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    George W. Hoggatt v. Ray H. Page, 432 F.2d 41, 10th Cir. (1970)

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    This document is a court case from 1970 in which George Hoggatt appealed the denial of his petition for habeas corpus. Hoggatt was convicted of murder in 1936 in Oklahoma and sentenced to life in prison. In his initial habeas petition, he raised several grounds for appeal that were abandoned in this proceeding. His sole argument now is that he lacked counsel during his appeal of the original conviction. However, the court cannot rule on this issue because it was not raised previously in state court or in Hoggatt's initial federal habeas petition. The court affirms the lower court's denial of habeas relief because state remedies were not fully exhausted on the issue of lack of counsel on appeal.

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    George W. Hoggatt v. Ray H. Page, 432 F.2d 41, 10th Cir. (1970)

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    This document is a court case from 1970 in which George Hoggatt appealed the denial of his petition for habeas corpus. Hoggatt was convicted of murder in 1936 in Oklahoma and sentenced to life in prison. In his initial habeas petition, he raised several grounds for appeal that were abandoned in this proceeding. His sole argument now is that he lacked counsel during his appeal of the original conviction. However, the court cannot rule on this issue because it was not raised previously in state court or in Hoggatt's initial federal habeas petition. The court affirms the lower court's denial of habeas relief because state remedies were not fully exhausted on the issue of lack of counsel on appeal.

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    Filed: 1970-09-28 Precedential Status: Precedential Citations: 432 F.2d 41 Docket: 588-69

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    This document is a court case from 1970 in which George Hoggatt appealed the denial of his petition for habeas corpus. Hoggatt was convicted of murder in 1936 in Oklahoma and sentenced to life in prison. In his initial habeas petition, he raised several grounds for appeal that were abandoned in this proceeding. His sole argument now is that he lacked counsel during his appeal of the original conviction. However, the court cannot rule on this issue because it was not raised previously in state court or in Hoggatt's initial federal habeas petition. The court affirms the lower court's denial of habeas relief because state remedies were not fully exhausted on the issue of lack of counsel on appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    26 views3 pages

    George W. Hoggatt v. Ray H. Page, 432 F.2d 41, 10th Cir. (1970)

    Uploaded by

    Scribd Government Docs
    This document is a court case from 1970 in which George Hoggatt appealed the denial of his petition for habeas corpus. Hoggatt was convicted of murder in 1936 in Oklahoma and sentenced to life in prison. In his initial habeas petition, he raised several grounds for appeal that were abandoned in this proceeding. His sole argument now is that he lacked counsel during his appeal of the original conviction. However, the court cannot rule on this issue because it was not raised previously in state court or in Hoggatt's initial federal habeas petition. The court affirms the lower court's denial of habeas relief because state remedies were not fully exhausted on the issue of lack of counsel on appeal.

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    of 3

    432 F.

    2d 41

    George W. HOGGATT, Appellant,


    v.
    Ray H. PAGE, Appellee.
    No. 588-69.

    United States Court of Appeals, Tenth Circuit.


    Sept. 28, 1970.

    Richard Silverstein, Denver, Colo., for appellant.


    H. L. McConnell, Asst. Atty. Gen. (G. T. Blankenship, Atty. Gen. of Okl.,
    with him on the brief), for appellee.
    Before JONES, 1 BREITENSTEIN and HOLLOWAY, Circuit Judges.
    PER CURIAM:

    George W. Hoggatt, the appellant, was convicted of murder in an Oklahoma


    State Court in 1936, and was sentenced to life imprisonment. After an
    application for a writ of habeas corpus, or in the alternative, for an appeal out of
    time, was denied by the state courts, he filed a petition for habeas corpus in the
    District Court for the Eastern District of Oklahoma, asserting a number of
    grounds. The district court denied relief and an appeal to this Court is now
    before us. The appellant was not represented by counsel in his habeas corpus
    application to the district court. He is represented in this Court by Courtappointed counsel. His counsel does not rely upon any of the grounds which he
    asserted in the pro se petition filed by the appellant in the district court. These
    grounds are, it is assumed, abandoned. We think they might well be abandoned
    since we find no merit in any of them. Discussion of them would serve no
    useful purpose.

    The sole ground upon which appellant relies in his brief and in the argument of
    his counsel made at the bar of this Court is that he was not represented by
    counsel on his appeal from his conviction in the Oklahoma court. Counsel who
    represented the appellant on his trial took the necessary steps to get an appeal
    before the Criminal Court of Appeals of Oklahoma but did not present

    argument and, we think, they did not file briefs. In the opinion of the Oklahoma
    court it is said:
    3

    'While the defendant is not represented by counsel in this court, we have with
    much care examined the entire record. * * *' Hoggatt v. State, 67 Okl.Cr. 377,
    94 P.2d 264, 269.

    If the matter was properly before this Court, judicial notice could be taken of
    the quoted statement of the Oklahoma court and a prima facie determination
    might be made that the appellant did not have counsel throughout the appeal
    from his conviction for murder. The recital in the opinion does not, to be sure,
    negative the possibility of a waiver of counsel or a deliberate prosecution of the
    appeal without counsel.

    It is unnecessary to elaborate on the Gideon doctrine that counsel must be given


    to indigents charged with criminal offenses. Gideon v. Wainwright, 372 U.S.
    335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733; Douglas v. California, 372
    U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. The principle applies to an appeal
    through argument and submission and does not terminate with the filing of
    notice of appeal and making the record available to the appellate court. The
    Gideon doctrine is retroactive. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21
    L.Ed.2d 2; Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d
    882.

    However unfortunate for the appellant it may be, we must again note that the
    case is before an appellate court and matters cannot be here decided that were
    not raised in the tribunal from which the appeal was taken. There is yet another
    reason why the judgment of the district court, which was correct upon the
    record before it, must be affirmed. No principle in the realm of Federal habeas
    corpus is better settled than that state remedies must be exhausted. 28 U.S.C.A.
    2254(b)(c). The principle has been recognized and applied in this Circuit that
    habeas corpus relief cannot be granted in the courts of the United States for
    denial of a constitutional right in a state court where the relief is sought in the
    Federal court upon a ground which was not asserted in the state courts and state
    remedies have not been fully exhausted. Whiteley v. Meacham, 10th Cir. 1969,
    416 F.2d 36; Davis v. Crouse, 10th Cir. 1966, 363 F.2d 382; Turner v. Crouse,
    10th Cir. 1965, 351 F.2d 935; Love v. Page, 10th Cir. 1965, 351 F.2d 303;
    Keller v. Tinsley, 10th Cir. 1964, 335 F.2d 144, cert. denied 379 U.S. 938, 85
    S.Ct. 342, 13 L.Ed.2d 348, and Vasser v. Raines, 10th Cir. 1959, 274 F.2d 369,
    cert. denied 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548.

    The judgment of the district court was correct as to the issues submitted to and

    The judgment of the district court was correct as to the issues submitted to and
    decided by it. The question here raised and not before presented either to the
    state court or to the United States District Court is not properly before this
    Court for adjudication. The judgment of the district court must be and is

    Affirmed.

    Of the Fifth Circuit, sitting by designation

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