540 F2d 390 Poindexter v. L Wolff

540 F.2d 390

Edward POINDEXTER, Appellant,
v.
Charles L. WOLFF, Jr., as Warden of the Nebraska Penal and
Correctional Complex in Lincoln, Nebraska, Appellee.

No. 75-1919.

United States Court of Appeals,
Eighth Circuit.

Submitted May 13, 1976.
Decided Aug. 10, 1976.
Rehearing Denied Sept. 17, 1976.

Kenneth E. Tilsen, St. Paul, Minn., for appellant; Jacqueline D. Quick, St. Paul, Minn., on brief.

Melvin K. Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for appellee; Paul L. Douglas, Atty. Gen., Lincoln, Neb., on brief.

Before BRIGHT and WEBSTER, Circuit Judges, and TALBOT SMITH, Senior District Judge.*

PER CURIAM.

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1

Edward Poindexter, an inmate in custody at the Nebraska Penal and Correctional Complex in Lincoln, Nebraska, appeals from the dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Poindexter and his co-defendant, David Rice, were convicted of first degree murder in April, 1971, after trial in Nebraska state court. The convictions were affirmed by the Nebraska Supreme Court. State v. Rice, 188 Neb. 728, 199 N.W.2d 480 (1972).

2

The facts are set forth in full in the Memorandum of Decision of the District Court.1 Poindexter v. Wolff, 403 F.Supp. 723 (D.Neb.1975). See also Rice v. Wolff, 388 F.Supp. 185 (D.Neb.1974), aff'd, 513 F.2d 1280 (8th Cir. 1975), rev'd sub nom. Stone v. Powell, --- U.S. ----, 96 S.Ct. 3037, 48 L.Ed.2d ---- (1976).

3

* The principal contentions on appeal are that evidence admitted at the trial was the fruit of (1) an illegal search of co-defendant Rice's residence and (2) the post-arrest warrantless seizure and search of Poindexter's clothing. The District Court rejected these contentions, holding (1) that Poindexter was without standing to challenge the search at Rice's residence and (2) that Poindexter was arrested upon probable cause and the seizure and search of his clothing for evidence were lawful.

4

Subsequent to the decision of the District Court, the United States Supreme Court has limited the scope of relief available pursuant to 28 U.S.C. § 2254:

5

We hold * * * that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

6

Stone v. Powell, supra, --- U.S. at ----, 96 S.Ct. at 3045.

7

The search and seizure contentions presented by Poindexter were accorded a full and fair opportunity for litigation in the Nebraska state courts. See State v. Rice, supra, 188 Neb. at 731-45, 199 N.W.2d at 484-91. As to these contentions, therefore, Poindexter has failed to state a claim for relief cognizable under 28 U.S.C. § 2254. Stone v. Powell,supra, --- U.S. at ----, 96 S.Ct. at 3049-3052.

II

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8

Additional contentions raised in this appeal are (1) that admission of politically radical newsletters purportedly written in part by Poindexter denied him his Sixth Amendment right of confrontation and prejudicially influenced the jury against him; (2) that admission of a photograph of the body of the slain police officer was prejudicially inflammatory; (3) that the testimony of the government's key witness was both coerced and perjured with knowledge of the government; and (4) that refusal to grant a separate trial denied Poindexter due process. Finally, Poindexter contends that he was denied a fair trial by the cumulative effect of these errors.

9

Each of these contentions was considered and rejected by the District Court in a well-reasoned opinion. Poindexter v. Wolff, supra. We have carefully reviewed the record and are convinced that the findings of fact of the District Court, based upon substantial evidence, are not clearly erroneous and that no error of law has been shown. We accordingly affirm the dismissal of the petition as to these contentions on the basis of Judge Urbom's opinion.

10

Affirmed.

*

The Honorable Talbot Smith, Senior Judge, United States District Court for the Eastern District of Michigan, sitting by designation

1

The Honorable Warren K. Urbom, Chief Judge, United States District Court for the District of Nebraska