Andrew Owens v. Harold J. Cardwell, Warden, Attorney General, State of Arizona

The issue in this appeal by a state prisoner is whether the district court erred in denying his petition for 28 U.S.C. § 2254 relief. Owens sought an evidentiary hearing to determine the constitutional validity of a 1948 conviction which he alleged had been used to enhance his prison sentence in violation of United States v. Tucker, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 (1972). Our examination of the record satisfies us that there was no need for an evidentiary hearing in the district court.

Owens is serving a 21 to 25 year sentence for kidnapping with intent to rape. After exhausting his Arizona state court appeals from his kidnapping conviction, Owens applied for post-conviction relief in Arizona state court. Because the sentencing judge had retired when Owens brought his post-conviction claim, another Arizona judge was assigned. Owens asserted, among other things, that the Arizona judge who sentenced him had improperly considered a 1948 murder conviction obtained when Owens was not represented by counsel. The new judge, the Honorable C. Kimball Rose, conducted an evidentiary hearing, reviewed the record of the trial and sentencing, and received memoranda from the…