Chavez v. Sigler

• Decision Date: 04 March 1971
• Docket Number: No. 20575.,20575.
• Citation: 438 F.2d 890
• Parties: Raymond B. CHAVEZ, Appellant, v. Warden Maurice SIGLER, Nebraska State Penitentiary, Lincoln, Nebraska, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

438 F.2d 890 (1971)

Raymond B. CHAVEZ, Appellant, v. Warden Maurice SIGLER, Nebraska State Penitentiary, Lincoln, Nebraska, Appellee.

No. 20575.

United States Court of Appeals, Eighth Circuit.

March 4, 1971.

Raymond B. Chavez, pro se.

Clarence A. H. Meyer, Atty. Gen., and Harold Mosher, Asst. Atty. Gen., Lincoln, Neb., filed brief for appellee.

Before MATTHES, Chief Judge, CLARK, Associate Justice,^* and BRIGHT, Circuit Judge.

BRIGHT, Circuit Judge.

In this appeal, Raymond B. Chavez, an indigent Nebraska state prisoner, seeks through habeas corpus to obtain a transcript of the proceedings in state court which resulted in his conviction upon a guilty plea. The federal district court dismissed the petition for failure to exhaust state remedies as required by 28 U.S.C. § 2254(b). Chavez v. Sigler, 320 F.Supp. 105 (D.Neb.1970). Petitioner Chavez prosecutes this appeal, contending that he has been unconstitutionally denied a transcript of his state court proceedings solely because of his inability to pay for such records.

Petitioner Chavez is presently incarcerated in the Nebraska State Penitentiary under a four-year sentence upon charges of assault with intent to do great bodily harm and automobile theft. As substantive grounds for relief from custody, Chavez asserts that his defense counsel furnished him inadequate and misleading advice concerning the nature of the criminal charges brought against him and incorrectly advised him that no appeal could be taken from a plea of guilty. Implicit in these contentions is Chavez' claim that he was improperly induced to plead guilty when the underlying facts disclosed no more than "a round of bars looking for pick-up girls by petitioner and the victim of the alleged crimes, and * * * a common fist-fight, and at the most the unauthorized use of alleged victim's automobile."

In his petition to the federal district court, Chavez added the following special statement with regard to his exhaustion of state remedies:

Petitioner has applied to his criminal Nebraska trial court for the record and transcript with which to prepare an application for relief under Nebraska Post Conviction Law in Forma Pauperis, and he has been denied * * * because of his inability to pay for said record * * * access to the relief provided for by said Nebraska post conviction law.

Petitioner refers to a recent Nebraska Supreme Court decision¹ as demonstrating the futility of his proceeding further through the Nebraska courts, and he alleges that "he has exhausted his state-remedy within the meaning of the law. * * *" In dismissing Chavez' petition without prejudice, the federal district court did so on the grounds that: (1) Chavez failed to present his substantive grounds to the Nebraska state courts, and (2) the state district court was under no constitutional obligation to grant Chavez' request for the records of his conviction for use in a collateral attack.

With regard to Chavez' allegations of illegal incarceration, it is clear that he has not exhausted his available state remedies, since these issues have not been presented to a Nebraska state court. The Nebraska Post Conviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Supp.1969), enacted in 1965, provides an adequate post-conviction remedy to raise contentions such as those raised by Chavez. Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965); Mayes v. Sigler, 428 F.2d 669 (8th Cir. 1970); Burnside v. State of Nebraska, 346 F.2d 88 (8th Cir. 1965); Dabney v. Sigler, 345 F.2d 710 (8th Cir. 1965). A federal habeas corpus petitioner's contentions must have been presented to, and considered by, a state's highest court before the petitioner will be regarded as having exhausted available state remedies. Singer v. Myers, 392 U.S. 647, 88 S.Ct. 2307, 20 L.Ed.2d 1358 (1968); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); 28 U.S.C. § 2254(c). The district court thus properly determined that Chavez must first present his allegations of illegal incarceration to the Nebraska state courts before he will be regarded as having exhausted his state remedies on those issues.

The district court, having concluded that Chavez failed to exhaust his state remedies, might properly have refused to consider his request for a transcript until that request, coupled with his substantive allegations of illegal incarceration, had been presented to the Nebraska state courts. It, however, ruled on the merits of his request for a transcript. The court said:

The state district court was under no obligation as a matter of state or federal decisions, to grant his request made as an absolute right to secure records of his criminal proceedings for use in collateral attack. 320 F.Supp. at 106

Although the substantive allegations of the petition, if proven, may establish a basis for relief, Chavez charges that the foregoing ruling of the federal district court forecloses him from utilizing Nebraska's post-conviction statute with any effectiveness. Clearly, the petitioner stands little chance of sustaining his burden of substantiating his claims without access to a transcript to disclose the circumstances surrounding his plea.

The United States Supreme Court has repeatedly ruled that once a state makes a remedy available to prisoners, it may not deny that remedy to certain prisoners solely on the basis of their indigency. In Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966), the Supreme Court held that an indigent had a constitutional right to a free transcript on his habeas corpus proceeding for use on appeal. The Court stated:

The State properly concedes that under our decisions in Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961), and Lane v. Brown, 372 U. S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), "to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws." Smith v. Bennett, supra, 365 U.S. at 709, 81 S.Ct. 895. We specifically held in Smith that having established a post-conviction procedure, a State cannot condition its availability to an indigent upon any financial consideration. 385 U.S. at 194, 87 S.Ct. at 364

Similarly, in Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), the Court observed:

Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution. 389 U.S. at 42, 88 S. Ct. at 196

More recently, in Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed. 2d 601 (1969), the Supreme Court once again faced the question of an indigent's right to a free transcript. In Gardner, the petitioner, a California state prisoner, filed a request for habeas corpus relief which the state trial court denied. Under California law, the petitioner possessed no right to appeal from that denial, but the law afforded him the opportunity to file a new petition with either the Intermediate Court of Appeals or with the California Supreme Court. Since petitioner Gardner wished to file a new petition with a higher court, he requested a free transcript of his evidentiary hearing before the California state court. The California courts denied his request. The ...