Deberry v. Wolff, 74-1975

• Decision Date: 11 April 1975
• Docket Number: No. 74-1975,74-1975
• Parties: Earl DeBERRY, Appellant, v. Charles WOLFF, Jr., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1336

513 F.2d 1336

Earl DeBERRY, Appellant, v. Charles WOLFF, Jr., Appellee.

No. 74-1975.

United States Court of Appeals,

Eighth Circuit.

Submitted March 12, 1975.

Decided April 11, 1975.

Douglas L. Kluender, Lincoln, Neb., for appellant.

Harold S. Salter, Deputy Atty. Gen., Claims Div., Lincoln, Neb., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, ROSS, Circuit Judge, and TALBOT SMITH, Senior District Judge. ^*

ROSS, Circuit Judge.

Earl E. DeBerry, a Nebraska state prisoner, appeals from the denial by the district court ¹ of his petition for a writ of habeas corpus. We affirm.

DeBerry was convicted in August, 1972, after a jury trial in state court, of shooting with intent to kill, wound or maim his former wife, Yvonne DeBerry, in violation of Nebr.Rev.Stat. § 28-410 (Cum.Supp.1974). He was sentenced to an indeterminate sentence of three to five years in the Nebraska state prison. A direct appeal was taken to the Nebraska Supreme Court in which one of the contentions raised was that the trial court should have instructed upon the lesser included offense of assault and battery. The judgment was affirmed. State v. DeBerry, 190 Neb. 177, 206 N.W.2d 642, 643 (1973).

DeBerry then commenced a post conviction action in the state trial court alleging that at his trial he was denied his right to be represented by competent counsel; that the state suppressed evidence favorable to him; and that the state knowingly used perjured testimony against him. The trial court denied relief, and appeal was again taken to the Nebraska Supreme Court. That court again affirmed the trial court's judgment principally on the basis that a proper bill of exceptions had not been filed by DeBerry so that "any assignment of error requiring an examination of evidence cannot prevail on appeal." State v. DeBerry, 191 Neb. 445, 215 N.W.2d 73, 74 (1974).

Turning to the federal courts, DeBerry then filed this petition seeking habeas corpus relief. He raises the same claims he has exhausted in the Nebraska courts: (1) the trial court's refusal to instruct on assault and battery as a lesser included offense denied him his right to due process of law; (2) the state's use of false testimony denied him his due process rights; (3) the state's suppression of evidence denied him his due process rights; and (4) he was denied his constitutional right to be represented by effective counsel.

I.

Although requested by DeBerry, the state trial court refused to instruct the jury on the lesser included offense of assault and battery. The Nebraska Supreme Court affirmed this decision after carefully reviewing the evidence and applying the Nebraska rule that "if the evidence in a criminal case is such as to warrant only a verdict of the greater offense, or one of not guilty, then it is not proper to given (sic) an instruction on a lesser included offense." State v. DeBerry, supra, 206 N.W.2d at 644.

In its Memorandum and Order the federal district court applied the five element test enunciated in United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974), to the facts of this case and concluded that a lesser included offense instruction was not called for because the proof on the elements differentiating the two crimes was not sufficiently in dispute so that the jury could consistently find the defendant innocent of the greater and guilty of the lesser included offense.

While we affirm the judgment below, we need not and do not decide whether or not the district court applied the Thompson test correctly, because we are of the opinion that a claim such as this regarding an alleged trial court error in its instructions to the jury is not cognizable in federal habeas corpus.

The general rule is that only issues of constitutional magnitude are cognizable in habeas corpus. The claim must allege a "fundamental defect which inherently results in a complete miscarriage of justice (or) an omission inconsistent with the rudimentary demands of fair procedure" in order to be considered on a petition for a writ of habeas corpus. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). See Jackson v. Hutto, 508 F.2d 890, 891 (8th Cir. 1975); Quinn v. United States, 499 F.2d 794, 795 (8th Cir. 1974). "It is plain . . . that the writ is not designed for collateral review of errors of law committed by the trial court . . . which do not cross the jurisdictional line." Sunal v. Large, 332 U.S. 174, 179, 67 S.Ct. 1588, 1591, 91 L.Ed. 1982 (1947).

Claimed errors in instructions to the jury are generally not of such constitutional magnitude and do not state a claim for habeas corpus relief. Houser v. United States, 508 F.2d 509, 515-516 (8th Cir. 1974); Murphy v. Beto, 416 F.2d 98, 100 (5th Cir. 1969). More particularly the courts have held that the trial court's failure to give a lesser included offense instruction is not normally such a constitutional error or "fundamental defect" as to allow collateral review under habeas corpus. Crossley v. California, 168 U.S. 640, 641, 18 S.Ct. 242, 42 L.Ed. 610 (1898); Higgins v. Wainwright, 424 F.2d 177, 178 (5th Cir.), cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27 L.Ed.2d 142 (1970); Poulson v. Turner, 359 F.2d 588, 591 (10th Cir.), cert. denied, 385 U.S. 905, 87 S.Ct. 219, 17 L.Ed.2d 136 (1966); Gist v. Oklahoma, 371 F.Supp. 541, 542 (E.D.Okl.1974).

Here the defendant did request the lesser included offense instruction; and this case is, therefore, distinguishable on that fact from Higgins, Poulson and Quinn, supra. However, this distinction is not important in determining whether the alleged error the refusal to give a lesser included offense instruction rises to the level of a federal constitutional claim. Under the general rules stated above we are satisfied that in the context of this case it is not a defect which inherently results in a miscarriage of justice, or an omission inconsistent with the rudimentary demands of fair procedure. It is, therefore, not cognizable in federal habeas corpus proceedings.

II.

DeBerry argues that the state knowingly used false testimony in its prosecution of him in violation of the rule stated in Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). He bases this contention on the fact that there were variations in the testimony of Yvonne DeBerry, the victim of the shooting and the only eyewitness, between the preliminary hearing and the trial. He asserts that the prosecutor knew of these differences and should not have allowed the trial testimony to go uncorrected.

Napue established that

a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment . . . . The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. (Citations omitted.)

Napue v. Illinois, supra, 360 U.S. at 269, 79 S.Ct. at 1177.

DeBerry claims that Yvonne changed her testimony regarding whether she and DeBerry were sitting on chairs or on a couch prior to the shooting, whether she "grabbed" or "touched" DeBerry on the gun hand or somewhere else and whether she was knocked to the floor by the impact of the first bullet to strike her or by DeBerry hitting her. He contends that, to the extent the trial testimony was different than that of the preliminary hearing, it was false.

The district court reviewed the record and found that some of the alleged discrepancies did not exist....