Ellenson v. Fugate
| Decision Date | 04 June 1965 |
| Docket Number | No. 17935.,17935. |
| Citation | 346 F.2d 151 |
| Parties | Gladys ELLENSON, as Superintendent of the Women's Reformatory at York, Nebraska, Appellant, v. Caril Ann FUGATE, a Minor by and Through John McArthur, Her Guardian and Next Friend, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Melvin Kent Kammerlohr, Asst. Atty. Gen. of Nebraska, Clarence A. H. Meyer, Atty. Gen. of Nebraska, Lincoln, Neb., for appellant.
Merril R. Reller and John McArthur, Lincoln, Neb., for appellee.
Before VOGEL, MATTHES and RIDGE, Circuit Judges.
This is an interlocutory appeal pursuant to 28 U.S.C.A. § 1292(b).
Caril Ann Fugate, a minor (appellee) is a Nebraska state prisoner. In November, 1958, she was found guilty of first degree murder in the District Court of Lancaster County, Nebraska, and was sentenced to life imprisonment. The judgment of conviction was affirmed by the Supreme Court of Nebraska. Fugate v. State, 169 Neb. 420, 99 N.W.2d 868 (1959), cert. denied 363 U.S. 851, 80 S.Ct. 1631, 4 L.Ed.2d 1733 (1960).
In this habeas corpus proceeding instituted in the United States District Court, District of Nebraska, appellee seeks release from the Women's Reformatory at York, Nebraska, where she is serving the sentence imposed upon her. The petition for writ of habeas corpus alleges in general that appellee's conviction was in violation of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. More particularly, it alleges incriminating statements were elicited from appellee after a formal complaint had been filed charging her with commission of the offense; that she was then without the aid and assistance of counsel and that the statements were improperly used in evidence against her.
Apparently the parties regarded the allegations in the petition as presenting the question whether Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) is to be given retroactive application. There was no evidentiary hearing conducted and the circumstances under which the incriminating statements were elicited are not before us. The district court, after oral argument, limited its review to a determination of the legal question and held that "Escobedo is to be applied in retrospect." The court stated that: "The issue here argued * * * is before this court in several other cases which will be for trial shortly," was of the view that the order finding Escobedo should be applied retroactively involves a controlling question of law, and made the certification prerequisite to an interlocutory appeal under 28 U.S.C.A. § 1292(b). Fugate v. Ellenson, D.C., 237 F.Supp. 44, 45 (1964).
Subsequent to the entry of the order appealed from (December 30, 1964) the Nebraska Legislature enacted Legislative Bill 836. This statute, which became effective on April 12, 1965, is a counterpart of 28 U.S.C.A. § 2255, and provides for post-conviction procedures for a prisoner in custody and claiming a right to be released on the ground that there was a denial or infringement of his rights so as to render the judgment void or voidable under the Constitution of Nebraska or the Constitution of the United States.
Very recently in another habeas corpus proceeding involving a Nebraska state prisoner, we took cognizance of the Nebraska...
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Ford v. Boeger
...has repeatedly held that the exhaustion of such state remedies is required before federal habeas corpus may be entertained. Ellenson v. Fugate, 8 Cir., 346 F.2d 151; Dabney v. Sigler, 8 Cir., 345 F.2d 710; Witt v. Nash, 8 Cir., 342 F.2d 791; Cyronne-DeVirgin v. State of Missouri, 8 Cir., 34......
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Kennedy v. Sigler
...Dabney v. Sigler, 345 F.2d 710, 715 (8 Cir. 1965); Burnside v. State of Nebraska, 346 F.2d 88, 89 (8 Cir. 1965); Ellenson v. Fugate, 346 F.2d 151, 152 (8 Cir. 1965); see Case v. State of Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965). However, the Supreme Court of Nebraska has......
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...Virgin v. State of Missouri, 341 F.2d 468 (8th Cir.1965), cert. denied, 382 U.S. 895, 86 S.Ct. 189, 15 L.Ed.2d 151; Ellenson v. Fugate, 346 F.2d 151 (8th Cir. 1965); Dabney v. Sigler, 345 F.2d 710 (8th Cir. 1965); and United States ex rel. Laino v. Wallack, 231 F.Supp. 733 (S.D.N.Y. These p......
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