Blankenfeld v. Clarke

• Decision Date: 12 September 1990
• Docket Number: No. CV89-L-313.,CV89-L-313.
• Parties: Jim D. BLANKENFELD, Petitioner, v. Harold CLARKE, Respondent.
• Court: U.S. District Court — District of Nebraska

753 F. Supp. 1498

Jim D. BLANKENFELD, Petitioner, v. Harold CLARKE, Respondent.

No. CV89-L-313.

United States District Court, D. Nebraska.

September 12, 1990.

Jim D. Blankenfeld, Lincoln, Neb., pro se.

W. Scott Davis (Court-appointed), Robert M. Spire, Atty. Gen., Sharon M. Lindgren, Asst. Atty. Gen., Lincoln, Neb., for respondent.

MEMORANDUM ON REPORT AND RECOMMENDATION

URBOM, District Judge.

The magistrate's report and recommendation on this petition for writ of habeas corpus is that the writ of habeas corpus be granted, unless the petitioner is given a new trial within a reasonable time. The judges involved in the legal entanglements leading to this day have been about equally divided in their views. I find it a fascinating case from an analytical standpoint and, after a review of the thinking of those judges, together with the excellent briefs in support of the varying positions, I conclude that the writ must be granted.

Four judges of the Supreme Court of Nebraska in interpreting Nebraska law have declared that the two Nebraska statutes — §§ 39-669.07 and 39-669.08 — state separate and distinct offenses. Justices White and Shanahan in dissent and Caporale and Fahrnbruch in concurrence declared it in the petitioner's direct appeal, State v. Blankenfeld, 229 Neb. 411, 427 N.W.2d 65 (1988). None was writing a majority opinion; the four constituted a majority on that issue. That declaration was in accord with prior Nebraska law. See State v. Stabler, 209 Neb. 298, 306 N.W.2d 925 (1981).

The petitioner was charged under § 39-669.08, as the information specifically stated. There was no evidence to support that charge. There was, therefore, a denial of due process under the test articulated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The question then is whether the loss of the constitutional right was harmless beyond a reasonable doubt. Two of the justices of the Supreme Court of the State of Nebraska thought it was. As far as I can tell from the record, the defense at the trial would not have been any different if there had been a recognition that the statute pleaded was not the statute of which a violation was proved. But under the peculiar circumstances of the case I am at least uneasy about whether double jeopardy would protect the petitioner in the future. There was no decision by the Supreme Court of Nebraska as to which statute he was convicted under. If in the future he were charged with violation of one of the statutes, I am not at all sure that his present conviction would save him from another for the same set of facts. "What lies at the heart of the Double Jeopardy Clause is the prohibition against multiple prosecutions for `the same offense.'" Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). Uneasiness may not be a solid basis for decision, but it is enough to cause me to say that the deprival was not harmless beyond a reasonable doubt.

REPORT AND RECOMMENDATION

DAVID L. PIESTER, United States Magistrate.

This is a habeas corpus action under 28 U.S.C. § 2254. The petitioner is on parole from the Nebraska Department of Correctional Services. The matter has been referred to me for recommended disposition pursuant to 28 U.S.C. § 636.

BACKGROUND

Petitioner was convicted by the District Court of Lancaster County, Nebraska, of driving while under a lifetime motor vehicle operator's license suspension, a Class IV felony under Nebraska law. He was sentenced to 20 months to 5 years imprisonment and fined $10,000.00. Petitioner appealed the convictions and sentences to the Nebraska Supreme Court. On appeal, he raised several assignments of error, the general thrust of which was that the previous sentence of a lifetime suspension of driving privileges was void because it was imposed by the wrong court. Petitioner also claimed that the district court had erred in concluding that he was not a proper candidate for probation. See State v. Blankenfeld, 229 Neb. 411, 413, 427 N.W.2d 65, 67 (1988). The Nebraska Supreme Court rejected those arguments. Id. at 416-17, 427 N.W.2d at 68-69. None of them is at issue in the instant case.

While petitioner's appeal was pending, the Nebraska Supreme Court requested supplemental argument on the following issues: "Is the variance between the information and proof fatal to the convictions? Alternatively, is the language which describes the specific violations which resulted in the permanent suspension mere surplusage?" Id. at 413, 427 N.W.2d at 67. The need for this supplemental argument arose from language contained in the information under which petitioner was charged. The information alleged that petitioner was a "person whose Nebraska driver's license had been permanently revoked pursuant to subdivision (e) of subsection 4 of Neb.Rev.Stat. Section Number 39-669.08," who operated a motor vehicle while under such suspension. Id. at 414, 427 N.W.2d at 67. Neb.Rev.Stat. § 39-669.08(4)(c) (Reissue 1984), at the time relevant to this case, provided for a permanent suspension of driving privileges upon a third conviction of refusing to submit to a preliminary test of the blood, breath, or urine. The records before the Nebraska Supreme Court established, however, that petitioner's driver's license had been permanently revoked pursuant to Neb.Rev. Stat. § 39-669.07(3) (Reissue 1984), upon a conviction for a third offense of driving while intoxicated. Blankenfeld, 229 Neb. at 414, 427 N.W.2d at 67.

After supplemental briefs were received, the Nebraska Supreme Court affirmed petitioner's conviction. In a per curiam opinion, three judges concluded that the erroneous language in the information was "mere surplusage." Id. at 415, 427 N.W.2d at 68. These judges concluded that there were two essential elements to the crime: (1) operation of a motor vehicle, and (2) being under a permanent license suspension. Id. The judges also noted that the two statutes provided for the same offense, a Class IV felony, in the event a person operated a motor vehicle while under the permanent suspension imposed by each. Id. at 414, 427 N.W.2d at 67.

Two judges concurred in the affirmance of the conviction, but on a different ground. They noted that everyone in the district court — the prosecution, the defense, and the court — had approached the case as one prosecuted for driving under a permanent suspension under § 39-669.07. Id. at 420-21, 427 N.W.2d at 71 (Caporale, J., concurring). Although acknowledging that this offense was separate and distinct from driving under a license suspended pursuant to § 39-669.08, the concurring judges concluded that no one had been misled by the defect in the information and, in the unique circumstances presented, the error was "harmless beyond a reasonable doubt." Id. at 421, 427 N.W.2d at 71.

Two judges dissented. They concluded that due process principles required reversal of the conviction because the information failed to apprise petitioner of the offense with which he was charged. Id. at 419-20, 427 N.W.2d at 70 (White, J., dissenting). The dissenting judges stated that it was not the province of the court "to turn a blind eye to explicit statutory language which defines a crime in order to shroud an obvious error made by the State...." Id. at 418, 427 N.W.2d at 69.

In the instant proceeding, petitioner argues that the variance between the information and the proof adduced in the trial court deprived him of due process. The respondent argues that the petitioner failed to properly raise this claim before the Nebraska courts and is therefore barred from raising it in a federal habeas action, absent a showing of cause and prejudice. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). According to the respondent, such a showing has not been made. The respondent also argues that petitioner is not entitled to relief on the merits.

PROCEDURAL DEFAULT

The parties are in agreement that petitioner has exhausted his available state court remedies. See Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1203-04, 71 L.Ed.2d 379 (1982). They disagree, however, as to how exhaustion has been achieved. Petitioner contends that state court remedies have been exhausted by virtue of his "fair presentment" of his constitutional claim to the Nebraska Supreme Court on direct appeal. See Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). The respondent contends that no such presentment was made, but concedes that no state court remedy is presently available to petitioner because his claim could have been presented on direct appeal and therefore cannot be the subject of a post-conviction action under Neb.Rev. Stat. § 29-3001. State v. Reddick, 230 Neb. 218, 223, 430 N.W.2d 542, 546 (1988). Under either scenario, petitioner has exhausted his state court remedies.

The argument of the respondent does raise the issue of procedural default. As noted above, the failure to fairly present a constitutional claim to the state courts at a time when a state court remedy was available will, in certain circumstances, bar federal review of that claim in a habeas action, absent a showing of "cause" for and "prejudice" from that procedural default. Sykes, 433 U.S. at 87, 97 S.Ct. at 2506. The respondent's argument for a finding of procedural default is twofold. First, he contends that petitioner failed to raise the constitutional claim before the trial court and in his assignments of error to the Nebraska Supreme Court. Second, he argues that petitioner's supplemental brief to the Nebraska Supreme Court failed to address the issue of the variance in the information and proof in constitutional terms.

The first aspect of the respondent's procedural default argument is without merit. It is true that petitioner failed to raise his constitutional claims in the trial court or in his initial brief to the Nebraska Supreme Court. The failure to do so would, in ordinary...