Dwight Loren Smith, 32156 v. Hoyt C. Cupp, Superintendent, Oregon State Penitentiary

In 1967, Dwight Loren Smith was convicted in the state of Oregon of second-degree murder and sentenced to a term in the Oregon State Penitentiary not to exceed twenty-five years. The conviction was affirmed by the Court of Appeals of the State of Oregon on September 12, 1969. Smith’s petition to that court for rehearing was denied on November 5, 1969. A subsequent petition for review in the Oregon Supreme Court was also denied.

Smith then filed a petition for federal habeas corpus relief in the United States District Court. The court dismissed the petition in a memorandum opinion and order filed April 23, 1970. Smith appeals, presenting five arguments for reversal.

First, Smith argues, he was denied due process under Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968) and Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967). Smith urges that the in-court identifications of him as the murderer were tainted by a prior showing of photographs to some eyewitnesses and by individual post-arrest confrontations between Smith and other eyewitnesses.

The district court ruled that the photographic identifications were not “so impermissibly…