Eugene Fields v. State of Alaska and William Huston, Superintendent of the Juneau Correctional Institution

524 F.2d 259 Eugene FIELDS, Petitioner-Appellant, v. STATE OF ALASKA and William Huston, Superintendent of the Juneau Correctional Institution, Respondents-Appellees. No. 74-1679. United States Court of Appeals, Ninth Circuit. Oct. 14, 1975. William G. Ruddy (argued), Juneau, Alaska, for petitioner-appellant. Thomas K. Williams, Asst. Atty. Gen. (argued), Fairbanks, Alaska, for respondents-appellees. OPINION Before DUNIWAY, TRASK and SNEED, Circuit Judges. PER CURIAM: 1 This is an appeal from the denial by the district court of a writ of habeas corpus. 1 2 On December 11, 1967, two masked men committed an armed robbery in a tavern in Anchorage, Alaska. They herded the owner and three customers into a rest room and barricaded them inside. After the robbers left, the four men broke out to discover the cash register rifled and $2,200 missing. Later the police discovered that an additional $40 was taken from a drawer located behind the bar across from one of the cash registers. The drawer also contained a small file box which held customers' IOU's. The file box had been ransacked. Several fingerprints were lifted from index separator cards used in the file box. The file box was kept…

This is an appeal from the denial by the district court of a writ of habeas corpus. 1

On December 11, 1967, two masked men committed an armed robbery in a tavern in Anchorage, Alaska. They herded the owner and three customers into a rest room and barricaded them inside. After the robbers left, the four men broke out to discover the cash register rifled and $2,200 missing. Later the police discovered that an additional $40 was taken from a drawer located behind the bar across from one of the cash registers. The drawer also contained a small file box which held customers’ IOU’s. The file box had been ransacked. *260 Several fingerprints were lifted from index separator cards used in the file box. The file box was kept at locations so that only bar employees had access to it. Petitioner was arrested as a result of fingerprint evidence.

At trial in the Alaska State Court a fingerprint expert testified that a print lifted from the index separator cards was petitioner’s. The owner of the bar testified that Fields could have been the robber because of his height and build. He stated that he had seen Fields at the bar on an occasion prior to the robbery. One. of the customers…

(dissenting):

I dissent. I would reverse and remand for further proceedings.

Under 28 U.S.C. § 2243 , the trial judge was required to award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto. I cannot say that, in this case, it appears from Fields’ application that he is not entitled to the writ. The trial judge, however, in a written opinion and order, permitted Fields’ pro per petition for a writ of habeas corpus to be filed in forma pauperis and denied it. He did not issue an order to show cause and he did not hold a hearing. I think that in this case this was error.

The trial judge had before him only the petition, the opinion of the Supreme Court of Alaska, and the briefs filed in that court in Fields’ appeal. He did not have the trial transcript or the evidence that Fields says that the prosecutor withheld. I do not think, on this record, it is possible to say with any assurance that Fields is not entitled to the writ.

The trial judge, and the majority opinion, rely in part on a “positive” identification of Fields by one…