Anthony B. Otten v. Hoyt C. Cupp, Warden, Oregon State Penitentiary

Appellant Otten appeals from an order of the District Court denying his petition for a writ of habeas corpus. Appellee is the warden of the state prison in which Otten is confined. Jurisdiction of the District Court was invoked under 28 U.S.C. § 2241 (a) and (c) (3). Our jurisdiction rests on 28 U.S.C. § 2253 .

On appeal Otten contends that an erroneous jury instruction concerning his credibility as a witness deprived him of his right to a fair trial before an impartial jury, in violation of the Fourteenth Amendment. The appellee replies that relief by federal habeas corpus is foreclosed because Otten’s counsel failed to claim error in the instruction at the time of trial and on direct appeal and that even if the issue were not foreclosed, any error in the instruction was not of constitutional magnitude.

Otten was tried and found guilty of charges of assault and armed robbery by a jury in a state court in Oregon. Convincing evidence was introduced by the prosecution to prove Otten’s guilt. Otten testified in his own defense that at the time of the robbery and assault he was in a city about seventy miles from the place the crime was committed. One witness corroborated his alibi.…