George E. Myers v. State of Washington

646 F.2d 355 George E. MYERS, Petitioner-Appellant, v. STATE OF WASHINGTON et al., Respondents-Appellees. No. 80-3031. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 8, 1981. Decided May 26, 1981. As Amended May 28, 1981. Rehearing and Rehearing En Banc Denied Sept. 8, 1981. Samuel D. Ellis, San Francisco, Cal., for petitioner-appellant. David R. Minikel, Olympia, Wash., for respondents-appellees. Appeal from the United States District Court for the Eastern District of Washington. Before PREGERSON, POOLE, and NORRIS, Circuit Judges. PREGERSON, Circuit Judge: 1 George E. Myers appeals from the district court's denial of his petition, pursuant to 28 U.S.C. § 2254 , for habeas corpus relief. Appellant advances several challenges to his conviction of second-degree murder in a 1957 Washington state trial. I. 2 On the morning of May 18, 1957, passers-by discovered the body of Sigurd Oliver lying in a ditch in Kings County, Washington. Two days later, Myers was arrested. After a three and one-half hour session of police interrogation, Myers signed a statement admitting that he had beaten Oliver with his fists and a heavy metal object and left him lying…

George E. Myers appeals from the district court’s denial of his petition, pursuant to 28 U.S.C. § 2254 , for habeas corpus relief. Appellant advances several challenges to his conviction of second-degree murder in a 1957 Washington state trial.

I.

On the morning of May 18, 1957, passersby discovered the body of Sigurd Oliver lying in a ditch in Kings County, Washington. Two days later, Myers was arrested. After a three and one-half hour session of police interrogation, Myers signed a statement admitting that he had beaten Oliver with his fists and a heavy metal object and left him lying alongside the road. The next day, in a television broadcast, Myers repeated essentially the same confession to a television news reporter.

Myers was tried in September 1957. The statement he signed was admitted into evidence against him. Myers testified at his trial, stating that he had beaten Oliver after Oliver had made a homosexual advance toward him. Myers was found guilty of murder in the second degree, and his conviction was affirmed on appeal. State v. Myers, 53 Wash.2d 446 , 334 P.2d 536 (1959).

Two decades after his trial, Myers petitioned the Washington Supreme Court for release from…

dissenting:

The majority opinion holds that the values underlying the rule established by the Supreme Court in Wainwright v. Sykes are not implicated by Myers’ claim of error in certain of his jury instructions, and that therefore the Sykes rule does not apply to that claim. The majority further holds that, even if Sykes is applicable, its require *364 ments are satisfied: in its view, Myers has made out a sufficient showing of “cause” and “prejudice” to overcome the Sykes bar to habeas review. From both holdings, I respectfully dissent.

I. Applicability of Sykes to Myers’ Claim

Baldly stated, the majority’s position is that where a constitutional claim “had not yet been identified” and was, in fact, “unknown” at the time of trial or direct appeal, the federal interests that prompted adoption of the Sykes rule are not involved, and that rule ought therefore not to be applied. The objection to this murky epistemology is that it is not at all clear what is meant by the word “unknown.” If the majority truly means by this word to single out those constitutional arguments for which there is no record that they had yet been made or thought of, that is not the case before us. Although…

concurring:

I concur in the result. As I see it, the pivotal issue in this case is whether Myers has made a sufficient showing of “cause” under Wainwright v. Sykes to overcome the bar created by his failure to object to the defective jury instruction in the state trial court or on direct appeal. While Myers’ current constitutional claim may have been “on the frontier of the criminal law” at the time of his trial, I believe the law of presumptions appeared at that time to be so well settled that Myers could reasonably have believed that raising such a claim would be futile. Accordingly, I conclude that Myers had adequate “cause” for his failure to object to the defective jury instruction. See Isaac v. Engle, 646 F.2d 1129 at 1133-1134 (6th Cir. 1980), cert. granted,-U.S.-, 101 S.Ct. 3141 ,-L.Ed.2d-(1981). A contrary result would, as Judge Pregerson notes in his opinion, “simply encourage defense attorneys to raise on appeal every conceivable constitutional challenge that might some day be accepted — and thus overload their briefs with unmeritorious issues.”