Evans v. Clarke

• Decision Date: 28 January 1988
• Docket Number: CV87-L-279.
• Citation: 680 F. Supp. 1351
• Parties: Joel R. EVANS, Petitioner, v. Harold CLARKE, Respondent.
• Court: U.S. District Court — District of Nebraska

680 F. Supp. 1351

Joel R. EVANS, Petitioner, v. Harold CLARKE, Respondent.^*

CV87-L-279.

United States District Court, D. Nebraska.

January 28, 1988.

MEMORANDUM ON REPORT AND RECOMMENDATION OF THE MAGISTRATE

URBOM, District Judge.

The magistrate's report and recommendation of December 24, 1987, recommended that the petition for writ of habeas corpus be granted with respect to the petitioner's seventh claim. That claim is that the petitioner was denied the effective assistance of counsel on direct appeal, in violation of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), when counsel was permitted to withdraw after filing a nonadvocatory brief.

The respondent has objected on three grounds: (1) error in interpreting Robinson v. Black, 812 F.2d 1084 (8th Cir.1987), petition for cert. filed, as not requiring a showing of actual prejudice; (2) error in failing to find the Nebraska Supreme Court did not make a finding that petitioner's direct appeals were wholly frivolous; and (3) error in failing to find any error committed by court-appointed counsel in the preparation of motions to withdraw from petitioner's direct appeals was harmless beyond a reasonable doubt.

As for issue (1), I think the magistrate has interpreted Robinson v. Black correctly. Whether the circuit court's panel in the Robinson case was correct, I offer no view, but it appears to me that the court's resolution necessarily concludes that actual prejudice —a reasonable probability that the result of the proceeding would have been different but for counsel's actions—is not required where appellate counsel on a petition to withdraw under Anders files a brief affirmatively arguing against the client's cause. The case at bar is such a case.

As to issue (2), I see nothing in the respondent's brief or in the file that points out anything to indicate that the Nebraska Supreme Court made a finding that the petitioner's direct appeals were wholly frivolous. The court's ruling was dated July 8, 1981, and stated only:

"Motion of court-appointed counsel for leave to withdraw appearance, sustained; judgment affirmed; see Rule 20A-8." (Exhibit 9)

Rule 20A-8 of the rules of the Supreme Court of Nebraska provided:

"Upon consideration of a motion under Rule 1e(1) (setting out the procedure for appointed counsel to seek leave to withdraw on grounds that the appeal `is wholly frivolous,' but saying nothing about the effect of the court's ruling on such a request) and a review of the record if it shall appear to the court that the decision of the trial court should be affirmed or reversed, the court may take such action on its own motion."

While the filing of a motion to withdraw may carry the necessary implications that counsel thinks the appeal is frivolous, neither the filing nor the rule implies a finding by the court of frivolousness if the trial court's action is affirmed. The Supreme Court of the United States specified in the Anders opinion that the procedure must be that the court—not counsel—decides whether the case is wholly frivolous. "If it so finds it may grant counsel's request to withdraw and dismiss the appeal ... or proceed to a decision on the merits." Anders v. California, 386 U.S. 738 at 744, 87 S.Ct. 1396 at 1400, 18 L.Ed.2d 493 (1967), (emphasis added).

Twice the petitioner has gone before the Supreme Court of Nebraska on post-trial proceedings. The first is reported at 218 Neb. 849, 359 N.W.2d 790 (1984). As to the court's action on direct appeal, the court in the first post-conviction opinion said only, "Motions to withdraw filed by his counsel were sustained and the judgments affirmed on July 8, 1981." The opinion says nothing to the effect that the issues raised in either the direct appeal or in the first post-trial proceeding were wholly frivolous.

The second post-conviction appeal is reported at 224 Neb. 64, 395 N.W.2d 563 (1986). The court said:

"On direct appeal the records in all four cases were examined by this court and found to be free from prejudicial error. Motions to withdraw filed by the defendant's counsel were sustained and the judgments affirmed on July 8, 1981."

The only mention of a "frivolous issue" appears at 224 Neb. at 69, 395 N.W.2d 563 where the court says that counsel cannot be faulted for not raising a "frivolous issue" regarding compelling the petitioner to provide a handwriting exemplar without the assistance of counsel.

In summary, neither the Supreme Court of Nebraska's ruling of July 8, 1981, the rule it cited, nor the post-conviction opinions shows any signs of that court's having held the petitioner's direct appeal or appeals to have been wholly frivolous. The magistrate made no error.

As to issue (3), the court-appointed counsel's motions to withdraw and the submitting of a non-advocatory brief were not harmless beyond a reasonable doubt. The magistrate's report and recommendation's footnote 4 adequately illustrates this.

I shall adopt that recommendation and report.

ORDER ON REPORT AND RECOMMENDATION OF THE MAGISTRATE

In accordance with the report and recommendation of the magistrate, filing 8, and my memorandum on report and recommendation of the magistrate of today,

IT IS ORDERED: that the petition for writ of habeas corpus is granted with respect to the petitioner's seventh claim, concerning the denial of the effective assistance of counsel on direct appeal, and the respondent is ordered to release the petitioner unless, within a reasonable time after judgment becomes final and the petitioner's counsel files with the Supreme Court of Nebraska the appropriate motions, the Supreme Court of Nebraska grants petitioner leave to reinstate his direct appeal and appoints counsel for him to present to that court all arguable issues.

In the United States District Court

for the District of Nebraska

CV87-L-279

Joel R. Evans, Petitioner,

v.

Gary Grammer, Respondent.

December 24, 1987

REPORT AND RECOMMENDATION

Petitioner, an inmate at the Nebraska State Penitentiary, has submitted a petition for habeas corpus pursuant to 28 U.S.C. § 2254. He is currently serving a term of imprisonment of not less than forty-five nor more than eighty years following his convictions in Douglas County District Court stemming from four separate robbery incidents. These robberies occurred at Jack & Mary's Restaurant, the Village Inn Pancake House, Gorat's Steak House, and Osco Drug. During 1980 a consolidated trial was held on the 21st and 22nd of July for the robberies at the Village Inn and Gorat's Steak House, and a separate trial concerning the robberies at Jack & Mary's Restaurant was held on the 8th and 9th of September. On September 30, 1980, the petitioner entered a plea of guilty to the charges stemming from the Osco Drug robbery.¹ His convictions and sentences were summarily affirmed on July 8, 1981, on direct appeal to the Nebraska Supreme Court pursuant to Rule 20A-8, after his court-appointed attorney was permitted to withdraw under Rule 1e(1). Petitioner's request to proceed pro se was also subsequently denied on July 28, 1981. His subsequent action for post-conviction relief was denied by the District Court of Douglas County, Nebraska; that decision was affirmed on appeal by the Nebraska Supreme Court in State v. Evans, 218 Neb. 849, 344 N.E.2d 509 (1984). His second action for state post-conviction relief was likewise denied by the Douglas County District Court and again affirmed on appeal. State v. Evans, 224 Neb. 64, 395 N.W.2d 563 (1986) (per curiam). He then filed with this court the present petition for writ of habeas corpus, raising the following claims for relief:

1. Petitioner's rights under the Due Process Clause of the Fourteenth Amendment were violated when the trial court admitted the in-court and out-of-court identifications of the petitioner by the various witnesses, given the impermissibly and unnecessarily suggestive pretrial identification procedures.

2. Petitioner's trial counsel rendered constitutionally ineffective assistance of counsel, in violation of the Sixth Amendment, in failing to raise a proper due process challenge to the identification testimony elicited at the trials.

3. Petitioner's trial counsel rendered constitutionally ineffective assistance of counsel, in violation of the Sixth Amendment, in refusing to call petitioner's brother-in-law as an alibi witness in the trial concerning the robberies at Jack & Mary's Restaurant.

4. Petitioner's rights under the Fifth Amendment were violated when, during the trial of the Gorat's Steak House robbery, the prosecutor committed misconduct of constitutional proportions by purportedly commenting on a failure to testify on the part of the petitioner.

5. Petitioner's right to a fair trial under the Sixth and Fourteenth Amendments was violated when the prosecutor— outside the presence of the judge, the petitioner, and his counsel—allegedly communicated with the jury inside the jury room, just prior to the returning of the verdicts in the trial of the Village Inn Pancake House and Gorat's Steak House robberies.

6. Petitioner's rights under the Due Process Clause of the Fourteenth Amendment was violated because the presentence report prepared by the probation office and used by the trial court in sentencing petitioner purportedly contained false, inaccurate, and misleading information.

7. Petitioner was denied the effective assistance of counsel on direct appeal, in violation of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), when counsel, in failing to raise the claims which petitioner now seeks to raise, was permitted to withdraw after filing a nonadvocatory brief.

I

Before this court may consider the petitioner's claims on the merits, 28 U.S.C. § 2254(b) requires that each claim must be found "exhausted." Exhaustion has generally been interpreted as meaning that the precise claims sought to be raised in federal court must have first been presented to the highest court of ...