Roger Allen Marsh v. Hoyt C. Cupp, Superintendent, Oregon State Penitentiary

This is an appeal from the denial of a petition for a writ of habeas corpus by a federal district judge where the petitioner was a state prisoner.

Issues listed in 110(a), (b), (c), and (d), of the appellant’s Petition for Writ of Habeas Corpus (after his state court conviction for rape), each allege a denial of “due process.”

Paragraph 11(a) sets forth, in factual support of 10(a), that the “Allen Charge” was given the jury twice, allegedly in error the second time.

Paragraph 11(b) sets forth, in support of 10(b), that when the jury was twice instructed after becoming deadlocked, it was not re-instructed as to the burden of proof being on the state.

Paragraph 11(c) sets forth in support of 10(c) an argument that the evidence to convict was insufficient.

Paragraph 11(c) sets forth in support of 10(d) that it was error to instruct the jury that “Every witness is presumed to speak the truth.”

After Marsh’ conviction, in 1970, his counsel took an appeal. His conviction was affirmed from the bench by the Oregon State Court of Appeals on June 21, 1971 ( 485 P.2d 1253 ), and by the Supreme Court of Oregon in a careful 12-page opinion on November 5, 1971 ( 490 P.2d 491…