Becker v. State of Nebraska
Decision Date | 06 April 1970 |
Docket Number | Civ. No. 1495L. |
Citation | 310 F. Supp. 1275 |
Parties | Carl BECKER, Petitioner, v. STATE OF NEBRASKA, Respondent. |
Court | U.S. District Court — District of Nebraska |
COPYRIGHT MATERIAL OMITTED
Nicholas J. Lamme, Fremont, Neb., for petitioner.
Ralph H. Gillan, Asst. Atty. Gen., State of Nebraska, Lincoln, Neb., for respondent.
Carl Becker is an inmate at the Nebraska Penal and Correction Complex serving a 5-year sentence imposed by the District Court of Dodge County, Nebraska, on September 27, 1968 for the crime of possession of a forged instrument. He seeks habeas corpus relief under 28 U. S.C.A. § 2241 alleging he was denied his right to a speedy trial as guaranteed by the 6th Amendment to the Constitution of the United States.
On September 30, 1968, petitioner filed with the sentencing court an application for a writ of habeas corpus. The court construed this as a petition seeking relief under the Nebraska Post Conviction Act and denied the motion. Petitioner sought to appeal this denial. On March 13, 1969 his appeal to the Nebraska Supreme Court was dismissed for failure to file briefs. There is some indication that a brief was actually tendered and that it was refused because it was not in acceptable form. Following its earlier decisions this court finds the exhaustion of state remedies sufficient to confer jurisdiction upon this court pursuant to 28 U.S.C.A. § 2254. See Meter v. State, Civil 1227L (D.Neb. 1969) unreported. Counsel was appointed for the petitioner. An evidentiary hearing was held. The case is now ready for decision.
Petitioner, in his brief, has set forth a chronology of events which has been most helpful to the court. We find these dates and events supported by the evidence presented at the evidentiary hearing. Exhibit numbers supporting certain of the statements have been added to this chronology.
It is the contention of the respondent that the petitioner did not demand a speedy trial at any time. The court specifically finds such a request was made as early as May of 1966 and was reasserted in August of 1967 (Exhibits 4 and 5). No action was taken by the State of Nebraska to bring petitioner to trial until September 1, 1967 (Exhibit 1). For reasons which will appear herein, the Court concludes that the period of time to be considered in determining whether the petitioner was denied a speedy trial is that period from May, 1966 to September, 1967, which is a span of sixteen months.
The United States Supreme Court has recently decided two cases which bear directly upon the issue herein presented. In Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed. 2d 1 (1967), the Court held that the Sixth Amendment right to a speedy trial is enforcible against the states by virtue of the Fourteenth Amendment as "one of the most basic rights preserved by our Constitution." Id. at 226, 87 S.Ct. at 995.
Last term, the Court further clarified this Sixth Amendment right in Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L. Ed.2d 607 (1969). In Smith, the Court ruled that the fact that an individual may be serving a sentence in another jurisdiction does not relieve the state from the obligation of providing him with a speedy trial on pending charges upon his request or demand.
The question arises in this case as to the retroactivity of Klopfer and Smith. Although it appears that the Supreme Court has not yet considered this question, it is believed that the Supreme Court's decision in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed. 2d 882 (1966) wherein it was held that the decision rendered in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966) was to receive only prospective application gives adequate support to the view that the Smith and Klopfer decisions are to be applied retrospectively. Klopfer announces the right to a speedy trial as a basic and fundamental right. It is such rights, under the rationale of Johnson, supra, which are entitled to retrospective application. See Needel v. Scafati, 412 F.2d 761 (1st Cir. 1969).
The decision in Smith is particularly relevant to the instant case. Since this is a case of first impression in this district, a discussion of the Smith rationale is necessary. Of critical importance is an examination of the remedies available in this court if petitioner's rights are found to have been abrogated.
The facts in Smith may be summarized as follows: Petitioner was indicted in Texas in 1960 while a prisoner in the federal penitentiary at Leavenworth, Kansas. A detainer was placed against him. He made several attempts to gain a speedy trial on the Texas charge culminating in a mandamus action in the Texas Supreme Court. That court, relying upon the theory that two separate sovereigns were involved, refused to grant the requested writ of mandamus. The United States Supreme Court reversed and remanded "for further proceedings not inconsistent with this opinion." Smith, 393 U.S. at 383, 89 S.Ct. at 580.
The Court in Smith notes the reasons underlying the necessity for guaranteeing a speedy trial to those accused of crimes. Relying upon United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), it observed that this right "protects at least three basic demands of criminal justice in the Anglo-American legal system: `1 to prevent undue and oppressive incarceration prior to trial, 2 to minimize anxiety and concern accompanying public accusation and 3 to limit the possibilities that long delay will impair the ability of an accused to defend himself.'" Smith, 393 U.S. at 378, 89 S.Ct. at 577.
The Court points out that these demands are aggravated and compounded in the case of an accused who is imprisoned in another jurisdiction.
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