                     COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

                CORPUS CHRISTI - EDINBURG

                       NUMBER 13-07-353-CV

                        IN RE BNP PARIBAS

                  On Petition for Writ of Mandamus

                       NUMBER 13-07-358-CV

BNP PARIBAS,                                             Appellant,

                                 v.

VIRGO COMMODITIES CORP., ET AL.,                         Appellees.

               On Appeal from the 107th District Court
                    of Cameron County, Texas.

                   MEMORANDUM OPINION
           Before Chief Justice Valdez, Justices Garza and Vela
                  Memorandum Opinion by Justice Vela

       Relator, BNP Paribas (“BNP”), brought a petition for writ of mandamus and

interlocutory appeal contesting the trial court’s denial of its motion to compel arbitration.

For the reasons discussed below, we conditionally grant the petition for mandamus, Cause

No. 13-07-353-CV, and, granting full relief under our mandamus jurisdiction, we dismiss

as moot the interlocutory appeal, Cause No. 13-07-358-CV. See Am. Std. v. Brownsville

Indep. Sch. Dist., 196 S.W.3d 774, 781 (Tex. 2006).

                                      I. Background

       Real parties in interest, Virgo Commodities Corp., Alamo Feeders, Inc., Mid Valley

Grain Co., USA Meat and Grain Co., Inc., and The Laredo Grain Co., buy and sell

agricultural commodities such as grain. BNP executed identical master sale and purchase

agreements with each of the real parties through which BNP helped finance the real

parties’ operations by purchasing their accounts receivable. The master sale and purchase

agreements contained an arbitration clause and were signed by BNP’s employee, Jovenal

“Jerry” M. Cruz.

       Real parties in interest demanded arbitration against BNP and Cruz alleging, inter

alia, that Cruz made unauthorized demands for payment to real parties while employed by

BNP.

       Arbitration commenced, but Cruz failed to appear or pay for his share of the fees.

Real parties brought suit in state court against Cruz, then subsequently included BNP as

a defendant in that suit. In the state court proceeding, BNP filed a motion to compel

arbitration. The trial court denied BNP’s motion to compel arbitration. This original

                                             2
proceeding and interlocutory appeal ensued. This Court granted an emergency stay of the

trial court proceedings and requested a response from the real parties in interest.1 The

Court also consolidated the petition for writ of mandamus and interlocutory appeal.

                                    II. Federal or State Arbitration

        We first address whether this matter is governed by the Federal Arbitration Act

(“FAA”) or the Texas General Arbitration Act (“TGAA”). See 9 U.S.C. §§ 1-16; TEX . CIV.

PRAC . & REM . CODE ANN . §§ 171.001-.098 (Vernon 2005); In re Educ. Mgmt. Corp., 14

S.W.3d 418, 422 (Tex. App.–Houston [14th Dist.] 2000, orig. proceeding) (holding that

question of whether transaction affects interstate commerce, and thus whether federal act

governs, is one of fact where arbitration agreement is silent as to application of federal or

Texas act). The FAA "applies to all suits in state or federal court when the dispute

concerns 'a contract evidencing a transaction involving commerce.'" Jack B. Anglin Co.,

Inc. v. Tipps, 842 S.W.2d 266, 269-70 (Tex. 1992) (orig. proceeding) (quoting 9 U.S.C.S.

§ 2 (2000)); In re Profanchik, 31 S.W.3d 381, 384 (Tex. App.–Corpus Christi 2000, orig.

proceeding). The United States Supreme Court has held that the word "involving" in the

FAA is broad and the functional equivalent of "affecting," signaling Congress's intent to

exercise its Commerce Clause powers to the fullest. Allied-Bruce Terminix Cos. v.

Dobson, 513 U.S. 265, 268 (1995); L&L Kempwood Assocs., L.L.P., v. Omega Builders,

Inc., 9 S.W.3d 125, 127 (Tex. 1999) (orig. proceeding) (per curiam).

        1
          The Court GRANTS the m otion for leave to file a responsive brief filed by real parties in interest and
DENIES relator’s m otion to strike the real parties’ responsive brief. Any other m otions, not disposed of herein,
or previously disposed of by this Court, are DISMISSED as m oot.

                                                        3
       BNP, a French Public Limited Company, acted through its Houston unincorporated

branch in entering the master sale and purchase agreements with real parties. The real

parties in interest are all Texas corporations. Pursuant to the agreements, BNP purchased

accounts receivable from the real parties in interest. The accounts receivable represent

debt obligations owed to the real parties by Mexican importers of United States agricultural

products. Real parties utilized the proceeds from the sales of their accounts receivable to

BNP to purchase agricultural products from the Midwest, which were then shipped into

Texas and sold into Mexico.

       We conclude that the master sale and purchase agreements evidenced interstate

commerce. See 9 U.S.C. § 1 (stating that the definition of “commerce" includes, inter alia,

commerce among the several States or with foreign nations); Citizens Bank v. Alafabco,

Inc., 539 U.S. 52, 56 (2003) (discussing the impact of economic transactions, such as

commercial lending, on interstate commerce); see also Serv. Corp. Int'l v. Lopez, 162

S.W.3d 801, 807-08 (Tex. App.–Corpus Christi 2005, no pet.); Stewart Title Guar. Co. v.

Mack, 945 S.W.2d 330, 333 (Tex. App.–Houston [1st Dist.] 1997, orig. proceeding); see

also Anglin, 842 S.W.2d at 270. Accordingly, the transactions at issue are governed by

the FAA.

                                   III. Standard of Review

       A writ of mandamus will issue to correct a clear abuse of discretion when there is

no adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as

to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or

                                               4
apply the law. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005). The relator has

the burden to establish that the trial court abused its discretion. See id. If a trial court

erroneously denies a party's motion to compel arbitration under the FAA, the movant has

no adequate remedy at law and is entitled to a writ of mandamus. In re Nexion Health at

Humble, Inc., 173 S.W.3d 67, 69 (Tex. 2005); Serv. Corp. Int’l, 162 S.W.3d at 808.

                   IV. Validity and Scope of the Arbitration Agreement

       A party seeking to compel arbitration by a writ of mandamus must establish the

existence of a valid agreement to arbitrate under the FAA and show that the claims in

dispute are within the scope of the agreement. In re Bank One, N.A., 216 S.W.3d 825, 826

(Tex. 2007) (per curiam); In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex.

2005) (orig. proceeding). In determining the validity of agreements to arbitrate which are

subject to the FAA, we generally apply state-law principles governing the formation of

contracts. In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 676 (Tex. 2006) (citing First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). Whether a valid arbitration

agreement exists is a legal question subject to de novo review. Am. Std., 196 S.W.3d at

781. If the trial court finds there is a valid agreement to arbitrate, the burden shifts to the

party opposing arbitration to prove his defenses. J.M. Davidson, Inc. v. Webster, 128

S.W.3d 223, 227 (Tex. 2003).

       Once a valid agreement to arbitrate has been established, the court must then

determine whether the nonmovants' claims fall within the scope of the arbitration clause.

In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001). To determine whether an

existing arbitration agreement covers a party's claims, a court must "focus on the

                                              5
complaint's factual allegations rather than the legal causes of action asserted." Id. at 754.

Federal policy embodied in the FAA favors agreements to arbitrate and courts must resolve

any doubts about an arbitration agreement's scope in favor of arbitration. Id. at 753. If the

arbitration agreement encompasses the claims and the party opposing arbitration has

failed to prove its defenses, the trial court has no discretion but to compel arbitration and

stay its own proceedings. Id. at 753-54; D.R. Horton, Inc. v. Brooks, 207 S.W.3d 862, 866-

67 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Feldman/Matz Interests, L.L.P. v.

Settlement Capital Corp., 140 S.W.3d 879, 883 (Tex. App.–Houston [14th Dist.] 2004, no

pet.).

         The master sale and purchase agreements provide that:

         Upon the demand of either Buyer or Seller, any dispute between the parties
         that concerns any purchased Account or that arises out of the relationship
         of the parties under this Agreement or any document delivered hereunder
         shall be resolved by binding arbitration held in Houston, Texas.

The Agreement was signed by Jerry M. Cruz Vice President, on behalf of BNP, and was

notarized by Cruz “on behalf of said bank.”

         We conclude that BNP has established valid agreements to arbitrate with real

parties in interest. We also conclude that the real parties’ claims, which concern additional

payments made under the agreements, fall squarely within the broad scope of the

arbitration provision, which applies to “any dispute between the parties” regarding the

purchased accounts or any dispute “that arises out of the relationship of the parties.” See

Am. Std. v. Brownsville Indep. Sch. Dist., 196 S.W.3d at 783.

         Real parties contend that BNP lacks standing to compel arbitration because an

arbitration agreement, requiring arbitration between real parties and Cruz, individually,

                                              6
does not exist. Real parties further argue that BNP lacks standing to assert the right to

arbitration on behalf of Cruz.

       The Texas Supreme Court has addressed a similar situation wherein investors sued

their individual investment advisor and his employer, but sought to avoid arbitration on

grounds that the arbitration agreement at issue had been signed by their investment

advisor in his capacity as an agent for his employer, but not in his personal capacity. In

re H&R Block Fin. Advisors, Inc., 235 S.W.3d 177, 178 (Tex. 2007). The court rejected this

argument thusly:

       Nor can the Bonds skirt arbitration with Bullock when the substance of the
       suit is against both him and his employer. Bullock had no duty to provide
       investment advice to the Bonds but for their contract with Olde/H&R Block,
       and the damages the Bonds seek is the investment they made through that
       contract. As Bullock's liability arises from and must be determined by
       reference to the parties' contract rather than general obligations imposed by
       law, the suit is subject to the contract's arbitration provisions. In re Weekley
       Homes, L.P., 180 S.W.3d 127, 131-32 (Tex. 2005); see also In re Vesta Ins.
       Group, Inc. 192 S.W.3d 759, 762 (Tex. 2006) ("When contracting parties
       agree to arbitrate all disputes 'under or with respect to' a contract (as they did
       here), they generally intend to include disputes about their agents' actions .
       . . .").

See id. Such is the case herein. As stated previously, the arbitration agreement was

signed by Cruz on behalf of BNP. When the principal, that is, BNP, is bound by a valid

arbitration agreement, "its agents, employees, and representatives are covered by that

agreement."    Merrill Lynch Trust Co. FSB v. Alaniz, 159 S.W.3d 162, 168 (Tex.

App.–Corpus Christi 2004, orig. proceeding); McMillan v. Computer Translation Sys. &

Support, Inc., 66 S.W.3d 477, 481 (Tex. App.–Dallas 2001, orig. proceeding). Accordingly,

Cruz, as an employee of BNP, is included in the arbitration agreement at issue. Moreover,

as a signatory and party to the arbitration agreement, BNP clearly has standing to assert

                                               7
the right to arbitrate. In re Choice Homes, Inc., 174 S.W.3d 408, 412 (Tex. App.–Houston

[14th Dist.] 2005, orig. proceeding) (“To have standing a party must be affected by the

controversy at hand.”).

       We would further note that real parties brought the same causes of action against

both BNP and Cruz and alleged concerted, coordinated acts by these parties, and all of

real parties’ causes of action arise from the same operative facts concerning the payment

of extra-contractual fees.     See Brown v. Anderson, 102 S.W.3d 245, 250 (Tex.

App.–Beaumont 2003, pet. denied) (finding substantially interdependent and concerted

misconduct where the causes of action against the non-signatory defendants are "based

upon the same operative facts and are inherently inseparable from the causes of action

against the signatory-defendant"). Accordingly, we reject the real parties’ arguments

pertaining to standing.

       Because an order denying arbitration must be upheld if it is proper on any basis

considered by the trial court, we will next consider real parties’ alleged defenses to the

agreement. See In re H.E. Butt Grocery Co., 17 S.W.3d 360, 367 (Tex. App.–Houston

[14th Dist.] 2000, orig. proceeding); City of Alamo v. Garcia, 878 S.W.2d 664, 665 (Tex.

App.–Corpus Christi 1994, no writ).

                                        V. Defenses

       In real parties’ response to BNP’s motion to compel arbitration, real parties raise

three defenses to the motion to compel. First, real parties contend that BNP has materially

breached its agreement to arbitrate by failing to pay one-half of the costs of arbitration. In

the instant case, BNP and real parties, collectively, each paid one-third of the arbitration

fees. Cruz failed to pay his one-third share. Under protest, BNP has now paid Cruz’s

                                              8
share of the fees. Accordingly, this issue is effectively moot. See Camarena v. Texas

Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988) (matter is "moot" if the issues

presented in the case are no longer "live" or if the parties lack a legally cognizable interest

in the outcome). Moreover, we would note that real parties’ complaint regarding BNP’s

alleged failure to pay its share of the arbitration fees is a matter of procedural arbitrability,

and thus is a matter to be determined at arbitration. See In re Pisces Foods, L.L.C., 228

S.W.3d 349, 352 (Tex. App.–Austin 2007, orig. proceeding).

       Second, real parties also contend that BNP materially breached the arbitration

agreement by calling into question the inherent fairness of the arbitration procedure. In this

regard, real parties specifically allege that BNP engaged in improper, ex parte

communications with the arbitration tribunal. The record before the Court fails to contain

evidence substantiating any such alleged improper communications. We conclude that

real parties have failed to carry their burden to establish this alleged defense to arbitration.

       Finally, real parties contend that complete relief cannot be afforded in arbitration

given Cruz’s failure to participate in arbitration. We need not address this alleged defense

in detail, however, because real parties’ generalized allegation of harm is not substantiated

by affidavit or other evidentiary support. Cf. In re Oakwood Mobile Homes, Inc., 987

S.W.2d 571, 573 (Tex. 1999) (requiring non-movant to present evidence of defenses to

arbitration).   Moreover, real parties’ argument is belied by the International Dispute

Resolution Procedures, applicable in the instant case, which specifically provide that if a

party fails to file a statement of defense, fails to appear at a hearing, or fails to produce

evidence, the arbitration “tribunal may proceed with the arbitration” and “may make the

[arbitration] award on the evidence before it.” Accordingly, we reject this alleged defense

                                               9
to the arbitration agreement.

                                       VI. Conclusion

       A party denied the right to arbitration under the FAA has no adequate remedy by

appeal and is entitled to mandamus relief to correct a clear abuse of discretion. See L&L

Kempwood Assocs., L.P., 9 S.W.3d at 128. Because we conclude that the trial court

clearly abused its discretion in denying arbitration of the parties' dispute, we conditionally

grant mandamus relief. The stay previously imposed by this Court is lifted. See TEX . R.

APP. P. 52.10(b) (“Unless vacated or modified, an order granting temporary relief is

effective until the case is finally decided.”). We direct the trial court to vacate its order

denying arbitration and to issue an order compelling arbitration.

       We are confident that the trial court will comply and our writ will issue only if it does

not. Having finally disposed of the petition for mandamus in Cause No. 13-07-353-CV, we

dismiss as moot the interlocutory appeal in Cause No. 13-07-358-CV. See Am. Std. v.

Brownsville Indep. Sch. Dist., 196 S.W.3d at 781.

                                                      ROSE VELA
                                                      Justice

Memorandum Opinion delivered and
filed this 29th day of May, 2008.

                                              10


             In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                   Filed: May 30, 2014

* * * * * * * *           *   *   *   *   *
                                          *
LORETTA FLOYD,                            *       UNPUBLISHED
                                          *       No. 10-739v
              Petitioner,                 *
                                          *       Special Master Dorsey
v.                                        *
                                          *       Attorney’s Fees and Costs;
SECRETARY OF HEALTH                       *       Reasonable Amount Requested to which
AND HUMAN SERVICES,                       *       Respondent Does not Object.
                                          *
              Respondent.                 *
                                          *
* * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY for petitioner.
Alexis B. Babcock, United States Department of Justice, Washington, DC, for respondent.

                       ATTORNEY’S FEES AND COSTS DECISION1

        On October 29, 2010, Ms. Loretta Floyd (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006).
Petitioner alleged that she suffered from neurologic, rheumatologic, and gastrointestinal injuries
as a result of a measles, mumps, rubella (MMR) vaccination she received on October 10, 2007.
Petition at Preamble. On March 20, 2014, a decision dismissing the petition for insufficient
proof was entered.

       On May 27, 2014, the parties filed a Joint Stipulation on Fees and Costs. According to

1
  Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this decision on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899,
2913 (Dec. 17, 2002). As provided by Vaccine Rule 18(b), each party has 14 days within which
to request redaction “of any information furnished by that party: (1) that is a trade secret or
commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted
invasion of privacy.” Vaccine Rule 18(b). Otherwise, the entire decision will be available to the
public. Id.
2
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.

                                                 1
the stipulation, the parties stipulate to an award to petitioner of attorney’s fees and costs in the
amount of $11,614.38. In accordance with General Order #9, petitioner’s counsel represents that
petitioner advanced $350.00, in litigation costs in pursuing her petition.

       The Vaccine Act permits an award of reasonable attorney’s fees and costs. 42 U.S.C. §
300 aa-15(e). Based on the reasonableness of the parties’ stipulation, the undersigned GRANTS
the request for approval and payment of attorney’s fees and costs.

       Accordingly, an award should be made as follows:

    (1) in the form of a check jointly payable to petitioner and Richard Gage, of Richard Gage,
        P.C., in the amount of $11,614.38, and

    (2) in the form of a check payable to petitioner only in the amount of $350.00.

        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’
stipulation.3

        IT IS SO ORDERED.

                                               s/Nora Beth Dorsey
                                               Nora Beth Dorsey
                                               Special Master

3
 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
                                                 2


                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                             No. 00-6267

SCOTT ETHAN KAHL,

                                              Plaintiff - Appellant,

          versus

DAVIS MCLAUGHLIN, Deputy; DICK SANDERS,
Sheriff,

                                            Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (00-165-
AMD)

Submitted:   July 27, 2000                 Decided:   August 2, 2000

Before MURNAGHAN, WILKINS, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Scott Ethan Kahl, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Scott Ethan Kahl appeals the district court’s order dismissing

his 42 U.S.C.A. § 1983 (West Supp. 2000) complaint pursuant to 28

U.S.C.A. § 1915(e) (West 1994 & Supp. 2000).   We have reviewed the

record and the district court’s opinion and find no reversible

error.    Accordingly, we affirm on the reasoning of the district

court.    See Kahl v. McLaughlin, No. 00-165-AMD (D. Md. Feb. 1,

2000).*   We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                           AFFIRMED

     *
       Although the district court's order is dated January 28,
2000, the district court's records show that it was entered on the
docket sheet on February 1, 2000. Pursuant to Rules 58 and 79(a)
of the Federal Rules of Civil Procedure, it is the date that the
order was physically entered on the docket sheet that we take as
the effective date of the district court's decision. See Wilson v.
Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).

                                  2


949 So.2d 411 (2007)
STATE of Louisiana
v.
Nathaniel T. KING.
No. 2006-K-1803.
Supreme Court of Louisiana.
February 16, 2007.
Denied.


341 S.W.2d 930 (1960)
Jerry Ross PLATT, Appellant,
v.
STATE of Texas, Appellee.
No. 32590.
Court of Criminal Appeals of Texas.
December 7, 1960.
*931 Clyde W. Woody, Houston, for appellant.
Dan Walton, Dist. Atty., Samuel H. Robertson, Jr., Jon N. Hughes, Assts. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
WOODLEY, Judge.
The offense is the unlawful possession of morphine, a narcotic drug; the punishment, 3 years.
Police Officer G. S. McMenemy and two other officers went to the Blue Top Courts in Houston and, accompanied by the manager, walked to Cabin 23. In the jury's absence it was shown that the officer had received information from a credible person that people in Cabin 23 would be using narcotics and that while enroute they received a call in regard to a disturbance at the same location.
As Officer McMenemy walked to the front screen door of the cabin, the bathroom door was open. He looked through the screen door into the cabin and saw appellant sitting in a chair in the bathroom clothed in his shorts. Appellant had a tourniquet on the upper part of his leg and had a needle in his leg with a rubber syringe attached to it. He was pumping or moving the syringe and bulb.
As the officer entered the cabin, appellant flushed the paraphernalia down the commode and threw the tourniquet into the shower.
Appellant then put on his pants, in a pocket of which a bottle containing a liquid was found. Another bottle containing some liquid was found on the dresser, and a spoon, a saucepan, two cans of canned heat, several syringe type needles and syringes were found in the cabin, which the officer testified were narcotic paraphernalia.
Analysis of the contents of the bottles by the witness Robert F. Crawford, Chemist and Toxicologist for the City of Houston Police Department, showed that the liquid in both contained morphine.
The bottles which contained morphine and the items which the evidence shows were narcotic paraphernalia were introduced in evidence.
Appellant did not testify and offered no witnesses.
We overrule the contention that the evidence relating to the search and the fruits thereof was obtained as a result of an illegal search.
*932 The officers approached the cabin in company of the manager of the courts. Officer McMenemy saw appellant committing a felony in his presence before he entered the cabin. The search was lawful as incident to appellant's lawful arrest. Doran v. State, 163 Tex.Cr.R. 212, 290 S.W.2d 510.
The search was also made upon probable cause. It was lawful for that reason also, unless it was a search of appellant's private dwelling. Two other persons were in the cabin, a man and a woman. The record is silent as to whose dwelling Cabin 23 was at the time.
Appellant contends that the morphine was found in an exempt drug, to wit, paregoric.
The bottles in which the liquid containing morphine was found were paregoric bottles. The Chemist testified that paregoric has a definite amount of morphine in it, but "The concentration of morphine in a given amount of liquid in that bottle wasn't the concentration that would be found in a solution of paregoric."
He also testified:
"Q. The amount of solution you tested, the amount of morphine you tested was greater than that found in paregoric, is that correct? A. In one bottle it was, and in the other bottle it was less.
"Q. Would that indicate to you that was paregoric that had been tampered with? A. It indicates to me that the solution I tested was definitely not paregoric.
"Q. It was some other solution? A. Yes Sir, a solution containing morphine."
If we understand appellant's further contention in this regard it is that the possession of an amount of morphine not exceeding that contained in an ounce of paregoric, which may be lawfully purchased and possessed, is not unlawful and that morphine obtained by applying heat to paregoric lawfully possessed is not unlawful. If such be the contentions they are overruled.
The evidence sustains the jury's verdict and no reversible error appears.
The judgment is affirmed.


571 A.2d 1181 (1990)
STATE of Maine
v.
Donald SHERBURNE and Gary Sherburne.
Supreme Judicial Court of Maine.
Argued September 9, 1989.
Decided March 2, 1990.
*1182 R. Christopher Almy, Dist. Atty., Philip C. Worden (orally), and Gregory Campbell, Asst. Dist. Attys., Bangor, for the State.
Robert E. Sandy, Jr. (orally), Waterville, for defendant.
Before McKUSICK, C.J., and WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.
CLIFFORD, Justice.
The defendants, Donald and Gary Sherburne, appeal from a decision of the Superior Court (Penobscot County, Smith, J.) affirming their convictions in the District Court (Newport, Cox, J.) for possession of fish in violation of a regulation of the Department of Inland Fisheries and Wildlife. 12 M.R.S.A. § 7604 (1981).[1] The Sherburnes contend that the evidence used against them, secured as the result of a roadblock conducted by the Maine Warden Service, should have been suppressed. They further maintain that there was insufficient evidence of their possession and that the fine imposed was erroneous. Finding no error, we affirm.
On May 22, 1988, officers of the Maine Warden Service[2] established a roadblock on Route 7, north of Corinna, for the purpose of enforcing fishing laws. The location was chosen by an eighteen-year veteran of the Service based upon his experience that the route was one that was travelled by many fishermen returning from the Greenville area. The particular spot was the site of an earlier roadblock that disclosed numerous violations of Department of Inland Fisheries and Wildlife ("Department") regulations governing size, weight and number of fish. In addition, the area provided adequate space to direct vehicles off the road when required. Approval of the operation, scheduled for a Sunday afternoon during the peak of fishing season, was given by a superior officer before it was conducted.
*1183 In conformity with Policy # 17, the Department's written directive on highway checkpoints and inspections,[3] a sign was posted advising motorists that they would be stopped and inspected by the wardens. A police vehicle was parked beside the southbound travel lane, the site of the checkpoint that was marked by orange safety cones. A supervisory officer situated there made a routine inquiry concerning fishing activity of all vehicles passing through the checkpoint. That officer determined, in light of responses given by the vehicles' occupants and the presence of "obvious signs of fishing activity," whether further inquiry and inspection were warranted. In those instances, vehicles were directed to pull off the highway into an inspection area. There, one of the twelve to fifteen uniformed wardens present conducted further inspections. Sixty violations were detected from the approximately 3200 vehicles that passed through the checkpoint that day.
The Sherburnes were returning from a three-day fishing trip at Lake Chesuncook when they were stopped at the Corinna checkpoint. They were travelling in a truck owned and operated by Donald and towing a motor boat owned by Gary. Since routine inspections were made of any vehicle towing a boat, they were directed to the inspection area off Route 7. After entering the area, Warden David Georgia approached Donald and requested permission to check his fish and his gear. Donald agreed, commenting that they had their "legal limit." Gary produced a cooler containing four foil-wrapped fish for Georgia's inspection. Georgia, accompanied by Gary, proceeded to board the boat. Despite assurances that the cooler contained their total catch, Georgia searched three closed compartments located in the bow of the boat. In the third compartment, Georgia found a plastic bag that contained fifteen salmon on ice. Gary admitted to placing the bag in the compartment but claimed that some of the fish belonged to the other two members of their fishing party who were not present. The defendants were each cited for possession of fifteen fish in excess of Department regulations.[4]
The Sherburnes filed motions to suppress the evidence obtained as a result of the Corinna roadblock. They maintained that their right to be free of unreasonable searches and seizures had been violated by the stop and the ensuing search. The District Court denied these motions, determining *1184 that the roadblock was conducted "consistently and reasonably" and that the Sherburnes consented to the search. The court found them guilty and imposed a fine of $325 as to each defendant. Their appeal to this court followed their unsuccessful appeal to the Superior Court.

I.
The roadblock in this case, designed to promote compliance with Maine's fish and wildlife laws and regulations, constitutes a seizure under the Fourth Amendment to the United States Constitution. State v. Leighton, 551 A.2d 116, 117 (Me. 1988). It must be tested, as are roadblocks intended to discover and deter motor vehicle violations, by "`balancing the intrusion on the individual's Fourth Amendment interests against the promotion of legitimate governmental interests'." Id. (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). In deciding whether a brief stop at a regulatory roadblock violates a citizen's fourth amendment rights, this court has considered the reasonableness of the action under the factors set forth in State v. Deskins, 234 Kan. 529, 541, 673 P.2d 1174, 1185 (1983). State v. Cloukey, 486 A.2d 143, 146 (Me.1985). These are:
"(1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test."
Id. (quoting Deskins, 234 Kan. at 541, 673 P.2d at 1185). Utilizing this approach, we have upheld those roadblock stops that furthered important governmental objectives when conducted in conformity with procedures that minimize intrusions on protected interests. State v. McMahon, 557 A.2d 1324, 1325-26 (Me.1989) (sustaining constitutionality of roadblock designed to discover motor vehicle violations, including OUI drivers); Leighton, 551 A.2d at 118 (OUI roadblock); Cloukey, 486 A.2d at 146-47 (vehicle safety roadblock); see also Hatfield v. Commissioner of Inland Fisheries & Wildlife, 566 A.2d 737, 739 (Me. 1989) ("riverblocks" as actually conducted held unconstitutional).
In weighing the governmental interests advanced by a roadblock of this type, we have been consistent with courts of other states and have examined the societal interest in dealing with the issue effectively, the availability of less intrusive means to accomplish the objective and the efficacy of the method chosen. Cloukey, 486 A.2d at 146-47; 4 W.R. LaFave, Search & Seizure § 10.8(d), at 71-73 (2d ed.1987). The State's interest in conserving its natural resources has been effectuated through pervasive legislation. See generally 12 M.R.S.A. §§ 1-9706 (1981 & Supp.1989). We have long recognized that the laws designed to protect and preserve fish and game reflect their "great importance and value to the state." State v. Snowman, 94 Me. 99, 112, 46 A. 815, 818 (1900); see 12 M.R.S.A. §§ 7001-7954 (1981 & Supp.1989). We note that roadblocks have been upheld else where as a means of enforcing game and wildlife laws designed to promote conservation. See, e.g., Drane v. State, 493 So.2d 294, 297 (Miss.1986); State v. Tourtillott, 289 Or. 845, 618 P.2d 423, 429-30 (1980), cert. denied, 451 U.S. 972, 101 S.Ct. 2051, 68 L.Ed.2d 352 (1981); State v. Halverson, 277 N.W.2d 723, 724-25 (S.D.1979).
In determining whether a less intrusive method would adequately serve the important conservation purpose furthered by a roadblock of this type, we recognize the difficult task with which fish and game enforcement officers are charged. Tourtillott, 618 P.2d at 430; see also Prouse, 440 U.S. at 664, 99 S.Ct. at 1401-02 (Blackmun, J., concurring); Drane, 493 So.2d at *1185 298. That task includes the responsibility for enforcement of fish and game laws with limited numbers of personnel over a wide territory, much of which is uninhabited, and justifies the method chosen. Tourtillott, 618 P.2d at 430.
In the case before us, the defendants argue that the roadblock was not conducted reasonably because the wardens failed to comply with the Department's policy directive on highway checkpoints and inspections requiring that all vehicles be stopped and inspected. They maintain that the determination that a further inquiry and inspection was indicated, made by the supervisory officer located at the Route 7 checkpoint, amounts to a discretionary examination of the type condemned in Prouse. We disagree. Though Department Policy # 17 provides that all vehicles shall be stopped and inspected, it implicitly countenances that more extensive inquiries may be undertaken through its provision of inspection techniques for both threshold inquiries and further inspections. Moreover, we have approved the use of further inspections where the circumstances have warranted the adoption of that approach. McMahon, 557 A.2d at 1325; see also United States v. Martinez-Fuerte, 428 U.S. 543, 564-65 & nn. 16-17, 96 S.Ct. 3074, 3085-86 & nn. 16-17, 49 L.Ed.2d 1116 (1976) (border patrol officers' determinations that secondary inspections were indicated upheld where factors relied upon were clearly relevant to purpose of preventing illegal immigration). The trial court's determination that the roadblock was conducted reasonably was based on competent evidence and does not amount to clear error. State v. Reeves, 499 A.2d 130, 132 (Me.1985).

II.
The Sherburnes next contend that the trial court erred in finding that consent was given to the warrantless search of the boat. They argue that any consent given by Donald, the operator of the vehicle, was ineffective to authorize the subsequent search of the boat owned by Gary. They further contend that any consent was given under "inherently coercive" circumstances and thus was presumptively invalid. In order that consent be considered valid, we have required that it be given voluntarily. State v. Fredette, 411 A.2d 65, 68 (Me. 1979), by one "with an appropriate relationship to the property searched," State v. McLain, 367 A.2d 213, 217 (Me.1976), for a search within its bounds. State v. Koucoules, 343 A.2d 860, 867 (Me.1974).
Irrespective of whether Donald had either sufficient control or common authority over the boat to make his consent to search the boat binding on Gary, see State v. Thibodeau, 317 A.2d 172, 177-78 (Me. 1974), the actions of Gary alone were sufficient to allow the court to infer consent to the search. Gary, the boat's owner, cooperated with the Warden's request to check "fish and gear" by boarding the boat with him and producing the cooler containing their "legal limit." United States v. Miller, 589 F.2d 1117, 1131 & nn. 11-12 (1st Cir.1978).
The Sherburnes' argument that any consent was not voluntary is based upon the fact that a number of uniformed wardens or police were present in the inspection area to which they were directed and that they were not informed that they might refuse the warden's request. Although there were a number of officers in the area, their activity was not focused exclusively on the Sherburnes. The Sherburne vehicle was only one of 3200 vehicles stopped that day, and only Warden Georgia approached and engaged the Sherburnes while in the inspection area. Cf. State v. Carter, 443 A.2d 958, 959-60 (Me.1982); see also Robbins v. MacKenzie, 364 F.2d 45, 49 (1st Cir.1966). Georgia testified that he intended to search only if allowed. Further, we have not required that knowledge of a right to object to an officer's request to search is necessary to establish the validity of consent. Fredette, 411 A.2d at 69-70 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973)). Competent evidence exists to support the trial court's finding that the search was conducted with the consent of the Sherburnes. State v. Harriman, 467 A.2d 745, 747 (Me.1983).

*1186 III.
The defendants also contend that there was insufficient evidence of possession. They maintain that the evidence presented failed to establish a specific intent to possess an amount of fish in excess of the daily limit prescribed by regulations.[5] In examining the Sherburnes' contention of insufficient evidence, we review the record in the light most favorable to the State. State v. Erving, 558 A.2d 703, 704 (Me.1989).
Possession may be established by showing that the defendant had, at sometime, either "immediate physical control... of [an] object or ... the intention and ability to gain [its] physical control...." State v. Koehling, 381 A.2d 12, 14 (Me. 1978). We have held that "the mere intentional doing of acts amounting to possession... give[s] rise to a sufficient culpable mental state required in proof of [fish and game] violations...." State v. Goyette, 407 A.2d 1104, 1111 (Me.1979) (emphasis in original). The fact of physical control negates the necessity of proof of those facts required for constructive possession. State v. Gaudin, 152 Me. 13, 16, 120 A.2d 823, 825 (1956). Testimony offered at trial established that the fish were concealed inside a plastic bag found aboard a boat owned by Gary Sherburne that was towed by a truck owned and operated by Donald Sherburne. Gary admitted to placing the bag inside the boat locker. Donald explained that the pair was transporting the fish that belonged to all four members of their fishing party, two of whom were not present. On these facts, sufficient evidence of the pair's possession was introduced to support the court's findings. State v. Chapman, 496 A.2d 297, 304 (Me. 1985).

IV.
Finally, we affirm the imposition of a fine on each of the Sherburnes for the total number of fish in excess of that which could lawfully be possessed. A violation of 12 M.R.S.A. § 7604 is a Class E crime. 12 M.R.S.A. § 7901(3) (1981). The maximum fine for a Class E crime is $500. 17-A M.R.S.A. § 1301 (1983). In addition, 12 M.R.S.A. § 7901(3) imposes an incremental fine in the amount of $5 for each fish illegally possessed that may not be suspended. Here, the facts support the trial court's finding that the pair was in joint possession of the fifteen unlawful fish, see Erving, 558 A.2d at 704-05, and the total fines imposed, $325 as to each defendant, were well within the maximums provided.
The entry is: Judgments affirmed.
McKUSICK, C.J., and WATHEN, HORNBY and COLLINS, JJ., concurring.
GLASSMAN, Justice, dissenting.
Though cloaked in the same analytical guise, the court's opinion in fact departs from previous cases addressing regulatory stops made without individualized suspicion. The court ignores salient state statutory law and rationalizes the result by a faulty analysis of federal constitutional law. Because I cannot agree that the court's opinion is a correct statement of the law, I must respectfully dissent.
Rules governing the validity of vehicular stops for regulatory inquiry or investigation reduce the probable cause requirement normally adhering to criminal seizures pursuant to the fourth and fourteenth amendments to the United States Constitution. The paternity of such stops may be found in a twin line of United States Supreme Court decisions. One such line of cases derives from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), which established policies governing street encounters between police officers and persons who piqued an officer's suspicion short of the probable cause necessary for an arrest. The Court held that brief detentions and cursory searches for weapons did not violate the fourth amendment when the detention *1187 and search was based upon a reasonable and individualized suspicion that the person was armed. While it is true that these decisions primarily analyzed the legality of the search itself, logic dictates that they should also be understood to mean that the actual stop must be based upon these same grounds.
The second line of cases reducing the strict requirements of probable cause deal with administrative or regulatory inquiries or inspections. These cases deal with the requirements for obtaining access to buildings for housing code or safety inspections, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), or agency inspections of highly regulated businesses. See, e.g., Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (liquor dealers); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (firearms). The Court made clear that certain inspections based upon lowered probable cause did not offend the fourth amendment because the objectives of the inspections were regulatory, not penal, and because such inspections were based upon regularized administrative procedures that carefully circumscribed any discretion given to officers in the field.[1] Such inquiries are allowed in carefully articulated programs designed to prevent or correct an existing condition. While criminal penalties do sometimes attach under these circumstances, they are never the focus of the administrative inquiry.
The two lines merged when the Court subsequently applied the logic of administrative inspections of premises to vehicular stops that serve preventive purposes. In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Court held that permanent checkpoint inspections conducted without individualized grounds for suspicion did not violate the fourth amendment when balanced against the overriding need to prevent illegal immigration. Later commentators rightly categorized such stops as administrative or regulatory, see 1 K. Davis, Administrative Law Treatise 262 (2d ed. 1978); 3 W. LaFave, Search and Seizure § 10.5, at 710 (2d ed.1987), and only incidentally related to criminal enforcement. This distinction is crucial when analyzing stops the State claims are regulatory in nature. For if the method and result of the "regulatory" stop is really penal, then nothing remains of the carefully drawn distinction between ordinary law enforcement seizures requiring individualized suspicion, and preventive and corrective administrative stops that do not.
The Court in Martinez-Fuerte also set forth other factors that tipped the balance in favor of the validity of such an administrative program. The Court carefully noted that it confined its decision to permanent vehicular checkpoints. Martinez-Fuerte, 428 U.S. at 566 n. 19, 96 S.Ct. at 3087 n. 19. The Court observed that a permanent checkpoint eliminated the danger of discretionary enforcement because "[t]he location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources." Id. at 559, 96 S.Ct. at 3083. Finally, this type of regulatory practice was justified by the overwhelming problem of illegal immigration, a problem that the Court described in considerable detail. Id. at 551-53, 96 S.Ct. at 3080-81. These factors, and the intrusion they represent, are carefully balanced against the privacy interests inherent in the fourth amendment.
*1188 The court in the instant case is correct when it states that regulatory roadblocks "must be tested ... by `balancing [the] intrusion on the individual's Fourth Amendment interests against [the] promotion of legitimate governmental interests.'" State v. Leighton, 551 A.2d 116, 117 (Me. 1988) (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). The court, however, fails to analyze whether this particular roadblock is really regulatory in nature, and if so, whether the cases the court cites permit the "balance" struck.
First, the court incorrectly treats the Corinna roadblock as a "regulatory" stop. As I have previously noted, regulatory intrusions on fourth amendment privacy interests are primarily designed to prevent or correct an existing condition. Such existing conditions directly and immediately affect the health, safety and welfare of the citizenry. Accordingly, we have upheld roadblocks designed to discover motor vehicle violations. State v. McMahon, 557 A.2d 1324 (Me.1989); drivers operating under the influence, State v. Leighton, 551 A.2d 116 (Me.1988); and vehicle safety violations, State v. Cloukey, 486 A.2d 143 (Me.1985). In view of the mayhem on our highways, no one can seriously question the need to enforce highway laws and the tragic consequences that can imminently follow the failure to do so. By contrast, violations of sport fishing laws do not generate any comparable threat to human health, safety or welfare justifying such an intrusion. Nor does the stop prevent or correct an existing condition: The fish in question were, after all, dead when seized at the Corinna checkpoint. There was no attempt to instruct or advise fishermen before or while they fished. The stop of those leaving a large and nebulous target area was for the sole purpose of imposing a penalty.
Second, and closely related to the first point, the court's attempt to balance governmental interests against the demands of the fourth amendment is also found wanting in several important respects. Although pervasive legislation by itself does not create an interest sufficient to justify the intrusion, the court attempts to magnify the governmental interest involved by stating that the "pervasive legislation" "designed to protect and preserve fish and game reflect[s] their great importance to the state." Yet this foundational premise is disposed of in one perfunctory paragraph. In United States v. Martinez-Fuerte, relied upon by the court, the United States Supreme Court carefully analyzed the problem of implementing the long and well-established national policy to limit immigration into the United States and convincingly demonstrated the urgency of the government's interest in adopting the least invasive means of implementing this national policy.
The court also ignores salient statutory law governing the legality of fish and game stops. The provision in force in May, 1988, stated that a warden could make a stop if he "[has] reason to believe" that such a violation has occurred. 12 M.R.S.A. § 7053(2)(D) (1981). We held that this language merely incorporates the same requirement of individualized suspicion as do Terry criminal stops. State v. Hillock, 384 A.2d 437, 440-41 (Me.1978).[2] By P.L.1989, ch. 170, the Legislature repealed section 7053(2)(D) and by P.L.1989, ch. 493, §§ 5, 6, effective June 29, 1989, replaced it by 12 M.R.S.A. § 7053(2)(D-1) (Supp.1989) which states that a uniformed game warden may stop "a motor vehicle or other conveyance, or its operator or occupant" if the warden has a "reasonable and articulable suspicion" that the vehicle or occupant "is or has been involved in" a violation of the fish and game laws. By its terms, this statute demands the usual quantum of individualized suspicion normally applied to stops for criminal law enforcement purposes. Examination of the cases and legislative history *1189 reveals that section 7053(2)(D-1) simply makes specific our previous decision that stops for the purpose of finding fish and game violators are measured by the same standard as any other stop that is criminal in nature. The court fails, however, to address either the new statute or the old. I believe that 12 M.R.S.A. § 7053(2)(D) is, by itself, dispositive and should have been applied by the court.
Third, in view of the subject matter of this stop, the department policy governing the Corinna checkpoint invests excessive discretion in the field officers carrying out the policy. As noted previously, the "`grave danger' of abuse of discretion" always looms in the background of a regulatory stop. Delaware v. Prouse, 440 U.S. 648, 662, 99 S.Ct. 1391, 1399, 59 L.Ed.2d 660 (1979) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 559, 96 S.Ct. 3074, 3083, 49 L.Ed.2d 1116 (1976). In Martinez-Fuerte, this danger was alleviated because the checkpoints were permanent, and not chosen by field officers and because of the "regularized manner in which [the] established checkpoints are operated...." Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. at 3083. The San Clemente checkpoint had been operated for 24 years, so it is not difficult to see how such "regularized manners" were developed. See id. at 566 n. 19, 96 S.Ct. at 3087 n. 19.
In the present case, the checkpoint was not permanent, and its location was established based upon the discretion of one field officer, and not as the result of considered and thoughtful administrative policy. Department Policy # 17, which governs such checkpoints, is contradictory, stating on the one hand that "[a]ll vehicles shall be stopped and inspected" and on the other hand granting field officers discretion to inspect only selected vehicles.[3] This confusion in policy, resolved by officers in the field, does not "reassure[] ... law-abiding motorists, that the stops are duly authorized and believed to serve the public interest." Id. at 559, 96 S.Ct. at 3083.
In summary, therefore, the court fails to distinguish between stops for regulatory purposes and those that are purely penal in character, and misapplies the balancing tests normally used to determine the validity of regulatory intrusions. The court ignores controlling statutory law and blurs carefully formulated distinctions while claiming to stand squarely upon established jurisprudence. Accordingly, I would vacate the judgments and remand to the Superior Court for entry of judgments of acquittal for the defendants.
NOTES
[1]  12 M.R.S.A. § 7604 (1981) provides as follows:

A person is guilty of a violation of a number, amount, weight or size limit if he fishes for or possesses fish in violation of the number, amount, weight or size limits of any rule promulgated by the commissioner.
[2]  The Maine Warden Service is a bureau within the Department of Inland Fisheries and Wildlife. Among other duties, the Bureau is responsible for the enforcement of state statutes and regulations pertaining to the management and protection of inland fisheries and wildlife resources. 12 M.R.S.A. § 7014 (1981 & Supp. 1989). The wardens have law enforcement authority. 12 M.R.S.A. § 7053 (1981 & Supp. 1989).
[3]  Policy # 17 provided that:

1. Designated highway checkpoints shall be established and meet with the following criteria:
a. The location adjacent [sic] to an area allowing vehicles to pull off the highway prior to being inspected.
b. Checkpoints to be utilized in the night time hours shall be well lighted.
c. A large sign stating, "Warden Service Fish and Wildlife CheckpointAll Vehicles Stop" shall be posted on the highway preceding the checkpoint.
d. All vehicles shall be stopped and inspected.
2. Personnel Deployment
a. A supervisory officer shall be present and in charge at the checkpoint to assure that this policy is adhered to and that all precautions are taken to ensure the safety of all persons involved.
b. Vehicles shall be stopped by use of stationary marked departmental cruisers and uniformed Warden Service personnel and directed off the highway to the inspection area.
c. The inspection area shall be allotted an appropriate number of uniformed wardens to carry out inspections and rapidly return vehicles stopped, to the highway.
. . . .
3. Inspection Techniques
a. Once vehicles are stopped, the vehicle will be approached by a uniformed warden who shall identify himself and state the purpose for the stop.
b. Threshold inquiries of all vehicles stopped shall be consistent and initially made by the officers positioned on the highway.
c. In instances when a vehicle and its occupants are to be detained for further inquiry and inspection, the vehicle shall be directed to the inspection area where this will be accomplished.
Me. Dep't of Inland Fisheries & Wildlife, Policy # 17 (1985).
[4]  The regulation provides that "the daily limit on salmon, trout and togue from any ... inland waters is 10 fish [and] shall not include more than 2 salmon, 2 togue, 3 brown trout [and] 3 rainbow trout." Me. Dep't of Inland Fisheries & Wildlife, Open Water Fishing Regulations 09-137 CMR 1 (1988). The regulation prohibits the possession of any more fish than might lawfully be taken in one day. Id.
[5]  We reject the defendants' related contention that the regulation is so vague that enforcement violates due process.
[1]  Indeed, the Camara court stressed these two themes. The Court stated that "`probable cause' to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied." 387 U.S. at 538, 87 S.Ct. at 1736, and emphasized that the inspections were by nature preventive and therefore different in kind from ordinary criminal searches. Id. at 534-36, 87 S.Ct. at 1733-35. In another case dealing with safety inspections, the Court distinguished the concept of probable cause "in the criminal law sense" from the sense of following the "reasonable legislative or administrative standards" mandated by Camara. Marshall v. Barlow's, Inc., 436 U.S. 307, 320, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305 (1978).
[2]  In Hillock, we addressed the predecessor statute to section 7053(2)(D), which also stated that a warden must have "reason to believe that a violation" of the fish and game laws has occurred before making a stop. 12 M.R.S.A. § 3051(1) (1974), repealed by P.L.1979, ch. 420, § 5, and replaced by 12 M.R.S.A. § 7053(2)(D). P.L.1979, ch. 420, § 1. Section 7053(2)(D) was repealed by P.L.1989, ch. 170, and replaced by section 7053(2)(D-1). P.L.1989, ch. 493, § 5.
[3]  While it is true that such two-stage inquiries were approved by the Supreme Court in Martinez-Fuerte, this technique was practiced according to clearly defined and longstanding policy, and not "in the breach" as here.


436 N.W.2d 651 (1988)
Theresa GARMAN, Plaintiff-Appellee,
v.
AMES ZONING BOARD OF ADJUSTMENT, Defendant-Appellant.
No. 87-1612.
Court of Appeals of Iowa.
December 22, 1988.
*652 John R. Klaus, City Atty. and Beth Ringgenberg, Asst. City Atty., for defendant-appellant.
John L. McKinney, Ames, for plaintiff-appellee.
Heard by OXBERGER, C.J., and SCHLEGEL and HAYDEN, JJ., HABHAB, J., takes no part.
SCHLEGEL, Judge.
Defendant Ames Zoning Board of Adjustment (Board) appeals the decision of the district court which sustained plaintiff's writ of certiorari and reversed the decision of the Board denying a zoning exception to plaintiff. Defendant claims the district court erred in: 1) finding there was no practical way to achieve compliance; 2) finding that a denial of the exception would produce a personal loss on the part of the owner greatly disproportionate to other individuals; and 3) incorrectly stating and applying the standard that the exception can be granted to all others similarly situated.
Plaintiff Teresa Garman is the owner of a rental property located at 140 S. Franklin Street in Ames, Iowa. The property was converted from a single-family dwelling unit to a duplex in 1969. When Garman purchased the property in 1974, no building or zoning permits had been obtained to make the conversion, despite the fact that building and zoning permits were required.
Under the zoning laws of Ames, Iowa, property which is divided into a duplex must provide four off-street parking spaces for a two-unit rental property. Garman's property has no off-street parking. In 1985, the Ames City Council enacted an ordinance which provided a mechanism for making properties such as plaintiff's legal through a retroactive conversion permit procedure. The ordinance authorized the Board's power to grant specified and limited exceptions to the applicable code requirements, including parking requirements, provided certain conditions are met.
Garman applied for a retroactive conversion permit in July of 1985, which was denied. Garman then applied to the Board, requesting an exception to the off-street parking requirements. On December 10, 1986, the Board voted to deny Garman's application for an exception because the three conditions necessary for granting an exception were not met.
On February 19, 1987, Garman filed a petition for writ of certiorari in the district court alleging that the Board acted unlawfully, illegally, arbitrarily, and capriciously. Writ was issued on February 20, 1987. Upon trial, the court found that the Board did not properly address the applicable law and that it acted arbitrarily and capriciously in denying the exception. The court ordered that the decision of the Board be reversed, the writ sustained, and the retroactive conversion permit issued. Defendant Board appeals from that decision.
The principles of judicial review in a case such as this were set out in the Iowa Supreme Court's decision in Weldon v. Zoning Bd. of City of Des Moines, 250 N.W.2d 396, 401 (Iowa 1977):
[I]n a certiorari proceeding in a zoning case the district court finds the facts anew on the record made in the certiorari proceeding. That record will include the return to the writ and any additional evidence which may have been offered by the parties. However, the district court is not free to decide the case anew. Illegality of the challenged board action is established by reason of the court's findings of fact if they do not provide substantial support for the board decision. If the district court's findings of fact leave the reasonableness of the board's action open to a fair difference of *653 opinion, the court may not substitute its decision for that of the board.
This court's scope of review on appeal from the trial court's judgment on a writ of certiorari is governed by Iowa Rule of Civil Procedure 318. Accordingly, we review the record to determine whether the trial court applied the correct legal standards and whether its decision is supported by substantial evidence. Nolan v. Board of Adj. of Iowa City, Iowa, 350 N.W.2d 744, 746 (Iowa App.1984) (citations omitted).
The authority of a zoning board of adjustment to grant an exception from the terms of a zoning ordinance is established under Iowa Code section 414.12(2) (1987). As used in the context of zoning ordinances, an exception, as distinguished from a variance, allows a property owner to put his property to a use which the zoning ordinance expressly permits. Vogelaar v. Polk County Zoning Bd. of Adj., 188 N.W. 2d 860, 862 (Iowa 1974). For those property owners in noncompliance with zoning regulations, section 29.52(2) of the Ames Municipal Code provides that the zoning board is authorized to grant limited conditional exceptions for specified items of nonconformance to enable an applicant to obtain a retroactive conversion permit pursuant to section 13.39 of the Ames Municipal Code, provided all three of the following conditions are met:
1) The Board finds there is no practical way to achieve compliance; and
2) A denial of the exception will produce a personal loss on the part of an individual owner greatly disproportionate to any risks of harm to other individuals, or to the public as a whole that could be reasonably attributed to granting the desired exception; and
3) The same exception can be granted to all others similarly situated.
Applying these conditions to the facts of this case, we hold that the trial court's decision to grant Garman an exception was supported by substantial evidence. We consider each factor in turn:
1) The Board found that a possible solution to Garman's problem would be to place a driveway along the north edge of Garman's property to the back of her property where the required parking lots would be placed, despite evidence that the City's plan would be quite difficult to comply with. The district court heard testimony that the distance between the north edge of plaintiff's property and the house was nine feet, six inches, six inches less than the minimal distance, and this would require the removal of bushes and shrubs as well as additional construction on the property to insure that the driveway would be safe and would not create a nuisance to the adjacent neighbor to the north. In addition, the evidence established that the sidewalk in front of Garman's house would have to be removed due to the slope of the property, which would create icy conditions, and that a wall would have to be placed along the driveway to protect the neighbor's lot.
Although the Board's alternative to off-street parking is one possible way for Garman to achieve compliance, we agree with the trial court that the Board failed to consider the practicality and feasibility of such a plan. Taken as a whole, the record provides substantial evidence to support the court's finding that it would be quite impractical for Garman to achieve compliance in this case.
2) Garman presented evidence at trial that it would cost her approximately $6,000 to comply with the Board's proposal. Testimony was also heard indicating that it could be dangerous for Garman's tenants to access their downstairs apartment and this situation could feasibly cause Garman to experience difficulty in finding tenants to rent the downstairs apartment. Garman estimated that she would receive $200 less per month if she were forced to rent the property as a single-family residence. Other evidence presented at trial indicates that only two accidents have occurred on Garman's street since 1979, and those accidents occurred at an intersection and not at mid-block locations. Testimony was also heard that generally, approximately half of the available on-street parking spaces are used.
*654 In balancing the relative interests involved, we believe the evidence supports the finding that Garman's risk of loss would be greatly disproportionate to any risks of harm to other individuals or to the public as a whole.
3) Although the trial court erred in failing to state the proper standard for the third condition, the record is devoid of any evidence which indicates that the same exception would not be granted to all property owners similarly situated.
We believe that substantial evidence exists in the record to support the district court's ruling that the decision of the Ames Zoning Board of Adjustment should be reversed and the writ sustained. Accordingly, the City of Ames is directed to issue the retroactive conversion permit to plaintiff Teresa Garman.
AFFIRMED.


                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 19-1522

AVEMARIA M. LADSON,

                    Plaintiff - Appellant,

             v.

UNITED STATES OF AMERICA,

                    Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, District Judge. (1:18-cv-00811-AJT-MSN)

Submitted: September 24, 2019                               Decided: September 26, 2019

Before WYNN and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

AveMaria M. Ladson, Appellant Pro Se. Dennis Carl Barghaan, Jr., Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       AveMaria M. Ladson appeals the district court’s order granting Defendant’s motion

for summary judgment in Ladson’s civil action. On appeal, we confine our review to the

issues raised in the Appellant’s brief. See 4th Cir. R. 34(b). Because Ladson’s informal

brief does not challenge the basis for the district court’s disposition, Ladson has forfeited

appellate review of the court’s order. See Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir.

2014) (“The informal brief is an important document; under Fourth Circuit rules, our

review is limited to issues preserved in that brief.”). Accordingly, we affirm the district

court’s judgment. We dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                                                AFFIRMED

                                             2


                                   NO. 07-07-0300-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                 AUGUST 6, 2007
                         ______________________________

                         KELLY LYNN CHAIRES-DYALS FRY,

                                                               Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

             FROM THE 33rd DISTRICT COURT OF BURNET COUNTY;

              NO. 17513-C; HON. GUILFORD L. JONES, III, PRESIDING
                       _______________________________

                               ORDER OF DISMISSAL
                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Appellant, Kelly Lynn Chaires-Dyals Fry, appeals her conviction for three counts of

theft of $1500 or more but less than $20,000. The certification of right to appeal executed

by the trial court states that “this is a plea bargain case and the Defendant has NO right

of appeal.” This circumstance was brought to the attention of appellant, and opportunity

was granted her to obtain an amended certification entitling her to appeal. No such

certification was received within the time we allotted. Having received no certification
authorizing an appeal, we dismiss the appeal per Texas Rule of Appellate Procedure

25.2(d).

      The appeal is dismissed.

                                            Per Curiam

Do not publish.

                                        2


509 F.Supp. 1248 (1981)
Rolly O. KINNELL, Petitioner,
v.
STATE OF KANSAS, et al., Respondents.
Rolly O. KINNELL, Petitioner,
v.
Robert A. ATKINS, et al., Respondents.
Nos. 79-3023, 80-3052.
United States District Court, D. Kansas.
March 24, 1981.
Rolly O. Kinnell, petitioner pro se.
Christopher Y. Meek, Asst. Atty. Gen., Topeka, Kan., for respondents.

MEMORANDUM AND ORDER
SAFFELS, District Judge.
Petitioner Rolly O. Kinnell, having been granted leave to proceed in forma pauperis, has filed with the Clerk of the Court two petitions for writ of habeas corpus pursuant *1249 to 28 U.S.C. § 2254. The two cases, No. 79-3023 and No. 80-3052, are herein consolidated for all purposes. Rule 42(a), F.R. Civ.P., 28 U.S.C.
Petitioner is currently serving a sentence of three to twenty years in the Kansas State Penitentiary, Lansing, Kansas, by virtue of his conviction in the District Court of Bourbon County, Kansas, on October 6, 1977, upon a jury verdict of guilty of aggravated battery. Petitioner challenges this sentence and conviction on the basis of several alleged errors occurring during the prosecution and trial of the state charge. Specifically, petitioner asserts as constitutional error: (1) the use of an illegal line-up and identification procedure; (2) withholding by the prosecution of evidence favorable to the defense; (3) the prosecution's knowing use of perjured testimony; (4) the introduction of unlawfully seized evidence; and (5) ineffective assistance of counsel. Only the issue of ineffective assistance of counsel was raised on direct appeal. The other issues were raised by pro se motion for post-conviction relief in the state courts and rejected without an evidentiary hearing.
After the filing of the petition in Case No. 79-3023 a rule to show cause issued on the claim of ineffective assistance of counsel, the State filed an answer and return, and petitioner filed a traverse. Having considered the pleadings and numerous other filings submitted by petitioner in each case, the response of the State, and the state records, including the transcript of trial, the Court makes the following findings and order.
A brief recital of the circumstances underlying the aggravated assault charge will facilitate our discussion of each of petitioner's claims. On June 27, 1977, in Fort Scott, Kansas; Glen Brown and Mike Fewell were on the porch at the home of Larry Bates drinking and talking with Bates and Linda Adams when Rolly Kinnell stopped at the house and approached Brown concerning a three-dollar debt. An argument ensued between Kinnell and Brown over another issue which no one was able to recall. Bates suggested that if the men were going to fight that they go down the street. Kinnell left in his car, and Brown and Fewell followed in another vehicle. The drivers stopped down the street, where Fewell and Kinnell began fighting. During the fight Kinnell was hit in the forehead by Fewell with a half-full bottle of beer, and Fewell was stabbed by Kinnell with a camping knife in the left temporal area, neck, arm, lower leg, and abdomen, resulting in wounds requiring approximately two hundred stitches. Kinnell then drove off in his automobile with Fewell and Brown in pursuit. Kinnell lost the two men, picked up an acquaintance, went past a friend's house to inquire whether he had a gun, and then drove to Mercy Hospital's emergency entrance. Fewell and Brown subsequently went to the police station hoping to find Kinnell. Police officers, observing Fewell's injuries, drove Fewell and Brown to Mercy Hospital, where Brown began a scuffle with Kinnell in the hospital emergency room. Security and police officers quelled this disturbance. Kinnell was thereafter arrested and charged with the aggravated assault of Mike Fewell.
Petitioner's first claim, that an illegal line-up or identification procedure was employed during his arrest, is without foundation. The facts alleged by him in support of this claim are that he was being treated at Mercy Hospital for injuries sustained during the assault incident when the victim arrived with police officers and identified petitioner as the assailant without a defense attorney present. The testimony at trial, not contrary to these allegations, was that petitioner had received a severe blow to the head during the fight and had driven to the hospital for emergency treatment. In the meantime, the victim (Fewell), accompanied by his friend Brown, drove by his home, armed himself with several kitchen knives, and proceeded to the police station in angry pursuit of Kinnell. Police officers, observing Fewell's extensive injuries, transported him to the hospital where they encountered petitioner in the emergency room.
*1250 Neither the facts alleged by petitioner nor the facts in the record support a claim of illegal identification process. The identification of petitioner as the person who stabbed Fewell was not a hotly-contested issue at trial, since petitioner did not deny his commission of the stabbing but testified that it was in self-defense. Moreover, no testimony was elicited at trial that petitioner's identity as the assailant was established through a "showup" at the hospital. Even if the victim expressly identified petitioner as his assailant at the hospital, evidence of this was not introduced at trial. Nor can it be said that in-court identification evidence was tainted by this encounter. The victim was acquainted with the defendant and named him at the police station prior to arriving at the hospital. These circumstances simply do not lend themselves to a claim of impermissibly suggestive identification procedures, unreliable identification testimony or untoward police conduct. Cf. United States of America v. Myers, No. 79-1364 (10th Cir., unpublished, July 30, 1980); Meyer v. Estelle, 621 F.2d 769 (5th Cir. 1980); Hudson v. Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied 444 U.S. 1086, 100 S.Ct. 1046, 62 L.Ed.2d 772 (1980); Gonzalez v. Hammock, 477 F.Supp. 730 (S.D.N.Y.1979); see also Lindsay v. Henderson, 499 F.Supp. 667 (S.D.N.Y.1980).
Petitioner's second claim is equally spurious. In support of his statement that the prosecutor withheld favorable evidence, he alleges that the police report of the incident was not disclosed even though it assertedly supported his defense. Petitioner has submitted an exhibit purported to be an "edited" copy of the police report in question. By no stretch of the Court's imagination can it be said that this report substantiated petitioner's defense theory or might have affected the outcome of the case. The report, even as edited by petitioner, is neutral in that it merely relates the two accounts of the incident as given by petitioner and the victim. It does not include eyewitness corroboration of petitioner's theory of self-defense. Thus, petitioner cannot show that failure to disclose this report amounted to a denial of due process. See United States v. Auten, 632 F.2d 478 (5th Cir. 1980); see also Baker v. Reid, 482 F.Supp. 470 (S.D.N.Y.1979).
Petitioner's next claim is that the prosecution knowingly used perjured testimony. This claim is not well-founded. Petitioner's supportive allegations are that perjured testimony was admitted when Bill Moran, who had accompanied petitioner to the hospital, stated that he had received a knife from petitioner in the emergency room and had taken it home "for a few days," while Detective Robert Brown testified that Moran gave him this knife on June 27, 1977, the day of the incident. The transcript of trial demonstrates no such conflict in the testimony of these two witnesses. Bill Moran did not testify that he took the knife home "for a few days" as alleged. Rather, consistent with Officer Brown's testimony, Moran stated that he kept the knife "for awhile" and then took it to Brown after being questioned by him. Petitioner does not show that this testimony was false and presents no basis for his conclusion that the prosecution introduced perjured testimony or knew of its falsity. See United States v. Jones, 614 F.2d 80 (5th Cir.), cert. denied 446 U.S. 945, 100 S.Ct. 2174, 64 L.Ed.2d 801 (1980); Hudson v. Blackburn, supra.
Petitioner next challenges the introduction at trial of evidence he claims was seized in an unlawful search and seizure. The facts underlying this claim do not appear to be disputed. While petitioner was in the hospital, the Chief of Police entered petitioner's automobile to remove it from the hospital emergency zone and drive it to the police station. In plain view on the floor of the vehicle, the Chief observed an iron "window weight" with what appeared to be blood upon it, and retained it as possible evidence. On these facts, petitioner claims that his automobile was illegally searched and the window weight seized without a warrant or his consent, and concludes that the window weight should not have been admitted as evidence at trial.
*1251 The initial issue before the Court is whether petitioner was provided with an opportunity for full and fair litigation of this Fourth Amendment claim in the Kansas state courts. If we find that he was, then Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precludes federal habeas corpus review.
Counsel appointed to defend petitioner at trial did not move to suppress this evidence and did not object to its admission at trial. This is one of the grounds for petitioner's claim of ineffective assistance of counsel discussed hereinafter. Petitioner was appointed new counsel on appeal, which counsel decided as a tactical matter not to press this issue except as subsumed in his ineffective assistance of trial counsel argument. It is not suggested that the State of Kansas failed to provide an opportunity for litigation of this claim at either the trial or appellate court level. The two attorneys appointed to represent petitioner at the separate proceedings simply declined to argue the claim. However, petitioner did raise the issue in his pro se post-conviction motion to the trial court. That court, without an evidentiary hearing, held that there was no search with regard to this item, and that the seizure of it was lawful under either the automobile exception of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the search incident exception of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), or the plain view exception of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Petitioner avers that he sought but was denied appellate review of the denial of his post-conviction motion.
We find that petitioner was provided a full and fair opportunity to litigate his Fourth Amendment claim at the trial and appellate court levels on direct review through independent counsels' decisions not to challenge the admission of this evidence [see Shelton v. State of Oklahoma, No. 77-1853 (10th Cir., unpublished, Mar. 8, 1978)], and on collateral review where both petitioner and the State were formally before the court and petitioner's claim was heard and given plenary consideration as illustrated by the written opinion of the court [see Summer v. Mata, ___ U.S. ___, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)]. Thus, we are of the opinion that federal habeas corpus review of this claim is precluded.
Furthermore, we agree with the holding of the state court that this evidence was not inadmissible. At the trial, the Chief of Police testified that he entered petitioner's car in order to remove the vehicle from the hospital emergency zone. Thus, the car was entered for a lawful purpose and not to search for evidence of a crime. The Chief further testified that the window weight was in plain view. Petitioner does not refute the Chief's account of these facts. Under such circumstances, no unreasonable search was conducted and the evidence was lawfully seized.
In any case, even assuming the challenged evidence should have been suppressed, here, where petitioner did not deny that he cut the victim with his knife but rather the defense was predicated upon self-defense, and where neither the victim nor a witness was willing to identify the admitted object as a second weapon used in the assault, any error in its admission was harmless beyond a reasonable doubt. See Martley v. Douglas, 463 F.Supp. 4 (W.D. Okl.1977).
Petitioner's claim that his knife was unlawfully admitted into evidence is not supported by any factual allegations. The testimony of Bill Moran at trial was to the effect that petitioner gave his knife to Moran in the hospital emergency room and asked him to dispose of it. Moran then took the knife home with him but turned it over to a police detective after being questioned about the incident. No unreasonable search or seizure lead to the production of the knife at trial as evidence.
Petitioner's final claim is that counsel appointed to represent him at trial was so incompetent as to have deprived him of his Sixth Amendment right to effective assistance of counsel. At the conclusion of the trial, petitioner expressed his dissatisfaction *1252 with trial counsel and new counsel was appointed for appeal. The issue of ineffective assistance of counsel is the only one of petitioner's claims which was raised on direct appeal of his conviction. Counsel who prepared the appeal cited 137 instances of alleged error on the part of his predecessor. This Court has thoroughly reviewed the errors as alleged by appellate counsel and as presented by petitioner, together with the entire transcript of the trial. We conclude that, while petitioner was not provided with an error-free trial, he was afforded reasonably competent counsel and was not prejudiced by the alleged mistakes of counsel.
As pointed out by petitioner, the United States Court of Appeals for the Tenth Circuit has replaced the "sham and mockery" test to measure competency of counsel with the "reasonably competent or skillful assistance of counsel" standard. Dyer v. Crisp, 613 F.2d 275 (10th Cir. 1980). In the instant case, this Court has evaluated the competency of petitioner's trial counsel by the new, more demanding standard. Thus, we have reviewed the entire record mindful of the mandate that the "Sixth Amendment demands that defense counsel exercise the skill, judgment and diligence of a reasonably competent defense attorney." Id. at 278. The errors allegedly made by counsel for the defense may be grouped as follows:
1. failure to advise defendant of the charge;
2. failure to move for a transcript of the preliminary hearing;
3. failure to move for suppression of illegally obtained evidence;
4. incorrectly advising petitioner that he could not have a court trial;
5. failure to make discovery motions;
6. inadequately conducting voir dire;
7. failure to subpoena one witness and to call another;
8. refusal to call character witnesses;
9. failure to object to prosecutor's improper remarks in opening and closing statements;
10. failure to make objections at trial to introduction of evidence, hearsay testimony, and leading or repetitive questions;
11. ineffective cross-examination;
12. stipulation to qualifications of doctor as expert witness;
13. causing victim's wounds to be displayed to jury as a result of objection to photographs at pretrial;
14. failure to object to perjured testimony;
15. failure to make motions for directed verdict;
16. permitting defendant to ramble on the stand and to make damaging statements;
17. failure to request an insanity instruction;
18. failure to "formulate self-defense theory;"
19. refusal to utilize police report as evidence;
20. presented closing argument for defense which lasted only seven minutes, and never mentioned that guilt must be proved beyond a reasonable doubt;
21. joked with prosecutor within hearing of the jury; and
22. did not object to the court's proposed instructions.
Each group of alleged errors is hereinafter discussed and referred to by number.
With regard to alleged error No. 1, the transcript demonstrates that although petitioner stated at his arraignment that he thought the charges would be assault and battery, the actual charge was explained by counsel prior to his entering a plea of guilty.
Alleged errors Nos. 2, 5, 12 and 15 are simply trial strategies which might have been, but were not, employed by defense counsel in this case. There is absolutely no indication in the record that making these motions or refusing to stipulate to the expert witness would have aided in petitioner's defense.
*1253 Alleged error No. 3 is based upon the trial court's admission of the window weight into evidence. As we have discussed previously herein, this evidence was not inadmissible. Thus, counsel's decision not to move for suppression was reasonably competent.
There is no support for alleged error No. 4 in the record, and no prejudice alleged or shown to have resulted therefrom.
With respect to alleged error No. 6, the transcript of the voir dire indicates that a woman who had previously heard of the incident was adequately questioned and that the prosecution had already sufficiently questioned members of the array about relationships with trial participants so that it was not necessary for defense counsel to do so.
Alleged error No. 7 is based upon the failure of defense counsel to subpoena Glen Brown. This decision was probably wise, and certainly is not shown to have prejudiced petitioner's case, since Brown was a friend of, and with, the victim at the time of the assault, and later attacked petitioner at the hospital. The refusal to call as a witness a person whom petitioner claims heard someone say "leave me alone" is not shown to have prejudiced petitioner's case.
The refusal to call character witnesses charged as error No. 8 cannot be reviewed because petitioner does not allege what persons should have been called and how they would have testified so as to support his defense.
The remarks alleged to be improper in connection with alleged error No. 9, even if erroneous, are not so egregious as to have denied petitioner a fair trial. Moreover, defense counsel, in statements made for the defense, rebuked the prosecutor for some of his remarks.
As concerns the alleged errors in group No. 10, clearly there are several instances when defense objections would have been proper to hearsay testimony and leading or repetitive questions; however, our reading of the transcript does not demonstrate that petitioner was denied a fair trial or that such objections were necessary. Appellate counsel's assignment of these numerous errors mainly reflects a difference in style between his and trial counsel's trial techniques.
With respect to the alleged errors in No. 11, petitioner does not pinpoint what cross-examination was ineffective. The record reveals that defense counsel's cross-examination, while certainly not vigorous, was indicative of adequate preparation and a knowledge of the facts of the case. In particular, his cross-examination of the victim was thorough and emphasized weaknesses in the State's case.
With regard to the alleged error charged in No. 13, no prejudice is alleged or shown to have resulted from this occurrence.
No perjured testimony was shown to have been introduced as charged in alleged error No. 14.
In disposing of alleged error No. 16, the Court notes that having received numerous rambling discourses from this petitioner in this and other cases, it is hard to perceive that defense counsel could have done much to control petitioner's testimony from the stand. The questions asked petitioner by his counsel adequately extracted his account of the incident as self-defense.
There is not adequate evidence in the record to support an insanity instruction. Thus, alleged error No. 17 is frivolous.
In regard to alleged error in No. 18, our review of the record discloses that defense counsel attempted with some skill, through his direct examination of defendant and questioning of other witnesses, to develop a theory of self-defense. From the record, it appears that this was not an easy task. The prosecution established the lack of a self-defense motive by showing the viciousness of the attack, and that petitioner did not go to the police station or elsewhere to avoid Fewell and Brown, but met them down the street intending to fight. Petitioner had little evidence to impeach the State's proof of this element.
There is no indication in the record that the report on which alleged error No. 19 is *1254 based contained evidence favorable to the defense or that it would have effected the verdict.
Contrary to the allegations of error in No. 20, the transcript of defense counsel's opening and closing statements reveal that he did, in fact, impress upon the jury that defendant's guilt had to be proven beyond a reasonable doubt. The closing argument also indicates preparation on the part of counsel and his development of the self-defense theory.
No prejudice is shown from the behavior which is alleged as error No. 21; nor are facts recounted in support of this claim.
Petitioner does not allege that there existed any valid reason to object to the proposed instructions, yet the failure to object is cited as error No. 22. Counsel does not display incompetency by declining to object where no grounds for objection are evident.
We conclude from the foregoing review of the record taken in conjunction with petitioner's claims raised here and on direct appeal that, while trial counsel did not venture to assert every potential objection and defense, he afforded petitioner loyal and reasonably competent representation. Moreover, given the convincing evidence against petitioner produced at trial, it cannot be said that he was prejudiced by what might generally be attributed to his counsel's non-aggressive style. The record is clearly not devoid of error. Nonetheless, it supports the state court's findings and convinces this Court that the representation "did not fall below the minimum standard of reasonable skill and competence expected of a defense attorney in a criminal case." Dyer v. Crisp, supra, at 276.
Having considered each of petitioner's challenges to his state conviction and finding them not to warrant federal habeas corpus relief, the Court determines that these actions must be dismissed. Our disposition of these cases renders it unnecessary to determine petitioner's pending motions.
IT IS BY THE COURT THEREFORE ORDERED that Kinnell v. State of Kansas, et al., No. 79-3023 (D.Kan.), and Kinnell v. Atkins, et al., No. 80-3052 (D.Kan.), be, and hereby are, consolidated for all purposes.
IT IS BY THE COURT FURTHER ORDERED that these actions be dismissed and all relief denied, and that the Clerk of this Court transmit copies of this Memorandum and Order to petitioner and to the Attorney General for the State of Kansas.