434 F2d 1062 Owens v. A Eyman

434 F.2d 1062

Andrew OWENS, Appellant,
Frank A. EYMAN, Warden, Appellee.

No. 25149.

United States Court of Appeals, Ninth Circuit.

Nov. 18, 1970.

Andrew Owens, in pro. per.

Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, Ariz., for appellee.

Before BARNES, ELY, and KILKENNY, Circuit Judges.


view counter

Owens is an Arizona state prisoner. He appeals from an order denying his application for habeas corpus relief.


After his first state court trial resulted in jury disagreement and a mistrial, Owens was again tried for the charged offense, robbery, and, this time, convicted. At the second trial the state introduced, over objection, the reporter's transcript of the testimony of a witness who had testified for the prosecution during the first trial. Owens contends that this violated his Sixth and Fourteenth Amendment rights of confrontation and cross-examination.


When an unavailable witness has given testimony at previous judicial proceedings against the same defendant and was subject to cross-examination by that defendant, the introduction of that previously recorded testimony does not violate the confrontation requirement, provided 'the prosecutorial authorities have made a good-faith effort to obtain (the witness') presence at trial.' Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968).


Here the District Court found, on an undisputed state court record, that the state had made a good-faith effort to locate the missing witness for production at the second trial. We are not persuaded that we should disturb that finding.


The facts surrounding the search for the absent witness were summarized by the Arizona Supreme Court in its affirmance of Owens' direct appeal. State v. Owens, 103 Ariz. 541, 447 P.2d 233 (1968). The District Court was not required to hold an evidentiary hearing because Owens' petition presented no factual dispute not already fully and fairly resolved in the Arizona courts. Townsend v. Sain, 372 U.S. 293, 309-313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Rainsberger v. Fogliani, 380 F.2d 783, 785 (9th Cir. 1967).