Charles Kreck v. James Spalding

Appellant seeks reversal of the judgment of the District Court for the Eastern District of Washington granting the appellee a Writ of Habeas Corpus and vacating the conviction of the appellee for second degree felony murder. The appellant, State of Washington (hereinafter the “State”), raises on appeal the issues of (1) whether or not the information by which the appellee was charged is sufficient to sustain the appel-lee’s conviction for second degree felony murder, and (2) whether the failure of the appellee to attack the sufficiency of the information prior to trial barred federal habeas relief.

FACTUAL BACKGROUND

Appellee, Charles Kreck, was convicted of second degree felony murder after a non-jury trial in Superior Court for Spokane County, Washington. The Washington Court of Appeals reversed the conviction. 1 On petition of the State, the Washington Supreme Court reversed the decision of the Court of Appeals, affirming the trial court’s decision. State v. Kreck, 86 Wash.2d 112 , 542 P.2d 782 (1975).

Kreck filed a petition for collateral review with the Washington Court of Appeals, which was denied on August 12,1977.

In September of 1977, Kreck filed a petition for a Writ…

dissenting.

I respectfully dissent.

My colleagues have concluded that a state prisoner who failed to make a contemporaneous objection before the appropriate state court as to the sufficiency of the information, or to exhaust his state remedies, may nevertheless raise that issue for the first time in a federal habeas corpus proceeding. It is my view that the majority’s conclusion is in clear conflict with the decision of the United States Supreme Court in Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977) and Ex Parte Royall, 117 U.S. 241 , 6 S.Ct. 734 , 29 L.Ed. 868 (1885). For the reasons set forth below, I would reverse the judgment under compulsion of Wainwright v. Sykes and Ex Parte Royall, and remand this matter to the district court for a determination of the remaining issues raised in the petition which have not been considered on their merits by that court.

*1236 DISPOSITIVE FACTS

Charles Kreck was charged on June 25, 1971 with the crime of second degree murder allegedly committed on June 14, 1971. After his arrest petitioner was found to be incompetent to stand trial and was confined to a state mental institution for over two years until it was…

721 F.2d 1229 Charles KRECK, Plaintiff-Appellee, v. James SPALDING, Defendant-Appellant. No. 81-3106. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 6, 1981. Decided Dec. 13, 1983. 1 Victor J. Felice, Mark Vovos, Vovos, Voermans & Murphy, Spokane, Wash., for plaintiff-appellee. 2 LeRoy C. Kinnie, Chief Deputy Pros. Atty., Spokane, Wash., for defendant-appellant. 3 Appeal from the United States District Court for the Eastern District of Washington. 4 Before SCHROEDER and ALARCON, Circuit Judges, and HATFIELD, * District Judge. 5 HATFIELD, District Judge. 6 Appellant seeks reversal of the judgment of the District Court for the Eastern District of Washington granting the appellee a Writ of Habeas Corpus and vacating the conviction of the appellee for second degree felony murder. The appellant, State of Washington (hereinafter the "State"), raises on appeal the issues of (1) whether or not the information by which the appellee was charged is sufficient to sustain the appellee's conviction for second degree felony murder, and (2) whether the failure of the appellee to attack the sufficiency of the information prior to trial barred federal habeas relief.…