Goham v. Wolff, 72-1365

• Decision Date: 20 December 1972
• Docket Number: 72-1366.,No. 72-1365,72-1365
• Citation: 471 F.2d 52
• Parties: Wayne GOHAM, Appellee, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal & Correctional Complex, Appellant. Dennis TYNDALL, Appellee, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal & Correctional Complex, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

471 F.2d 52 (1972)

Wayne GOHAM, Appellee, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal & Correctional Complex, Appellant.

Dennis TYNDALL, Appellee, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal & Correctional Complex, Appellant.

Nos. 72-1365, 72-1366.

United States Court of Appeals, Eighth Circuit.

Submitted November 16, 1972.

Decided December 20, 1972.

Rehearings and Rehearings Denied January 12, 1973.

Ralph H. Gillan, Asst. Atty. Gen., Lincoln, Neb., for appellant.

William G. Line, Fremont, Neb., for appellees.

Before VAN OOSTERHOUT, Senior Circuit Judge, LAY, Circuit Judge, and DURFEE, United States Court of Claims Judge.

Rehearings and Rehearings En Banc Denied January 12, 1973.

PER CURIAM.

This is an appeal from an order of the federal district court granting writs of habeas corpus to two state prisoners. Wayne Goham and Dennis Tyndall, both members of the Omaha Indian Tribe, were convicted of kidnapping and rape in a Nebraska state court. Their convictions were affirmed by the Nebraska Supreme Court. State v. Tyndall, 187 Neb. 48, 187 N.W.2d 298 (1971); State v. Goham, 187 Neb. 35, 187 N.W.2d 305 (1971), cert. denied, 404 U.S. 1004, 92 S. Ct. 561, 30 L.Ed.2d 558. The crimes were committed on the Omaha Indian Reservation and the State of Nebraska exercised jurisdiction pursuant to 18 U.S.C. § 1162(a) (1970).¹ On October 24, 1970, while the direct appeals from the convictions were pending in the Nebraska Supreme Court, the Secretary of the Interior accepted retrocession of jurisdiction over the Omaha Indian Reservation pursuant to an offer of retrocession previously made by the Nebraska Legislature in accordance with 25 U.S.C. § 1323(a) (1970). The offer of retrocession (Nebraska Legislative Resolution 37) contained no express provision for saving pending prosecutions. The petitioners contend that they were denied due process of law since the Nebraska courts, in absence of an express provision saving pending cases, were without jurisdiction as of 12:01 A.M. EST on October 25, 1970. On this basis, the United States District Court for the District of Nebraska ordered the prisoners released.

The same jurisdictional issue was presented to the Nebraska Supreme Court at the time of direct appeal. However, the Nebraska Supreme Court held that the purported retrocession was invalid since the partial acceptance of jurisdiction by the Secretary of Interior was not in accordance with the terms of the offer. In so holding, the court found it unnecessary to pass on what effect a valid retrocession would have on pending state prosecutions. State v. Goham, supra at 312. Subsequent to that decision, this court affirmed federal district court rulings that the validity of the retrocession was a question of federal law and that in fact the retrocession was valid and effective. See Omaha Tribe of Nebraska v. Village of Walthill, 460 F.2d 1327 (8 Cir. 1972), aff'g 334 F.Supp. 823 (D.Neb.1971), cert. denied, 409 U.S. 1107, 93 S.Ct. 898, 34 L.Ed.2d 687 (1973); United States v. Brown, 334 F.Supp. 536 (D.Neb.1971); see also Robinson v. Wolff, 349 F.Supp. 514 (D. Neb.1972), aff'd 468 F.2d 438 (8 Cir. 1972).

The petitioners thereafter sought habeas relief in the federal district court. Initially the federal district court dismissed the petitions for failure to exhaust available state remedies. The district court ruled that the Nebraska Supreme Court should have the opportunity to determine what effect a valid retrocession would have on the state-imposed convictions in view of the Nebraska Legislature's failure to include a savings clause regarding pending cases. See Goham v. Wolff, CV71-L-365 (D.Neb., Feb. 7, 1972).

Thereupon the petitioners sought leave to docket original petitions for writs of habeas corpus in the Supreme Court of Nebraska. On April 10, 1972, leave was denied by that court without opinion. On reapplication to the federal district court, the Nebraska Supreme Court's action was construed as either a waiver of the exhaustion requirement or as having accomplished exhaustion and the court proceeded to a resolution on the merits. We hold this to be error.²

In Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), the Supreme Court noted:

"We emphasize that the federal claim must be fairly presented to the state courts. If the exhaustion doctrine is to prevent `unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution,\' Ex parte Royall, supra, 117 U.S. 241, at 251, 6 S.Ct. 734, 29 L.Ed. 868, it is not sufficient merely that the federal habeas applicant has been through the state courts."

We hold the mere denial, without opinion, of a motion to docket a writ of habeas corpus in the Supreme Court of Nebraska is not a sufficient basis upon which to conclude that a final waiver or exhaustion of remedy has been effectuated. This was earlier recognized by the United States Supreme Court in another case originating from Nebraska. In Ex parte Hawk, 321 U.S. 114, 116, 64 S.Ct. 448, 449, 450, 88 L.Ed. 572 (1944), the Supreme Court of the United States observed:

"But, as was pointed out by the District Court and Circuit Judge, petitioner has not yet shown that he has exhausted the remedies available to him in the state courts, and he is therefore not at this time entitled to relief in a federal court or by a federal judge.

"So far as appears, petitioner\'s present contentions have been presented to the state courts only in an application for habeas corpus filed in the Nebraska Supreme Court, which it denied without opinion. From other opinions of that court it appears that it does not usually entertain original petitions for habeas corpus, but remits the petitioner to an application to the appropriate district court of the state, from whose decision an appeal lies to the state Supreme Court, Williams v. Olson, 143 Neb. 115, 8 N.W. 2d 830, 831; see In re White, 33 Neb. 812, 814-815, 51 N.W. 287. . . .

"Of this remedy in the state court petitioner has not availed himself."

See also Hawk v. Olson, 66 F.Supp. 195, 197 (D.Neb.1946), aff'd 160 F.2d 807 (8 Cir. 1947), cert. denied, 332 U.S. 779, 68 S.Ct. 44, 92 L.Ed. 363. Although it may seem burdensome and time consuming to require proper exhaustion of state remedy, nevertheless, respect for the policy of federal-state comity must be maintained. These are state prisoners and the basic problems presented, even though they may deal directly or only peripherally with federal law, should be first passed upon by the state courts of Nebraska.³ We are aware that the district court is committed to the importance of the exhaustion doctrine. The same trial judge when he first denied the petitions for failure to exhaust state remedy cogently observed:

"Having made no decision as to the effect of a valid retrocession and having now available the decisions and opinions of federal judges of this district on

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