author: HAIGHT, District Judge:

text:
    PENTHOUSE INTERNATIONAL, LTD., Plaintiff, v. Edward KOCH, the City of New York, Metropolitan Transportation Authority, New York City Transit Authority and New York Subways Advertising Co., Inc., Defendants.
    No. 84 Civ. 4737-CSH.
    United States District Court, S.D. New York.
    Dec. 19, 1984.

      Grutman, Miller, Greenspoon, Hendler & Levin, New York City, for plaintiff; Norman R. Grutman, Jeffrey H. Daichman, Thomas V. Marino, New York City, of counsel.
    Reavis & McGrath, New York City, for defendants; John A. Lowe, New York City, of counsel.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

This case is before the Court on cross-motions for summary judgment. Plaintiff, Penthouse International Ltd. (“Penthouse”), moves for Dartial summary judgment against three of the named defendants — New York City Subways Advertising Co., Inc. (“Subways”), New York City Transit Authority (“NYCTA”) and Metropolitan Transit Authority (“MTA”) — on the ground that defendants’ removal of and refusal to display a Penthouse advertising poster in the New York City subway system violated its First and Fourteenth Amendment rights of free speech and equal protection. Penthouse further alleges that due to the tortious interference of MTA and NYCTA, Subways wrongfully breached its advertising contract with Penthouse. Plaintiff seeks a declaratory judgment and monetary damages for defendants’ alleged wrongdoings.

The three defendants cross-move for judgment in their own favor on all claims on the ground that they rightfully prohibited display of the poster, which they term “offensive.”

All parties agree that there are no disputed issues of material fact and that this action is ripe for disposition by partial summary judgment on the issue of liability.

I. FACTS

MTA is a public benefit corporation, created by the Metropolitan Transportation Authority Act, N.Y.Pub.Auth.Law § 1260 et seq. (McKinney’s 1982), which controls and regulates New York metropolitan area mass transportation systems. NYCTA, another public benefit corporation, N.Y.Pub. Auth.Law § 1200 et seq. (McKinney’s 1982), is responsible for operation of the New York City rapid transit or subway system. In 1959, the NYCTA was given statutory authority to place advertisements on subway system property, or to “rent, have or otherwise sell the right to do so to any person, private or public,” N.Y.Pub. Auth.Law § 1204, subd. 13-a. Pursuant to that authority, NYCTA entered into a contract with Subways, a private New York corporation, by which Subways agreed to act as NYCTA’s agent in leasing advertising space in the subway system. The agreement contains a provision permitting NYCTA to prohibit acceptance or demand removal by Subways of any advertisement deemed by NYCTA to be “offensive to good taste” or “objectionable to the Authority.”

In exercise of the authority granted to it by that agreement, Subways entered into a contract dated November 21, 1983 with Tilley & Marlieb Advertising, Inc. on behalf of Penthouse, for the display of posters advertising Penthouse magazine in the New York City subway system. Subways agreed to install up to 550 “one sheet station posters” for Penthouse for purposes of subway and bus shelter advertisements. The contract ran for a term of twelve months beginning on January 12,1984, at a cost of $8,917.00 per month. Consistent with its contractual obligation to NYCTA, Subways’ standard form lease contract with its own customers, including Penthouse, provides at Section 2E:

“All copy and design shall be subject to rejection or removal at any time if it is deemed offensive to good taste or is unsatisfactory to the New York City Transit Authority.”

Penthouse is a monthly publication whose advertising strategy reflects the cyclical and short-lived nature of the product. Its poster advertisements are usually created from the cover of the next monthly issue to go on sale and its advertising campaign is scheduled to coincide with the appearance of the issue on newstands. Numerous poster advertisements for Penthouse have been accepted and displayed by Subways, although some have been modified by Penthouse, at Subways’ request, to “reduce nudity.”

On April 12, 1984, Penthouse submitted a proof to Subways Advertising of a poster advertising the magazine’s June issue. The poster featured a caricature of Walter Mondale by political cartoonist Uri Hofmekler. The figure, wearing a medallion labeled “ERA Yes” around his neck, was portrayed as an almost nude male “stripper”, with female hands reaching up toward his unclothed thighs.

Because the poster had a sexual content, the proposed ad copy was reviewed by Marvin Schwartz, President of Subways. Schwartz agreed to accept the proposed poster if a black banner or “snipe” were added covering the figure’s midsection from abdomen to thigh.

Once Tilley & Marlieb had obtained the approval of Subways for the modified version of the poster, Penthouse ordered additional copies of the advertisement and delivered them to Subways for posting. On Thursday, May 10, 1984, employees of Subways began installing the posters, and continued installing them on Friday, May 11, 1984. By 6:30 p.m., approximately 20 to 30% of the posters had been mounted.

At that point, Robert Kiley, Chairman of the MTA, learned that the poster was being installed and displayed in the subway system. After determining that the poster was “offensive to good taste” and “objectionable”, he ordered the removal of all posters already installed and prohibited further installation of the poster, pursuant to the NYCTA-Subways agreement.

Kiley’s order was relayed to Schwartz that evening by Larry Levine, an MTA employee. By Monday, May 14, 1984, all of the Penthouse posters had been removed.

The next day, Penthouse filed suit in New York state court against the same defendants as in this action, seeking damages and an injunction directing defendants to replace all of the posters that had been removed and enjoining defendants from removing them again. Plaintiff’s motion for a preliminary injunction was denied by Justice Maresca on May 21, 1984 and the denial was affirmed without opinion by the Appellate Division, First Department, on June 28, 1984.

On July 3, 1984, Penthouse filed this .action in federal court and simultaneously sought to voluntarily discontinue the state court action by serving a notice of discontinuance on defendants. The discontinuance, however, was ineffective because it was served and filed more than twenty days after the service of Penthouse’s complaint. New York C.P.L.R. 3217(a)(1). As a result, the state action is still pending.

II. STAY OF PROCEEDINGS

Defendants, MTA, NYCTA and Subways, have moved this Court for a stay of further proceedings in this action pending final resolution of the state court action. They argue that because the state action is a prior pending action on the same claims between the same parties, this Court should exercise its discretion to stay all proceedings before it until the previous action is properly terminated. Defendants accuse plaintiff of forum shopping in hopes of finding a more sympathetic ear to its claims in federal court. They argue that such forum shopping should not be permitted unless the state court action is discontinued in accordance with the requirements of N.Y.C.P.L.R. 3217, which may require payment to defendants of their costs and expenses of defending the state court action. Mandelbaum v. L.N. Magazine Distrib., Inc., 28 A.D.2d 680, 280 N.Y.S.2d 753 (2d Dep't 1967). Defendants candidly acknowledge that they have no real desire to stay in the New York state courts. They ask this Court to hold the case before it hostage in order to coerce plaintiff into properly discontinuing the state action and perhaps thereby to give defendants the financial satisfaction they seek. This I decline to do.

Defendants’ counsel conceded at oral argument that he could initiate a request on his own in state court, after passage of time, to have the action dismissed there for want of prosecution. However, he said he knew of no provision by which he could then apply for the expenses for which he seeks reimbursement. He suggested that his clients can get financial satisfaction only if this Court requires plaintiff to first discontinue this action in accordance with N.Y.C.P.L.R. 3217, as a condition of pursuing its claim here.

It is not the province of this Court to manipulate its own exercise of jurisdiction in an attempt to set in motion the state court’s procedural mechanisms for defendants’ benefit. Surely defendants can directly initiate whatever application is appropriate in the state court in order to bring their grievance before that court.

A stay by this Court, postponing resolution of the motions ripe for adjudication before it, would be improper in light of the central importance of plaintiff’s constitutional claims in this litigation. Federal courts have the primary duty to decide federal constitutional issues, Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967), and in the First Amendment area, the Supreme Court has severely limited the scope of the district court’s discretion to abstain, New York Civil Liberties Union, Inc. v. Acito, 459 F.Supp. 75, 82 (S.D.N.Y.1978). In Zwickler, a federal district court, was held to be in error for abstaining from ruling on a request for a declaratory judgment that a state criminal statute contravened the First Amendment by its overbreath. The Court emphasized that “Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims.” 389 U.S. at 248, 88 S.Ct. at 395.

Defendants’ request for a stay is denied, and I proceed to consider the merits of the motions before me.

III. BREACH OF CONTRACT

Penthouse claims that the actions of the three defendants in removing and refusing to display plaintiff’s posters constituted breach of contract. Penthouse further states that it has performed all of its own contractual obligations, except as prevented from doing so by defendants’ acts. It claims that it is therefore entitled to recover monetary damages for loss of revenue from sales of the June 1984 issue, as well as for injury to its good will, credibility and relationships with contributors, advertisers, creditors and other third parties.

The only defendant with whom Penthouse has a contractual relationship is Subways. Consequently, the removal of the poster could have constituted a breach of contract only by Subways, the sole defendant with whom Penthouse was in privity of contract.

Subways itself did not make the decision to remove or refuse to display the Penthouse posters. To the contrary, Subways accepted the poster once modified and had begun the installation process at the time it was directed by MTA and NYCTA to remove the Penthouse ads. Subways’ actions were taken only at the direction and insistence of the MTA and pursuant to its contractual obligations to the NYCTA.

Paragraph 5C of the contract between Penthouse and Subways provides:

“If there is any delay or failure by NYSA [Subways] to perform hereunder as the result of force mejeure, labor dispute, law, governmental action or order (including termination of transit franchise), or any other similar or dissimilar cause beyond NYSA’s reasonable control, NYSA shall immediately notify the Agency/Advertiser. This shall not constitute a breach of contract, but the Agency/Advertiser shall be entitled, at its election, to either an extension of service, additional service, or credit, all on a pro rata basis.” (Emphasis added)

Subways’ failure to carry out its contractual obligations to Penthouse was due solely to governmental action or order and by the very terms of the contract such failure does not constitute a breach of contract. Defendants’ cross-motion for summary judgment on plaintiff's breach of contract claim is therefore granted.

IV. TORTIOUS INTERFERENCE

WITH CONTRACT

Penthouse also alleges a cause of action against defendants NYCTA and MTA for tortious interference with the contract between Penthouse and Subways because the rejection and removal of the Penthouse posters by Subways was at the direction and insistence of NYCTA and MTA.

Under New York law, a plaintiff claiming tortious interference with a contract must prove: (1) the existence of a valid contract; (2) defendants’ knowledge of the contract; (3) defendants’ intentional procurement of the breach of the contract; and (4) damages. Israel v. Wood Dolson Co., 1 N.Y.2d 116, 151 N.Y.S.2d 1, 5, 134 N.E.2d 97 (1956). An essential element of the case against defendants is therefore breach by Subways of its contract with Penthouse. Since there has been no such breach, there can be no claim of tortious interference with contract. Zilg v. Prentice-Hall, Inc., 717 F.2d 671, 682-3 (2d Cir. 1983) (Pierce, J., concurring); Jack L. Inselman & Co., Inc. v. FNB Financial Co., 41 N.Y.2d 1078, 396 N.Y.S.2d 347, 349, 364 N.E.2d 1119 (1977). Defendants’ cross-motion for summary judgment on plaintiff’s tort claim is also granted.

V. CONSTITUTIONAL CLAIMS

I come now to the central issue in this case: did defendants violate plaintiff’s First Amendment rights by refusing to display the Penthouse advertisement within the New York City subway system on the ground that its content is “offensive”? Plaintiff claims that it was unfairly denied access to a public forum due to the political content of its message, and that this selective exclusion was not justified by any compelling state interest. Defendants respond that the Penthouse poster was of a wholly commercial nature and thus entitled to a lesser degree of First Amendment protection than political speech. They further assert that the Supreme Court in Lehman v. Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), established that a municipal rapid transit system is not a First Amendment forum and that NYC-TA’s managerial decision to limit displays to “innocuous and less controversial” advertising “does not rise to the dignity of a First Amendment violation”. 418 U.S. at 304.

A. Commercial or Political Speech

The threshold question that must be addressed is whether the Penthouse poster involves political speech or commercial speech. Although we are far beyond the days when commercial speech was deemed wholly outside the purview of the First Amendment, Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 921, 86 L.Ed. 1262 (1942), there is still a “common sense distinction” that must be drawn between the most clear-cut examples of the two, Central Hudson Gas-Elec. Corp. v. Public Service Comm., 447 U.S. 557, 564-67, 100 S.Ct. 2343, 2350-52, 65 L.Ed.2d 341 (1980), in recognition of the fact that commercial speech has been afforded “a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values.” Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978). State action limiting or prohibiting purely commercial speech must be judged against a less stringent standard than if such action encroaches on purely political speech. Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351.

The distinction between commercial and political speech is not always clear-cut. The mere fact that the message appears in the form of a paid advertisement does not automatically mean that it must be considered “commercial” speech. There is an inherent overlap of commercial, social and political messages in such items as a “public relations” advertisement by an industrial manufacturer of defense-related equipment, or an advertisement for commercial abortion services available at a family planning clinic. U.S. Southwest Africa/Namibia Trade & Cultural Council v. U.S., 708 F.2d 760, 769 (1983).

In Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), Justice Stewart tried to provide some guidance in this area by defining the difference between what he termed “commercial price and product advertising” on the one hand and “ideological communication” on the other. He explained that ideological expression, “be it oral, literary, pictorial, or theatrical, is integrally related to the exposition of thought — thought that may shape our concepts of the whole universe of man.” Commercial price and product advertising, in contrast, “is confined to the promotion of specific goods and services.” 425 U.S. at 779-80, 96 S.Ct. at 1834-35.

Defendants allege that the Penthouse poster in this case is mere commercial speech because its eye-catching caricature of Walter Mondale was designed only to sell Penthouse magazine, not to communicate a political idea or message. In support of this argument, defendants claim that Penthouse conceded in its state court action that the poster served no purpose after the issue of the magazine it promoted was no longer for sale on the newsstands. They suggest that if Penthouse were truly engaged in political speech, its message would have remained timely until the presidential election in November and Penthouse would have continued to have an interest in having the poster displayed.

Defendants overlook the fact that plaintiff’s complaint specifically requests a declaratory judgment declaring “that the defendants ... have a duty and obligation to install and display the poster which is the subject of this action” (emphasis added). Complaint at 8. This request for relief, contained in plaintiff’s pleadings filed in July, 1984, negates any suggestion that plaintiff considered its message important and timely only in connection with the sale of the magazine’s June issue.

In any event, Penthouse states that it chose Hofmekler’s caricature for its poster to disseminate Hofmekler’s satirical view of Móndale as pandering to his feminist supporters. Individuals may disagree whether such a characterization of Mondale is accurate or fair, but this pictorial expression of a thought is as clearly political speech as the famous caricatures of Nast and Herblock.

While the driving force behind Penthouse’s lease of advertising space in the subway system and its display of the poster at issue was undoubtedly its desire to sell copies of the June issue of Penthouse magazine, the context in which Hofmekler’s caricature appears — a paid commercial advertisement — does not deprive it of its political message and content. “The relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas.” Bigelow v. Virginia, 421 U.S. 809, 826, 95 S.Ct. 2222, 2235, 44 L.Ed.2d 600 (1975).

I conclude that the Penthouse poster involves political speech which is subject to the full panoply of the First Amendment’s protection and will therefore assess defendants’ actions in light of the appropriate standard for excluding noncommercial speech from public property.

B. The Subway System as a Public Forum

The first question to be resolved is whether and to what extent the New York City subway system is a public forum, since “[t]he existence of a right of access to public property and the standard by which limitations upon such right must be evaluated differ depending on the character of the property at issue.” Perry Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). In Perry, the Court divided public property into three categories for First Amendment purposes.

The first category, the traditional public forum, consists of property like parks and streets “which by long tradition or by government fiat have been devoted to assembly and debate”. 460 U.S. at 44, 103 S.Ct. at 954. The state may place only two types of restrictions on expressive activity in the traditional public forum: (1) content-neutral time, place and manner regulations, or (2) content-based exclusions which are narrowly drawn to effectuate a compelling state interest. Id. at 45, 103 S.Ct. at 954.

The second category, the designated public forum, is one which the state has voluntarily opened for use by the public as a place for expressive activity. Government property may be designated a public forum for a limited purpose such as use by certain groups, e.g., Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (student groups), or for the discussion of certain subjects, e.g., City of Madison Joint School District v. Wisconsin Public Employment Relations Comm., 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (school board business). Perry, 460 U.S. at 46, n. 7, 103 S.Ct. at 955 n. 7. As long as the open character of the forum continues, the state is bound by the same standard in regulating speech in a designated public forum as in a traditional public forum. Id. at 46, 103 S.Ct. at 955.

Public property which is not by tradition or designation a forum for public communication falls into a third category which includes, for example, military bases, Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), or prisons, Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). The state may limit expressive activity in these “non-forums” to uses compatible with the public facilities’ intended purposes “as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s views.” Perry, 460 U.S. at 46, 103 S.Ct. at 955.

The standard to be used in measuring defendants’ actions against plaintiff’s First Amendment rights in the case at bar depends upon which Perry category the New York City subway system fits. The system covers more than 720 miles of track with 477 stations. Each station has numerous entrances from the city streets. Many entrances, and even entire stations, are connected underground by passageways of varying lengths. These entrances and some of the passageways are open to the general public without payment of any fee. However, all members of the public must pay a fixed toll to gain entrance to the platforms where passengers can board the subway trains. The entrances, passageways and platforms are lined with the type of advertising displays at issue here.

According to Subways’ own promotional literature, over five million different adults pass through the subway’s portals and walkways each year and wait on its platforms for an average of 14 minutes each trip. The literature proclaims that the “high average frequency of exposure because of the necessity of regular riding,” combined with the substantial waiting time and lack of other colorful distractions for thousands of daily commuters, make the subway system a “veritable ‘Niagara Falls’ of buying power.”

The subway system is clearly not a traditional public forum like a park. It is not an appropriate site for a political rally or demonstration, or for soapbox speeches by individuals. But it is an appropriate site for passive expressive activity, as shown by some important characteristics it shares with traditional public forums.

The system is open to any member of the general public. Its physical design and the concomitant concentration and flow of people in its underground thoroughfares parallel those of the city streets above it. While its passageways may not be as broad and open as public streets, their more enclosed structure does not alter their fundamental character as corridors for the passage of people in transit. The subway station is not a destination in itself but is, at most, a way station. Individuals hurrying to catch a subway train who pass by an advertisement that does not interest them, or even offends them, may simply avert their eyes and move on, just as pedestrians on a city street.

Subways and NYCTA themselves appear to believe that the subway passageways and platforms are an appropriate forum for public expressive activity. Through Subways, the NYCTA has specifically created advertising display cases throughout the system and reserved their use for those advertisers willing and able to pay the fee demanded. It has actively solicited the advertising public by promoting the subway system as an advertising medium, and has accepted a variety of commercial and political messages for display to its riders. By these actions, the NYCTA itself has made the subway system a designated public forum for the limited purpose of generating revenue through the display of public advertisements.

This conclusion is consistent with the Supreme Court’s decision in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974). Lehman upheld the defendant city’s decision to exclude all political advertising from “car card” spaces in its buses and streetcars while accepting commercial and public service-oriented ads. In a 5-4 decision, the Court found that the interior of the transit vehicles was not a traditional public forum suitable for public expressive activity due to the “risk of imposing upon a captive audience.” 418 U.S. at 304, 94 S.Ct. at 2718. The Court consequently upheld the blanket exclusion of an entire class of potentially controversial advertising for the protection of confined bus riders from disturbing intrusions on their privacy.

The Lehman Court’s concern for captive listeners is inapplicable to the case at bar. The Penthouse ads were never displayed inside of subway cars; they were always posted in the open public areas of the subway stations — the walls of the passageways and platforms.

Lehman says only that the interiors of transit vehicles are not traditional First Amendment forums. However, Perry makes it clear that the transit authority may create a designated public forum for the advertising of commercial and political speech by the acceptance and display of such advertisements over a significant period of time. That is precisely what the NYCTA has done in this case.

Other courts that have considered the constitutionality of selective rejection of advertising materials by local transit authorities have concluded that the pattern and practice of soliciting, accepting and displaying such ads creates a designated public forum. See, e.g., Planned Parenthood Assoc. v. Chicago Transit Authority, 592 F.Supp. 544 (N.D.Ill.1984) (Chicago transit system designated a public forum for pro-abortion messages by opening its message space to other “controversial” public message advertisements); Coalition for Abortion Rights v. Niagara Frontier Transp. Authority, 584 F.Supp. 985, 989 (W.D.N.Y. 1984) (public bus company created a public forum for advertisements concerning abortion by permitting other political and public service advertisements); Gay Activists Alliance of Washington, D. C., Inc. v. Washington Metro. Area Transit Authority, No. 78-2217, slip op. (D.D.C. July 5, 1979) (interior of Washington, D.C. buses designated a public forum for message regarding homosexuality by transit authority’s acceptance of other ads dealing with social and political issues); Preterm, Inc. v. Massachusetts Bay Transp. Authority, No. 74-159-M, slip op. (D.Mass. May 13, 1974) (injunctive relief granted for plaintiff likely to be able to prevail at trial on merits of complaint that by offering space on its facilities for public advertising, transit authority could not constitutionally refuse to carry pro-abortion advertisement). See also, U.S. Southwest Africa/Namibia Trade & Cultural Council v. U.S., 708 F.2d 760, 767 (D.C.Cir.1983) (federally-owned airport a public forum for political advertising).

The parties do not cite, but I have considered the Second Circuit’s recent opinion in Gannett Satellite Information Network, Inc. v. Metropolitan Transportation Authority, 745 F.2d 767 (2d Cir.1984). Gannett arose out of the MTA’s licensing scheme for the placement of coin operated newspaper vending machines (newsracks) in MTA commuter train stations. Plaintiff, a newspaper publisher, contended that MTA’s imposition of revenue raising fees violated the First and Fourteenth Amendments. The district court agreed, enjoined the imposition of revenue raising fees, and ordered the adoption of reasonable standards governing license terms and procedures for license issuance. 579 F.Supp. 90 (S.D.N.Y.1984). The Court of Appeals reversed, rejecting the district court’s holdings that MTA’s imposition of revenue raising licensing fees necessarily violated the First Amendment, and that the licensing scheme was a prior restraint of the press. The Court of Appeals also saw no need to require the promulgation of guidelines at this time. The Court of Appeals remanded to the district court “with directions to enter an order prohibiting MTA from discriminating unreasonably in fees charged for licensing of newsracks, with any fees subsequently established to be applied retroactively on a non-discriminatory basis.” 745 F.2d at 776.

During its discussion of the constitutional issues, Judge Meskill’s discussion for the Court of Appeals in Gannett refers to the three Perry categories, and then says this:

“The third is ‘[pjublic property which is not by tradition or designation a forum for public communication.’ Id. 460 U.S. at 46, 103 S.Ct. at 955. The public areas of the MTA stations are in the third category. See U.S. Southwest Africa/Namibia Trade & Cultural Council v. United States, 708 F.2d 760, 864-66 (D.C.Cir.1983) (Southwest Africa) (holding public areas of airport in third category); Fernandes v. Limmer, 663 F.2d 619, 626 (5th Cir.1981) (same), cert. dismissed, 458 U.S. 1124, 103 S.Ct. 5, 73 L.Ed.2d 1395 (1982).” 745 F.2d at 772-73.

Taken at face value, this statement would appear to be contrary to the line of district court cases cited at pp. 19-20 of this opinion, concluding that a designated public forum (the second category under Perry) is created by transit authorities’ solicitation and display of advertising material and I must of course display a deferential concern with the pronouncements of the Second Circuit on any issue.

But with all due deference, I cannot understand how the Second Circuit in Gannett derives authority for the statement that public areas of MTA stations belong in the third Perry category from the two cases cited for the proposition. Those cases are Southwest Africa, a decision of the Court of Appeals for the District of Columbia Circuit, and Fernandes v. Limmer, decided by the Fifth Circuit.

Gannett summarizes Southwest Africa as “holding public areas of airport in third category.” As I read Southwest Africa, the Court of Appeals reached precisely the opposite conclusion. Officers of the Federal Aviation Administration refused to approve a particular advertisement as suitable for public display in various advertising areas at federally-owned airports. The Court of Appeals, reversing the district court, held that the refusal infringed upon First Amendment rights. The Court of Appeals stated at 708 F.2d 766:

“Whatever commonsense differences may exist in the forms of free speech allowable in airports, as opposed to parks and streets, an unusual consensus of judicial, legislative, and administrative opinion would classify the public areas of National and Dulles squarely within the public forum family. The district court’s one-sided focus on the advertising display cases, without regard to the larger forum of which they are physically and functionally a part, distorts the first amendment realities of this particular medium of communication at these particular public places.” (emphasis added).

Fernandes v. Limmer, the second case cited by the Second Circuit in Gannett, dealt with a religious sect’s suit to enjoin enforcement of an ordinance governing literature distribution and fund solicitation in the Dallas-Fort Worth Airport context. The Fifth Circuit, holding that the airport’s blanket prohibition of solicitation and distribution inside its terminal buildings was overbroad because it unduly restricted First Amendment activity within a public forum, said this of the spaces in question:

“It is now generally well established that airport terminals owned and administered by governmental entities are public forums in which efforts to regulate speech or religious activity must comport with First Amendment guarantees.” 663 F.2d at 626.

Fernandes antedated Perry, whereas Southwest Africa came after Perry and cites it. 708 F.2d at 763. In any event, it is difficult to see how either case supports Gannett’s conclusion that the public areas of mass transportation facilities fall within a category of public property “which is not by tradition or designation a forum for public communication.”

At least, I cannot accept that designation where, as in the case at bar, the MTA has actively solicited and published advertising in the public areas of the subways. And Gannett may be distinguished on its facts, since the newspaper publishers seeking to set up newsracks on commuter station platforms were not wooed by the MTA to do so; rather, the publishers approached the MTA and asked (or in the case of the plaintiff in Gannett demanded) that facilities be made available to them.

In any event, I do not read Gannett or its rationale as requiring.me to depart from the clearly established line of authority which characterizes such public property, thus used, as a designated public forum for the display of paid public advertising. See also Lebron v. Washington Metropolitan Area Transit Authority, 749 F.2d 893 (D.C.Cir.1984) (“There is no doubt that the poster at issue here conveys a political message; nor is there a question that WMATA has converted its subway stations into public fora by accepting other political advertising____ Unlike Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), where the Supreme Court sustained a ban on all political advertising inside a city transit system, the Authority here, by accepting political advertising, has made its subway stations into public fora.” Slip op. at 896, 896 n. 6.).

C. Content-Based Exclusion of Penthouse Poster

Having made the subway system a designated public forum for display of paid public advertising, defendants cannot discriminate among the advertisements they will display on the basis of content except to further' a “compelling state interest,” and then only by regulations that are “narrowly drawn” to effectuate that interest. Perry, 460 U.S. at 45, 103 S.Ct. at 955.

There is no question that defendants rer jected the Penthouse poster solely on the basis of its controversial content. But defendants advance three state interests to justify their actions: (1) that subway riders are a “captive audience” with a right “not to listen” to this type of speech; (2) that the advertisement “goes beyond the bounds of good taste and is offensive to the great majority of the general public served by the subway system,” thus justifying its prohibition as a “public nuisance”; and (3) that school-age children who ride the subways daily need protection from “this patently offensive material.”

I have already rejected defendants’ first asserted interest as inapplicable on the facts of this case; there is no captive audience involved here.

The only authority cited by defendants in support of their second asserted interest of preventing a public nuisance is Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). In Kovacs, the Supreme Court held constitutional a New Jersey ordinance prohibiting the use of sound trucks on public streets. The Court upheld the regulation as a reasonable attempt to protect local citizens from loud and raucous broadcast intrusions into the privacy of their homes. The Penthouse poster has none of the loud and intrusive qualities of a sound truck; on the contrary, it is silent and passive. Furthermore, the poster cannot be prohibited as a public nuisance merely because it provokes disagreements and offends the sensibilities of the majority. “Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949). It is precisely this speech for which the protection of the First Amendment was intended. Even speech that is arguably in bad taste, so long as it does not cross the border into obscenity, enjoys the same constitutional protection as the most enlightened political discourse. Defendants’ distaste for Penthouse’s advertising style cannot, as a matter of law, constitute a compelling state interest that would justify the poster’s rejection.

The third state interest asserted by defendants is protection of children from sexually suggestive pictorial displays. Defendants admit that the poster does not fall within the legal rubric of obscenity. However, they note that the state may adjust its definition of obscenity in order to more stringently control materials like the Penthouse poster that are displayed to minors, rather than exclusively to consenting adults, Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), and imply that such was their aim here.

Shielding minors from graphic displays of sexually suggestive activity on publicly-owned property is no doubt a compelling state interest. Nevertheless, any restriction on expressive activity must be “truly necessary and finely tailored” to effectuate that state interest. Southwest Africa, supra, at 768. Even when seeking to protect minors, the state may bar public dissemination of protected materials only in “relatively narrow and well-defined circumstances.” Erznoznik v. Jacksonville, 422 U.S. 205, 213, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125 (1975).

At a minimum, some objective criteria must exist to guide government officials in determining what sorts of things might arguably be obscene with regard to minors. The MTA & NYCTA may not arbitrarily and on an ad hoc basis determine that certain advertising materials are obscene for children and thereby take such materials out of the First Amendmént’s protection.

Defendants admit that they have previously displayed advertisements by Penthouse showing “attractive women in relative stages of undress or what-have-you” and an advertisement bearing another Hofmekler caricature of Leonid Brezhnev attired only in a “G-string.” But they distinguish the Mondale poster and their treatment of it on the ground that it is the only advertisement to “suggest overt sexual activity.” Yet defendants have never had a written policy stating that certain sexually suggestive materials can be displayed, but not those depicting overt sexual activity, nor have they sought to define explicitly the types of pictorial representations that would fall within the prohibited category.

At the time the Penthouse advertisement at bar was rejected, the only guideline for determining the acceptability of proposed advertisements was Section 2E of the Penthouse-Subways contract which barred ads “offensive to good taste or ... unsatisfactory to the New York City Transit Authority.” This language is too vague and subjective to meaningfully circumscribe the discretion of subway officials. Without clear and reasonable objective criteria against which its employees may measure proposed ad copy, the MTA and NYCTA run the risk of arbitrarily censoring controversial political and social viewpoints. Such censorship “threatens a value at the very core of the First Amendment, the ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.’ ” Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 548 n. 9, 100 S.Ct. 2326, 2335 n. 9, 65 L.Ed.2d 319 (1980) (Stevens, J. concurring) (quoting New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964)).

Defendants’ failure to promulgate and apply narrowly drawn objective standards for excluding the Penthouse advertisement from their designated public forum renders their actions in rejecting that advertisement violative of the First Amendment.

Plaintiff is entitled to a declaratory judgment consistent with this opinion. Settle judgment on five (5) days’ notice.

If plaintiff wishes to press a claim for monetary relief, the parties are directed to proceed with discovery regarding plaintiffs remaining claims against defendants Koch and the City of New York in accordance with the scheduling order separately entered.

It is SO ORDERED.

      . The contract provides, in Article Seven, paragraph four:
      "The Contractor [Subways Advertising] agrees that no sign or advertisement displayed shall be or contain anything unlawful, immoral or offensive to good taste, and in that respect all advertising matter shall be subject to the approval of the Authority [NYCTA]. The Contractor also agrees that if any signs or advertisements are objectionable to the Authority, they will be removed immediately.”

      . Affidavit of Marvin Schwartz at 3 and Exhibit D.

      . Although all transactions on behalf of Penthouse were carried out by their advertising agency, Tilley & Marlieb, my use of the term "Penthouse” is meant to encompass actions taken by plaintiff itself or its agents.

      . Schwartz stated in his affidavit that he "frequently conduct[ed] an initial review of copy which has a sexual content" and that he "generally lookfed] at each advertising copy submitted by Penthouse.” There is no indication that this was an established managerial policy; it appears to have been more of an ad hoc personal practice by Schwartz.

      . Penthouse Int'l., Ltd. v. Koch, New York County Index No. 11499/84.

      . In the state court action, Penthouse sought damages and injunctive relief. In the federal action, Penthouse seeks damages, and declaratory relief with respect to the same constitutional claims on which injunctive relief was denied in the state court proceedings.

      . See text of Article Seven, paragraph four in note 1, supra.

      . The First Amendment is applicable to the states through the Fourteenth Amendment. Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966). Although it is more accurately plaintiffs Fourteenth Amendment rights that would be abridged by defendants’ state action, I will discuss the claims of abridgement of plaintiffs freedom of speech in the conventional language of the First Amendment.

      . Plaintiffs complaint alleges violations of its First and Fourteenth Amendment rights without specifying which rights it deemed abridged by defendants’ actions. Although the introduction to its moving papers refers both to First Amendment and Equal Protection violations, no legal argument has been pressed in support of the Equal Protection claims. It appears that the claim has been abandoned. But regardless, I need not reach the Equal Protection issue in view of my disposition of the First Amendment claims.

      . Exhibit K to affidavit of Glenn Smith, employee of Tilley Marlieb Advertising, Inc.

      . The evidentiary record in this case contains no comprehensive physical description of the subway facilities. But as a long-time resident New Yorker who daily rides the New York City subway to work, I take judicial notice of the layout and physical characteristics of the system with which I have become fully familiar.

      . Exhibit K to affidavit of Glenn Smith.

      . Although the record fails to establish through concrete examples the breadth of diversity of previously displayed ads, defendants' uncontroverted Rule 3(g) statement of material facts declares that "[t]he MTA, NYCTA and Subways Advertising have in the past and continue to accept politically-oriented posters for display.” Furthermore, it is undisputed that defendants accepted and displayed at least two other Penthouse advertising posters bearing political caricatures — one of Ronald Reagan and the other of Leonid Brezhnev. The Brezhnev poster, another Hofmekler creation, depicted the Soviet leader even more scantily clad than Walter Mondale in the poster here at issue.

      . Defendants note that the record in Lehman revealed that the Shaker Heights Rapid Transit System provided advertising space on the outside as well as the inside of its cars. 418 U.S. at 320, n. 12, 94 S.Ct. at 2725, n. 12 (Brennan, J. dissenting). They therefore assert that Lehman approved a ban on all political advertising whether located on the interior or exterior of the transit vehicles. But this argument cannot be sustained when the full text of the footnote in dissent is considered: The record reveals that the Shaker Heights Rapid Transit System provides advertising space on the outside as well as the inside of its cars, [citations deleted]. Lehman was denied access to both. Whatever applicability a “captive audience” theory may have to interior advertising, it simply cannot justify the city’s refusal to rent Lehman exterior advertising space.

      . Defendants’ Memorandum of Law at 9-10.

      . Transcript of oral argument on the cross-motions on August 1, 1984 at 33.

      . Id.

      . This is not a case like Lehman in which the transit authority had for 26 years, pursuant to city council action, excluded an entire class of advertising materials — all political or public issue advertising — from transit vehicles. Lehman, 418 U.S. at 300-301, 94 S.Ct. at 2715-16. Defendants in this case have simply used their unfettered discretion to create ad hoc a particular sub-class of unacceptable ad copy within a larger class of advertising otherwise acceptable for display. That sub-class consists of only one item — the Penthouse poster. No evidence was proffered to show that any other proposed ad copy has ever been rejected by defendants for showing overt sexual activity.


source: Caselaw Access Project

author: NORTHROP, Senior District Judge.

license: Public Domain

text:
    In re DALKON SHIELD CASES. Arlene G. MADILL, Ada June Tolliver, Linda J. and Roy E. Blair, Maylene M. and Gerald Rice, Nancy and Dale Waldo Roxberg, Shirley A. Baxter, Rosella and David Harry McGuffin, De Ann Weiler, Nancy Radius and Donald Mcloud, Margaret E. Witcher, Robin and Ralph David Guariglia, Carol and Curt R. Johnson, Linda M. and Harold Lauder, Sandra K. and Ronald McGrath, Susan Shadburne-Vinton and William G. Vinton, Ann and Lawrence Pindar, Cindy A. and Richard Havice, Gloria J. and Douglas Waits, Val and Douglas Laycock-Cowles, Darla and Thomas Chandler, Carol Lynn and Dennis Lynn Luxford, Susan D. and Robert Diamond, Nancy Elaine and Bruce B. Hamilton, Carolyn and Ronald Maxted, Sherri Jane and Lionel Howell-Coleman, Kathy Philpott, Judith and Larry K. Hoy, and Georgia C. Miller, Plaintiffs, v. A.H. ROBINS COMPANY and Hugh J. Davis, M.D., Defendants.
    No. M 82-3789.

    United States District Court, D. Maryland.
    Dec. 20, 1984.

      Michael A. Pretl, Pretl & Schultheis, Baltimore, Md., for plaintiffs.
    Charles P. Goodell, Jr., Susan T. Preston and Richard M. Barnes of Semmes, Bowen & Semmes, Baltimore, Md., for defendant A.H. Robins Company.
    Deborah E. Jennings and Piper & Mar-bury, Baltimore Md., for defendant Hugh J. Davis, M.D.

       Together with Nos. B 82-3790, HM 82-3791, HM 82- 3792, B 83-18, JH 83-19, K 83-20, M 83-21, M 83-22, HM 83-23, M 83-155, JH 83-157, B 83- 158. HM 83-159, M 83-160. HM 83-161. M 83-162, HM 83-164, HM 83-165, M 83-167, HM 83-168, JH 83-169, B 83-1066, M 83-1713, B 83-2795, JH 83-4215, H 83-4216 and H 83-4328.

   MEMORANDUM

NORTHROP, Senior District Judge.

On June 1, 1984, this Court granted summary judgment in Pottratz v. Davis, 588 F.Supp. 949 (D.Md.1984) on the grounds that the action was barred by an Oregon statute of repose, ORS § 30.905, and by the doctrine of res judicata. On August 15, 1984, plaintiffs’ motion for reconsideration en banc was denied, and counsel was directed to identify other pending actions in this Court which may be subject to summary judgment in accordance with the June 1, 1984 opinion and order.

On September 13, 1984, by joint memorandum, the defendants designated 28 additional actions in which they argue summary judgment should be entered on the dual grounds that: (1) all claims therein are barred by the Oregon statute of repose, and (2) prior judgments in 15 of these actions also bar the claims under the doctrine of res judicata. Plaintiffs filed a memorandum in opposition and defendants have replied. No hearing is necessary. Local Rule 6.

ín order to facilitate discussion and to promote clarity, the 28 cases are arranged in three groups. The first group, comprising 15 actions, involves plaintiffs who have had summary judgment entered against them in the United States District Court for the District of Oregon on the ground that each claim was time-barred under ORS § 30.905. The second group contains seven cases that, while not barred by res judicata, are nevertheless time-barred under ORS § 30.905. One case, discussed in a footnote in this second group, contains a material issue of fact. The third and final group of cases involves plaintiffs in five actions where there are allegations implicating multiple states and raising questions regarding the applicability of the Oregon statute.

I.

In 15 actions the United States District Court for the District of Oregon entered summary judgment against the plaintiffs on the basis of ORS § 30.905. As the Pottratz opinion noted, the summary judgment entered by Judge Belloni in those cases is a final adjudication on the merits and bars a relitigation of the underlying facts. Pottratz v. Davis, 588 F.Supp. 949, 954 (D.Md.1984) (hereinafter sometimes referred to as the “Pottratz opinion”). This same conclusion applies with equal force to and is completely dispositive of the following actions where summary judgment has already been entered: Tolliver (B 82-3790); Rice (HM 82-3792); Roxberg (B 83-18); McGuffin (K 83-20); Radius (M 83-22); Witcher (HM 83-23); Guariglia (M 83-155); Lauder (B 83-158); McGrath (HM 83-159); Pindar (HM 83-161); Waits (HM 83-164); Laycock-Cowles (HM 83-165); Chandler (M 83-167); Luxford (HM 83-168); and Philpott (JH 83-4215).

Plaintiffs attempt to avoid res judicata by arguing that their respective facts are different than those in Pottratz, and thus, the Oregon statute of repose is inapplicable. Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment at p. 5. The answer to this argument is that in each case, plaintiff had an opportunity to litigate her facts before the United States District Court for the District of Oregon. After reviewing those facts, Judge Belloni ruled the actions time-barred under ORS § 30.905 and held: “There are no factors which require a result different from Philpott v. A.H. Robins Co., Inc., [710 F.2d 1422 (9th Cir.1983) ], and Dortch v. A.H. Robins Co., Inc., 59 Or.App. 310, 659 [650] P.2d 1046 (1982).” This res judicata bar precludes plaintiffs from having a second chance at raising an argument concerning the applicability of ORS § 30.905.

By separate Order, summary judgment will be granted in favor of defendants in the above-listed cases.

II.

In Pottratz, this Court concluded that Oregon statute ORS § 30.905 is an ultimate statute of repose and that no cause of action accrues unless a plaintiff learns of a causal connection between her injuries and the Daikon Shield within eight years of its purchase. Pottratz v. Davis, 588 F.Supp. 949, 953 (D.Md.1984). Application of this principle to the seven cases discussed below reveals that all are time-barred by the Oregon statute.

Plaintiffs object to the application of the Oregon statute by arguing that while they may not have made a connection between the Daikon Shield and their injuries within the appropriate time frame, there are allegations of physical injury within the eight-year period set forth in ORS § 30.905. Plaintiffs argue further that these allegations of physical injury distinguish all other cases from Pottratz, and give rise to a factual dispute as to when the injury actually occurred.

The plaintiffs’ argument does not withstand legal analysis. It is true that the below-discussed cases differ from Pottratz in that there are allegations of physical injury occurring prior to the expiration of the eight-year period; occurrence of physical injury, alone, however, is not enough— the injury which must occur within the eight-year period is the legal injury, i.e., “a physical injury which the plaintiff knows or as a reasonable person should know was caused by the defendant.” Dortch v. A.H. Robins Co., Inc., 59 Or. App. 310, 650 P.2d 1046, 1051 (1982); Philpott v. A.H. Robins Co., Inc., 710 F.2d 1422, 1425 (9th Cir.1983). “If plaintiff does not discover the defendant’s causal connection until after the eighth year, no cause of action accrues within eight years and the claim is barred.” Dortch, 650 P.2d at 1052-53; Philpott, 710 F.2d at 1425. Thus, the question is not when a physical injury is alleged to have occurred, but, rather, when the “legal injury” — the causal connection — is alleged to have been discovered.

This is clearly the sense in which “injury” was used in the Pottratz opinion. See, Pottratz v. Davis, 588 F.Supp. 949, 953 (D.Md.1984). Indeed, this conclusion is buttressed by the fact that in both the underlying decisions of Pottratz, Dortch and Philpott, there were allegations of physical injury within the eight-year period. Dortch, 650 P.2d at 1047 and Philpott, 710 F-2d at 1425. The allegations were not deemed legally significant because plaintiffs did not “discover the causal connection [between their injuries and the Daikon Shield] until after the eighth year ...” Dortch, 650 P.2d at 1052-53; Philpott, 710 F.2d at 1425.

As stated, application of this legal injury analysis and ORS § 30.905 to the undisputed facts of the cases discussed below, reveals that the defendants are entitled to summary judgment as a matter of law.

1. Johnson, JH 83-157

The following facts are undisputed: Plaintiff, a resident and citizen of Oregon, purchased and inserted the Daikon Shield on August 17, 1971. Complaint THI1, 29. Physical disorder or injury was experienced in June, 1972 and September, 1978. Complaint MI 30, 32. Plaintiff did not discover the causal connection between her injuries and the Daikon Shield until August, 1980 (Complaint U 38), more than eight years after purchase.

Since no legal injury occurred within eight years of purchase, as required by ORS § 30.905 and as discussed above, plaintiffs claims are time-barred.

2. Diamond, JH 83-169

The following facts are undisputed: Plaintiff, a resident and citizen of Oregon, purchased and inserted the Daikon Shield in May, 1971. Complaint MI 1, 29. Physical disorder or injury was experienced in March, 1972 and September, 1976. Complaint MI 30, 31. Plaintiff did not discover the causal connection between her injuries and the Daikon Shield until April, 1981 (Complaint 1136), more than eight years after purchase.

Since no legal injury occurred within eight years of purchase, as required by ORS § 30.905, plaintiffs claims are time-barred.

3. Hamilton, B 83-1066

The following facts are undisputed: Plaintiff, a resident and citizen of Oregon, purchased and inserted the Daikon Shield in June, 1972. Complaint MI 1, 28. Physical disorder or injury was experienced in June and July, 1976. Complaint MI 29, 30. Plaintiff did not discover the causal connection between her injuries and the Daikon Shield until 1981 (Complaint 1134), more than eight years after purchase.

Since no legal injury occurred within eight years of purchase, as required by ORS 30.905, plaintiffs claims are time-barred.

4. Howell-Coleman, B 83-2795

The following facts are undisputed: Plaintiff, a resident and citizen of Oregon, purchased and inserted the Daikon Shield on April 1, 1972. Complaint MI 1, 34. Physical disorder or injury was experienced in April, 1972 and August, 1978. Complaint 1136. Plaintiff did not discover the causal connection between her injuries and the Daikon Shield until September, 1980 (Complaint 1140), more than eight years after purchase.

Since no legal injury occurred within eight years of purchase, as required by ORS § 30.905, plaintiffs claims are time-barred.

5. Hoy, H 83-4216

The following facts are undisputed: Plaintiff, a resident and citizen of Oregon, purchased and inserted the Daikon Shield on June 23, 1972. Complaint MI 1, 34. Physical disorder or injury was experienced in August, 1973. Complaint MI 37-39. Plaintiff did not discover the causal connection between her injuries and the Daikon Shield until early 1983 (Complaint 1141), more than eight years after purchase.

Since no legal injury occurred within eight years of purchase, as required by ORS § 30.905, plaintiffs claims are time-barred.

6. Miller, H 83-4328

The following facts are undisputed: Plaintiff, a citizen and resident of Oregon, purchased and inserted the Daikon Shield on March 13, 1973. Complaint MI 1, 33. Physical disorder or injury was experienced in 1974 and 1976. Complaint MI 35-37. Plaintiff did not discover the causal connection between her injuries and the Daikon Shield until October, 1983, more than eight years after purchase.

Since no legal injury occurred within eight years of purchase, as required by ORS § 30.905, plaintiffs claims are time-barred.

7. Baxter, JH 83-19

The following facts are undisputed: Plaintiff, a citizen and resident of Oregon, purchased and inserted the Daikon Shield on June 23, 1972. Complaint MI 1, 28. Plaintiff did not discover the causal connection between her injuries and the Daikon Shield until “the summer of 1980.” Complaint II33. Plaintiff admits in her brief in opposition to the summary judgment -motion filed in the District of Oregon litigation that “only after the eight year period of ORS § 30.905 had run that she discovered defendant’s causal involvement in her injury.” Exhibit 0 Defendant’s Memorandum in Support of Summary Judgment at p. 2.

Since no legal injury occurred within eight years of purchase, as required by ORS § 30.905, plaintiff’s claims are time-barred.

It should be noted at this juncture that application of the legal injury analysis to the 15 cases determined ante to be barred by res judicata would produce the same results. Every one of the fifteen cases alleges knowledge of the causal connection between the Daikon Shield and plaintiffs’ injuries outside of the eight-year period.

III.

The final group of cases is comprised of five actions in which Oregon is but one of two states mentioned by plaintiffs in their complaints. The issues to be determined in these cases are whether the substantive law of Oregon applies and, if so, whether ORS § 30.905 bars the suit under the legal principles discussed and applied above. In order to address these issues, the facts of each case must be analyzed.

1. Weiler, M 83-21

The following facts are undisputed: The Daikon Shield was purchased and inserted on March 8,1973 in Eugene, Oregon Complaint 11111, 28. After physical complications, the Daikon Shield was removed in July, 1974 in Eugene, Oregon. Complaint ¶ 29. In July, 1981, more than eight years after purchase, plaintiff alleges she first became aware of the nature and cause of her injuries while hospitalized in Milwaukie, Oregon. Complaint ¶¶ 31, 34. Plaintiff is now a citizen and resident of Colorado. Complaint 111.

Defendants argue that the present residence in Colorado is immaterial, that Oregon law applies, and that ORS § 30.905 bars this suit. This Court agrees. “The injury [to plaintiff occurred in Oregon because that is where the Daikon Shield was inserted and used by the plaintiff.” Pottratz v. Davis, 588 F.Supp. 949, 954 (D.Md. 1984). Thus, the substantive law of Oregon applies.

Since plaintiff did not discover the causal connection between her injuries and the Daikon Shield within the eight-year period mandated by ORS § 30.905, plaintiff’s claims are time-barred.

2. Shadburne-Vinton, M 83-160

The following facts are undisputed: Plaintiff, a citizen and resident of Oregon, purchased and inserted the second of two Daikon Shields on March 1, 1974, in Portland, Oregon. Complaint 1111, 29. Physical injury or disorder was experienced in March, 1974, December, 1976, and January, 1977, in Portland, Oregon. Complaint ¶1¶ 31, 33. Plaintiff has been employed in Portland, Oregon since at least 1976. Complaint II36. Plaintiff did not discover the causal connection between her injuries and the Daikon Shield until she was “hospitalized at Cedars-Sinai Hospital in Los Angeles, California, between March 30 and April 4, 1982, with a diagnosis of chronic salpingitis.” Complaint H 38.

Plaintiff argues that she “was injured and treated in California, and as the Pottratz opinion did not consider the effect out-of-state treatment might have on the determination of the place of injury, summary judgment pursuant to Pottratz is inappropriate.” Plaintiff’s Memorandum in Opposition to Summary Judgment at p. 7.

The cause of action in this case arose in Oregon “because that is where the Daikon Shield was inserted and used by the plaintiff.” Pottratz v. Davis, supra, at 954. Oregon law applies, and ORS § 30.-905 bars this suit since no legal injury occurred within eight years of purchase of the Daikon Shield. The fact that plaintiff discovered the causal connection between her injuries and the Daikon Shield while in California on March 30, 1982, beyond the eight-year period, is immaterial. Her later discovery cannot toll the statute or revive claims already barred.

3. Madill, M 82-3789

4. Havice, M 83-162

5. Maxted, M .83-1713

In the remaining cases, the Daikon Shield was purchased and inserted outside the State of Oregon. Pottratz differs significantly from these cases because in Pottratz, “the injury to Mrs. Pottratz occurred in Oregon because that is where the Daikon Shield was inserted and used by the plaintiff.” Pottratz v. Davis, supra, at 954 (emphasis added). Plaintiffs thus contend that Pottratz is not controlling because every event in these cases did not occur in Oregon. Defendants recognize this distinction but argue that Oregon law is still applicable because every event subsequent to purchase, including use, physical injury and discovery of causal connection, occurred in Oregon.

The conceptual problem in these cases is not “when” the injury occurred, but rather “where” the legal injury occurred. If the legal injury is deemed to have occurred in Oregon, these cases are barred by ORS § 30.905 because in each one, plaintiff did not discover a causal connection between her injuries and the Daikon Shield within eight years. If, on the other hand, the legal injury occurred in the states where the Daikon Shield was purchased and inserted, ORS § 30.905 is not applicable and will not bar these suits.

Since Pottratz dealt only with the issue of when, not where, the legal injury arose, this Court holds, as plaintiffs suggested, that Pottratz is not controlling in these cases. There still remains an issue as to where the legal injury arose. Resolution of that issue will require analysis of more facts than are stated in the instant complaints, as well as a choice of law analysis as between Oregon law and that of the state of purchase. Accordingly, with respect to Madill, Havice and Maxted, defendants’ motion for summary judgment will be denied, without prejudice, subject to renewal at the appropriate time.

IY.

In conclusion, language from the Pottratz decision is appropriate:

Plaintiffs’ losses are recognized and regretted by this Court. This Court further recognizes that other Daikon Shield plaintiffs will be able to maintain actions in this Court, yet the instant plaintiffs will not. However, it is simply an unfortunate by-product of our federal-state system and the Erie doctrine that victims of common disasters and users of the same or similar products may be treated differently because of varying state laws.

Id., at 956.

A separate Order confirming the within rulings will be entered.

ORDER

The Memorandum of Judge Northrop filed herewith having been considered by each of the nine judges of this Court who have Daikon Shield cases pending before them; and each of the undersigned judges having further considered the memoranda filed by the parties herein; and the undersigned judges having all agreed with the findings and conclusions reached by Judge Northrop in the attached Memorandum; and each of the undersigned judges having further determined that Judge Northrop’s rulings should be applied in the cases listed herein; IT IS, this 20th day of December, 1984, by the United States District Court for the District of Maryland, ORDERED;

1. That the joint motion for summary judgment filed by defendants A.H. Robins Co. and Hugh J. Davis, M.D., BE, and the same hereby IS, GRANTED, in the following cases:

a. Tolliver, B 82-3790

b. Rice, HM 82-3792

c. Roxberg, B 83-18

d. Baxter, JH 83-19

e. McGuffin, K 83-20

f. Weiler, M 83-21

g. Radius, M 83-22

h. Witcher, HM 83-23

i. Guariglia, M 83-155

j. Johnson, JH 83-157

k. Lauder, B 83-158

l. McGrath, HM 83-159

m. Shadburne-Vinton, M 83-160

n. Pindar, HM 83-161

o. Waits, HM 83-164

p. Laycock-Cowles, HM 83-165

q. Chandler, M 83-167

r. Luxford, HM 83-168

s. Diamond, JH 83-169

t. Hamilton, B 83-1066

u. Howell-Coleman, B 83-2795

v. Philpott, JH 83-4125

w. Hoy, H 83-4216

x. Miller, H 83-4328

2. That judgment BE, and the same hereby IS, ENTERED in favor of the defendants against the plaintiffs in the above-listed actions;

3. That the Clerk of Court enter the above-listed cases as CLOSED on the Court’s docket;

4. That the joint motion for summary judgment filed by defendants A.H. Robins Co. and Hugh J. Davis, M.D., BE, and the same hereby IS, DENIED, without prejudice, in the following cases:

a. Madill, M 82-3789 .

b. Blair, HM 82-3791

c. Havice, M 83-162

d. Maxted, M 83-1713

5. That the Clerk of Court shall place a copy of this Order and the foregoing Memorandum Opinion in each of cases cited in paragraphs 1 and 4 above; and

6. That the Clerk of Court shall mail copies of this Order and the foregoing Memorandum Opinion to counsel in these cases.

/s/Frank A. Kaufman

Frank A. Kaufman

Chief Judge

/s/ Edward S. Northrop

Edward S. Northrop

Senior Judge

/s/ Alexander Harvey II

Alexander Harvey II

Judge

/s/ James R. Miller, Jr.

James R. Miller, Jr.

Judge

/s/ Joseph H. Young

Joseph H. Young

Judge

/s/ Herbert F. Murray

Herbert F. Murray

Judge

/s/ Joseph C. Howard, Jr.

Joseph C. Howard, Jr.

Judge

/s/ Walter E, Black, Jr.

Walter E. Black, Jr.

Judge

/s/ John R. Hargrove

John R. Hargrove

Judge

      . See Exhibits A-N to Defendants’ Joint Memorandum in Support of Summary Judgment. Those exhibits are copies of Judge Belloni's order granting summary judgment against plaintiffs in the above-listed cases.

      . Johnson is one of three cases pending in the District of Oregon, without final disposition. The other cases are Baxter, JH 83-19, and Diamond, JH 83-169.

      . One other case that logically belongs in this second group is Blair, HM 82-3791. Defendants argue that Ms. Blair learned of the causal connection between her injuries and the Daikon Shield in "the summer of 1980, more than eight years after purchase." Defendants' Joint Memorandum at p. 13. Nothing in the record of Blair supports that factual allegation. Accordingly, a material fact, i.e. the date of legal injury, remains in dispute, and summary judgment in Blair is inappropriate at this time.

      . The Daikon Shield was purchased and inserted by plaintiff Madill in Florida, by plaintiff Havice in Montana, and by plaintiff Maxted in California.


author: EDWARD C. REED, Jr., District Judge.

text:
    Roosevelt TURNER, Petitioner, v. Vernon HOUSEWRIGHT, Respondent.
    No. CV-R-82-271-ECR.
    United States District Court, D. Nevada.
    Dec. 20, 1984.

      N. Patrick Flanagan, III, Asst. Federal Public Defender, Reno, Nev., for petitioner.
    Richard Bryan, Atty. Gen., State of Nevada, Carson City, Nev., for respondent.
   ORDER

EDWARD C. REED, Jr., District Judge.

Roosevelt Turner petitions this Court under 28 U.S.C. § 2254 for a writ of habeas corpus. Presently incarcerated at the Nevada State Prison, Turner was convicted of two counts of kidnapping, two counts of robbery, and one count of burglary. This Court, by order dated June 16, 1983, appointed counsel to represent Turner on his petition.

In support of his petition Turner argues: (1) that at an alleged interrogation by a police officer he did not receive his Miranda rights; (2) that he was denied counsel at a critical stage of the proceedings; (3) that the testimony of an unrelated crime was not only erroneously admitted into trial, but that the trial court failed to give a limiting instruction regarding the testimony to the jury; (4) that a police detective continued to interrogate him following his invocation of his Miranda rights; (5) that he was denied effective counsel at his trial; (6) that there was insufficient evidence to support the jury's verdicts; (7) that the charges of kidnapping and use of a deadly weapon were merely incidental to the charge of robbery and, therefore, merged into the charge of robbery; (8) that the trial court failed to instruct the jury on the essential elements of robbery; (9) that the state unconstitutionally withheld evidence from Turner of an alleged statement made by him; and (10) that the absence of a material witness denied him a fair trial.

These issues were properly raised before the Nevada Supreme Court. Thus, Turner has exhausted his state remedies. See Hall v. Sumner, 682 F.2d 786, 788 (9th Cir.1982).

Although Turner did not request an evidentiary hearing, this Court considered those factors which would require one to be held. See Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963). The record before this Court adequately provides the necessary information and thus no evidentiary hearing is required.

Facts

Following a jury trial, Turner was convicted of two counts of robbery, two counts of kidnapping, and one count of battery with the intent to commit robbery, each with the use of a deadly weapon.

One night, at approximately 11:30 p.m., the two victims were forced, at gunpoint, to admit Turner and his cohort into their house in Las Vegas. Turner and his companion were later joined by a third intruder. During the lengthy ordeal which followed, the victims were tied, threatened with death, moved to various rooms throughout the residence, and physically harmed. Under coercion, the victims revealed the location of their money and jewelry. Turner and his companions left the victims’ house only after coercing a promise from one of the victims to obtain more money.

Analysis

Turner first contends that at an interview at the police station, the police detective failed to advise him of his rights. Following consultation with his attorney, Turner went to the police station to recover his personal effects. When Turner arrived, he was asked to wait for a Detective Jordan. Detective Jordan took Turner to an interview room. To determine the admissibility of the contents of this conversation, the trial judge held a hearing outside the presence of the jury. At that hearing, there was conflicting testimony between Detective Jordan and Turner. Detective Jordan testified that he gave Turner his Miranda rights. Record, Vol. 3, at 423. Turner, on the other hand, testified that he was not given any of his Miranda rights by Jordan. Record, Vol. 3, at 435. The trial court found as a matter of fact, that Turner had been given his Miranda rights.

Turner asks this Court to reject the factual finding by the state court that Detective Jordan gave Turner his Miranda rights. But 28 U.S.C. § 2254 requires that this Court accord factual determinations a “presumption of correctness,” unless one of a number of special conditions is met. Sumner v. Mata, 449 U.S. 539, 549-550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981).

Turner has not claimed that any of the special conditions is present in this case. Nor does evidence of the presence of any of the conditions appear in the record. This Court can reject the factual finding only if Turner provides “convincing evidence” that the finding was erroneous. See Id; 28 U.S.C. § 2254(d). He has not met that burden. The only evidence he seems to rely on is his testimony at the hearing that he was not given the Miranda rights. However, the trial court heard the witnesses, Jordan and Turner, and found that Jordan had in fact given Turner his Miranda rights. Therefore, we reject Turner’s claim. See also Wicker v. State, 95 Nev. 804, 805, 603 P.2d 265, 266 (1979) (where there is conflicting testimony, the factfinder’s determination will not be disturbed where there is substantial evidence to support it.)

Turner next argues that he was denied his constitutional right to counsel at a critical stage of the proceedings. Turner again bases this argument on the interview with Detective Jordan. As previously discussed, Turner was advised of his right to counsel. The record reveals that Turner did not request counsel. Turner voluntarily came to the police station and was allowed to leave unhindered after the interview.

There is not an issue here as to whether this was a “custodial interrogation” triggering Miranda. Turner received his rights. Rather the issue is whether Turner’s statements were voluntary. See Taylor v. Cardwell, 579 F.2d 1380, 1382 (9th Cir.1978). The trial court found that Turner’s statements were voluntary. This finding followed a full and fair hearing by the state court. Further, it has substantial support in the record. In applying the facts to the legal standard, this Court finds that Turner’s spontaneous statement was voluntary. Thus, this claim does not justify habeas relief.

Turner contends that the trial court erroneously admitted testimony of an unrelated crime and failed to give a limiting instruction as to that testimony. Turner complains of testimony of a sexual assault committed by one of his cohorts. The acts described took place during the four-hour ordeal. It would have been impossible to extract that testimony relating to the sexual assault from the victim’s recount of what happened to her that night. Turner’s own counsel stated, “... I suppose it would be almost an impossibility to extract out from those matters what she is about to get into that pertain to Mr. Golden (the man accused of the assault)...” Record, Vol. 3, at 190.

In addition, this Court reviewed the instructions as a whole. The failure to give a limiting instruction on this testimony did not deny Turner’s due process rights. See Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). The victim was explicit that the sexual assault was committed by Golden. Record, Vol. 3, at 291-294. Further, she testified that Turner was not in the same room. Id. Turner was not unconstitutionally prejudiced. Turner simply challenges the correctness of the state evidentiary rulings and the jury instructions. He has not alleged any deprivation of federal rights which would entitle him to habeas relief. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983). Thus, this argument does not support habeas relief.

Turner’s next argument rests again on the interview that took place at the police station. Turner argues that while at the police station to retrieve his property, the police officer connected with the investigation of the crimes continued to press him after he had invoked his intent and desire not to talk about the case.

The Nevada Supreme Court found that the continued questioning of Turner did violate Turner’s constitutional right to remain silent. Turner v. State, 98 Nev. 243, 246, 645 P.2d 971, 972 (1982). However, under the law announced by the U.S. Supreme Court in Solem v. Stumes, — U.S. -, 104 S.Ct. 1338, 99 L.Ed.2d 579 (1984), this Court finds that it was not constitutional error.

The Supreme Court held in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 878 (1982) that once a suspect has invoked the right to counsel any subsequent conversation must be initiated by him. Applying Edwards to this case, it is clear that Turner’s rights were violated. However, Edwards is not to be applied retroactively. Solem, 104 S.Ct. at 1345. In Solem, the Court found that the effect of further intérrogation by the police after a request for counsel was not such as to taint the truth worthiness of the subsequent inculpatory statement and, therefore, Edwards was not to be retroactively applied in collateral review of final conviction. Id. The trial in this case took place in August, 1979, well before Edwards. Therefore, under the prior cases of the Supreme Court, Turner’s constitutional rights were not violated. Id. This Court must, however, determine whether the Ninth Circuit standard was met. Id. 104 S.Ct. at 1346. Prior to Edwards, the Ninth Circuit did allow statements by a defendant after there has been a request for counsel. See United States v. Rodriguez-Gastelum, 569 F.2d 482, 486 (9th Cir.1978) cert. denied 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978). In addition, a lesser standard is applied where, as here, the suspect only indicates an intention to invoke this fifth amendment right to remain silent and does not clearly invoke his right to counsel. Michigan v. Mosley, 423 U.S. 96, 104 n. 10, 96 S.Ct. 321, 326 n. 10, 46 L.Ed.2d 313 (1975); in accord Christopher v. State of Fla., 582 F.Supp. 633, 644 (1982). The conduct by Detective Jordan was acceptable under prior cases in the Ninth Circuit. Jordan did not badger Turner. Prior to Edwards, the voluntary statement was admissible. Thus, this claim by Turner does not support federal habeas relief.

Turner also argues that he was denied effective assistance of counsel. The Supreme Court has recognized that the “right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). The standard to determine effective assistance of counsel was recently enunciated by the Court in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court held that: “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 2064. First the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Id. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant to a fair trial, a trial whose result is reliable. Id.

A careful review of the record reveals that not only does Turner’s claim fall far short of this test, but that counsel’s performance in this case was of a high degree of competence. Counsel conducted extensive cross-examinations. He skillfully pointed out discrepancies in the testimony and competently argued Turner’s case to the jury. There is no showing by Turner of deficient performance by his trial counsel. Further, there was no prejudice to Turner. Thus this claim does not support a claim for habeas relief.

Turner next argues that there was insufficient evidence to support the jury’s verdict. The critical inquiry in a federal habeas corpus review of the sufficiency of the evidence to support a criminal conviction is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Viewing the record in the light most favorable to the state, there was sufficient evidence presented from which an inference could be drawn that a rational trier of fact could have found beyond a reasonable doubt that Turner was guilty of the offenses charged. Thus, this contention does not support federal habeas relief.

Turner next contends that the charges of kidnapping and use of a deadly weapon were merely incidental to the charge of robbery and, therefore, merged into the charge of robbery.

Under Nevada law, kidnapping is as follows:

“NRS 200.310 1. Every person who shall willfully seize, confine, inveigle, entice, decoy, abduct, conceal, kidnap or carry away any individual human being by any means whatsoever with the intent to hold or detain, or who holds or detains, such individual for the purpose of committing extortion or robbery upon or from such individual, ... shall be deemed guilty of kidnapping in the first degree.”

Further, under Nevada law, a separate conviction of kidnapping will lie if the movement of the victims is not incidental to the associated offense and there is a substantially increased risk of harm beyond that necessarily present in the associated offense. See Wright v. State, 94 Nev. 415, 417, 581 P.2d 442, 443-444 (1978). Whether the movement of the victims is incidental to the associated offense and whether it increased the risk of harm to the victims are questions of fact to be determined by the trier of fact in all but the clearest of cases. Sheriff v. Medberry, 96 Nev. 202, 204, 606 P.2d 181, 182 (1980).

The evidence in this case is that one of the victims was originally brought into his home at gunpoint. During the four-hour ordeal he was transported to several different rooms in the house. The second victim was also moved from room to room. The jury’s finding is, therefore, supported by the evidence. Thus, this contention does not provide federal habeas relief.

Turner also argues that the trial court failed to instruct the jury on the essential elements of robbery. In considering a habeas corpus petition which seeks reversal of a state court conviction, a federal court does not review jury instructions in isolation but in the context of the overall charge to the jury as a component of the entire trial process. The contested instructions cannot be merely “undesirable, erroneous, or even ‘universally condemned,’ ” but must violate the defendant’s due process rights guaranteed by the Fourteenth Amendment. Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).

Turner complains that the trial court failed to instruct the jury that specific intent to permanently deprive the owner of his property is an essential element of the crime of robbery. Under Nevada law, an accurate instructions upon the basic elements of the offense charged is essential, and the failure to so instruct constitutes reversible error. Turner v. State, 96 Nev. 164, 166, 605 P.2d 1140, 1141 (1980); Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 212, 213 (1970). A review of the instructions as a whole reveals that the trial court gave the basic elements of the crime of robbery. Instructions 13-17. Thus, viewed as a whole in the context of the trial process, the jury instructions did not violate Turner’s due process rights.

Turner’s next argument again rests on the inculpatory statement made by him to Detective Jordan. In this argument, Turner contends that the failure of the prosecution to advise him of the statement deprived Turner of effective assistance of counsel and a fair trial. Turner argues that the statement may have been exculpatory and therefore should have been released to the defendant prior to trial. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963).

The record reflects that the prosecution was not aware of Turner’s statement until Detective Jordan testified. No written record of the statement was made prior to trial. The prosecutor stated that he had learned of the statement two days before Jordan testified. Record, Vol. 3, at 424.

This Court does not read this statement as being exculpatory. However, even if this Court finds that the Brady rule was violated, it does not automatically warrant reversal of a defendant's conviction. United States v. Miller, 529 F.2d 1125, 1128 (9th Cir.1976); United States v. Diaz-Rodriquez, 478 F.2d 1005, 1008 (9th Cir.1973), cert. dismissed, 412 U.S. 964, 93 S.Ct. 3024, 37 L.Ed.2d 1013 (1973). Turner learned of the statement at trial. Thus, our inquiry on appeal is not whether the evidence, had it been disclosed prior to trial, might reasonably have affected the jury’s judgment on some material point. Rather, it is whether the lateness of the disclosure so prejudiced Turner’s preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial. Miller, 529 F.2d at 1128; United States v. Hibler, 463 F.2d 455, 459 (9th Cir.1972). The trial judge held a hearing outside the presence of the jury to determine whether to admit the statement. This does not seem to be the case where the evidence, if promptly disclosed, would have opened the door for the defense to new witnesses or documents requiring time to be marshalled and presented. See United States v. Baxter, 492 F.2d 150, 174 (9th Cir.1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974).

Finally Turner urges this Court to grant him a writ of habeas corpus based on the absence of Angela Adams at the defense’s case in chief. Adams was one of the victims in this case. She testified during the state’s case in chief and was extensively cross examined by Turner. Turner argues that because of impeaching testimony which indicated that Adams had perjured herself on the stand, he had the right to confront her again. However, Turner did not even attempt to call Angela Adams to the stand. His co-defendant’s counsel, Woofter, did. But when Woofter found that she was not available he rested. Record, Yol 3, at 557-558. Turner then rested as well. Turner made no request to call Adams. Neither party sought a continuance. Thus, this contention does not support habeas relief.

Conclusion

Turner failed to raise any issues which would support a writ of habeas corpus from this Court.

IT IS, THEREFORE, HEREBY ORDERED that the petition for writ of habeas corpus be denied.

      . At trial, Detective Jordan testified to the jury as follows: Record, Vol. 3 440-442.
      BY MR. LAVELLE:
      Q I believe when we left off, Detective Jordan, we were talking about a conversation you had with Roosevelt Turner along about the first part of May. Is that correct?
      A Yes Sir.
      Q And where was this conversation held?
      A At the detective division.
      Q And prior to the conversation you had with Mr. Turner, did you advise him of his Constitutional rights?
      A Yes.
      Q Could you explain to the Court and jury what rights you advised him of?
      A He had the right to have his attorney present, any questions would be asked of him could be and would be held against him in a court of law, he already had an attorney representing him, Mr. Pursel, had already called and talked to us earlier.
      Q Now, excuse me, go ahead.
      A He was advised if he wished to have his attorney present he could do so.
      Q Now, did Mr. Turner express acknowledgment of you stating those rights to him?
      A Yes, sir.
      Q In what manner?
      A I asked him if he understood them and he says, “Yes."
      Q Now, did you make a statement to Mr. Turner regarding this incident?
      A Yes, sir.
      Q And what statement was that, Officer?
      A Well, part of the conversation was that I told him if he gets in and they identify him as one that stuck the gun in the girl and says, feel this go off, then they are going to hang him. He said, “It wasn’t me, it was Will."
      Q He said, "It wasn’t me, it was Will”?
      A He didn’t say, "It wasn’t me.” He just said, "It was Will.”
      Q And did he give a last name of Will?
      A No, sir.
      Q Did you have any further conversation with him after that regarding this incident?
      A Yes. He stated he had nothing to do with it. He didn’t want to talk about it.
      BY MR. LAVELLE: I have no further questions of Detective Jordan, your Honor.
      BY THE COURT: Cross-examination, Mr. Woofter?
      BY MR. WOOFTER: Yes, your Honor.
      CROSS-EXAMINATION
      BY MR. WOOFTER:
      Q Detective Jordan, I will start with the end of your testimony first. You stated this alleged conversation with Mr. Turner was sometime in May, early part of May, I believe your testimony was?
      A I believe so. I’d have to get the evidence impound out to give you the right day. Right around that time.
      Q Well, not going into the exact date, but approximately sometime in the early part of May?
      A Yes, sir.
      Q Would that be a fair assumption? And when is the first time you advised anybody of this conversation as far as the district attorney’s office or Mr. Pursel, the counsel for Mr. Turner, or myself, counsel for Mr. Corbin?
      A I believe I called Mr. Lavelle about it either Monday or Tuesday. I wasn’t right sure.
      Q And that was the first time you advised anybody of such — of this conversation here in the courtroom?
      A Yes, sir.
      Q Did you at any time since early May up to the present time, which is the middle of August, prepare a report of this alleged conversation you had with Mr. Turner?
      A No, Sir.

      . 28 U.S.C. § 2254(d) provides:
      In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, a written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
      (1) that the merits of the factual dispute were not resolved in the State court hearing;
      (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
      (3) that the material facts were not adequately developed at the State court hearing;
      (4) that- the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
      (5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
      (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
      (7) that the applicant was otherwise denied due process of law in the state court proceeding;
      (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
      And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs number (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.

      . Jordan testified at the trial court's evidentiary hearing as follows:
      Q Could you explain to the Court the circumstances under which you met Mr. Turner?
      A Mr. Pursel had called me in reference to some money that was impounded. I was not that familiar with the money, and I advised him to send Mr. Turner up and it would be released back to him and I could get the evidence impound out and give you the right date, but I don’t recall it. Anyhow, when he come in where — I sent him down to the interview room, advised him of all of his rights and tried to talk to him about the case. He wouldn’t say anything to me at all about the case, whatsoever. So I just told him, I said, “Hey, you get in there, you get up before that jury and they can get up there and testify you are the guy that stuck that gun up her and, man, you can feel this going on, and they are going to hang you." He said, "It wasn’t me, it was Will.” And then he didn’t want to go on and say any more about it. I asked him if it was a narc rip-off or what kind of a case it was or anything, and he just didn’t want to say any more about it. Record, Vol 3 at 242.