373 F.2d 835 (8th Cir. 1967), 18534, Barry v. Sigler

Docket Nº:18534.
Citation:373 F.2d 835
Party Name:Loren E. BARRY, Appellant, v. Maurice SIGLER, Warden, Nebraska Penal and Correctional Complex, Appellee.
Case Date:March 16, 1967
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 835

373 F.2d 835 (8th Cir. 1967)

Loren E. BARRY, Appellant,

v.

Maurice SIGLER, Warden, Nebraska Penal and Correctional Complex, Appellee.

No. 18534.

United States Court of Appeals, Eighth Circuit.

March 16, 1967

Rehearing Denied April 13, 1967.

Page 836

Loren E. Barry, pro se, Roger Clark West, Des Moines, Iowa, on the brief, for appellant.

Clarence A. H. Meyer, Atty. Gen., and Richard H. Williams, Asst. Atty. Gen., Lincoln, Neb., for appellee.

Before MATTHES, LAY and HEANEY, Circuit Judges.

PER CURIAM.

Appellant under state custody appeals from a denial of writ of habeas corpus by the federal district court. The district court ruled that appellant had failed to exhaust his state remedies under the Nebraska post-conviction statute, §§ 29-3001 to 29-3004 Neb.Rev.Stat.Supp.1965. The Honorable Robert Van Pelt granted a certificate of probable cause for appeal, particularly upon the ground that appellant raises questions of the lower court's partiality and bias. Appellant now appears pro se. He is serving concurrent sentences of two to four years, after state conviction on charges of obtaining property by false pretenses. Appellant seeks to challenge this conviction upon constitutional grounds.

In August 1965, Judge Van Pelt held appellant guilty of civil contempt involving a bankruptcy proceeding. See Barry v. McTaggart, 8 Cir. 1965, 351 F.2d 944. This fact is first raised upon appellant's petition for a certificate of probable cause to the district court. The intended inference is that the lower court was prejudiced against the appellant in this proceeding. No mention of it is made in the hearing before Judge Van Pelt by the appellant or his retained attorney, Roger West, a member of the Bar of Iowa.

Merely because a trial judge is familiar with a party and his legal difficulties through prior judicial hearings, or has found it necessary to cite a party for contempt, does not automatically or inferentially raise the issue of bias. As stated by the court in Lyons v. United States, 9 Cir. 1963, 325 F.2d 370, 376, cert. den. 377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738 which ruled that affidavits filed under § 144 were legally insufficient: 'The section (144) is directed to personal bias, which means an attitude of extrajudicial origin. A mere showing of prior judicial exposure to the present parties or questions will not invoke the section.' See also Cox. v. United States, 8 Cir. 1962, 309 F.2d 614, 619-620; Barnes v. United States, 9 Cir., 1956, 241 F.2d 252; United States v. Lowrey, W.D.Pa.1948, 77 F.Supp. 301, 302, aff'd 172 F.2d 226 and 179 F.2d 964, cert. den. 339 U.S. 969, 70 S.Ct. 986, 94 L.Ed. 1377; United States v. Sansone, 2 Cir., 1963, 319 F.2d 586.

We deem the allegation frivolous. The court ordered the state to show cause and granted a hearing under the writ on the issue of whether appellant had exhausted his state remedies. At the hearing Judge Van Pelt personally assured appellant that the procedure had been cleared with prison authorities to clarify any past misunderstandings in order to expedite his filing a properly verified complaint in Furnas County, Nebraska, as required under §§ 29-3001 to 29-3004. If anything, the record unequivocally demonstrates an awareness by Judge Van Pelt, as an experienced and fair trial judge, to guarantee appellant the full exhaustion of his rights.

We turn now to the question whether appellant has exhausted his state remedies. In February 1966, appellant filed

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an unverified motion 1 for relief in the District Court of Furnas County. He was informed by the clerk of the court that his motion would be taken up in April. On April 27, 1966, appellant filed his motion for a writ of habeas corpus. On the same date, Judge Van Pelt issued an order to show cause to the respondent, Maurice Sigler, Warden of the Nebraska State Penal Institution. In his petition in federal court, appellant stated that his motion under §§ 29-3001 to 29-3004 had been ignored by the state district court in Furnas County. At this time his motion had not been ruled upon by the state district judge. On May 13, 1966, Warden Sigler, the respondent herein, through the Nebraska Attorney General's office, filed a return, alleging that on May 10, 1966, the District Court of Furnas County had entered its order dismissing...

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