397 F.2d 556 (8th Cir. 1968), 19067, Kennedy v. Sigler

Docket Nº:19067.
Citation:397 F.2d 556
Party Name:Edward D. KENNEDY, Appellant, v. Maurice H. SIGLER, Warden of the Nebraska Penal & Correctional Complex, Appellee.
Case Date:July 12, 1968
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 556

397 F.2d 556 (8th Cir. 1968)

Edward D. KENNEDY, Appellant,


Maurice H. SIGLER, Warden of the Nebraska Penal & Correctional Complex, Appellee.

No. 19067.

United States Court of Appeals, Eighth Circuit.

July 12, 1968

Page 557

Edward D. Kennedy, pro se.

Clarence A. H. Meyer, Atty. Gen., of the State of Nebraska, and H. G. Hamilton, Asst. Atty. Gen., on brief for appellee.

Before VOGEL, BLACKMUN and LAY, Circuit Judges.

BLACKMUN, Circuit Judge.

This in forma pauperis corpus petition by Edward D. Kennedy, a Nebraska state prisoner, primarily raises an issue of the propriety of utilizing, upon the facts and in the application of Nebraska's habitual criminal statute, Neb.R.R.S.1943 § 29-2221, 1 a prior conviction of the petitioner when he was a juvenile. An issue of this kind has been characterized as a 'serious' one. Chewning v. Cunningham, 368 U.S. 443, 447 82 S.Ct. 498, 7 L.Ed.2d 442 (1962). The statute's constitutionality is not challenged here. It has been upheld. State v. Huffman, 181 Neb. 356, 148 N.W.2d 321, 324 (1967), cert. denied 386 U.S. 1024, 87 S.Ct. 1384, 18 L.Ed.2d 466. See Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948); Oliver v. United States, 290 F.2d 255 (8 Cir. 1951), cert. denied 368 U.S. 850, 82 S.Ct. 83, 7 L.Ed.2d 48; Epperson v. United States, 125 U.S.App.D.C. 303, 371 F.2d 956, 958 (1967).

The chronology may be helpful:

1. In 1946 Kennedy and another were charged in state district court with burglary of certain premises in Omaha. A plea of guilty was entered. Kennedy was represented by the public defender. The

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state court's judgment and sentence, dated August 14, 1946, recites:

'* * * the Court, after due inquiry, finds: that said defendant is not less than sixteen nor more than thirty years of age; 2 that this is his first conviction of a felony; that, in the judgment of the Court, he is capable of reformation; and that a sentence to the State Reformatory would be compatible with the general welfare.

'IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Court that the defendant, Edward Kennedy, be taken * * * as early as practicable * * * to the Nebraska State Reformatory at Lincoln, Nebraska, and there imprisoned at hard labor for a period of two (2) years from and after this 14th day of August A.D., 1946, no part of which said period of time is by virtue of this sentence to be spent in solitary confinement, and that he pay the costa of this prosecution * * *'

2. On another occasion prior to 1959, Kennedy was again convicted of burglary in state district court.

3. By a two count information filed in state district court in February 1959, Kennedy was charged with possessing burglary tools with intent feloniously to break and enter, and with carrying concealed weapons, in violation of § 28-534 and § 28-1001, R.R.S.1943, respectively.

4. Later, and prior to trial, the information was amended by the addition of a their count charging that Kennedy was an habitual criminal, having twice theretofore pleaded guilty in Nebraska to charges of burglary, and having been duly sentenced for terms of not less than one year.

5. After a plea of not guilty Kennedy was tried by a jury on the first two counts of the information. The jury convicted him on each count. (These convictions are not challenged here).

6. Thereafter, as § 29-2221(2) provides, and prior to sentence, the court alone held a hearing on the information's third count. The court found that Kennedy had been convicted twice before on felony charges. On January 11, 1960, it imposed a sentence of 15 years, plus costs, in the Nebraska state penitentiary upon each of the first two counts of the information. These sentences were to run concurrently.

7. After preliminary motions, Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960), and 170 Neb. 348, 102 N.W.2d 620 (1960), Kennedy prosecuted error to the State Supreme Court. He asserted five points. The fifth was that the trial court erred in finding that he was an habitual criminal and in sentencing him accordingly. The Nebraska Court on the appeal decided all five points adversely to Kennedy and affirmed the judgment and sentences of the trial court. Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710 (1960). The court, in reviewing a claim as to the insufficiency of the evidence, describes the 1959 crimes in some detail. Pp. 718-720. In disposing of the habitual criminal issue the Court said, p. 721:

'Defendant's contention was and is that his first conviction was void because defendant was less than 16 years of age when he was sentenced, therefore he was erroneously...

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