Grant L. Doran v. Hal Stratton, Eloy Mondragon, 930 F.2d 33, 10th Cir. (1991)

930 F.
2d 33
Unpublished Disposition
NOTICE: Tenth Circuit Rule 36.3 states that unpublished
opinions and orders and judgments have no precedential value
and shall not be cited except for purposes of establishing the
doctrines of the law of the case, res judicata, or collateral
estoppel.
Grant L. DORAN, Petitioner-Appellant,
v.
Hal STRATTON, Eloy Mondragon, Respondents-Appellees.
No. 89-2210.
United States Court of Appeals, Tenth Circuit.

Feb. 28, 1991.
Before STEPHEN H. ANDERSON, TACHA and BRORBY, Circuit

Judges.
ORDER AND JUDGMENT*
TACHA, Circuit Judge.
Petitioner Grant L. Doran appeals from the district court's denial of his writ of
habeas corpus, filed pursuant to 28 U.S.C. Sec. 2254. We affirm the district
court in all respects.1
Background
2
A grand jury indicted Doran on seven charges arising out of three different
robberies at the Snowheights Walgreen's drugstore in Albuquerque, New
Mexico. The store was robbed on August 11, September 17, and September 21,
1983. Doran went to trial on all of the charges. However, the two counts related
to the August 11 incident were dismissed on motion for directed verdict. A jury
convicted Doran on the remainder of the charges. After exhausting all available
remedies in the New Mexico state courts, Doran filed this petition for writ of
habeas corpus.
Grant Doran was employed as an assistant manager at the Snowheights

Walgreen's store. In July 1983 he took his annual vacation but did not return.
Walgreen's management had the locks to the exterior doors changed on August
8 because Doran left with a full set of keys. The first robbery occurred three
days later. The August 11 break-in showed no signs of forced entry, thus
making store management suspicious that someone with keys to the store
perpetrated the crime. The September robberies were forced entry crimes.
At trial, the prosecution's main witness was Roger Robinson, a friend of

Doran's and his alleged accomplice in the robberies. On September 27, 1983,
Robinson gave police a detailed statement which implicated both men in all
three crimes. However, Robinson has long-term memory problems which
severely impair his ability to recall events occurring in the past. He has had
brain surgery twice to remove tumors. At trial, Robinson was unable to recall
much of what was contained in his statement. However, he did state with
certainty that he and Doran were involved in the crimes.
In his habeas petition, Doran raised four arguments. They included: 1) that the
presentation of false testimony to the grand jury rendered both the indictment
and convictions invalid, 2) that false statements in a search warrant affidavit
invalidated the search, thus requiring suppression of the evidence obtained, 3)
that the state court erred in failing to grant a new trial after Roger Robinson
recanted his trial testimony, and 4) that Doran was denied effective assistance
of counsel because his attorney failed to present an alibi defense. We will
address each argument in turn.
Discussion
A. Falsification of grand jury testimony
6
During the grand jury proceedings, Mr. Kenneth Berlint, the manager of the
Walgreen's store, testified that the exterior locks were not changed until after
the August 11 break-in. This testimony contradicted undisputed documents
produced before trial indicating that the locks were changed on August 8. The
implication of Mr. Berlint's testimony was that Grant Doran perpetrated the
robbery by opening the front door to the store with the keys he obtained as
assistant manager. As stated previously, the August 11 burglary did not involve
a forced entry.
Petitioner asserts this "false" testimony requires that the indictment be quashed
and the convictions overturned. "Under some circumstances, where a state has
chosen to provide grand juries, it must ensure that their selection and operation
'hew to federal constitutional criteria.' " Talamante v. Romero, 620 F.2d 784,
789 (10th Cir.1980) (quoting Carter v. Jury Comm'n, 396 U.S. 320, 330
(1970)), cert. denied, 449 U.S. 877 (1980). To this extent, Doran argues that his
fifth amendment due process rights, applicable via the fourteenth amendment,
apply in this habeas proceeding and require that the indictment be quashed.2
We disagree.
8
In support, Doran relies on United States v. Basurto, 497 F.2d 781 (9th
Cir.1974). In that case, the Ninth Circuit identified several criteria for
determining when an indictment based partially on perjured testimony must be
quashed. The court stated, "[w]e hold that the Due Process Clause of the Fifth
Amendment is violated when a defendant has to stand trial on an indictment
which the government knows is based partially on perjured testimony, when the
perjured testimony is material, and when jeopardy has not attached." Id. at 785.
(Emphasis added.)
Even assuming, without deciding, that the Basurto test applies, Doran's
argument must fail. First, it is undisputed that neither the prosecution nor Mr.
Berlint were aware this testimony was false at the time it was given. The
discrepancy in the dates did not become apparent until after the grand jury
returned the indictment. At trial, counsel for Doran had every opportunity to
cross-examine and impeach Mr. Berlint on this issue. Where, as here, a petit
jury has knowledge of the misstatement, it is unlikely that any error was
prejudicial. See United States v. Page, 808 F.2d 723, 727 (10th Cir.), cert.
denied, 482 U.S. 918 (1987).
10
Moreover, Mr. Berlint's misstatement was not material.3 The charges to which
it applied were dismissed after the prosecution presented its case. Petitioner's
argument that the misstatement somehow infected the rest of the trial is not
persuasive. This court will dismiss an indictment following conviction only in
rare circumstances. See id. This case does not present one of those
circumstances. Consequently, we affirm the district court on this issue.
B. False statements made in application for search warrant

11
12
13
In a habeas proceeding, a petitioner may not be granted relief on fourth

amendment grounds if he was given an opportunity for full and fair
consideration of the issue in state proceedings. Stone v. Powell, 428 U.S. 465,
494 (1976); Gamble v. Oklahoma, 583 F.2d 1161, 1163 (10th Cir.1978).
" 'Opportunity for full and fair consideration' includes, but is not limited to, the
procedural opportunity to raise or otherwise present a Fourth Amendment

claim. It also includes the full and fair evidentiary hearing contemplated by
[Townsend v. Sain, 372 U.S. 293 (1963) ]. Furthermore, it contemplates
recognition and at least colorable application of the correct Fourth Amendment
constitutional standards."
14
Gamble, 583 F.2d at 1165 (footnote omitted). Because Doran's argument with
respect to the search warrant affidavit implicates the fourth amendment, the
Stone v. Powell prohibition applies.
15
Here, petitioner had ample opportunity to raise this claim at trial. There is
nothing in the record to suggest the state court failed to afford Doran procedural
avenues for objecting to the introduction of the evidence seized pursuant to the
allegedly faulty warrant. Doran filed a motion to suppress which was denied
after a hearing. Moreover, contrary to petitioner's suggestion, there is nothing in
the record supporting the argument that the state court failed to apply the
correct legal standards to introduction of this evidence. Accordingly, the rule of
Stone v. Powell bars further review in this court.
C. Failure to grant a new trial after Roger Robinson recanted his testimony
16
17
Following the trial in this case, Doran's counsel interviewed Roger Robinson.
During that interview, Robinson said his trial testimony was potentially
"inaccurate." Based on this "new" evidence, Doran filed a motion for new trial.
The state court denied this request. Doran asserts this failure constitutes
grounds for granting habeas relief.
18
This court has set the following standard for granting a new trial where
testimony is allegedly recanted:
19
The newly discovered evidence must be more than impeaching or cumulative;

it must be material to the issues involved; it must be such as would probably
produce an acquittal; and a new trial is not warranted by evidence which, with
reasonable diligence, could have been discovered and produced at trial.
20
United States v. Ramsey, 726 F.2d 601, 604 (10th Cir.1984) (quoting United
States v. Allen, 554 F.2d 398, 403 (10th Cir.), cert. denied, 434 U.S. 836
(1977)). Here, the "new" evidence is cumulative.
21
The statement Robinson made after trial was entirely consistent with his
testimony at trial. Robinson stated repeatedly that he had no recollection of
many of the details he described in his statement. He told the court his memory
was faulty regarding events which occurred in the fall of 1983. This testimony,
and his statement after trial, are consistent with his long-term memory
problems.
22
It is clear from Robinson's testimony that he cannot remember with clarity

anything requiring use of his long-term memory. Therefore, there is nothing
"new" about Robinson's statement that his trial testimony was inaccurate. It is
not a recantation of prior testimony. Petitioner's counsel had extensive
opportunity to cross-examine Robinson about his inability to recall statements
he made previously. We uphold the district court's decision denying relief on
this claim.
D. Ineffective assistance of counsel claim

23
Finally, Doran asserts his counsel was ineffective in failing to present his
parents as alibi witnesses. He states they would have testified he was with them
on the night of September 21, 1983. In order to prevail on this claim, Doran
must show 1) that his counsel's performance was professionally unreasonable
and, 2) that but for the failure to present these witnesses, he would have been
acquitted. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
24
Normally, the decision whether to call a witness rests within the discretion of
trial counsel. United States v. Snyder, 787 F.2d 1429, 1432 (10th Cir.), cert.
denied, 479 U.S. 836 (1986). Here, counsel's decision not to present these
witnesses was within the wide range of professional judgment available to
attorneys. Given the other evidence in this case pointing to Doran's guilt, it was
within counsel's judgment not to present this testimony, which could appear
fabricated or self serving. See Diggs v. Owens, 833 F.2d 439, 446 (3d
Cir.1987), cert. denied, 485 U.S. 979 (1988). Trial counsel was not ineffective.
We will not disturb the district court's ruling on appeal.
Conclusion
25
Petitioner's motion for issuance of a certificate of probable cause is

GRANTED. The judgment of the United States District Court for the District of
New Mexico is AFFIRMED.
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument
This circuit has not decided this issue. See Talamante, 620 F.2d at 789-90 and
n. 6
In United States v. Bracy, 566 F.2d 649 (9th Cir.1977), cert. denied, 439 U.S.
818 (1978), the Ninth Circuit revisited the same issues addressed in Basurto. In
Bracy, the court stressed that the materiality of the testimony is the factor
which must be addressed in determining whether an indictment should be
quashed. 566 F.2d at 655. The court held that the language in Basurto requiring
the prosecution to immediately inform the grand jury of false testimony,
irrespective of materiality, was dicta, and in any event, no longer valid in light
of United States v. Agurs, 427 U.S. 97 (1976). Id

Grant L. Doran v. Hal Stratton, Eloy Mondragon, 930 F.2d 33, 10th Cir. (1991)

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930 F.

United States Court of Appeals, Tenth Circuit.

Before STEPHEN H. ANDERSON, TACHA and BRORBY, Circuit

Grant Doran was employed as an assistant manager at the Snowheights

At trial, the prosecution's main witness was Roger Robinson, a friend of

B. False statements made in application for search warrant

In a habeas proceeding, a petitioner may not be granted relief on fourth

procedural opportunity to raise or otherwise present a Fourth Amendment

The newly discovered evidence must be more than impeaching or cumulative;

It is clear from Robinson's testimony that he cannot remember with clarity

D. Ineffective assistance of counsel claim

Petitioner's motion for issuance of a certificate of probable cause is

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