements as set out meets with paint. fact (1967), 7 Mich. People v. Keiswetter years ago than 30 “More Court 334, 829. Such de App. 151 N.W.2d held that the Fourteenth Amendment is dirеcted to the sound termination cannot tolerate state convic People v. of the trial court. discretion by tion obtained use of 297, (1970), Mich.App. 26 Nickopoulous Holohan, Mooney evidence. v. false The trial court has N.W.2d 83. 182 340, 103 294 U.S. S.Ct. 79 L.Ed. [55 for a new defendant’s motion denied There has been no deviation 791]. from regard superi- Giving due trial. principle. that established Na of the trial court to opportunity or People Illinois, v. pue 360 State credibility of the trial appraise 1173, 264 3 U.S. ‍​​​‌​‌​‌​‌‌‌‌​​‌​‌​​‌‌‌​​​‌‌​​​‌‌‌‌​‌‌​​‌​‌‌​‌​‌‍S.Ct. L.Ed.2d [79 affiants, we and the several witnesses 1217]; Pyle Kansas, v. State of 317 court abused its say cannot 177, 214]; 213 87 L.Ed. U.S. S.Ct. [63 denying defendant’s mо discretion Texas, cf. Alcorta v. 355 28 U.S. [78 Burks, supra, v. 30 People tion.” Mich.App. 103, 2 L.Ed.2d There can be S.Ct. 9]. 102, 18, p. at 19 186 N.W.2d principle from that here.” no retreat Pate, 7, at Miller v. 87 S.Ct. Michigan recognize, courts Thus p. 788. system, the federal that the deci as does Holohan, supra, emphasized v. a new grant usually trial is ad sion knowledgeable that it was the and delib- of the to the sound discretion dressed perjured erate use of evidence which court, 33, Rule Federal Rules of infringe- the constitutional constituted Procedure; Sposato, U. Criminal S. words, ment. In other it is “state ac- (2nd 1971). 779

446 F.2d at the tion” which lies heart of the viola- thrust of the affidavits tion: pro- by a state to by the state courts a contrivance and considered “Such imprisonment' the conviction and district court here was that one cure by the Golden, is as inconsistent at trial a defendant Joseph who testified justice as succeeded, rudimentary demands of prosecution, behalf harm, obtaining of a like result bodily persuading cer- threat of prose- And the action testifying either to avoid intimidation. tain state, on behalf testimony they gave. cuting officers perjure to or claimed, officers in motive, that of administrative it is was a mis- like Golden’s laws, may of its consti- might execution that his sister belief taken purview action within beneficiary indemnity of double insur- tute Amendment. That the Fourteenth life if it were shown that on Earl’s ance governs any action of a was not self-inflicted. amendment wound death

225 state, through Brady Maryland, 83, ‘whether its In legislature, 373 83 U.S. through courts, 1194, through (1963), its or 10 L.Ed.2d 215 its exec- S.Ct. it was utive or suppression by prosecution administrative officers.’ held that Car- Texas, ter v. requested by U.S. of evidence the accused and [20 687, 689, 839]; Rogers S.Ct. L.Ed. favorable to him violated due Alabama, U.S. the evidence material S.Ct. either [24 417]; Chicago, guilt punishment. L.Ed. Burling- Irrespective of thе Quincy ton & v. Chicago, good R. Co. faith or faith prosecu- bad 226, 233, tion, U.S. the Court found the existence [17 Mooney Holohan, L.Ed. of the evidence was su- nevertheless know- 979].” pra, ingly deliberately concealed. S.Ct. at And Giglio (1972), one Tal- subsequent In decisions addressed to iento, an unindicted named co-con- process issue, the Supreme spirator only was the witness linking de- consistently presence has noted Giglio fendant with the passing crime of impermissible state involvement in the forged money orders. On cross-examina- e. testimony, g., untruthful Pate, Miller v. tion, any promises Taliento denied le- Kansas, supra. Pyle niency government attorney af- 87 L.Ed. 214 firmatively that he stated received no was that the testimo- promises would that he not be indicted. was induced threats ny from local attorney, Unknown to the trial the testi- penitentiary sentence, of a authorities mony false, was for in fact a promise of and that there use was leniency had been made an assistant. well perjured testimony as as deliberate This was held sufficient to constitute of favorable suppression evidence. because, violation process of due “wheth- Texas, 28, Alcorta 355 U.S. 78 S.Ct. er the neg- nondisclosure wаs result of 103, (1957), while perjury ligence or it design, responsibility not claimed been procured, to have prosecutor. TI e prosecutor’s of- was known to have existed giv- it when entity fice is as such it is the There, at the trial. en defendant spokesman for Giglio, the Government”. wife, murdering accused of his Again, 92 at 766. S.Ct. he claimed defense that did so in a fit government responsibili- action and sudden passion aroused when he dis- ty lay which at the heart of the viola- wife, already suspected covered his tion. infidelity, kissing Castilleja one late at parked in a night government, car. can, course, It argued knowing of illicit intercourse between if a man in a is convicted into Castilleja wife, nevertheless suf- intruded, perjury has matters Castilleja testify falsely to fered that the little to him who was or was in not relationship nothing had been more than argued in it. It also be volved can friendship. one casual In Napue v. great a trial force that in which is close Illinois, 360 79 U.S. S.Ct. hotly on its disputed, facts and even the (1959), Supreme L.Ed.2d slightest error can make the difference held had been denied acquittal between and conviction. The the prosecution knowingly and distinction that which between consti without correction elicited false testimo- tutes state action under Holohan and promise that no ny leniency not, had been however, that which does still has given exchange for the testimony of a validity marking borderline prosecution time, witness. At the same federal constitutional involvement. De Napue pointedly prin- referred case, perfect perfectly viations from the “[t]he that a ciple may knowingly State use inevitably tried will occur in both the evidence, including false testimony, false judicial systems, and federal and ‍​​​‌​‌​‌​‌‌‌‌​​‌​‌​​‌‌‌​​​‌‌​​​‌‌‌‌​‌‌​​‌​‌‌​‌​‌‍state ”, obtain a tainted conviction . . . expected еach can in most instances be 360 U.S. itself, guided by judi- supervise proper court, cial where non-constitutional protection considerations for the error can corrected, persons be and is often accused of crime. habeas only relief can be afforded where the courts, “Upon the state equally with error claimed to have been committed in Union, the courts of the gation rests the obli- system the state court is one of federal guard and enforce every constitutional dimensions. In Mesarosh right secured by that Constitution.” Holohan, supra, U.S. at the Supremе L.Ed.2d Court was S.Ct. at 342. confronted the admission of the Solic- Due is concerned with “minimal General, following itor peti- conviction of safeguards historic for securing trial by Act, tioners under the paid Smith that a reason”, McNabb v. United informer, government one of seven wit- 332, 340, 608, 613, 63 S.Ct. 87 L.Ed. government case, nesses for the (1943). guard It does not against all subsequently and in another case error. given testimony which the Solicitor had process] “What it require does [due serious reason to believe was untrue. At action, that state whether through one time, the same the Solicitor maintained agency another, or shall bе consistent there, before the Court his belief that with the fundamental principles of lib- perjury had been no actual in the case at erty justice which lie at the base Thus, bar. if the testimony was indeed all our civil and political institutions false, there was no claim showing or and not infrequently are designated as government knew it when it ‘law of the land’.” Hebert v. Louisi- offered, in any way or induced it. ana, Because the facts are so similar to those 104, 71 L.Ed. here, perhaps stronger because the suspect paid informer, witness was a we Thus we frequently find that certain er- significant believe it is Court, that the rors, Supreme alleged, circumstances so may remanding while for new and do properly suggest correction in particular pains took to do so on the both the judicial state and federal sys- “supervi- non-constitutional basis of its tems rising without to the level of con- sory jurisdiction over issues, proceedings the of stitutional g., McNabb v. see.e. courts”, federal pointed the with refer- supra; United United States v. McNabb, 14, ence to 352 U.S. at Augenblick, 348, 356, 89 S.Ct. 21 L.Ed.2d We conclude that such is the circumstance here. requirement A of state involvement as prerequisite finding a constitutional n

In contrast appellate to direct re error has also been the understood rule view originally of cases in a tried federal circuits.4 deplores dissenting opinion “The what (3rd 358 F.2d 4. Smith by emphasis is undue the Court on senses 1966), holding the absence of Cir. allegation perjury, pre- the so-called technicalities of knowledge government a fatal of sumably peculiarities, though Texas even petition U.S.C. under 28 defect to a concepts everywhere seem to be those its (4th Manning, 227 F.2d 324 Cir. v. Sessions valid held. But for an otherwise state con- Beto, (5th 1955); F.2d 35 Cir. Luna upset years later on viction federal F.Supp. 1968); Wainwright, Purkhiser habeas, surely something more than an evi- (5th (S.D.Fla.1972), 455 F.2d 506 affirmed dentiary mistake must be shown. mis- If 1972). particular interest is Luna Cir. Beto, Of never, never, enough, simply take is then sitting '“'rcuit en where the Fifth repeated, prolonged, the of whether, will banc, upon the record considered postconviction trial, every review cease. For in it, perjury been committed had before nearly every or at least there complicity. While the facts state extent of be, be, will there are bound to some mis- Beto, suspiciously supra, sound like Luna takes. Judge Giglio, concurring opinion of Chief elevates the а “What ‘mistake’ to constitu- Brown, by Judges joined in John R. First, plane Ainsworth, tional is at least twofold. Coleman, Gewin, Bell, Thornberry, Clayton, following mistake Simpson must be material in made the sense of a comment; crucial, critical, highly significant factor. All long of this standing consist- authority ent 79 L.Ed. appear would to make A.L.R. 406. our Its requirement task simple here except safe-guarding for Jones v. lib- erty of against Commonwealth of the citizen Kentucky, deprivation 97 F.2d 335 1938). through the action of the state embod- ies those ‘fundamental Jones, conceptions petitioner of habeas cor- justice which lie at thе base of pus and for writ of our coram nobis relief political institutions,’ civil and was convicted referred murder his wife Louisiana, to in Hebert v. by and sentenced to death a Kentucky 312, 316, 317, state He fully court. L.Ed. exhausted all 270, 48 A.L.R. 1102. remedies, requirement This of his local but without suc- cannot cess, ‘By be satisfied though mere alleged even he notice that his if a state procured has contrived by perjured conviction a tes- through conviction here, pretense timony. Like Burks Jones who trial which truth is but charged with used as a having shot and killed depriving means of a defendant of pistol, his wife with a lib- claimed that erty through deception deliberate pistol discharged in a scuffle for its by presentation possession when the wife threatened her known perjured. to be own life. While we are not specifically Such a contrivance pro- state to told what new evidence was cure the imprisonment conviction and Kentucky court, except sugges- for a of a defendant is as inconsistent unreliability tion of the with eye of two wit- the rudimentary justice nesses, demands of including the possible duress of them, ‍​​​‌​‌​‌​‌‌‌‌​​‌​‌​​‌‌‌​​​‌‌​​​‌‌‌‌​‌‌​​‌​‌‌​‌​‌‍obtaining of a like result Attorney one of General of intimidation.’ If it be urged that Kentucky himself was “strongly inclined concept thus formulated but to the view that Tom Jones was convict- condemns convictions obtained by ed testimony”. through testimony Appeals known Kentucky pros- “sym- indicated him, ecuting officers have pathy perjured, been because of his unfortu- then the answer must (Jones nate be that predicament”, the de- Common- requirement lineated wealth, of due Ky. 102 S.W.2d Case embraces no [1937]), 351-352 no more accorded relief. than the facts of that case Likewise, require, was himself and that ‘the conceptions fundamental convinced conviction pro- justice which lie at the base of by perjured testimony. cured our This court political civil and institutions’ corpus: must granted habeas process as it concept “The of due equal abhorrence condemn as a public crystallized become travesty has a conviction upon perjured judicial by pronouncement, later, testimony mind and if but fortunately not Holohan, in v. late, is formulated too discovered, its falseness is and complicity Second, State cited and must have some the issue it seems to have risen often this, for a moment Tilghman Hunter, I do not toAs in the Tenth See in it. Circuit. v. prosecutor is аn as- (10th 1948); Story innocence 167 F.2d 661 Cir. think v. Bur ford, (10th Barbee v. 1949); [sic Barbee For 911 out. 178 F.2d Cir. sured Lister v. 1964)] (4th prop- Warden, McLeod, (10th 1957). Cir. F.2d 842 331 240 F.2d 16 Cir. As very police Hunter, are much erly Wagner supra, that stated in v. teaches 161 F.2d prosecutorial its part the State at machinery. “Taking petitioner’s testimony in the state ma- par, But someone own that chinery awareness have some can must the most that be said for it is that it gospel being palmed as the is testimony gave off some shows that of the witnesses Beto, testimony. v. su- something Luna indeed.” else false But even if this be it judgment. pra, at 40-41. F.2d does not void the 395 vice Olsen, (7th judgment F.2d 682 v. 211 which will vitiate the Sеe also Geach a court 1954); knowing, 344 Marcella wilful and intentional Cir. use Hunter, Wagner 1965). testimony (9th perjured v. in Cir. to F.2d 876 secure a 1947), frequently (10th is Cir. 601 conviction.” F.2d 161 228 knowingly, case as in the wilfully, in the one the state that intention- ally used conviction, to secure a required a corrective to afford other is and is further remedy barren of alleged any

judicial process that the prosecuting rights constitutional are not authorities wrong, if or the pre- siding v. Common- Jones knew that impaired.” to be the wit- nesses were Kentucky, supra, perjuring 102 themselves, S.W.2d wealth of the absence of allegations such fore- сloses this Court from granting the re- v. If Jones Commonwealth con- prayed lief for in petition filed spell general out a rule in this strued to so, herein therefore, application into a circuit that intrusion a writ of habeas corpus is hereby de- evidence is sufficient perjured trial of nied.” Frisbie, Kowalak v. supra, 93 to constitute without more F.Supp. at 778. violation, compelled would be at a we determine miminum to whether the dis- recently, More problem same refusing in court erred hold an trict Judge before Chief W. Frank Wilson of perjury evidentiary on the issue. the Eastern District of Tennessee in howеver, while Jones v. Com- Curiously, Hoffa v. United F.Supp. 339 388 frequently has been noted monwealth elsewhere,5 (E.D.Tenn.1972). Without reviewing the largely neglected it has been complicated history case, of that suffice by the within the Sixth Circuit. courts say time question, district courts two of the At least Judge Wilson before him a motion this have encountered circuit within for new trial filed on petitioner behalf of in ac- have resolved both problem and petition Hoffa. In his Hoffa relied upon rule and majority cordance the principle that the “Government may to Jones v. reference completely without not knowingly use false testimony to ob- Commonwealth. tain a conviction”, citing Napue Frisbie, v. F.Supp. In Kowalak Illinois, supra. v. Judge Wilson re- (E.D.Mich.1950), Judge District Thomas allegations viewed the perjury upon Tilghman P. relied Thornton were petition made and found Hunter, (10th 1948), F.2d 661 Cir. that there was no basis for the charge of and the effect, Tenth Circuit cases to like use testimony by deny corpus habeas relief: government. Hoffa v. United petition “The entire peti- States, supra, 339 F.Supp. at 398. application tioner’s for a writ of habe- In treating knowledge any allegation is barren of the govern- ment as an essential allegеd perjured element in estab- See, example Commonwealth, supra, in United States dissent Jones was cited (3rd Hendricks, 1954); Miller, Judge sitting by F.2d Cir. William E. Walsh, designation United States the United States District Court Ragen, 1949); Tennessee, Leigh United States District of for the Middle (N.D.Ill.1949). F.Supp. Neil, F.Supp. In Imbler v. ton v. Craven, F.Supp. (C.D.Cal.1969), perjured testimony specific Unit issue was not Judge Ferguson present Judge J. District Warren ed States case and in that Miller noted favorably length given particularly with Jones v. dealt at Commonwealth, “that recognizing attorney general great while state’s was afforded Circuit is weight by in the Ninth to the the current law both contrаry ‘knowledge’ prose F.Supp. and “that Sixth at 961. Circuit”. See also Commonwealth, required claim of denial Sharpe (6th cution is F.2d upon 1943), Judge based the existence of of due wherein Simon Cir. discussed testimony prejudicial perjured noting in a criminal that Jones Commonwealth Jones in Imbler, trial”, supra, F.Supp. circumstances, “exceptional peculiar volved of recognized, Judge Ferguson Sharpe, urgency”. also as we have of issue States, earlier, supra, present, that Mesarosh v. United and the Jones upon supervisory powers holding regard of feder was based in that was neither overruled proc al than constitutional due courts rather nor reaffirmed. requirements. ess We conclude that it do not is nec process, of due lishing Judge a denial essary for us to overrule Jones v. Com Wilson observed: monwealth, supra. An examination of this how- point, note at “A matter the facts in that case would convince us knowing use ever, is that as it even did that court that the peti that of false evidence the Government right tioner’s to Fourteenth Amendment process. of due denial constitutes process had, indeed, due been violated. apart from perjury, of allegation An now, It must true as we believe it by the of use an always particular has been that perjury, consti- that of Government rules which assist courts ‍​​​‌​‌​‌​‌‌‌‌​​‌​‌​​‌‌‌​​​‌‌​​​‌‌‌‌​‌‌​​‌​‌‌​‌​‌‍in the day-to corpus habeas no basis tutes day application principles of due alleges as it no er- nobis relief coram time to time give must from way The dimensions. ror constitutional of are themselves inconsistent ordinarily is credibility of with the overriding concepts of proc in criminal by the for trial Louisiana, ess as set in Hebert v. forth and are perjury trial. False supra, U.S. at S.Ct. at 104: raised the tri- may be on that matters “ . . the fundamental principles triаl, but for a new motions al and on liberty justice and lie at the 2255, or corpus, Section not in habeas political base all civil our insti- petitions. Other- post-conviction other ” tutions . . . conviction every criminal wise Thus, are while we unable to approve subject would be guilty plea than precise language quoted, supra, from post-conviction retrial repetitious Jones, guideline, as a continuing it by no long after petitions means follows in that that court case long after time had occurred relief, erred in granting especially where witnesses, memories and both erased appeared there governmental to be a crime do convicted of persons for few error, confession of but no machinery something untrue not contend within the system by which to re- in their trial.” Hoffa said pair it. F.Supp. United The D. C. confronted with 392-393. same problem Hodge Huff, this opinions While the U.S.App.D.C. 329, 140 F.2d 686 (1944). great circuit are within courts court, In that case the while recognizing prece- be said to be value, they cannot urgency unique circumstances How- upon this court. controlling dent Jones, adopt declined to its result as a Wilson’s Judge ever, its affirmance general rule for hаbeas cases in- in Hoffa decision, volving perjury. allegations Noting 1973), at (6th Cir. F.2d 391 Jones, (1) prisoner was under to the stated “As 393, expressly page death, (2) strong the sentence of evi- we affirm for perjury, allegations of produced, of perjury (3) dence Judge Wilson. 339 reasons stated error, prosecution (4) confessed the door 392-399.” F.Supp. clemency closed, executive had been significant We as well believe (5) that more effective assistance of case, dissent as that even the counsel might perju- have uncovered the appeal, previous United well as in the ry, thе court in Huff stated: Hoffa, States v. “Whether or not that decision was 1971), principles set went not proper facts, upon its it finds no coun- adopted by by Judge forth Wilson terpart present case.” 140 F.2d Napue to whether majority, Illinois, supra, required a remand for went on ap D. C. Circuit hearing to determine evidentiary prove, general requirement, knowingly “whether the Government necessity showing prosecutorial of a of original in used perjury. involvement in .the Hoffa, trial.” United States agree. We According to presented the issue to the fidavit. some of affi- Since witnesses, ants, they was one been sworn as district court addressed judge during the state trial and to a recess of the were discretion of and Michigan, courts of and did terrorized appellate approached outside right to due present very a denial of the courtroom in which the not door of the progress. the Fourteenth Amend were process under was in Others for the ment, necessary they dis it was threatened before testified evidentiary judge they trict to have held an some were terrified that left the so necessary is it for us hearing. testify. Neither courthouse and did not adequacy under Town to determinе representations If these are there Sain, send v. U.S. can be no doubt that there a denial (1963), or L.Ed.2d 770 under U.S.C. guaranteed of the fundamental fairness fact 2254(d) post-trial finding of by the Fourteenth Amendment. Persons The procedures of state court. discretionary issue purpose who attend our courts for the and not before him testifying protected terror must from constitutional. Dempsey, in the corridors. See Moore v. newly evidence “Where alleged discovered is 261 L.Ed. application, (1923). a habeas evi- this issue presented Since reasonably could not have rejected by dence which the state courts without trier Burks, been the state hearing, People Mich.App. facts, grant federal court must an N.E.2d course, evidentiary hearing. Of such evidentiary have should held an upon must bear constitu- hearing whether see these incidents detention; tionality applicant’s occurred and whether the state trial merely newly judge existence discov- appropriate took measures to safe- the guilt relevant to of guard ered evidence witnesses courthouse. ground Sain, prisoner a state is not a Townsend corpus. Also, 745, relief on federal habeas obligа- no is under upon grant hearing

tion to a frivo- newly

lous or incredible

discovered evidence.” Townsend v.

Sain, 83 S.Ct. at 759.

Accordingly judgment of the dis-

trict court is affirmed.

McCREE, Judge (dissenting). NATIONAL LABOR RELATIONS BOARD, Petitioner, dissent, I respectfully I and would re- judgment verse the of the district court evidentiary the case for remand ASSOCIATED CO., SHOWER DOOR question whether the de- INC., al., Respondent. et fense were so terrorized in the they perjured courthouse them- No. 74-1033. testify selves or because refused United States Court Appeals, safety. fear for their The affidavit of Ninth Circuit. trial defense counsel that he states made aware threats made Feb. prosecution witness he and that commu- judge. nicated this fact to the

affidavits several defense intended

witnesses that their were lives threat- they testify

ened if dared to and fear, testify did not out of or testi- falsely,

fied defense counsel’s af-

Case Details

Case Name: Henry Clay Burks v. Charles Egeler, Warden, People of the State of Michigan

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 6, 1975

Citation: 512 F.2d 221

Docket Number: 73-2003

Court Abbreviation: 6th Cir.