Collins v. Wolff, CV71-0-261.
Decision Date | 07 January 1972 |
Docket Number | No. CV71-0-261.,CV71-0-261. |
Parties | Terrence Owen COLLINS, Petitioner, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal Complex, Respondent. |
Court | U.S. District Court — District of Nebraska |
E. Dean Hascall, Bellevue, Neb., for petitioner.
Bernard L. Packett, Lincoln, Neb., for respondent.
Petitioner has applied for a writ of habeas corpus. Having been found guilty of possession of a stimulant drug, he is presently serving a two year sentence in the Nebraska Penal and Correctional Complex. Petitioner was tried and sentenced by the District Court of Sarpy County, Nebraska. Petitioner made a timely motion for a new trial in the Sarpy County District Court. The motion was overruled on the 24th day of October, 1969.
Upon timely appeal to the Supreme Court of the State of Nebraska, the action of the District Court of Sarpy County was affirmed. State of Nebraska v. Collins, 186 Neb. 50, 180 N.W.2d 687 (1970).
Certiorari was denied by the United States Supreme Court. Collins v. State of Nebraska, 403 U.S. 909, 91 S.Ct. 2217, 29 L.Ed.2d 685 (1971).
Since the Supreme Court of Nebraska has already ruled directly on the issues now before this court, said issues are not to be relitigated in a proceeding under the post-conviction act §§ 29-3001 to 29-3004 R.S.Supp.1967. See Kennedy v. Sigler, 397 F.2d 556 (C.A. 8th Cir. 1968); Davis v. Sigler, 415 F.2d 1159 (C.A. 8th Cir. 1969). Petitioner has thus exhausted his state court remedies as required by 28 U.S.C.A. § 2254.
An evidentiary hearing was held by this court on July 7, 1971 wherein evidence was submitted and arguments heard relative to issues before the court. The matter now stands ready for determination.
Petitioner states the following as grounds for federal habeas corpus relief: that the judgment and commitment are void for the reason that the items admitted into evidence at the trial before the District Court of Sarpy County, Nebraska were seized in violation of the Fourth Amendment guarantee against unreasonable search and seizure.
The facts surrounding the issue in question are fairly set forth in the opinion of the Nebraska Supreme Court:
The court finds that the determination of this case must rest essentially on whether or not the subject package was first class mail.
In the past, payment of first class postage has been enough to secure first class protection. As stated by Judge Johnsen in Oliver v. United States, 239 F.2d 818 (C.A. 8th Cir. 1957):
"A placing of first-class postage upon a package thus would, under the statutes and regulations here involved, and in the acceptance of the package for transmission and delivery, sufficiently evidence the sender's intention not to allow it to be opened and inspected by the Post Office Department at will, as to entitle him to assert search-and-seizure violation against such an administrative opening, examining and appropriating of it."
The test as to the right of postal authorities to open mail is the intention of the sender. Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1878); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928).
Since 1967 all air parcel post must carry the same postage as first class. Act of December 16, 1967, Pub.L.No. 90-206, 81 Stat. 613, § 39 U. S.C.A. § 4253, § 4303.
As summarized in the United States Code Congressional and Administrative News, Vol. 2, 90th Congress First Session, 1967, p. 2258 at p. 2262:
Relevant sections of the United States Code, enacted before the 1967 amendment and not subsequently revised, are contradictory when applied to the present situation.
However, § 4058 would indicate that the rate of postage alone determines whether or not a parcel is first class.
If air parcel...
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