Bird v. Sigler

• Citation: 241 F. Supp. 1007
• Decision Date: 29 December 1964
• Docket Number: 761L,Civ. 749L,766L,767L.
• Parties: Roland F. BIRD, Petitioner, v. Maurice SIGLER, Warden, Respondent. Richard R. HAYS, Petitioner, v. Maurice H. SIGLER, Warden, Respondent. Timothy Leroy TUCKER, Petitioner, v. Maurice H. SIGLER, Warden, Respondent. Billy R. SHAPLEY, Petitioner, v. The STATE OF NEBRASKA, Warden Maurice H. Sigler, Respondent.
• Court: U.S. District Court — District of Nebraska

241 F. Supp. 1007

Roland F. BIRD, Petitioner, v. Maurice SIGLER, Warden, Respondent.

Richard R. HAYS, Petitioner, v. Maurice H. SIGLER, Warden, Respondent.

Timothy Leroy TUCKER, Petitioner, v. Maurice H. SIGLER, Warden, Respondent.

Billy R. SHAPLEY, Petitioner, v. The STATE OF NEBRASKA, Warden Maurice H. Sigler, Respondent.

Civ. 749L, 761L, 766L, 767L.

United States District Court D. Nebraska.

December 29, 1964.

Harvey L. Goth, Lincoln, Neb., for petitioner Roland F. Bird.

Richard H. Williams, Asst. Atty. Gen., of Nebraska, Lincoln, Neb., for respondent in No. 749L.

Donald W. Hand, Lincoln, Neb., for petitioner Richard R. Hays.

C. C. Sheldon, Asst. Atty. Gen. of Nebraska, Lincoln, Neb., for respondent in No. 761L.

Allen L. Graves, Lincoln, Neb., for petitioner Timothy Leroy Tucker.

Mel Kammerlohr, Asst. Atty. Gen. of Nebraska, Lincoln, Neb., for respondent in No. 766L.

Frank C. Sidles, Lincoln, Neb., for petitioner Billy R. Shapley.

C. C. Sheldon, Asst. Atty. Gen. of Nebraska, Lincoln, Neb., for respondent in No. 767L.

VAN PELT, District Judge.

These cases are before the court on separate petitions for writs of habeas corpus. Each applicant is presently incarcerated in the Nebraska Penal and Correctional Complex at Lincoln, Nebraska. Counsel have been appointed and the court has held a hearing on the claims raised by each applicant.

The State has not raised the procedural issue of exhaustion of state remedies and apparently concedes that each applicant has sufficient standing to petition the federal courts for post-conviction relief. As the court can find no procedural obstacles which might preclude its immediate determination of the merits of these applications, there is no need for further discussion of jurisdiction or standing.¹

The occasion for the consolidation of these matters into one memorandum opinion is the common question of law raised by each applicant. The court is now faced with a determination of the "critical" nature of a preliminary hearing in Nebraska under circumstances wherein a plea of guilty is entered, and must at this time reconsider its "Memorandum and Order" previously entered in Thunder Hawk v. Sigler, 759L, decided June 26, 1964.² Each petitioner, however, has presented an entirely different and distinct set of facts in support of his application for issuance of the "Great Writ." Consequently, the court's determination of the critical nature of a preliminary hearing is not necessarily dispositive in each instance, but will merely serve as a guide line in resolving the merits of the respective applications.

The ultimate question presently before the court is whether a conviction on a plea of guilty, either with the assistance of counsel or after counsel is effectively waived, is vitiated when, prior to the acceptance of this plea in district court, the accused enters a plea of guilty at a preliminary hearing without the benefit of counsel or without being properly advised of his constitutional rights.

This precise question, perhaps, can be more graphically illustrated by the following synopsis of facts which give direct rise to the problem. A preliminary hearing in Nebraska has the functional purpose of determining whether the offense charged has been committed and whether there is probable cause to believe the defendant committed it.³ There is no authority for the magistrate or other public official conducting such a hearing either to require or accept a plea from an accused. It is uncontroverted, however, that in many instances an accused, including the present petitioners, has been asked to enter a plea at this stage of the proceedings without the benefit of counsel. In addition, there is no provision for the appointment of counsel in Nebraska until the arraignment stage of the proceedings in district court and consequently the indigent accused could not obtain the services of counsel at this stage of the proceedings even if requested.⁴

Until recently, as a matter of local law, these pleas of guilty at the preliminary hearing were admissible into evidence against the accused if there should subsequently be a jury trial. Wilson v. Soloman, 172 Neb. 616, 111 N.W.2d 372 (1961); Adams v. State, 138 Neb. 613, 294 N.W. 396 (1940). However, in State v. Snell, 177 Neb. 396, 128 N.W. 2d 823 (1964) the Nebraska court ruled that such pleas are not admissible in the absence of counsel or an effective waiver of counsel at the time they are given.

The present petitioners all pleaded guilty at the preliminary hearing stage without the benefit of counsel, and in each instance a plea of guilty was subsequently entered at arraignment in the district court after counsel was either appointed or effectively waived by the accused. It is the position of the Attorney General that this subsequent plea of guilty cured any prior existing defect in the proceedings which might have vitiated the conviction, and furthermore, the effect of the Nebraska Supreme Court's ruling in State v. Snell, supra, is to make the preliminary hearing a "non-critical" stage since there can now be no resulting prejudice.

The ultimate question of whether the lack of counsel at these preliminary hearings vitiated the subsequent convictions and sentences can be broken down into five separate sub-parts, and the court feels constrained to examine each such aspect in some detail. These factors which must be considered are (1) the retroactivity of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963); (2) the applicability of the Gideon principles to a plea of guilty; (3) the need for an accused to make a formal request for counsel; (4) the critical nature of a preliminary hearing in Nebraska prior to State v. Snell, supra; and (5) the problem of an effective waiver of counsel.

(1) Retroactivity of Gideon. The retrospective application of Gideon v. Wainwright is not, in the opinion of the court, an open question, and there would be sufficient justification for merely stating this to be the law, accompanied of course with sufficient citation of authority. However, since the question has yet to be faced in this District and has not been directly discussed by the Court of Appeals for the Eighth Circuit, the court feels justified in briefly reviewing this problem.

The Supreme Court has applied the Gideon principles retrospectively dating back to 1959. Doughty v. Maxwell, 372 U.S. 781, 83 S.Ct. 1106, 10 L.Ed.2d 139 (1963), and one group of at least sixteen cases "remanded for further consideration in the light of Gideon v. Wainwright" in a per curiam decision prompted a dissenting opinion by Mr. Justice Harlan wherein he took the position that the question of retroactivity should be decided only after "informed and deliberate consideration."⁵

Even if the question of retroactivity were an open one, this court would probably be bound by what is implicit in the Eighth Circuit's holding in Nolan v. Nash, 316 F.2d 776 (8th Cir. 1963). In denying the writ to a petitioner attacking a 1942 conviction, the court applied the standards of Gideon v. Wainwright, concluding that the absence of counsel at a preliminary hearing does not vitiate a conviction where the accused pleaded not guilty. Recently, the Second Circuit sitting in banc considered this problem and a majority of the court concluded that Gideon was completely retroactive. United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir. 1964), cert. den. 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048 (1964).

There is in all good conscience and reality no choice but to apply the principles of Gideon retrospectively. Certainly it must relate back at least to the Gideon conviction itself on August 4, 1961. To cut off recognition of a defendant's constitutional right to counsel at this point is not only pure fortuity, but is violative of the spirit and purpose of those constitutional guarantees which Gideon seeks to secure.⁶ "Once it is acknowledged that a conviction under review was obtained in violation of the constitutional right to counsel, a new trial should be awarded and it should make no difference whether the violation occurred before or after the Gideon decision." Jones v. Cunningham, 319 F.2d 1, 5 (4th Cir. 1963) (concurring opinion by Chief Judge Sobeloff). This concept is very ably expressed in United States ex rel. Durocher v. LaVallee, supra, 330 F.2d at 312, wherein it is stated:

"We do not deal here, however, with considerations of res judicata and vested rights, but with the question whether, consonant with our society's conceptions of due process and general constitutional law, we could deny the constitutional right enunciated in Gideon to those who happened to be tried before the decision was handed down. Thus to hold would be to assign a lower constitutional status to pre-Gideon prisoners who were denied the right to counsel, a right so "fundamental and essential to a fair trial" that it is made obligatory upon the States by the Fourteenth Amendment to the United States Constitution; a right that has been characterized by the Court as a "basic minimal" right vouchsafed by the Constitution, Rideau v. State of Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 10 L.Ed.2d 663."

(2) Effect of a Guilty Plea. Unlike Gideon and many of the ensuing cases applying its teachings, the petitioners now before the court were all convicted after entering pleas of guilty. It is entirely clear, however, that there is no valid distinction between the rights of an accused to counsel where he pleads guilty and where he pleads not guilty. In Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964), the Supreme Court in a per curiam decision reversed an Ohio Supreme Court decision denying petitioner relief where he was convicted on a guilty plea and did not make an affirmative request for counsel. Lower federal courts voicing opinion on this issue have held that there can be no valid distinction between the accused who pleads guilty and the...