Hawk v. Jones

• Decision Date: 19 May 1947
• Docket Number: No. 13454.,13454.
• Parties: HAWK v. JONES, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

160 F.2d 807 (1947)

HAWK v. JONES, Warden.

No. 13454.

Circuit Court of Appeals, Eighth Circuit.

April 18, 1947.

Rehearing Denied May 19, 1947.

Henry Hawk, pro se.

Robert A. Nelson, Asst. Atty. Gen. of Nebraska (Walter R. Johnson, Atty. Gen., and H. Emerson Kokjer, Deputy Atty. Gen., on the brief), for appellant.

Before GARDNER, THOMAS, and JOHNSEN, Circuit Judges.

PER CURIAM.

This is an appeal from a dismissal of an application for a writ of habeas corpus. The trial court held that it was without jurisdiction to entertain the application, because, as its opinion discusses (Hawk v. Olson, D.C.Neb., 66 F.Supp. 195), appellant, a state prisoner, had not exhausted his possible state remedies, by an application for a writ of error coram nobis in the courts of Nebraska.

Appellant is an inmate of the penitentiary of Nebraska, under a life sentence by the courts of the State, for a conviction of murder. He has made other applications for a writ of habeas corpus, both to the state and to the federal courts,¹ all of which have been denied without any hearing upon his charges of violation of federal constitutional rights.

One of these applications was made directly to the Nebraska Supreme Court, and another to the United States Supreme Court. The United States Supreme Court in Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572, denied this application on the ground that appellant appeared not to have exhausted the remedy of habeas corpus in the state courts. It construed the denial of his previous application to the Nebraska Supreme Court as merely a refusal by that Court to exercise its original jurisdiction and an intention to remit appellant to a proceeding through the appropriate state trial court. See 321 U.S. at page 116, 64 S.Ct. 448, 88 L.Ed. 572.

Appellant then made application for a writ to the District Court of Lancaster County, Nebraska, which dismissed the petition as failing to show a right to the writ. The Nebraska Supreme Court affirmed. Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181. The United States Supreme Court took the case on certiorari and reversed. Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 120, 90 L.Ed. 61. The opinion of the United States Supreme Court held that the application showed violations of the Fourteenth Amendment, if appellant was able to substantiate them, in that "no effective assistance of counsel was furnished in the critical time between the plea of not guilty and the calling of the jury"; that appellant had been "forced * * * to trial in such a way as to deprive him of the effective assistance of counsel" in the proceedings; and that he was convicted on perjured testimony "knowingly used by the Prosecuting Officials and the Trial Court." 326 U.S. at pages 273, 276, 278, 66 S.Ct. at page 117.

In reversing and remanding the case, the Court assumed that under Nebraska law appellant would be entitled to a hearing in his habeas corpus proceeding on the merits of these charges. But, after the remand, and on a motion by appellant in the Nebraska Supreme Court for a mandate requiring the trial court to give him such a hearing, the State Supreme Court held that none of the questions indicated by the United States Supreme Court was a matter that could be determined in habeas corpus, under the scope of that proceeding in Nebraska. Hawk v. Olson, 146 Neb. 875, 22 N.W.2d 136. Its opinion declared that this independent state ground had been the basis of its decision in affirming the trial court's denial of appellant's application for a writ. 22 N.W.2d at page 138.

It said the Nebraska law was: "The regularity of the proceedings leading up to a sentence in a criminal case cannot be inquired into on an application for a writ of habeas corpus, that matter being assailable only in a direct proceeding. When the judgment is regular upon its face and was given in an action where the court had jurisdiction of the offense and of the person of the defendant, extrinsic evidence is not admissible in a habeas corpus proceeding to show its invalidity." 22 N.W.2d at page 139. In other words, the Court held that under Nebraska law a criminal sentence can not be reached by habeas corpus, except on a question of jurisdiction of the offense or of the person of the defendant, or on a matter of invalidity from the face of the record itself.

The opinion added that "The question which petitioner now seeks to present could have been presented and determined by the trial court, in the first instance, on a motion for a new trial and if not determined there to his liking then by this court on a writ of error." 22 N.W.2d at page 140.

The Nebraska statute governing new trials in criminal cases, Neb.R.S.1943, § 29-2103, provides that a motion for a new trial must be filed at the term the verdict was rendered and within not more than three days after its rendition, unless unavoidably prevented, except that "where it shall be made to appear * * * that the defendant has discovered new evidence material to his defense which he could not with reasonable diligence have discovered and produced during the term within which the verdict upon which he was sentenced was rendered, the district court may set aside such sentence and grant a new trial; Provided, that such motion is filed within a reasonable time after the discovery of the new evidence; and provided, further, that such motion must be filed within three years after the date of such verdict, and such motion and the procedure herein provided shall be the exclusive method and procedure for reviewing criminal cases after the expiration of the term at which such verdict is rendered."

Appellant argues that this statute, enacted in 1935, abolished the writ of error coram nobis as it may previously have existed in Nebraska; that there is no remedy for him to exhaust under the statute because more than three years have elapsed since his conviction in 1936; and that this situation, together with the fact that he cannot reach his sentence by habeas corpus in Nebraska, leaves him without any adequate and available remedy under state law and entitles him to a writ of habeas corpus from the federal courts.

The quoted statute, however, does not in terms abolish the writ of error coram nobis in Nebraska, which had previously been held to exist. See Carlsen v. State, 129 Neb. 84, 94-98, 261 N.W. 339; Newcomb v. State, 129 Neb. 69, 261 N.W. 348. And the Nebraska Supreme Court has not said that such was its significance, but, on the contrary, it has pointed out, since the statute was enacted and in appellant's own case, Hawk v. Olson, 145 Neb. 306, 16...