Harig v. Wolff, CV 74-L-142.

• Decision Date: 10 May 1976
• Docket Number: No. CV 74-L-142.,CV 74-L-142.
• Citation: 414 F. Supp. 290
• Parties: Robert Allen HARIG, Petitioner, v. Charles WOLFF, Warden, Respondent.
• Court: U.S. District Court — District of Nebraska

414 F. Supp. 290

Robert Allen HARIG, Petitioner, v. Charles WOLFF, Warden, Respondent.

No. CV 74-L-142.

United States District Court, D. Nebraska.

May 10, 1976.

Ronald Rosenberg, Lincoln, Neb., for petitioner.

Harold Mosher, Robert G. Avey, Asst. Attys. Gen., Lincoln, Neb., for respondent.

URBOM, Chief Judge.

The petitioner, Robert Harig, has filed a petition for writ of habeas corpus. He was convicted in the District Court of Lancaster County, Nebraska, on a multicount information for burglary, unlawful possession of a burglary tool, and possession of a firearm by a felon. He was then adjudged to be an habitual criminal under Nebraska Revised Statutes, § 29-2221 (R.S.Supp.1974). His appeal from this conviction was affirmed by the Supreme Court of Nebraska in State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).

Three issues are raised:

1. Denial under the Sixth Amendment of a right to a speedy trial;

2. Denial under the Fourth Amendment of a right to be free from unlawful searches and seizures; and

3. Denial under the Sixth Amendment of a right to the assistance of counsel in a 1963 conviction which was used as a conviction necessary to support his habitual criminal adjudication.

At the evidentiary hearing held on January 14, 1976, the petitioner sought to introduce evidence on the first and third issues. The respondent objected, arguing that the petitioner had received a full, fair and adequate hearing in the state courts of Nebraska on all issues raised. I conditionally heard the evidence of the petitioner, subject to a later ruling on the fairness and adequacy of the previous state court hearing.

Prior to 1963, the controlling precedent was Brown v. Allen, 344 U.S. 443, 463, 73 S.Ct. 397, 410, 97 L.Ed. 469, 492 (1953). The rule was established there that an evidentiary hearing in a habeas corpus suit would be held solely at the discretion of the trial judge and that this discretion was to be exercised only in unusual circumstances. Brown was overruled by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The court stated the applicable policy considerations as follows:

"It is the typical, not the rare, case in which constitutional claims turn upon a resolution of contested factual issues. Thus a narrow view of the hearing power would totally subvert Congress' specific aim in passing the Act of February 5, 1867, of affording state prisoners a forum in the federal trial courts for the determination of claims of detention in violation of the Constitution. The language of Congress, the history of the writ, the decisions of this Court, all make clear that the power of inquiry on federal habeas corpus is plenary.

. . . . .

". . . Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. . . ." 372 U.S. at 312, 83 S.Ct. at 756, 9 L.Ed.2d at 785.

Townsend then states six circumstances in which the holding of an evidentiary hearing is mandatory:

(1) If the merits of the factual dispute were not resolved in the state hearing;

(2) If the state factual determination is not fairly supported by the record as a whole;

(3) If the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing;

(4) If there is a substantial allegation of newly discovered evidence;

(5) If the material facts were not adequately developed at the state court hearing; or

(6) If for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.

Beyond this, the district judge may hold an evidentiary hearing in any case in which the material facts are in dispute, "constrained only by his sound discretion." Townsend v. Sain, 372 U.S. at 318, 83 S.Ct. at 760, 9 L.Ed.2d at 789.

As to the speedy trial issue, it appears that no evidentiary hearing has ever been conducted by the state courts of Nebraska. The state courts apparently saw no reason to do so because of the various statements of the petitioner that he was waiving such rights. The fifth standard of Townsend, that the material facts were not adequately developed at the state court hearing, is applicable. The evidence offered by the petitioner in support of this issue at the evidentiary hearing of January 14, 1976, is received and considered.

The right to counsel at the 1963 proceeding is on a different footing, however. A hearing was held in the District Court of Lancaster County on June 21, 1973, as to whether the petitioner should be adjudged an habitual criminal. The petitioner testified fully at that time on the issue of his representation by counsel at the 1963 proceeding. No indication is given why the petitioner does not view that hearing as a full and fair hearing. None of the criteria of Townsend that would require the convening of an evidentiary hearing are present. Furthermore, I see no reason to exercise my discretion to consider such further evidence. His testimony now relates to precisely the same subject matter to which his testimony in state court on June 12, 1973, was directed and I have no reason to think that his testimony on this issue now would be any more reliable than it was at the state court hearing. Thus, any evidence on this issue received at the January 14, 1976, evidentiary hearing will be disregarded.

I. SPEEDY TRIAL

The respondent asserts that the petitioner has specifically waived his right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), examines and rejects the "demandwaiver rule," i. e., that a defendant who does not demand a speedy trial therefore waives his right thereto. Instead, the defendant's demand is to be weighed as one of the factors in an inquiry into the deprivation of the right to a speedy trial. However, Barker did not preclude a defendant's waiver of this right. Waiver is to be judged here just as it is for other fundamental constitutional rights; the prosecution must show that the claimed waiver was knowingly and voluntarily made. Barker summarizes the rule on waiver of constitutional rights thus:

". . . The Court has defined waiver as `an intentional relinquishment or abandonment of a known right or privilege.' . . . Courts should `indulge every reasonable presumption against waiver,' . . . and they should `not presume acquiescence in the loss of fundamental rights,' . . ." 407 U.S. at 525-526, 92 S.Ct. at 2189, 33 L.Ed.2d at 114.

There is substantial evidence in the record of this waiver. The transcript of the April 3, 1973, proceeding in the District Court of Lancaster County reveals the following exchange:

"COURT: What do you want to do, Mr. Harig? Do you want to retain Mr. Swihart and get your case tried at this next jury or do you want to change counsel and have the probability it may go over?

DEFENDANT: Well, I would like to keep him but I haven't the funds to keep Mr. Swihart. He is an excellent lawyer and I would like to stay with him. He is familiar with my case; but like I say, I have no funds. If it goes to the Public Defender I will not take one."

A journal entry was made in the District Court of Lancaster County on April 13, 1973, stating:

"Defendant waives his right to speedy trial and states he has no objection to case being tried to the May or September jury terms."

The accompanying transcript for that day reflects the following exchanges:

"THE COURT: . . . You realize that, I don't know if Mr. Swihart has explained it to you, but I'm sure he has, the constitution guarantees you the right to a speedy trial, and this is the thing we're concerned about.

MR. HARIG: Yes.

THE COURT: We're not trying to run you through anything; we are simply — by the mechanism under which we operate, we are trying to afford you your constitutional right to have a speedy trial; and this is the reason we are concerned about Mr. Swihart getting out, and continually putting the matter off and off and off. So, do I understand that, here again, even though you may have waived it before, you are perfectly willing to waive your right to a speedy trial and put the matter off another month?

MR. HARIG: Yes, sir.

* * * * * *

"MR. LAHNERS: Then we have a further problem. He's assuming he's going to go to trial in May, at the next jury panel; and if he doesn't go to trial in May, then he sits in jail until September. I can't guarantee him a trial - - -

MR. HARIG: Who is assuming?

MR. LAHNERS: I think you're assuming.

MR. HARIG: I don't assume nothing.

MR. LAHNERS: You're willing to wait to September to go to trial?

MR. HARIG: If necessary.

MR. LAHNERS: That presents a legal problem.

MR. HARIG: I'm not in a big hurry.

THE COURT: Go ahead, Mr. Lahners.

MR. LAHNERS: That produces a legal problem, too, in case there's any of our witnesses that are unavailable and he's demanding his right to a speedy trial and then having to wait four months, to September, to get a trial, then we're going to be at fault, and then the claim is going to be made

MR. HARIG: I'll release you of that.

MR. LAHNERS: - - - that he didn't get a speedy trial.

MR. HARIG: You won't be at fault. I'll release you of that.

MR. LAHNERS: That's a legal question.

MR. HARIG: It's in front of the Judge.

MR. LAHNERS: That doesn't make any difference."

The record is clear that the petitioner knew of his right to a speedy trial. His original plea in abatement filed in the County Court of Lancaster County had raised the issue for the first time; that was withdrawn two days after it was filed. Furthermore, he was accompanied by counsel every time he mentioned waiver in the courtroom. It also appears that his relinquishment of his right to a speedy trial was intentional. In testimony before this court the petitioner admitted that he had once said to Judge Samuel Van Pelt that he waived his right to a speedy trial and that Judge Van Pelt then...