Grandsinger v. Bovey

• Decision Date: 27 June 1957
• Docket Number: Civ. No. 0265.
• Citation: 153 F. Supp. 201
• Parties: Loyd Carroll GRANDSINGER, Petitioner, v. Joseph B. BOVEY, Warden, Nebraska State Penitentiary, Respondent.
• Court: U.S. District Court — District of Nebraska

153 F. Supp. 201

Loyd Carroll GRANDSINGER, Petitioner, v. Joseph B. BOVEY, Warden, Nebraska State Penitentiary, Respondent.

Civ. No. 0265.

United States District Court D. Nebraska.

June 27, 1957.

Eugene D. O'Sullivan, Sr., Omaha, Neb., and Charles H. Flansburg, Lincoln, Neb., for petitioner.

Clarence S. Beck, Atty. Gen., and Ralph D. Nelson, Asst. Atty. Gen., of Nebraska, for respondent.

DELEHANT, District Judge. (Retired, serving by assignment)

Loyd Carroll Grandsinger, who will usually be referred to herein as "petitioner", is confined in Nebraska State Penitentiary, of which Joseph B. Bovey is the duly appointed warden, preliminary to the proposed and contemplated execution of a sentence of death by electrocution, imposed upon petitioner by a judgment of the District Court of Cherry County, Nebraska, after the return of a verdict finding him to be guilty of a charge of murder in the first degree. Joseph B. Bovey will generally be designated as "respondent".

By leave of court, and after the presentation of an affidavit of poverty, petitioner filed, in forma pauperis, in this court and cause his application for writ of habeas corpus, along with a motion for appointment of counsel, and a motion for a stay of the execution of the sentence theretofore pronounced against him. The court, thereupon, entered orders, a) staying until the final determination of this proceeding the execution of the judgment and sentence of death, b) appointing the attorneys above identified as his counsel for the purposes of this proceeding¹, and c) ordering the respondent to show cause, within a period of time then fixed, why a writ of habeas corpus should not be issued, and granting to the petitioner leave to serve and file a response to such showing of cause. Respondent having served and filed a return to such order to show cause, and petitioner having served and filed a showing counter thereto, the court, upon due consideration of the record thus made, issued a writ of habeas corpus, to which respondent made timely return, in which he reiterated through incorporation by reference the allegations of his showing of cause. With the approval of counsel as to time, hearing was had upon the issues thus made; and, upon separate motions of the parties, further and supplemental hearing was had still later. Briefs and oral arguments of counsel have been submitted and considered, and the case is ready for final ruling by this court.

Two broad questions are encountered upon the submission. One is whether the jurisdiction of this court is properly invoked. And its answer depends upon petitioner's exhaustion of such remedies as are available to him under the law and in the courts of Nebraska. The other is whether, if jurisdiction be affirmed, petitioner has made out in his pleadings and by his proofs a case entitling him to the relief for which he prays. That question has to be determined with due regard to the several grounds of invalidity by him urged against his conviction and sentence and the evidence relevant to those grounds.

It seems appropriate that the issues and the pertinent facts and the court's final ruling should be set out separately and distinctly, first upon the jurisdictional issue, secondly upon the merits of petitioner's claim. That sequence is observed in this announcement. Primarily, therefore, the factual or historical setting in which the issue of the exhaustion of state remedies arises will be recalled. It will not, however, be the purpose of the court to repeat in detail findings pertinent to that issue which are also significant upon the main problem of the petitioner's claim of invalidity in his conviction and sentence.

The "judgment and sentence" was made and given in and by the District Court of Cherry County, Nebraska, on June 16, 1954 after the return earlier on that date of a verdict of a jury finding the petitioner to be guilty of murder in the first degree as charged in the information on which he had been tried and fixing the penalty at death², and after the filing and overruling, also on the day of the return of the verdict, of a motion for a new trial. The petitioner, thereafter, made timely filing of a petition in error and perfected an appeal from the judgment and sentence to the Supreme Court of Nebraska. That court affirmed the judgment and sentence of the trial court on December 16, 1955. See Grandsinger v. State, 161 Neb. 419, 73 N.W.2d 632. It is obvious, from an examination of the opinion just cited, that it did not strictly examine or rule judicially upon either phase of the presently asserted grounds of invalidity of petitioner's conviction and sentence, vide infra. Until the announcement of that ruling by the state's Supreme Court and for some time thereafter, vide infra, the alleged grounds of such invalidity had not been clearly and explicitly presented to and urged upon that court. The petition in error upon which the ruling just identified was made had been filed by petitioner on July 15, 1954. Like the motion for new trial already adverted to, it assigned as a specification of error in the trial "error in the admission of evidence for the state". That specification in the motion for new trial is in the exact language of the quotation just made. It is set out thus in the petition in error: "The trial court erred in admitting on behalf of the state incompetent, irrelevant and immaterial and prejudicial evidence over the objection of the petitioner." In his brief as petitioner in error in the Supreme Court of Nebraska, petitioner included within his statement of facts some assertions that question the freedom and voluntariness of statements, written and oral, on his part touching the offense charged against him which had been received in evidence. But he did not in such brief poise a real appellate contention or argument upon that point. In relation to that manner of submission of the appeal, it is fairly obvious that, despite certain language in its opinion,³ referring to his admissions received in evidence upon the murder trial, the state Supreme Court appears not to have considered the issue of freedom and voluntariness to have been tendered with a measure of clarity and directness adequate to require close examination by the reviewing court. And no reference to the subject appears among the syllabi or headnotes of the opinion in the official report.⁴

On January 5, 1956 petitioner filed a motion for rehearing in the state's Supreme Court of which a copy is included with a supporting brief in a filing made in that court apparently on January 14, 1956 concurrently with the argument upon the motion. The motion for rehearing was overruled without opinion by an order entered and dated on February 11, 1956. In that motion for rehearing no effort was made to raise or tender to the court either of the grounds relied upon by the petitioner in this proceeding.⁵

A mandate of affirmance and a death warrant having meanwhile been made and given by the Supreme Court of Nebraska, petitioner, on March 8, 1956 filed in that court and in the proceeding pending therein for review of his conviction a motion for recall of the mandate and stay of execution of the judgment and an application for stay pending an effort by petitioner to obtain a writ of certiorari from the Supreme Court of the United States for the review by the latter court of the affirmance by Nebraska's Supreme Court of the conviction of and sentence upon petitioner. In that motion two of the questions which petitioner specified for raising by petition for writ of certiorari are thus set out:

"(f) Was plaintiff in error compelled to give evidence against himself in violation of the constitutional privilege against self incrimination, or, was plaintiff in error denied his constitutional right to a fair and impartial trial, or, was plaintiff in error denied due process of law, by the admission by the District Court of Cherry County, Nebraska, of evidence of purported confessions and statements of plaintiff in error which the record showed were extracted from the plaintiff in error by means of threats, physical and mental duress, physical and mental exhaustion, and physical and mental torture?

* * * * * *

"(i) Was plaintiff in error denied his constitutional right to adequate representation by counsel through actions of his counsel prejudicial to his case?"

The motion in this paragraph identified was signed by petitioner in his own name, and not in his behalf by Mr. Charles A. Fisher, his then surviving attorney.⁶ There is nothing in the motion to indicate that Mr. Fisher had any part in its preparation. Actually, an affidavit in the record declares that he had none and knew nothing of the motion's contents until after its filing. But for want of a proper submission of that issue, and because it is not dispositively significant, no finding is now expressly made upon it.

On March 17, 1956 the Nebraska Supreme Court entered orders recalling its mandate and staying further proceedings until May 18, 1956.

Under date of April 27, 1956, but with filing as of April 30, 1956, petitioner filed in the Supreme Court of Nebraska written notice that he had dismissed Mr. Fisher as his attorney on March 13, 1956, and on April 25, 1956 had retained Mr. O'Sullivan as his attorney; and on April 28, 1956, Mr. O'Sullivan signed an entry of appearance in petitioner's behalf, which was also filed on April 30, 1956.

Thereafter, and on June 18, 1956, through Mr. O'Sullivan as his attorney, petitioner filed in the Supreme Court of Nebraska a motion for leave of court to file an amended and supplemental motion for rehearing and a brief for rehearing, along with a copy of the proposed amended motion and brief. On that day also, the Supreme Court of Nebraska entered an order granting the motion and setting the amended and supplemental motion for rehearing for hearing before that court on June 23, 1956. Raised and tendered in and by the amended and ...