Jack Allen Barber v. Ray H. Page, Warden, 381 F.2d 479

Jack Allen Barber v. Ray H. Page, Warden

381 F.2d 479

10th Cir.

1967

Check Treatment

Jack Allen BARBER, Appellant, v. Ray H. PAGE, Warden, Appellee.

No. 9015.

United States Court of Appeals Tenth Circuit.

Dec. 30, 1966.

Rehearing Denied March 24, 1967.

Certiorari Granted Oct. 9, 1967. See 88 S.Ct. 115.

381 F.2d 479

riage. Had he also joined the delivering carrier and the Reading, the other connecting carrier, he might have placed himself in the enviable position, in the event, however unlikely it might be, that Sayford could prove that its door protection was adequate, of casting a heavy burden of exoneration upon the railroads, analogous to that an originating or delivering carrier must bear, for all of the railroads involved, when defending claims for loss of, or damage to, freight in transit.¹¹ The plaintiff assumed a burden of proof of negligence on the part of the two railroads he chose to join without the benefit of any presumption which might have arisen if the defendant railroads had been in exclusive control and possession of the car from the time of the shipper‘s delivery of the car to the originating carrier to the time of the consignee‘s receipt of the car from the delivering carrier. Then he entered into a stipulation that there was no negligence on the part of Norfolk & Western in the carriage. Reliance was limited to a speculation that there was an unnecessary switching operation on the B & O.

That speculation is that, when the car reached the B & O‘s Brunswick, Maryland yards, it was mistakenly classified as westbound. If it was, it would have been switched to the westbound classification yard, from whence, upon discovery of the error, it would have been switched again to the eastbound classification yard. The contention is cast in terms of “humping,” which means no more than that the switching operation was in a modern, gravity actuated classification yard, through many of which every car must pass in its normal transit by a succession of carriers through a series of yards. The B & O answered that it did not know whether or not the car was misrouted when it first arrived at its Brunswick, Maryland, yards. It produced its records which do not support the plaintiff‘s speculation, though, by the B & O‘s admission, they do not refute it, either. The plaintiff has no other evidence to support its speculation, but even if it was proven that the car was switched once more than ordinary carriage required there would still be no proof that one extra switching movement could or did destroy the door protection. Apart from his speculation, the plaintiff claims to have no available evidence of any fault on the part of B & O which might have been a proximate cause of his injury.

Under the circumstances, with all available evidence disclosed, with a stipulation that there was no negligence on the part of Norfolk & Western in the carriage and limitation of the claim against B & O to an unprovable speculation, the District Court properly concluded that there was no triable issue of fact. Since it also properly held that neither railroad was under a legal duty to inspect the lading, summary judgment for the railroads was appropriate on both the primary and cross claims.

Affirmed.

C. E. Barnes, Oklahoma City, Okl., for appellant.

Charles L. Owen, Asst. Atty. Gen. (Charles Nesbitt, Atty. Gen., of Oklahoma, was with him on the brief), for appellee.

Before BREITENSTEIN and ALDRICH*, Circuit Judges, and KERR, District Judge.

BREITENSTEIN, Circuit Judge.

For the second time, appellant appeals from a judgment denying him, a state prisoner, habeas corpus relief. In

Barber v. Page, 10 Cir., 355 F.2d 171, we remanded because the record did not show that appellant had exhausted his state remedies. The district court held a second evidentiary hearing, found that the state remedies had in fact been exhausted, and denied relief.

The only point for consideration is whether the appellant was denied his Sixth Amendment right to be confronted by the witnesses against him. He, an individual named Woods, and at least one other were charged with robbery. At a preliminary hearing, an attorney named Parks was retained to represent both appellant and Woods. Woods was called to the stand. The attorney advised him of his right to claim the privilege against self-incrimination. After a recess, the attorney requested, and was granted, leave to withdraw as attorney for Woods. In the presence of appellant and his attorney, Woods testified and incriminated the appellant. He was not cross-examined by appellant‘s attorney, Parks, but was by the attorney for other accused.

At the trial, a transcript of Woods’ testimony at the preliminary hearing was received in evidence over appellant‘s objections. Appellant was convicted and the judgment was affirmed by the Oklahoma Court of Criminal Appeals.

Barber v. State, Okl. Cr., 388 P.2d 320. Woods was not present at the trial because he was then an inmate of a federal penal institution located in Texas. In the circumstances presented Oklahoma permits a transcript of the testimony to be used at the trial. .

Pointer v. State of Texas, 380 U.S. 400, 403-406, 85 S.Ct. 1065, 13 L.Ed. 2d 923 (1965), holds that the right of confrontation includes the right of cross-examination and is binding on the states. In that case, the transcribed testimony of the out-of-state witness was taken in a preliminary examination where the accused was not represented by counsel.

Appellant says that the state was not diligent in securing the attendance of Woods at the trial. He was not subject to Oklahoma process. Although an application could have been made to a federal court for a writ of habeas corpus ad testificandum, the grant of such a writ is discretionary.

Gilmore v. United States, 10 Cir., 129 F.2d 199, 202. In our opinion a state is not required to ask a federal court for a discretionary writ and have it denied before the state can use a transcript of the testimony of an out-of-state witness. This is not a case like , where the witness had escaped through the negligence of the government. was decided on the denial of confrontation—not on the use of the transcribed testimony of an out-of-state witness.

In the case at bar the accused had retained counsel present at the preliminary hearing and counsel had an opportunity to cross-examine. Failure to exercise the right of cross-examination is no ground for asserting denial of the right of confrontation. We are not impressed with the contention that the attorney was in a doubtful position because of his previous representation of Woods. He had withdrawn and his obligation was to the appellant, who must have been satisfied because we note that he was represented by the same attorney on his appeal to the Oklahoma Court of Criminal Appeals. The appellant‘s belated attempt to inject ethical considerations of the attorney-client relationship into the case does not entitle him to federal habeas relief.

Affirmed.

ALDRICH, Circuit Judge (dissenting).

No question of fact is involved in this case, but an important Constitutional issue. The right of confrontation, although but recently imposed upon the states, is an old and valuable right.

Kirby v. United States, 1899, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890. I do not take it that the extension by , was only half-hearted; we must be guided fully by the Supreme Court decisions. The esteem in which the Court holds this right is illustrated by its recent case of . Cf. .

In situations of necessity, the importance of the public interest may qualify the right of a defendant to be condemned by a witness the jury can see and appraise. This must mean, however, a real necessity, not a token one.

Motes v. United States, 1900, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150, clearly holds that mere unavailability of a witness is not enough; if the prosecution wants to use a witness‘s prior testimony it first has a duty to try to produce him. Were there no such duty, the Court could not have relied on the negligence involved in the government‘s failure to have the witness in that case. The significance of is pointed up by the fact that there, unlike the present case, the defendant had cross-examined the witness on the prior occasion. Nonetheless, the Court found a denial of confrontation.

Although my brethren use the word “diligent,” I do not see how a state can be said to be diligent when it made no effort whatever. While the federal authorities, in their discretion, could have refused to let the witness be taken 226 miles, it would seem an unusual case in which the application for such a writ could be properly denied. In any event, the possibility of a refusal is not the equivalent of asking and receiving a rebuff. While I am not happy about the court‘s somewhat offhand dismissal of the reasons petitioner‘s counsel may have had for not cross-examining his former client at the preliminary hearing, I am more than unhappy to see confrontation dispensed with because the state did not choose to seek it.

* Sitting by designation.

Notes

See 49 U.S.C.A. § 20 (11). With respect to freight moving under through bills of lading, an earlier common law reached the same result in terms of principles of agency. The foundation of this doctrine is contractual; in this tort action, the plaintiff has not sought its cloak. In its cross-action, Sayford has made no attempt to invoke it.