Harper v. Nix, 87-2656

• Decision Date: 17 March 1989
• Docket Number: No. 87-2656,87-2656
• Citation: 867 F.2d 455
• Parties: Ernest C. HARPER, Appellant, v. Crispus NIX, Robert M. Spire, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 455

867 F.2d 455

Ernest C. HARPER, Appellant, v. Crispus NIX, Robert M. Spire, Appellees.

No. 87-2656.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 18, 1988.

Decided Feb. 3, 1989.

Rehearings Denied March 3 and March 17, 1989.

Rehearing Denied in 87-2656, March 17, 1989.

Barbara Thielen, Omaha, Neb., for appellant.

Linda L. Willard, Lincoln, Neb., for appellees.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

LAY, Chief Judge.

Ernest Harper appeals the district court's ¹ dismissal of his petition for a writ of habeas corpus. We affirm. In late 1981, Harper was arrested and charged in relation to an October 3, 1981, robbery of a Wendy's restaurant in which two women employees were raped. The victims had described their assailants as two black men who wore masks during the robbery. One of the individuals participating in the robbery was described as wearing dark pants with red trim, or a red belt, around the waist. Harper was convicted in Nebraska state district court of one count of first degree robbery, one count of use of a firearm in the commission of a felony, and two counts of first degree sexual assault.

Prior to trial, Harper had filed a motion in limine seeking to bar evidence of a similar but unrelated conviction in Iowa that arose from a November 18, 1981, robbery. The motion was denied and the evidence was subsequently admitted at trial. Harper appealed his conviction based on the trial court's ruling on the motion in limine. The Nebraska Supreme Court dismissed the appeal stating that the issue had not been preserved properly by objection at trial. State v. Harper, 215 Neb. 686, 687, 340 N.W.2d 391, 392 (1983). Harper subsequently sought but was denied state post-conviction relief based on a claim of ineffective assistance of counsel. State v. Harper, 218 Neb. 870, 875, 359 N.W.2d 806, 810 (1984).

Harper next filed a petition for a writ of habeas corpus in federal district court ² in which, in addition to his claim of ineffective assistance of counsel, he asserted claims relating to admission of evidence discovered as part of an unconstitutional search and seizure, violation of the privilege against self-incrimination, improper admission of identification evidence, the violation of Miranda rights at the time of a voice screening, and improper admission of his Iowa conviction. Appointed counsel decided to abandon all of these additional claims and pursued only the ineffective assistance of counsel claim relating to the failure to object to the introduction of Harper's Iowa conviction at the time of trial. The magistrate ³ reviewed the claim and found that Harper's counsel had not been ineffective and that the admission of the Iowa conviction had not been unfairly prejudicial. Moreover, the Magistrate's Report and Recommendation stated:

[E]ven if the introduction of the details of the Iowa robbery was error, the petitioner has not demonstrated that it was error so as to cause the reversal of his conviction. As the Nebraska Supreme Court noted on appeal of the petitioner's motion for post-conviction relief, the petitioner was identified by one victim through voice identification as the assailant, one of the victims testified that clothing worn by the petitioner in the Iowa robbery was similar to that worn by one of the assailants, and a serologist testified that semen found on one of the victim's slacks came from an individual with the same blood type as the petitioner. The petitioner has not demonstrated a reasonable probability that, but for counsel's alleged errors, the results of the proceeding would have been different.

While this Report and Recommendation was under review, the district court received a letter from Harper stating that counsel had abandoned the other claims without his consent. In particular, Harper expressed concern about counsel's decision to abandon his claim that evidence relating to a pair of pants belonging to him was improperly introduced for the purposes of identifying him as a participant in the October 3, 1981, robbery and sexual assault. The district court nonetheless adopted the Magistrate's Report and Recommendation and Harper's petition was denied.

Harper again filed for post-conviction relief in state court on all of his claims. This action was dismissed on the ground that his failure to raise these claims on direct appeal and during the initial post-conviction proceedings constitutes a waiver. State v. Harper, 225 Neb. 300, 302, 404 N.W.2d 436, 437 (1987). Finally, Harper filed a second petition for a writ of habeas corpus in federal district court in which he again raised several claims relating to the admission of his pants for identification. The magistrate reviewed Harper's second petition and, finding the claims to be restatements of issues raised in his previous petition, recommended dismissal based on successive petitioning. Rules Governing Section 2254 Cases, Rule 9(b), 28 U.S.C. foll. Sec. 2254 (1982). The district court adopted the Magistrate's Report and Recommendation, stating "that all of the claims raised in the petition either were or could have been raised in petitioner's previous post-conviction actions."

Harper contends that counsel's decision to abandon the claims set out in his initial federal habeas corpus petition should not constitute a waiver of these claims because counsel acted without his consent. He therefore asserts that he is entitled to full consideration of all of his claims on the merits. Harper further argues that, even if counsel has waived his right to consideration of these claims, improper admission of identification evidence relating to the pants was so prejudicial that it goes to the issue of his innocence and procedural bar should therefore be lifted to consider this particular...