Opinion
No. 23094.
Decided September 18, 1967.
Original proceeding by petitioner seeking writ of mandamus requiring respondent, as Judge of district court, to grant him an evidentiary hearing in a post-conviction remedy proceeding. Rule to show cause issued.
Rule Discharged.
1. CRIMINAL LAW — Mandamus — Judge — Evidentiary Hearing — Post-Conviction — Alibi — Contention — Merit. In original proceeding by petitioner seeking writ of mandamus requiring respondent, as Judge of district court, to grant him an evidentiary hearing in a post-conviction remedy proceeding, contention of petitioner, that he has a legal alibi and could not possibly have been guilty of crime of robbery for which he was convicted, affords no ground for post-conviction relief.
2. Alibi — Defense — Trial — Merits — Forum. The proper forum in which to raise the defense of alibi is at a trial on the merits.
3. Strategy — Failure — Another Trial — Different. A defendant may not adopt one line of strategy and, if it fails, then obtain another trial so that he may try again with a different strategy.
4. Evidentiary Hearing — Post-Conviction — Prosecution — Testimony — State Endorsed Witnesses — Withholding. Under the circumstances of the case, there is no merit to contention of defendant seeking an evidentiary hearing in a post-conviction remedy proceeding that prosecution deliberately withheld the nature of the testimony of certain state endorsed witnesses from defendant and his counsel knowing their testimony to be favorable and vital to the defense.
5. Post-Conviction Relief — Fishing Expedition — Rules — Evidentiary Hearing. Rule 35(b) proceedings may not be used as fishing expeditions in the hope that a prisoner may somehow, in the course of an evidentiary hearing, discover some thing which may require the granting of 35(b) relief.
6. Evidentiary Hearing — Vague Charges — Grant. Evidentiary hearings should not and will not be granted on vague conclusional charges.
7. Post-Conviction Relief — Specific Facts — Support — Rules — Issue — Evidentiary Hearing. Specific facts to support a prisoner's claim must appear in the petition for post-conviction relief under 35(b), and failing this, no issue is raised which demands an evidentiary hearing.
Original Proceeding.
Isaac C. DeBaca, pro se.
Joseph R. Marranzino, for respondent James C. Flanigan.
The petitioner DeBaca sought a writ of mandamus from this Court requiring respondent, Honorable James C. Flanigan, as a judge of the District Court of the City and County of Denver, to grant him an evidentiary hearing in a post-conviction remedy proceeding. We issued a rule upon the respondent to show cause why such a hearing should not be ordered.
In the trial court, petitioner filed a petition under Colo. R. Crim. P. 35(b) to set aside a sentence imposed upon him for robbery. His conviction had previously been affirmed by this Court in DeBaca v. People, 160 Colo. 543, 418 P.2d 286. In his 35(b) petition, DeBaca raised two points:
(1) "That [he] has a legal alibi and could not possibly, under any circumstances have been guilty of the crime for which he was convicted."
(2) "That the prosecution deliberately withheld the nature of the testimony of certain State Endorsed Witnesses from the Defendant and his Counsel, knowing their testimony to be favorable and vital to the defence [sic]."
The trial court summarily denied petitioner's 35(b) motion without a hearing. We think the trial court was correct.
I.
[1-3] The first ground raised in DeBaca's 35(b) petition affords no ground for post-conviction relief. The proper forum in which to raise the defense of alibi was at the trial on the merits. DeBaca offered no evidence in his behalf at his trial and is precluded from now attempting to gain a second trial so that he may raise a defense he chose to ignore at his first trial. He may not adopt one line of strategy and if it fails, then obtain another trial so that he may try again with a different strategy.
II.
DeBaca argues here that his second allegation that the prosecution withheld from him evidence favorable to his defense brings his case squarely within the ambit of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. We do not agree. To begin with, the Court in Brady pointed out that Brady had made a request for the information suppressed, which was denied to him. Here DeBaca made no such request. It is true he filed a motion to examine certain items of evidence which was denied. However, he did not seek to obtain information about testimony of state endorsed witnesses which is not the fulcrum upon which his allegation turns.
[5-7] Moreover, his allegation is made in the broadest language possible. He does not state which witnesses' testimony favorable to him was deliberately withheld from him, nor what the evidence was. Rule 35(b) proceedings may not be used as fishing expeditions in the hope that the petitioner may somehow, in the course of an evidentiary hearing, discover something which may require the granting of 35(b) relief. Evidentiary hearings should not and will not be granted on vague conclusional charges such as those contained in DeBaca's petition. Specific facts to support the claim must appear in the petition. Specific facts to support the claim must appear in the petition for post-conviction relief under 35(b). Failing this, no issue is raised which demands an evidentiary hearing. Mitchell v. United States, 359 F.2d 833, (7th Cir.); Martinez v. United States, 344 F.2d 325 (10th Cir.).
The rule is discharged.