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    Delphos B. Burns v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, 353 F.2d 489, 10th Cir. (1965)

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    The document summarizes a court case involving a habeas corpus petition filed by a prisoner, Delphos Burns, challenging the validity of his conviction and sentence. The court dismissed Burns' petition after a hearing. The appellate court remanded the case for further proceedings, finding that Burns was not given a fair opportunity to produce evidence supporting his allegation that prosecutors knowingly used perjured testimony. The appellate court also noted that Burns must first exhaust all available state remedies before seeking habeas relief in federal court.

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    Delphos B. Burns v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, 353 F.2d 489, 10th Cir. (1965)

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    The document summarizes a court case involving a habeas corpus petition filed by a prisoner, Delphos Burns, challenging the validity of his conviction and sentence. The court dismissed Burns' petition after a hearing. The appellate court remanded the case for further proceedings, finding that Burns was not given a fair opportunity to produce evidence supporting his allegation that prosecutors knowingly used perjured testimony. The appellate court also noted that Burns must first exhaust all available state remedies before seeking habeas relief in federal court.

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    Filed: 1965-11-26 Precedential Status: Precedential Citations: 353 F.2d 489 Docket: 8043

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    The document summarizes a court case involving a habeas corpus petition filed by a prisoner, Delphos Burns, challenging the validity of his conviction and sentence. The court dismissed Burns' petition after a hearing. The appellate court remanded the case for further proceedings, finding that Burns was not given a fair opportunity to produce evidence supporting his allegation that prosecutors knowingly used perjured testimony. The appellate court also noted that Burns must first exhaust all available state remedies before seeking habeas relief in federal court.

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    Public Domain
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    62 views2 pages

    Delphos B. Burns v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, 353 F.2d 489, 10th Cir. (1965)

    Uploaded by

    Scribd Government Docs
    The document summarizes a court case involving a habeas corpus petition filed by a prisoner, Delphos Burns, challenging the validity of his conviction and sentence. The court dismissed Burns' petition after a hearing. The appellate court remanded the case for further proceedings, finding that Burns was not given a fair opportunity to produce evidence supporting his allegation that prosecutors knowingly used perjured testimony. The appellate court also noted that Burns must first exhaust all available state remedies before seeking habeas relief in federal court.

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    of 2

    353 F.

    2d 489

    Delphos B. BURNS, Appellant,


    v.
    Sherman H. CROUSE, Warden, Kansas State Penitentiary,
    Lansing, Kansas, Appellee.
    No. 8043.

    United States Court of Appeals Tenth Circuit.


    Nov. 26, 1965.

    Morrison Shafroth, of Grant, Shafroth, Toll & McHendrie, Denver, Colo.,


    (Charles L. Saunders, Jr., Denver, Colo., with him on the brief), for
    appellant.
    Richard H. Seaton, Asst. Atty. Gen., of Kansas, (Robert C. Londerholm,
    Atty. Gen., of Kansas with him on the brief), for appellee.
    Before MURRAH, Chief Judge, and PICKETT and HILL, Circuit Judges.
    PER CURIAM.

    The appellant Burns is a prisoner in the Kansas State Penitentiary where he is


    serving a sentence of not less than 5 years nor more than 21 years for the crime
    of first-degree manslaughter. In this habeas corpus action attacking the validity
    of the sentence, he alleges that myriad errors occurred during the trial in the
    state court, where he was represented by retained counsel. The court dismissed
    the petition after a hearing, at which Burns testified at length. Burns is
    represented before this court by eminent counsel, who contends only that the
    petitioner was not given a fair opportunity at the hearing below to produce
    evidence in support of his allegation that the prosecution had knowingly used
    perjured testimony to obtain his conviction, and that the case should therefore
    be remanded for further proceedings. We are satisfied that this is the only
    constitutional question to be considered. Habeas corpus cannot be used as a
    substitute for appeal. Miller v. Crouse, 10 Cir., 346 F.2d 301.

    The record discloses that Burns has brought a number of habeas corpus actions
    in the Kansas state courts, but it does not show that issues were there considered

    and disposed of. The attorney general of the State of Kansas stated before the
    bar of this court that the most recent state action was now pending in the
    Supreme Court of Kansas. The Kansas statutes provide a remedy in the state
    court, similar to that found in 28 U.S.C. 2255, to test the validity of a state court
    judgment and sentence under which a prisoner is being held in custody. K.S.A.
    60-1507. A state prisoner can maintain a habeas corpus petition in the federal
    courts only when it appears that the applicant has exhausted the remedies
    available to him in the state courts. 28 U.S.C. 2254. Fay v. Noia, 372 U.S. 391,
    83 S.Ct. 822, 9 L.Ed.2d 837; Wagenknecht v. Crouse, 10 Cir., 344 F.2d 920;
    Von Eiselein v. Taylor, 10 Cir., 344 F.2d 919; Henry v. Tinsley, 10 Cir., 344
    F.2d 109. In federal habeas corpus proceedings brought by state prisoners, the
    district court should require a showing that the petitioner has exhausted his state
    remedies on the issues presented. Finan v. Crouse, 10 Cir., 352 F.2d 507;
    Wagenknecht v. Crouse, supra.
    3

    Judgments of state courts on constitutional questions are not conclusive, but


    they should be given weight, and they may be accepted if there has been a full
    and fair hearing by the state court on the same constitutional issues. Cordova v.
    Cox, 10 Cir., 351 F.2d 269; Miller v. Crouse, supra. The law appears to be
    settled, however, that upon proper showing that the constitutional right of an
    accused have not been respected, the federal courts are dutybound to make an
    independent investigation of the entire record and determine whether the state
    court's findings have substantial support in the evidence. When there is a trialtype hearing, the petitioner should be permitted to produce any relevant
    evidence.

    During the pendency of this action, the petitioner filed additional petitions for
    habeas corpus on conventional forms supplied to him. 1 The petitions were
    dismissed for the reason that they presented the same issues as in the present
    case. These petitions, together with the orders of dismissal, have been
    transmitted to this court as a part of the record in this case. We have examined
    the allegations contained therein and find no error in the orders of dismissal.

    The judgment of dismissal as to the present petition is set aside and the case is
    remanded for further consideration according to the views herein expressed.

    These petitions were given docket numbers 3699HC, and 3795HC in the
    district court

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