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Docket Number

No. 116.

Attorney(S)

Harold Pendergrass, pro se.

Judges

James Levin Latchum

Acts

Judiciary And Judicial Procedure — Habeas Corpus — Particular Proceedings — State Custody; Remedies In Federal Courts

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Smart Summary

United States District Court (D. Delaware) — Harold Pendergrass v. Raymond W. Anderson

Factual and Procedural Background

Harold Pendergrass, a state prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, proceeding in forma pauperis. He had been convicted by a jury in the Superior Court of Delaware, New Castle County, of possession of heroin and sentenced to three years' imprisonment. He is incarcerated at the New Castle Correctional Institution. On direct appeal the Delaware Supreme Court affirmed the conviction in an unreported opinion dated May 14, 1969. Prior to filing in federal court, Pendergrass filed a handwritten "motion to correct illegal sentence" under Delaware Criminal Rule 35(a); the opinion notes it is unclear whether his present contentions were previously raised in the Superior Court and, for purposes of the opinion, assumes they were not.

Legal Issues Presented

Whether the petitioner's Fifth Amendment privilege against self-incrimination was violated because the prosecution called a witness (Richard Thornton), which the petitioner contends compelled him to testify.
Whether the trial court committed prejudicial error by permitting testimony (from a narcotics addict) that he had purchased heroin from the petitioner.
Whether the heroin found was the petitioner's "possession" (including whether possession was instead the result of a search of his automobile) such that the federal court may review that contention.
Whether the use at trial of heroin seized in the search violated the Fourth Amendment.
Whether the petitioner was denied his Sixth Amendment right to counsel and whether Miranda v. Arizona warnings were required or were adequately given.
Whether the petition is barred by 28 U.S.C. § 2254(b) for failure to exhaust state remedies.

Arguments of the Parties

Petitioner's Arguments

The petitioner contends he was "compelled to be a witness against himself" in violation of the Fifth Amendment because the prosecution called Richard Thornton.
He asserts prejudicial error because the court allowed a narcotics addict to testify that in the past he had purchased heroin from the petitioner.
He argues the heroin was not in his possession but was the product of a search of his automobile.
He claims the heroin was used against him at trial in violation of the Fourth Amendment.
He contends he was denied his Sixth Amendment right to counsel because officers failed to advise him of his rights, invoking Miranda v. Arizona to argue that police testimony alone is insufficient to establish an intelligent waiver.

The opinion does not contain a detailed account of the respondent's separate legal arguments beyond the record evidence and police testimony relied upon by the Court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States ex rel. Austin v. Anderson, 293 F. Supp. 1356 (D. Del. 1969)	Application of the exhaustion requirement under 28 U.S.C. § 2254(b).	The Court cited Austin for the proposition that because the petitioner's contentions had not been passed upon by the state courts, he had not complied with § 2254(b) and the writ could not issue even if his contentions were sound.
United States ex rel. Drew v. Myers, 327 F.2d 174 (3d Cir. 1964)	Authority that a federal court may deny a habeas petition where the claims appear to be without merit.	The Court invoked Drew to support its power to deny the petition despite the exhaustion deficiency because the claims lacked merit.
United States ex rel. Auld v. Warden of New Jersey State Penitentiary, 187 F.2d 615 (3d Cir. 1951)	Same principle as Drew regarding denial of meritless habeas petitions.	The Court relied on Auld along with Drew to justify denying the petition on the merits even though state remedies had not been exhausted.
Raffel v. United States, 271 U.S. 494 (1926)	That a defendant can waive the Fifth Amendment privilege by electing to take the stand and thereby subjects himself to cross-examination.	The Court cited Raffel to explain that petitioner's testimony waived the privilege and undercut his compulsion claim.
Johnson v. United States, 318 U.S. 189 (1943)	Similarly, that taking the stand constitutes a waiver of the Fifth Amendment privilege.	The Court cited Johnson alongside Raffel to support the conclusion that the petitioner waived his right by testifying before Thornton was called.
Miranda v. Arizona, 384 U.S. 436 (1966)	Requirements for warnings in custodial interrogations and that the prosecution must demonstrate warnings were given; the burden on the government.	The Court distinguished Miranda as addressing custodial interrogation (which was not present here), noted Miranda's statement that warnings must be demonstrated and that a heavy burden rests on the government, and held that police testimony was admissible and sufficient to show warnings were given if needed.
Fitzsimmons v. Yeager, 391 F.2d 849 (3d Cir. 1968)	Standard for certification that there is probable cause for an appeal.	The Court cited Fitzsimmons to state that there was no probable cause for an appeal in this case.

Court's Reasoning and Analysis

The Court began by noting the statutory exhaustion requirement of 28 U.S.C. § 2254(b) and that the petitioner's claims had not been passed upon by the state courts; therefore the Court could not grant affirmative habeas relief. Citing Austin, however, the Court explained that it retained the power to deny a petition when the claims are without merit (citing Drew and Auld).

Addressing the Fifth Amendment compulsion claim, the Court found the argument without merit: the petitioner voluntarily elected to testify in his own defense before the prosecution produced Mr. Thornton on rebuttal; established authority (Raffel and Johnson) shows that taking the stand waives the privilege against self-incrimination. The Court emphasized that fear of the prosecution's case is not the sort of legal compulsion the Fifth Amendment forbids.

On the alleged prejudicial error arising from a narcotics addict's purported testimony that he had purchased heroin from the petitioner, the Court examined the trial transcript and found the offered witness never took the stand. The judge excluded the offer of proof outside the jury's hearing and instructed the jury to disregard the calling of the witness; on those facts the Court concluded there was no prejudicial error.

The Court treated the petitioner's contention that the heroin was not his possession (being instead the product of a search of his automobile) as a question of state law. Relying on the limitation in 28 U.S.C. § 2254(a), the Court held that issues about the elements of a state offense—such as whether the heroin was in the petitioner's "possession"—do not generally present federal constitutional questions and are beyond the Court's review, so that claim was dismissed for failure to raise a constitutional issue.

Regarding the Fourth Amendment claim, the Court found the search was conducted pursuant to a valid search warrant and that the trial transcript revealed no violation of the petitioner's Fourth Amendment rights.

On the Sixth Amendment / Miranda claim, the Court distinguished the present circumstances from Miranda because there was no custodial interrogation: officers executed a valid search warrant, and petitioner made voluntary, spontaneous statements upon entry and later during the search. The Court further held that, even if the statements were the product of custodial interrogation, the officers' testimony established that the petitioner had been informed of his Fifth and Sixth Amendment rights; the Court rejected the petitioner's contention that police testimony alone could not satisfy Miranda's requirements.

Holding and Implications

The petition for writ of habeas corpus is dismissed and the writ is denied.

Direct effect: the petitioner's federal habeas petition under 28 U.S.C. § 2254 was denied on the merits for the reasons stated (failure to exhaust state remedies notwithstanding, the Court found the claims without merit), and the Clerk was ordered to send a certified copy of the Opinion and Judgment to the petitioner and respondent. The opinion does not announce or purport to establish any new legal precedent beyond applying existing law to the facts of this case.

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UNITED STATES of America ex rel. Harold PENDERGRASS, Petitioner, v. Raymond W. ANDERSON, Warden, New Castle Correctional Institution, Respondent.

OPINION AND JUDGMENT

LATCHUM, District Judge.

This case is before the Court upon a petition for a writ of habeas corpus filed by Harold Pendergrass, a state prisoner, pursuant to the provisions of 28 U.S.C. § 2254. The petition was filed in forma pauperis.

The petitioner was convicted of possession of heroin after a jury trial in the Superior Court of the State of Delaware in and for New Castle County and was sentenced to three years imprisonment. Pursuant to that sentence he is now in respondent's custody in the New Castle Correctional Institution.

An appeal was taken to the Delaware Supreme Court on the ground that the State's evidence was totally circumstantial and insufficient to justify the conviction. In an unreported opinion of May 14, 1969 that court affirmed the conviction.

Prior to petitioning this Court, Pendergrass filed in the State sentencing court a "motion to correct illegal sentence" under Criminal Rule 35(a), Del.C.Ann. It is unclear from reading the handwritten Rule 35 motion whether petitioner previously raised his present contentions in the Superior Court. For the purposes of this opinion, I assume that he has not.

28 U.S.C. § 2254(b) provides that an application for a writ of habeas corpus shall not be granted unless a state prisoner has first exhausted his available state remedies. Because the contentions asserted here have not previously been passed upon by the State courts, petitioner has not complied with that statute and the requested writ could not issue even if his contentions were sound. United States ex rel. Austin v. Anderson, 293 F. Supp. 1356 (D.Del. 1969). However, while this Court is precluded from granting affirmative relief, it has the power to deny a petition where the claims appear to be without merit. United States ex rel. Drew v. Myers, 327 F.2d 174, 183 (C.A.3, 1964); United States ex rel. Auld v. Warden of New Jersey State Penitentiary, 187 F.2d 615, 621 (C.A.3, 1951).

The petitioner first contends here that he was "compelled to be a witness against himself" in violation of the 5th Amendment, because the prosecution called a particular witness to the stand (a Mr. Richard Thornton).

This compulsion argument is without merit. Although it is well settled that a defendant in a criminal case has a 5th Amendment privilege against self-incrimination, it is equally true that he can waive that right by electing to take the stand in his own behalf, thereby allowing the prosecution an opportunity to cross-examine. Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926); Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943). In this connection, it is important to note that at his trial petitioner offered himself as a witness before the State produced Mr. Thornton on rebuttal.

There are many reasons which might lead a defendant to take the stand in spite of his right not to do so. The most obvious is, of course, his desire to deny the charges and explain away prosecution evidence. This type of incentive to testify is not the object of the 5th Amendment immunity; rather, that Amendment is intended to protect a person from being compelled to testify by legal process.

In this case the petitioner was not "compelled" to take the stand. While represented by counsel, he freely elected to testify in order to contradict the incriminating evidence introduced by the prosecution.

Granted, his fear that the prosecution was carrying its burden of proof might have been a strong influence on petitioner to take the stand, yet to hold that such an influence was compulsion of the kind forbidden by the 5th Amendment would be to exclude any incriminating evidence offered by the prosecution. The novelty of such a theory is surpassed only by its absurdity.

The petitioner's second argument is that he was the victim of "prejudicial error" at his trial because the court allowed a narcotics addict to testify that in the past he had purchased heroin from the petitioner. In this assertion the petitioner is more than a little misleading.

An examination of the trial transcript reveals that, although such a witness was offered, he never took the stand. After a side-bar argument as to the admissibility of the offered proof, the judge excluded it and rather thoroughly instructed the jury to disregard even the calling of the witness. On this set of facts, when the offer of proof was made outside the hearing of the jury, there was no prejudicial error.

Thirdly, the petitioner contends that the heroin was not in his possession, but rather was the product of a search of his automobile.

28 U.S.C. § 2254(a) does not permit a federal court to entertain claims which fail to present a constitutional issue. Exactly what elements go to make up an offense under state statutes is a matter of state law and, except in unusual circumstances, lies beyond this Courts' power of review. Whether or not the heroin found in petitioner's automobile was in his "possession" falls into such a category and this Court is obliged to dismiss this claim as a failure to raise a constitutional issue.

The petition next asserts, without more, that the heroin was used against him at his trial in violation of the 4th Amendment. The search which produced the heroin was conducted pursuant to a valid search warrant. A further review of the trial transcript reveals no violation of petitioner's 4th Amendment rights.

Finally, petitioner claims that he was denied his 6th Amendment right to counsel in that the officers failed to advise him of his rights. Although there is police testimony in the record indicating that he was so informed, petitioner contends that under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) "mere testimony of the police officers is not enough" to establish an intelligent waiver of the right to counsel.

First, this case is entirely different from Miranda, which dealt with custodial interrogations. Here the officers, in execution of a valid search warrant, entered petitioner's home and began a search for narcotics; there was no interrogation whatsoever. Upon entry the petitioner stated voluntarily and spontaneously:

"I ain't got nothing now; I got rid of it all. You can't lock me up for anything you find in the car because my windows were open and somebody could have thrown something into it." (Tr. pp. 9-10)

Later during the search of the car pursuant to a warrant petitioner also volunteered: "You might find some smoke in that car" (meaning marijuana) and "I ain't got nothing in this car; you know them addicts want to set me up." (Tr. 14). Neither of these statements was in response to police interrogation.

Even if these statements were the fruit of a custodial interrogation, however, they were made after the officers had repeatedly informed petitioner of his 5th and 6th Amendment rights. (Tr. pp. 9-10, 29). Contrary to petitioner's assertion, testimony of the police officers is admissible and sufficient to prove that the warnings were given. Although Miranda does state that warnings must be demonstrated by the prosecution at trial (p. 479, 86 S.Ct. 1602) and that a "heavy burden rests on the government" to do so (p. 475, 86 S.Ct. p. 1628), at no time does the court suggest that the burden may not be carried by the testimony of police officers.

There is no probable cause for an appeal. Fitzsimmons v. Yeager, 391 F.2d 849 (C.A.3, 1968).

JUDGMENT

For the reasons set forth above, it is ordered and adjudged (a) that the petition for habeas corpus be dismissed and the writ denied and (b) that a certified copy of this Opinion and Judgment be sent by the Clerk to the petitioner and respondent.

UNITED STATES EX REL. PENDERGRASS v. ANDERSON, (D.Del. 1969)