Application of Nielson, 19979.

• Decision Date: 04 August 1970
• Docket Number: No. 19979.,19979.
• Citation: 430 F.2d 1030
• Parties: Application of Raymond C. NIELSON for a Writ of Habeas Corpus, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

430 F.2d 1030 (1970)

Application of Raymond C. NIELSON for a Writ of Habeas Corpus, Appellant.

No. 19979.

United States Court of Appeals, Eighth Circuit.

August 4, 1970.

Mead Bailey, Sioux Falls, S. D., appointed for appellant; Raymond C. Nielson on brief pro se.

Gordon Mydland, Atty. Gen. of South Dakota, and Walter W. Andre, Asst. Atty. Gen., Pierre, S. D., for appellee.

Before MEHAFFY and BRIGHT, Circuit Judges, and HARPER, Chief District Judge.

HARPER, Chief District Judge.

Raymond C. Nielson is confined in the South Dakota State Penitentiary serving two concurrent three-year sentences imposed October 30, 1967, upon his conviction of two counts of forgery in the third degree in the Third Judicial Circuit Court.

Nielson has appealed from Judge Nichol's denial of his application for federal habeas corpus relief pursuant to 28 U.S.C.A. §§ 2241, 2254. This court appointed George W. Kunkle as attorney for appellant immediately after the appellant was granted leave to proceed on appeal in forma pauperis. George W. Kunkle was later relieved by the court and Theodore Mead Bailey, Jr., was appointed as appellant's attorney. Before Bailey was appointed, the appellant filed with the court a handwritten brief. The order appointing Bailey provided in part: "Typewritten briefs to be filed if additional briefs are thought necessary." Bailey examined the original files, the briefs filed by the appellant and the appellee, and thereafter advised the clerk of this court by letter that this case can be fairly submitted on the briefs extant without oral argument.

Nielson claims that federal habeas relief should be granted because he was denied the right to appeal from his conviction and sentence. The district court, after a hearing on the matter, denied the application without prejudice upon a finding that Nielson had not exhausted his state remedies. Judge Nichol's memorandum is reported at 301 F.Supp. 726.

There is no dispute as to the facts with regard to the issue of exhaustion of state remedies. Nielson filed pro se an original writ of habeas corpus with the South Dakota Supreme Court and the same was denied on May 1, 1968. Nielson then filed a petition for writ of habeas corpus in the Circuit Court for the Second Judicial Circuit and a hearing was held before the Honorable Andrew W. Bogue on December 11, 1968. At that hearing Nielson agreed to the assistance of counsel for subsequent pursuance of state-court remedies, and specifically requested the services of Mr. Frank Denholm, who was thereafter asked to assist Nielson. On December 17, 1968, Judge Bogue quashed the writ of habeas corpus. By letter dated May 12, 1969, Nielson advised Judge Bogue that he was abandoning his state-court remedies by foregoing the services of Mr. Denholm, and that he was resorting to federal remedies. No appeal was taken from the quash order of December 17, 1968.

The District Court found that Nielson's failure to appeal the adverse decision of the Circuit Court of the Second Judicial Circuit constituted a deliberate bypass of appellate review.

Section 2254, Title 28 U.S.C.A. provides:

"(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

"(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."

The district court had no power to grant the relief requested under the above section if the applicant had not exhausted the remedies available in the State.

Although Nielson attempted an original writ of habeas corpus in the South Dakota Supreme Court, which was denied, that court has never ruled on the merits of Nielson's contention that he was denied the right to...