Reyes v. SlaytonReyes v. Slayton
OPINION and JUDGMENT
This case comes before the. court upon a petition for a writ of habeas corpus filed
in forma pauperis
by Emilio Reyes, a state prisoner, pursuant to
Petitioner is currently serving a sentence of twenty yeаrs in the Virginia State Penitentiary, pursuant to a judgment of the Corporation Court of the City of Martinsville, imposed on December 13, 1967, for armed robbery. The conviction resulted after a trial by jury in which the petitioner, represented by court-appointed counsel, entered а plea of not guilty.
Following his conviction petitioner by counsel filed a notice of appeal and assignment of error to thе Virginia Supreme Court of Appeals. Finding no reversible error, that court on June 17, 1969 refused petitioner’s writ of error and supersedeas, and affirmed the conviction.
Petitioner alleges several constitutional errors in his petition: (1) his warrantless arrest, secured by policе officers beyond their territorial jurisdiction, was illegal because the officers were not in close pursuit of the petitioner; (2) the arresting officers failed to advise petitioner of his constitutional rights; (3) since the arrest was illegal, the attendant search and seizure was also illegal; (4) the fruits of the illegal search were used to induce petitioner to confess; and (5) petitioner was denied an interpreter without which he could not *327 have received a fair trial nor understood his constitutional rights even if he had been so advised.
The only error assigned on his appeal is the first claim on which petitioner relies. Having presented that claim to the state court on direсt appeal, petitioner has exhausted his state remedies as required by
The facts necessary to make a determination on the claim are not in dispute. Shortly before midnight on October 19, 1967 officers Creasy and Dodson of the Martinsville City Police received a report of an armed robbery committed momеnts before at Tucker’s Sunoco Service Station in Martinsville. The report described the perpetrator as a slight, dark man wearing light pants, a dark shirt, and a green Sinclair hat. The officers, who were only a block from the station when they received the call, went directly to the station; when they arrived the attendant said nothing but indicated by pointing that the robber had fled east on Route 58. Unaware that a cаr was involved, the officers drove for several minutes around the streets nearest the station, and finding nothing, proceeded further on Routе 58. They found a green Sinclair hat lying in one of the eastbound lanes of the intersection of routes 57 and 58, from which they opined that the felon was leaving the city. The patrol ear accelerated and continued on Route 58. Just beyond the city limits of Martinsville the officers nоticed oil smoke or mist on the highway left recently by a vehicle traveling very fast. The officers saw no east-bound traffic until they approached the Pittsylvania County line, where the taillights of a car a mile or so ahead appeared. Minutes later the policеmen came upon two cars, one traveling rapidly and weaving between the eastbound lanes. As the patrol car closed to within four or five carlengths of the speeding vehicle and its lights fell on its driver, he threw paper currency from the window onto the highway. The offiсers engaged their siren and red lights, the other car slowed to a stop and the petitioner, sole occupant of the car, wаs immediately arrested.
Petitioner does not contend that there was no probable cause for his arrest. Rather he claims that thе officers were not in close pursuit of the petitioner within the enabling provisions of Section 19.1-94 of the Code of Virginia. That section рrovides in pertinent part:
The authority of any officer of any county, city or town authorized by law to make arrests shall extend * * * throughout the State when in close pursuit of a person sought to be arrested on the ground that such person has committed a felony in this State, even though no warrant has been issued.
Close pursuit is pursuit instituted immediately and with intent to recapture or reclaim, as where a thief is fleeing with stolen goods. State v. Goff,
We hold that the officers were in close pursuit of the petitioner. Within minutes of the robbery, Creasy and Dodson had begun an unbroken search, armed with a description of the perpetrator. At successive stages, they found clues that indicated not only the direction of the petitioner’s flight but ultimately his identity. The time elapsed from felony to arrest did not greatly exceed a quarter hour. It is not fatal to our holding that the officers did not see the petitioner until they were beyond the city limits of Martinsville. State v. Murray, Mo.Supp.,
None of petitioner’s remaining claims has beеn presented to the state courts either in direct or collateral proceedings. We hold that Mr. Reyes has failed to exhaust his available state remedies pursuant to the provisions of
Accordingly, it is ordered that the petition for a writ of habeas corpus be dismissed and the relief denied. This dismissal is withоut prejudice to the refiling of a petition on the claims not adjudicated here afte.r he exhausts his available state remediеs.
If the petitioner wishes to appeal this judgment or any part thereof, he should file with the clerk of this court within 30 days a notice of appeal. Failure to file notice of appeal within 30 days may result in a denial of the right of appeal. The notice of appeal shall state the following:
1. the judgment, order or part thereof appealed from;
2. the party or parties taking the appeal ; and
3. the court (United States Court of Appeals for the Fourth Circuit) to which the appeal is taken.