577 F2d 466 Smith v. V Brewer

577 F.2d 466

Walter SMITH, Jr., Appellant,
v.
Lou V. BREWER, Warden, Appellee.

No. 78-1109.

United States Court of Appeals,
Eighth Circuit.

Submitted June 16, 1978.
Decided June 22, 1978.

John C. Wellman and Robert R. Rigg, Des Moines, Iowa, on brief for appellant.

Richard C. Turner, Atty. Gen., and Thomas D. McGrane, Asst. Atty. Gen., Des Moines, Iowa, on brief for appellee.

Before STEPHENSON, Circuit Judge, INGRAHAM,* Senior Circuit Judge and HENLEY, Circuit Judge.

PER CURIAM.

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1

Walter Smith, Jr. appeals from the district court's1 denial of his petition for a writ of habeas corpus. We affirm.

2

On March 20, 1973, appellant Smith was convicted in Polk County District Court in Iowa of first degree murder. Smith appealed his conviction to the Supreme Court of Iowa on two grounds: (1) the evidence was not sufficient to support a first degree murder conviction, and (2) jury misconduct deprived him of a fair trial. The Supreme Court of Iowa rejected both arguments and affirmed Smith's conviction. State v. Smith, 240 N.W.2d 693 (Iowa 1976).

3

Smith then filed the instant action in federal district court seeking a writ of habeas corpus. Smith alleged that jury misconduct deprived him of his Sixth Amendment rights as guaranteed by the Fourteenth Amendment to be tried by an impartial jury and to confront witnesses against him. The district court, in a well-reasoned opinion, denied appellant Smith's application for a writ of habeas corpus. Smith v. Brewer, 444 F.Supp. 482 (S.D.Iowa 1978). This appeal followed.

4

Smith argues, as he did below, that several incidents which took place during jury deliberations violated his Sixth Amendment right to a fair and impartial jury. These incidents include (1) pressures brought on one juror by other jurors; (2) possible intrusion of racial considerations into the jury's deliberations; (3) one or more juror's comments concerning the belief that Smith was likely to commit future violent crime unless convicted; (4) an indication that one juror compared Smith's case with an earlier trial in which the same juror had served; (5) an indication that the jury used against Smith the fact that he was on bail; and (6) an alleged wager among jurors whether one particular juror would break her promise to vote guilty after hearing certain evidence repeated.

5

The district court addressed each of these contentions in its published opinion. Upon a careful consideration of the record and of the briefs of the parties, we have concluded that the decision of the district court should be affirmed on the basis of the district court's opinion. Judge Hanson's decision is based on findings2 that are not clearly erroneous and no error of law appears. For these reasons, the district court's denial of Smith's petition for a writ of habeas corpus is affirmed.

6

Affirmed.

*

The Honorable Joe M. Ingraham, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation

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1

The Honorable William C. Hanson, Senior United States District Judge for the Southern District of Iowa

2

The parties agreed below to submit the cause for decision on the basis of the record developed in the state court