Elbert Riddle, Appellant, v. H. C. Mcleod, Warden, Oklahoma State Penitentiary, Appellee, 240 F.2d 206 (10th Cir. 1957)

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US Court of Appeals for the Tenth Circuit - 240 F.2d 206 (10th Cir. 1957) January 15, 1957

No appearance for appellant.

Fred Hansen, First Asst. Atty. Gen. (Mac Q. Williamson, Atty. Gen., of Oklahoma, and Lewis Wallace, Asst. Atty. Gen., were with him on the brief), for appellee.

Before HUXMAN, PICKETT and LEWIS, Circuit Judges.


On the 29th day of October, 1949, the petitioner, Elbert Riddle, was convicted of murder in the first degree in Comanche County, Oklahoma, and is now serving a life sentence in the Oklahoma State Penitentiary. This is an appeal from the judgment of the United States District Court for the Eastern District of Oklahoma, denying his petition for a writ of habeas corpus and remanding him to the custody of the Warden at the Oklahoma Penitentiary.

On oral argument it was stated that petitioner had not exhausted his state remedies prior to the filing of the petition in this case. The Oklahoma reports, however, disclose that on January 18, 1956, the Criminal Court of Appeals of Oklahoma denied petitioner's writ of habeas corpus. Application of Riddle, Okl. Cr., 292 P.2d 1043. The Supreme Court of the United States denied a writ of certiorari on March 26, 1956. See 350 U.S. 1001, 76 S. Ct. 557.

We have examined the record on appeal and find that there are no grounds for reversal of the judgment. Most of the matters complained of on the trial of the case were of a nature appropriate for presentation on appeal. The petitioner's sister, Maudine V. Riddle, with whom he was tried jointly, appealed her conviction and obtained a reduction in sentence from life to fifteen years. Petitioner did not appeal. He contends that his attorneys did not properly represent him, in failing to take an appeal, and maintains that had such an appeal been taken, his sentence would likewise have been reduced from life to fifteen years. Petitioner was represented in the trial of the case by attorneys of his own choice who were shown to be able and experienced in criminal work. There is a total lack of evidence that the attorneys failed to perform their duties during the trial of the case or in not taking an appeal. Furthermore, the Supreme Court of Oklahoma, after reviewing the record in the sister's case, said: "The proof of the guilt of Elbert Riddle of the Crime of murder is overwhelming and he was fortunate that he did not secure the death penalty. He did not elect to appeal from his conviction." Riddle v. State, 92 Okl.Cr. 397, 223 P.2d 379, 383.