ORDER
HANSEN, District Judge.
This matter is before the court on petitioner's application for writ of habeas corpus, filed July 9, 1985. Hearing was held on petitioner's application on October 30, 1986, when petitioner appeared by his counsel of record, Jon M. Kinnamon, Esq., and respondent appeared by its counsel, Thomas D. McGrane, Esq. The arguments of counsel were made and heard. Further briefs were filed in March, 1987. The court, having reviewed the extensive record in this matter, read the briefs and considered the arguments of counsel, enters the following order.
Atwell Junior Conner seeks habeas corpus relief from a life sentence imposed by an Iowa District Court upon his conviction after a trial by jury for the first-degree murder of Maureen Ann Connolly in Jones County, Iowa.
The facts surrounding this crime were set forth in detail in State v. Conner, 241 N.W.2d 447 (Iowa 1976), as follows:
The state's evidence tended to show that in the evening of March 8, 1974, defendant Atwell Junior Conner discussed the possibility of committing a robbery with two friends, George Nowlin and Steve Martin. The trio spent that night in the Cedar Rapids apartment of Mabel Beltz, Nowlin's girlfriend. The next morning they went to defendant's home in a rural area near Cedar Rapids where they picked up a single-shot 20 gauge shotgun. They took the gun back to the Beltz apartment, and Nowlin sawed off the gun barrel. They later test-fired the gun, which they called "short-shortie."
After an afternoon and evening of drinking and playing pool, defendant ended up with Nowlin at about 10:30 p.m. in Nowlin's car. Martin was not with them. Nowlin had told Beltz he was going to commit a robbery. He had two loaded shotguns in the car, a five-shot pump 20 gauge shotgun and "short-shortie." Defendant had agreed he would use one of the guns if necessary. Near midnight they were proceeding south on highway 218 in Cedar Rapids.
As they neared the intersection of the highway with Thirty-third Avenue, they saw a boy and girl walking north on the east side of the highway. The youths were Michael Servey and Maureen Ann Connolly, teenagers whose car had run out of gas nearby. Nowlin decided to rob the young couple.
Nowlin turned his vehicle around at the intersection and headed north. He told defendant to get in the back seat and handed "short-shortie" to him. They pulled alongside the couple. Nowlin ordered Maureen into the passenger side of the front seat and Michael into the left side of the back seat at the point of the pump shotgun. Defendant held the other shotgun on Michael after he entered the car. Nowlin demanded Michael's money. Michael gave his money to defendant who reached forward and put it in Nowlin's shirt pocket.
Nowlin continued driving north on highway 218 and later turned onto highway 30 and headed east toward Mount Vernon. In Mount Vernon, he turned north on highway 1. At about 1:00 a.m. on March 10 they arrived at a point in rural Jones County on a gravel road near Old Morley Bridge. There Nowlin stopped the car and ordered Maureen to get out with him. Defendant remained in the car with Michael. Nowlin raped Maureen near the car. She attempted to run away, but Nowlin fired his pump shotgun at her, fatally wounding her with two shotgun blasts. He left her body in the ditch by the bridge and got back in the car.
He ordered defendant to drive the car. At Nowlin's direction defendant drove the vehicle to Palisades Park in Linn County where Nowlin, after locking "short-shortie" in the glove compartment, got out of the car with Michael. He struck Michael with the pump shotgun and then shot and killed him. He left Michael's body there.
Nowlin and defendant returned to the Beltz apartment in Cedar Rapids, arriving there at some time between 2:00 a.m. and 3:00 a.m. Nowlin had blood on his clothing. He told Beltz he had killed the two teenagers. He later threatened Beltz, Martin and defendant with a similar fate if they should tell the police.
At about 9:00 a.m. Nowlin, Martin and defendant went back to the place Michael had been killed. Defendant drove the car. At the scene of the killing, Nowlin retrieved a piece of the pump shotgun which had fallen off when he struck Michael with it. Defendant remained in the car while Nowlin and Martin removed Michael's billfold from his body. Later Nowlin took 15 cents from the billfold and then threw it in the river. They returned to the Beltz residence and defendant went home.
The following Sunday, March 17, Nowlin, accompanied by defendant and defendant's wife and six children, took the pump shotgun and threw it in the river.
Maureen's body was found in the afternoon of March 16. Medical examination confirmed that she had been raped and died of shotgun wounds. Michael's body was found on March 17.
Martin went to the police on March 18 and reported what he knew of the events surrounding the killings. At about 4:00 a.m. on March 19 officers went to defendant's home and asked defendant to come to the Cedar Rapids police station with them for questioning. Defendant accompanied the officers to the station where he was interrogated about the killings for about one and one-half hours. During that time he orally admitted his participation in the events leading to the deaths of Michael and Maureen, although after receiving advice of counsel he refused to sign a written statement. He was charged with the murder and rape of Maureen in Jones County and the murder and robbery of Michael in Linn County.
Id. at 450-51.
Conner's conviction was affirmed by the Supreme Court of Iowa on direct appeal. Id. Conner then filed a habeas corpus petition in United States District Court alleging that his state conviction was in violation of the United States Constitution. The district court1 dismissed Conner's petition, and petitioner appealed. The Eighth Circuit Court of Appeals affirmed the district court on four of the six issues litigated, and vacated its ruling on two issues which Conner had not fully presented to the Iowa state courts. Conner v. Auger, 595 F.2d 407 (8th Cir.), cert. denied, 444 U.S. 851, 100 S.Ct. 104, 62 L.Ed.2d 67 (1979). Conner then initiated a postconviction proceeding in Iowa District Court, raising the two issues that the Eighth Circuit Court of Appeals had deemed unexhausted, in addition to other issues. The Iowa District Court denied Conner's application for postconviction relief, and on appeal the Supreme Court of Iowa affirmed. Conner v. State, 362 N.W.2d 449 (Iowa 1985). Conner then filed the pending habeas corpus petition, raising the same issues raised in his state postconviction proceeding along with two additional issues which arose from the postconviction opinion of the Supreme Court of Iowa.
After a hearing on the merits of the pending petition, this court asked the parties to brief the issue of the exhaustion of the two claims which arose from the Iowa Supreme Court's postconviction opinion, contained in Counts VIII and IX of the pending petition. The court will address this issue before proceeding to the merits of petitioner's claims.
As stated above, the grounds raised by petitioner in this petition for habeas corpus relief are identical to those raised in his state postconviction action, with the exception of Counts VIII and IX of the current petition which state:
GROUND EIGHT: JUDICIAL INTERPRETATION: VIOLATION OF DUE PROCESS AND EQUAL PROTECTION.
ISSUE VIII
THE SUPREME COURT OF IOWA POSTCONVICTION RELIEF DECISION, CONNER V. STATE, CONSTITUTED EX POST FACTO, JUDICIAL LEGISLATION AND VIOLATED PETITIONER'S RIGHT TO DUE PROCESS, A JURY TRIAL AND EQUAL PROTECTION. (U.S.C.A., Amendments 5, 14; U.S.C.A., Article I, Section 9, Cl. 3 and Section 10, Cl. 1)
THAT THE SUPREME COURT OF IOWA, IN THE POSTCONVICTION RELIEF DECISION OF THE PETITIONER, AND IN THE AFTERMATH OF PETITIONER'S ORIGINAL CRIMINAL TRIAL, MODIFIED AND DELETED ELEMENTS OF THE STATUTORY CRIME OF HOMICIDE UNDER CHAPTERS 690.1 AND 690.2 OF THE 1973 CODE OF IOWA, AND THIS RETROSPECTIVE MOFIDICATION sic AND DELETION OF ELEMENTS BY JUDICIAL INTERPRETATION IN A STATE JURISDICTION WHICH HAS ABROGATED THE COMMON LAW, DENIES THE DEFENDANT DUE PROCESS OF LAW AND A TRIAL BY JURY. THE ELEMENTS MODIFIED OR DELETED ARE:
1. MALICE AFORETHOUGHT
AND/OR
2. PARTICIPATION IN THE
KILLING AND/OR
3. CAUSALITY BETWEEN A SPECIFIC UNDERLYING FELONY AND THE MURDER UPON WHICH FIRST-DEGREE MURDER CRIMINAL LIABILITY IS BASED.
THE POSTCONVICTION RELIEF DECISION UPHOLDS A JURY MARSHALLING INSTRUCTION IN PETITIONER'S ORIGINAL TRIAL WHICH DOES NOT CONTAIN THE THEN REQUISITE ELEMENTS FOR A FIRST-DEGREE MURDER CONVICTION UNDER CHAPTERS 690.1 AND 690.2 OF THE 1973 CODE OF IOWA, AND IN THE ALTERNATIVE, THE POSTCONVICTION RELIEF DECISION RETROSPECTIVELY CREATES A FELONY-MURDER RULE BASED ON VICARIOUS LIABILITY WHICH IS AT VARIANCE WITH THE ELEMENTS OF FELONY MURDER SUBMITTED IN OTHER IOWA CASES UNDER CHAPTER 690.1 AND 690.2 OF THE 1973 CODE OF IOWA AND WHICH IS IN VIOLATION OF EQUAL PROTECTION.
GROUND NINE: VARIANCE OF CHARGE FROM PROOF AT TRIAL.
ISSUE IX
THE SUPREME COURT OF IOWA POSTCONVICTION RELIEF DECISION, CONNER V. STATE, 362 N.W.2d 449 (Iowa 1985) PERMITTED THE OFFENSE OF MURDER TO BE PROVEN IN A MANNER NOT CHARGED, AND THERE WAS A VARIANCE BETWEEN THE CRIME CHARGED AND PROOF AT TRIAL WHICH PREJUDICED SUBSTANTIAL RIGHTS OF THE PETITIONER.
THE SUPREME COURT OF IOWA, PRIOR TO CONNER V. STATE, 362 N.W.2d 449 (Iowa 1985) HELD THAT WHEN A CRIME MAY BE COMMITTED IN DIFFERENT WAYS, AND THE STATE SPECIFIES ONE WAY, THE OFFENSE MUST BE PROVED TO HAVE BEEN COMMITTED IN THE WAY CHARGED.
...
