Holtan v. Parratt, 81-2153

• Decision Date: 16 July 1982
• Docket Number: No. 81-2153,81-2153
• Citation: 683 F.2d 1163
• Parties: Richard Dean HOLTAN, Appellant, v. Robert PARRATT, Warden of Nebraska Penal and Correctional Complex, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1163

683 F.2d 1163

Richard Dean HOLTAN, Appellant, v. Robert PARRATT, Warden of Nebraska Penal and Correctional

Complex, Appellee.

No. 81-2153.

United States Court of Appeals,

Eighth Circuit.

Submitted March 11, 1982.

Decided July 16, 1982.

J. William Gallup, Omaha, Neb., for Holtan.

Jack Greenberg, James M. Nabrit, III, Joel Berger, John Charles Boger, Deborah Fins, James S. Liebman, New York City, Robert Weisberg, Stanford Law School, Stanford, Cal., Anthony G. Amsterdam, New York University, School of Law, New York City, for N. A. A. C. P. Legal Defense and Educ. Fund, Inc.

Paul L. Douglas, Atty. Gen., J. Kirk Brown, Asst. Atty. Gen., Lincoln, Neb., for Robert Parratt and State of Neb., its Agencies, and its Officers.

Before HEANEY, BRIGHT and HENLEY, ^* Circuit Judges.

HENLEY, Senior Circuit Judge.

Richard Dean Holtan was convicted by a Nebraska trial court of first degree murder while in the commission of a crime, and of shooting with intent to kill, wound, or maim, and was sentenced to death by electrocution. His petition for a writ of habeas corpus was denied by the United States District Court, and this appeal followed.

Because we agree with the district court that Holtan was denied effective assistance of counsel when his attorney failed to act on Holtan's request to seek withdrawal of his plea of nolo contendere, and because we find that Holtan was materially prejudiced thereby, we vacate the judgment of the district court and remand with directions. Further, because our decision may render moot the remaining issues raised by Holtan, ¹ we decline to decide those issues at this time.

Holtan's conviction arose out of a robbery of a bar in Omaha, Nebraska. The robber entered the bar and robbed the cash register of its contents. He then forced the bartender and two patrons into a restroom and, after the bartender had been forced to tie the hands of the patrons, shot and killed the bartender and wounded one of the patrons. Holtan, the prime suspect, was not apprehended until several months later, when he surrendered to authorities in Hawaii.

Holtan pled no contest, and was sentenced by a three-judge panel to death on the murder charge, and to imprisonment for a term of fifteen to forty-five years on the other charge. During this time, he was represented by Mr. Carey of the Douglas County, Nebraska Public Defender's Office. Holtan's conviction and sentences were affirmed by the Supreme Court of Nebraska in State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977), cert. denied sub nom. Holtan v. Nebraska, 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed.2d 198 (1977). A later challenge to his conviction under the Nebraska Post Conviction Act was denied by the District Court of Douglas County, Nebraska, and that decision was affirmed by the Supreme Court of Nebraska. State v. Holtan, 205 Neb. 314, 287 N.W.2d 671 (1980).

In the United States District Court, and on appeal, Holtan contends that he received ineffective assistance of counsel in the following ways:

(a) by the failure of his counsel to subpoena witnesses who would have presented mitigating factors at his sentencing hearing and by informing Holtan that the State was financially unable to provide the assistance necessary to secure the presence of those witnesses;

(b) by the failure of counsel to discuss trial strategy with Holtan at any time and by failing to advise him that the only eyewitnesses to the charge against him had given widely varying descriptions of the assailant and that there was no physical evidence to connect him with the crime charged;

(c) by the failure of counsel to investigate the case adequately, either through the taking of depositions, interviewing of witnesses, or reading the police reports in their entirety;

(d) by counsel's advising Holtan that a no contest plea would be beneficial in that it would prevent the appearance of the surviving female victim, who defense counsel felt would evoke hostility toward the petitioner, and in failing to obtain an agreement with the prosecuting attorney that the victim would not appear if a plea were entered;

(e) by the failure of counsel to advise the court that Holtan wished to withdraw his plea of no contest to the charge of first degree murder after he had been advised by counsel that the penalty which the court probably would impose was the sentence of death; and

(f) by the failure of counsel to investigate adequately the petitioner's mental capacity both at the time of the commission of the crime and at the time of the plea, when counsel knew the petitioner had a history of mental disorders.

Subissue (a) involves Carey's failure to subpoena out-of-state psychiatrists and character witnesses who allegedly would have presented mitigating factors at the sentencing hearing. The district court, in resolving this issue, stated that "(t)here appears to be no breach of an essential duty to interview these witnesses, because they did not have material knowledge." The district court also observed that "(e)ven if the character witnesses had material knowledge and Carey breached an essential duty by failing to subpoena them, Holtan has not shown the requisite prejudice." After having carefully examined the record, we hold that the district court's findings are fully supported by the record and are not clearly erroneous.

The district court also resolved subissues (b), (c) and (f) by making factual findings that Carey had discussed trial strategy and the potential testimony of the witnesses with Holtan, that Carey's investigations of potential witnesses and of other materials had been adequate, and that adequate investigations into Holtan's mental capacity had been made by Carey. Again, we hold that these findings are not clearly erroneous. Accordingly, we turn to subissues (d) and (e).

In its discussion of subissue (e), the district court found:

Subissue 'e' of the claim of ineffectiveness-Carey's alleged failure to act on Holtan's request to withdraw the no contest plea-is ... the subject of some dispute as to exhaustion.... (I)t is not the subject of a deliberate bypass and it will be treated as exhausted, due to the inability to raise it further in a state proceeding.

Holtan contends that he telephoned Carey at his home about five days before sentencing to request withdrawal of the no contest plea. Carey responded that he would see Holtan in a few days. Despite Carey's inaction, Holtan did not mention the request at the time of sentencing, because he felt that it was too late to request withdrawal and that it was not his place to do so. Carey has no recollection of the telephone call. The evidence fairly shows that the request was made and not acted upon.

A reasonably competent attorney would likely pursue such a request and attempt to have the plea withdrawn; Carey has breached an essential duty. Holtan has not shown, however, that his defense was substantially prejudiced.

The district court's decision to treat this issue as exhausted "due to the inability to raise it further in a state proceeding" has been somewhat troublesome to this court in light of the Supreme Court's recent decision in Engle v. Isaac, --- U.S. ----, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), that "any prisoner bringing a constitutional claim to the federal courthouse after a state procedural default must demonstrate cause and actual prejudice before obtaining relief." Id. 102 S.Ct. at 1572. See United States v. Frady, --- U.S. ----, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982); Tippett v. Wyrick, 680 F.2d 52 (8th Cir. 1982); 28 U.S.C. § 2254(b).

The exhaustion controversy here stems from petitioner's failure to assign specifically his trial counsel's failure to request withdrawal of the plea as an issue in his appeal from the state district court's denial of his petition for post-conviction relief, for, under Nebraska law, consideration of an issue on appeal will be limited to errors specifically assigned and discussed except that the Supreme Court of Nebraska may, at its option, note a plain error not assigned. E.g., State v. Redden, 181 Neb. 423, 149 N.W.2d 98 (1967). However, we note that the Nebraska Supreme Court will consider an "argued error, even though the same was not assigned," where the defendant has been charged with a capital crime and where the death sentence has been imposed. State v. Peery, 199 Neb. 656, 261 N.W.2d 95, 97 (1977).

In the case at bar, it is clear that this issue was raised before the state district court in Holtan's request for state post-conviction relief, and it is also clear that this issue was raised before the Supreme Court of Nebraska during Holtan's appeal from the state district court's denial of post-conviction relief. Brief for Appellant at 12; State v. Holtan, 205 Neb. 314, 287 N.W.2d 671 (1980). Consequently, we hold that Holtan adequately raised this issue before the Nebraska courts, notwithstanding his failure to specify it as error in that appeal, and notwithstanding the Supreme Court of Nebraska's failure to address the issue in its decision. State v. Peery, 261 N.W.2d at 97. It follows that there has been no procedural default with regard to this issue, that Engle v. Isaac is therefore not applicable, and the issue is properly before us. ²

The State has conceded on appeal and the district court found that the request for withdrawal of plea was made and not acted upon. We find substantial evidence in the record to support this conclusion and we also agree with the district court that a reasonably competent attorney would likely pursue such a request. However, we are unable to agree with the district court that prejudice has not been shown.

This court has consistently held that a petitioner must show that his attorney has failed to exercise the customary skills and diligence that a reasonably competent attorney would exercise in the circumstances. In the event that such failure is shown, however, if petitioner is to prevail on the issue of ineffective...