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Chaussard v. Fulcomer

argued: March 2, 1987.

ROBERT CHAUSSARD
v.
THOMAS FULCOMER, WARDEN ROBERT W. CHAUSSARD, APPELLANT



Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civ. 86-735.

Author: Seitz

Opinion OF THE COURT

BEFORE: GIBBONS, Chief Judge, SEITZ and GARTH, Circuit Judges.

SEITZ, Circuit Judge.

Robert Chaussard appeals from an order of the district court dismissing his habeas corpus petition. We have jurisdiction under 28 U.S.C. ยงยง 1291, 2254 (1982).

I.

Chaussard was convicted in state court of rape and recklessly endangering another person. The Superior Court of Pennsylvania affirmed the judgment of sentence. Chaussard filed a pro se petition requesting allocatur. Chaussard's then counsel filed a second petition. The Supreme Court of Pennsylvania denied both petitions. Chaussard did not institute Post Conviction Hearing Act (PCHA) proceedings. Rather, he petitioned the district court for a writ of habeas corpus. The district court dismissed the petition because it concluded that it contained exhausted and unexhausted federal claims. This appeal followed.

We narrate the evidence offered in the state criminal trial. On February 4, 1982, the prosecutrix was raped at gunpoint in her home. That afternoon, she gave the police a statement which included a description of the assailant, his clothing and weapon. She sketched the assailant's face and a distinctive patch she saw on the assailant's shirt. The next day, the prosecutrix and a police officer tried to produce a composite picture of the assailant. The prosecutrix was not satisfied with the composite.

At trial, Officer Stephens testified that, on the date of the rape, the prosecutrix told him the assailant's shirt had a rust streak across the back. The officer produced undated notes corroborating this information. The rust stain, however, was not mentioned in the final police report.

On February 20, 1982, Police Chief Reinhart took the prosecutrix to a hypnotist, apparently to aid in the investigation of the rape. The session lasted approximately one hour and only the hypnotist and the prosecutrix were present. The session was tape recorded, and the hypnotist took notes. The audio tape was given to Chief Reinhart. The hypnotist recalls giving Reinhart his personal notes, although Reinhart does not recall this. In any event, the notes cannot be located. Reinhart destroyed the audio tape after about two months, and prior to Chaussard's arrest, in response to a memo from the district attorney stating that the use of hypnosis had been disapproved by the Pennsylvania Supreme Court.

On April 30, 1982, the prosecutrix looked out her window in response to a continuous knocking. She saw Robert Chaussard on her porch. She immediately called the police because she though Chaussard was the man who raped her. The police arrested Chaussard nearby.

The state trial court found that the district attorney's office did not learn that the prosecutrix had been hypnotized until approximately thirty days before the November 12, 1982 hearing in this case.

As indicated, Chaussard was tried and convicted and unsuccessfully appealed. He then filed a petition ...


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