Jesse Eugene Dearinger v. United States

Petitioner, Jesse Eugene Dearinger, appeals from an order dismissing, without hearing, his application for relief under 28 U.S.C. § 2255 . We summarize the testimony.

On November 21, 1962, three men participated in a bank robbery in Pierce County, Washington. One of them, Weinreieh, 1 stayed with the auto, while Shannon 2 and Dearinger entered the bank.

Once inside, Shannon pulled a gun and announced that a holdup was in progress. While he stood guard in the lobby, Dearinger went behind the tellers’ cages and collected the money from the drawers.

In the meantime, a customer who was entering the bank saw the holdup in' progress. He immediately notified deputy sheriff Durham, who arrived as the two robbers were headed toward the car. When they disregarded his command to halt, Durham opened fire. Shannon fled, with deputy Durham in pursuit. While deputy Durham was engaged in a fruitless pursuit of Shannon, the other two robbers also escaped. The money was subsequently recovered from a nearby field.

On June 14, 1963, Dearinger was arrested. Shannon and Weinreieh were also in custody. On the following day, photographs of all three men were published on the front page of a local…

(concurring and dissenting).

I concur in the majority opinion except those portions that relate to Dearinger’s claim that the in-court identification testimony was tainted by impermissibly suggestive pretrial procedures.

I first dispose of the question whether the issue is foreclosed because Dearinger did not raise it at his second trial or upon his second appeal. 1 His failure to raise the issue cannot be deemed a waiver because the outlines of the constitutional claim did not emerge until Simmons v. United States (1968) 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 , a case that came down almost a year after his second appeal was concluded.

Simmons held that “convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifieation.” ( 390 U.S. at 384 , 88 S.Ct. at 971 .) When the Simmons standard is met, the use of such tainted pretrial identification procedure is a denial of due process of law. (Foster v. California (1969) 394 U.S. 440, 442 , 89…

468 F.2d 1032 Jesse Eugene DEARINGER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 71-2806. United States Court of Appeals, Ninth Circuit. Oct. 16, 1972. Rehearing Denied Dec. 1, 1972. Paul W. Whelan (argued), of Schroeter, Jackson, Goldmark & Bender, Seattle, Wash., for petitioner-appellant. Charles W. Billinghurst, Asst. U. S. Atty. (argued), Tacoma, Wash., for respondent-appellee. Before HAMLIN, HUFSTEDLER and GOODWIN, Circuit Judges. HAMLIN, Circuit Judge. 1 Petitioner, Jesse Eugene Dearinger, appeals from an order dismissing, without hearing, his application for relief under 28 U.S.C. Sec. 2255 . We summarize the testimony. 2 On November 21, 1962, three men participated in a bank robbery in Pierce County, Washington. One of them, Weinreich, 1 stayed with the auto, while Shannon 2 and Dearinger entered the bank. 3 Once inside, Shannon pulled a gun and announced that a holdup was in progress. While he stood guard in the lobby, Dearinger went behind the tellers' cages and collected the money from the drawers. 4 In the meantime, a customer who was entering the bank saw the holdup in progress. He immediately notified deputy sheriff Durham, who…