Martin v. Parratt, 76-1490

• Citation: 549 F.2d 50
• Decision Date: 26 January 1977
• Docket Number: No. 76-1490,76-1490
• Parties: Melvin MARTIN, Appellant, v. Robert PARRATT, Warden, Nebraska Penal Complex, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 50

549 F.2d 50

Melvin MARTIN, Appellant, v. Robert PARRATT, Warden, Nebraska Penal Complex, Appellee.

No. 76-1490.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 17, 1976.

Decided Jan. 26, 1977.

Fredric H. Kauffman, Lincoln, Neb., for appellant.

Bernard L. Packett, Asst. Atty. Gen., Lincoln, Neb., for appellee.

Before STEPHENSON and HENLEY, Circuit Judges, and MEREDITH, ^* District Judge.

STEPHENSON, Circuit Judge.

Melvin Martin, an inmate of the Nebraska Penal Complex, appeals from the district court's ¹ denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

In 1972 Martin was convicted by a jury in the District Court of Adams County, Nebraska, of the offense of receiving stolen copper of a value in excess of $100 and of being an habitual criminal. He was sentenced to 17 years imprisonment as an habitual criminal. On direct appeal to the Supreme Court of Nebraska, Martin's conviction was affirmed. State v. Martin, 190 Neb. 212, 206 N.W.2d 856 (1973).

Thereafter, petitioner sought relief in the district court. He alleged that Nebraska's habitual criminal statute ² under which he was sentenced was unconstitutional and that he was denied his constitutional right to a fair trial. ³ The district court, subsequent to an evidentiary hearing and the submission of the state court record, rejected all of Martin's contentions. Petitioner contends that the district court erred in so doing. We affirm.

The first issue raised by Martin concerns the Nebraska habitual criminal statute under which he was sentenced. It is Martin's contention that this statute gave the prosecutor unreviewable discretion to control petitioner's sentencing, thereby denying him due process and equal protection of the laws in violation of the fourteenth amendment. We are not persuaded by petitioner's argument.

At the outset, we note that the prosecutor's discretion in Nebraska is not unreviewable, despite petitioner's assertions to the contrary. See Neb.Rev.Stat. § 29-1606. Furthermore, we reject the argument that the prosecutor has been given the power to sentence, for the statute clearly states "the court shall sentence such person so convicted as an habitual criminal." Neb.Rev.Stat. § 29-2221. In essence, petitioner's argument concerns the selectivity of enforcement of the statute. It is important in this regard that Martin does not contend that the selectivity of enforcement was deliberately based upon an unjustifiable standard. As was stated by the Supreme Court:

(T)he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.

Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). Therefore, we conclude that the selective enforcement of Nebraska's habitual criminal statute did not deny Martin either due process or equal protection of the laws in violation of the fourteenth amendment.

Martin also contends that the application of the habitual criminal statute constituted cruel and unusual punishment in violation of the eighth amendment. The argument is made that, because the prosecutor has unreviewable discretion to prosecute under the habitual criminal statute, the resulting sentence is cruel and unusual punishment. A similar argument was made in Gregg v. Georgia, 428 U.S. at 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), where the appellant argued that the state prosecutor had unfettered authority to select those persons whom he wished to prosecute for a capital offense and to plea bargain with them. This, according to the appellant, constituted the arbitrariness and capriciousness condemned by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The Supreme Court rejected this argument. Gregg v. Georgia, supra, 96 S.Ct. at 2937. Similarly, we reject Martin's argument here.

Martin's second contention concerns the alleged nondisclosure of evidence by the county attorney which Martin claims would have affected the credibility of the government's main witness and which denied him his constitutional right to a fair trial. The prosecution's main witness was Ned Nelson, Martin's alleged accomplice. Nelson was never prosecuted for his participation in the theft of the copper. Martin contends that the circumstances surrounding the nonprosecution of Nelson suggest that Nelson had been promised immunity. No such arrangement with Nelson was revealed by the prosecutor. Nelson testified before the district court, however, that no deal was ever made with the prosecution. Furthermore, the county attorney who prosecuted Martin testified before the district court and corroborated Nelson's denial of immunity. ⁴ The district court found that Nelson had not received any promise of immunity. We are not convinced that this finding is clearly erroneous. See Weiland v. Parratt, 530 F.2d 1284, 1289 (8th Cir. 1976).

Martin further asserts that the prosecution intentionally elicited perjured testimony from Nelson. On direct testimony, Nelson stated twice he had been charged with a crime resulting from the theft of the copper and had pleaded guilty. Testimony elicited at the evidentiary hearing before the...