Opinion
No. 9237.
January 10, 1968. Rehearing Denied February 9, 1968.
Mark H. Price, Oklahoma City, Okla., for appellant.
Daniel D. Metz, Asst. Atty. Gen., Topeka, Kan. (Robert C. Londerholm, Atty. Gen., Topeka, Kan., on the brief), for appellee.
Before BREITENSTEIN, HILL and SETH, Circuit Judges.
The appeal is from an order denying a state prisoner's petition for a writ of habeas, the denial being based upon the trial court's conclusion that petitioner had not exhausted his available state court remedies. In substance, petitioner there raised two points: That because of collusion between his retained state court counsel and a county attorney in Kansas his appeal from a state court conviction was dismissed, thus depriving him of his constitutional right of appeal; and that he was denied the effective assistance of counsel.
Because the first point questioned the professional conduct of two members of the bar, one a county attorney in Kansas and the other the lawyer who had been retained by Carpenter and who represented him in several state court criminal prosecutions, the trial judge conducted a full evidentiary hearing concerning the alleged misconduct of the lawyers. The judge thereafter made exhaustive findings of fact and adequate conclusions of law. By these findings the trial judge found no merit to the first point and conclusively showed that appellant has not exhausted his available state court remedies.
Carpenter v. Crouse, Warden, 279 F. Supp. 275.
After the notice of appeal in this case had been filed in the trial court, Carpenter filed a motion in that court to set aside the previous order of dismissal upon the grounds of newly discovered evidence and also asked this court to remand the case for a hearing upon such motion. Such order of remand was entered directing the trial judge to hear the motion and certify to this court whether the same should be granted or denied. A second evidentiary hearing was then held and the trial judge made additional findings of fact based upon the newly discovered evidence and approved and affirmed all of the previously made and filed findings of fact. The additional findings are reported in Carpenter v. Crouse, Warden, supra, and need not be reiterated here.
It is elementary that the trial judge's findings of fact will not be disturbed unless we can say that they are unsupported by the evidence and are clearly erroneous. We have carefully reviewed the entire record before us and must conclude that the findings of fact are amply supported and are not clearly erroneous. We also agree with the trial judge's legal conclusion that Carpenter has not exhausted the state court remedies presently available to him.
The case is therefore affirmed upon the basis of the reported decisions of the trial court upon the case.