Jack Allen BARBER, Appellant, v. Ray H. PAGE, Warden, Appellee, 381 F.2d 479

BREITENSTEIN, Circuit Judge. For the second time, appellant appeals from a judgment denying him, a state prisoner, habeas corpus relief. In Barber v. Page, 10 Cir., 355 F.2d 171, we remanded because the record did not show that appellant had exhausted his state remedies. The district court held a second evidentiary hearing, found that the state remedies had in fact been exhausted, and denied relief. The only point for consideration is whether the appellant was denied his Sixth Amendment right to be confronted by the witnesses against him.

He, an individual named Woods, and at least one other were charged with robbery. At a preliminary hearing, an attorney named Parks was retained to represent .both appellant and Woods. Woods was called to the stand. The attorney advised him of his right to claim the privilege against self-incrimination. After a recess, the attorney requested, and was granted, leave to withdraw as attorney for Woods. In the presence of appellant and his attorney, Woods testified and incriminated the appellant. He was not cross-examined by appellant’s attorney, Parks, but was by the attorney for other accused.

At the trial, a transcript of Woods’ testimony at the preliminary hearing was received in evidence over appellant’s objections. Appellant was convicted and the judgment was affirmed by the Oklahoma Court of Criminal Appeals. Barber v. State, Okl.Cr., 388 P.2d 320. Woods was not present at the trial because he was then an inmate of a federal penal institution located in Texas. In the circumstances presented Oklahoma permits a transcript of the testimony to be used at the trial. Id. at 324. Pointer v.

State of Texas, 380 U.S. 400, 403-406, 85 S.Ct. 1065, 13 L.Ed. 2d 923, holds that the right of confrontation includes the right of cross-examination and is binding on the states. In that ease, the transcribed testimony of the out-of-state witness was taken in a preliminary examination where the accused was not represented by counsel. Appellant says that the state was not diligent in securing the attendance of Woods at the trial. He was not subject to Oklahoma process.

Although an application could have been made to a federal court for a writ of habeas corpus ad testificandum, the grant of such a writ is discretionary. Gilmore v. United States, 10 Cir., 129 F.2d 199, 202. In our opinion a state is not required to ask a federal court for a discretionary writ and have it denied before the state can use a transcript of the testimony of an out-of-state witness. This is not a case like Motes v. United States, 178 U.S. 458, 471, 20 S.Ct. 993, 44 L.Ed. 1150, where the witness had escaped through the negligence of the government.

Pointer was decided on the denial of confrontation— not on the use of the transcribed testimony of an out-of-state witness. In the case at bar the accused had retained counsel present at the preliminary hearing and counsel had an opportunity to cross-examine. Failure to exercise the right of cross-examination is no ground for asserting denial of the right of confrontation. We are not impressed with the contention that the attorney was in a doubtful position because of his previous representation of Woods.

He had withdrawn and his obligation was to the appellant, who must have been satisfied because we note that he was represented by the same attorney on his appeal to the Oklahoma Court of Criminal Appeals. The appellant’s belated attempt to inject ethical considerations of the attorney-client relationship into the ease does not entitle him to federal habeas relief. Affirmed.