423 F.2d 1021 (8th Cir. 1970), 19784, In re Parker

Docket Nº:19784.
Citation:423 F.2d 1021
Party Name:In the Matter of John PARKER, on Habeas Corpus. State of South Dakota and Don R. Erickson, Warden, Appellants.
Case Date:March 23, 1970
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1021

423 F.2d 1021 (8th Cir. 1970)

In the Matter of John PARKER, on Habeas Corpus.

State of South Dakota and Don R. Erickson, Warden, Appellants.

No. 19784.

United States Court of Appeals, Eighth Circuit.

March 23, 1970

Page 1022

R. James Zieser, Asst. Atty. Gen., Pierre, S.D., for appellants; Gordon Mydland, Atty. Gen., on the brief.

Gary J. Pashby, Sioux Falls, S.D., for appellee.

Before MATTHES, GIBSON and LAY, Circuit Judges.

LAY, Circuit Judge.

The State of South Dakota appeals from an order of the federal district court granting a conditional writ of habeas corpus 1 to the petitioner John Parker. On November 6, 1950 Parker pleaded guilty in the state court in Brookings County, South Dakota, to a charge of murdering his wife. The crime took place on October 25, 1950. Parker was represented at the time of his guilty plea by Mr. Walter Aaberg, Brookings attorney. On August 4, 1952, Parker was granted an evidentiary hearing in the state court on his petition for a writ of habeas corpus. This writ was denied by the Circuit Court of Minnehaha County, South Dakota. Thereafter, Parker appealed to the Supreme Court of South

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Dakota. On appeal the judgment of the Circuit Court of Minnehaha was affirmed. State ex rel. Parker v. Jameson, 75 S.D. 196, 61 N.W.2d 832 (1953). Fifteen years later the petitioner sought relief in the federal district court. On December 18, 1968, a hearing was held wherein the original state transcripts of the guilty plea of November 6, 1950, and the August 4, 1952, state habeas corpus transcript were offered in evidence. The only additional oral testimony presented before the federal court was that of the Clerk of Courts of Brookings County, South Dakota, which verified that Parker's attorney, Mr. Aaberg, from 1931 until November 1950 had been the attorney of record in five other criminal cases before his representation of Parker. The federal district court reviewed only the state court record and on March 25, 1969, granted petitioner a writ of habeas corputs. In re Parker, 297 F.Supp. 367 (D.S.D.1969). This appeal followed. We reverse with directions to dismiss the petition.

The federal district court in granting the writ of habeas corpus reviewed Parker's testimony given in the 1952 state post-conviction hearing. The district court found: (1) that Parker had asked the sheriff to call certain designated lawyers to represent him and that the sheriff had lied to him by telling him that he had called the lawyers requested but that none of them would take his case; (2) that at the time of the guilty plea petitioner was represented by Walter Aaberg, 2 a Brookings attorney who had previously represented petitioner on civil matters; (3) that the sheriff likewise lied in stating to petitioner that (a) his family had left him and would not be around should he stand trial and (b) that a mob had formed and the sheriff was not sure whether he could control one if it formed again; (4) that Aaberg (a) did not ask petitioner any of the details of the crime that he was charged with, (b) did not ask how his wife's death occurred, (c) failed to make an investigation of the crime and (d) did not advise him of his rights prior to his plea of guilty on November 6, 1950; and (5) that the sheriff and Mr. Aaberg were both deceased at the time of the federal habeas corpus proceeding, but were available in 1952 to refute Parker's testimony although not called upon by the state to do so.

The federal district court found that petitioner's guilty plea resulted from the psychological coercion by the sheriff and from the denial of the effective assistance of counsel. The defendant was 50 years old at the time of the crime and had had a limited education (fifth grade). The district court, relying upon Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958), 3 held

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that Parker was denied counsel of his own choosing and that he had likewise been denied effective assistance of counsel in that his retained attorney, W. M. Aaberg, (1) failed to provide minimal standards of assistance and (2) did not have adequate qualifications to provide a criminal defense in a capital case.

The 1952 transcript of the state habeas corpus hearing was the sole basis upon which the federal district court based its finding. In a federal habeas corpus proceeding under 28 U.S.C. § 2254(d), as amended, (Supp. 1959-1967) it is provided that the state court determination of a factual issue 'shall be presumed to be correct' unless the applicant establishes a circumstance, therein enumerated, which proves the unreliability of the state proceeding. See United States ex rel. Thomas v. Maroney, 406 F.2d 992 (3 Cir. 1969); Maxwell v. Turner, 411 F.2d 805 (10 Cir. 1969); Heyd v. Brown, 406 F.2d 346 (5 Cir. 1969); Maes v. Patterson, 401 F.2d 200 (10 Cir. 1968); Woodington v. Mathews, 401 F.2d 125 (7 Cir. 1968); Justus v. New Mexico, 378 F.2d 344 (10 Cir. 1967); Midgett v. Warden, 329 F.2d 185 (4 Cir. 1964). There exists here no contention that the 1952 state proceeding was not a full, fair and adequate hearing or that it in any way failed to meet the standards set forth in § 2254(d) (1-8). Cf. Hawkins v. Bennett, 423 F.2d 948 (8 Cir. 1970); Roach v. Bennett, 392 F.2d 743 (8 Cir. 1968). The federal district court in fact relied upon the exact testimony taken in the state proceeding. The federal district judge made no finding that the 1952 state court factual determination was not supported by the record. Under these circumstances, 'the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the state court was erroneous.' See § 2254(d). This...

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