James Lee Moore, Petitioner-appellant, v. Hoyt Cupp, Superintendent, Oregon State Penitentiary,respondent-appellee, 612 F.2d 466 (9th Cir. 1980)

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U.S. Court of Appeals for the Ninth Circuit - 612 F.2d 466 (9th Cir. 1980) Jan. 28, 1980

Thomas H. Borresen, Boise, Idaho, for petitioner-appellant.

Thomas H. Denney, Asst. Atty. Gen., Eugene, Or., argued, for respondent-appellee; James A. Redden, Atty. Gen., Eugene, Or., on brief.

Appeal from the United States District Court, District of Oregon.

Before KILKENNY and WALLACE, Circuit Judges, and JAMESON, District Judge.* 


Moore appeals from the denial of his habeas corpus petition. He urges that his conviction for robbery in the state court was invalid because state authorities destroyed or lost a tape recording of his preliminary hearing.

Moore and a codefendant were charged in state court with second degree robbery. The charges were dismissed after a preliminary hearing. Although the proceedings were not transcribed, the hearing was tape recorded. A copy of the tape was given to the state and to Moore's counsel.

The state then obtained an indictment from a state grand jury. Moore's new counsel asked both the state and Moore's prior counsel for a copy of the tape of the preliminary hearing. He was informed by both that the tapes had either been lost or destroyed. Moore was later convicted.

We affirm the judgment of the district court denying Moore's habeas petition on the authority of United States v. Loud Hawk, et al., --- F.2d ---- (CA9, August 7, 1979) (Slip Opinion 2857). The law in Loud Hawk is fundamentally sound and applies even though Loud Hawk involved a federal rather than a state proceeding. Furthermore, contrary to appellant's assertions, his claim does not rise to constitutional dimensions. The unfairness caused by loss or destruction of evidence rarely rises to the level of making the proceeding "a spectacle or trial by ordeal." Loud Hawk Slip op. at 2874 at ---- (Kennedy, J., concurring). This is not one of those instances.


The Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation