Holscher v. Young

• Decision Date: 06 April 1971
• Docket Number: No. 20506.,20506.
• Citation: 440 F.2d 1283
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Glen Ray HOLSCHER, Appellant, v. Jack G. YOUNG, Warden and Paul W. Keve, Commissioner of Corrections, Appellees.

440 F.2d 1283 (1971)

Glen Ray HOLSCHER, Appellant, v. Jack G. YOUNG, Warden and Paul W. Keve, Commissioner of Corrections, Appellees.

No. 20506.

United States Court of Appeals, Eighth Circuit.

April 6, 1971.

Robin A. Jacob, Joseph Robbie, Minneapolis, Minn., for appellant.

Douglas M. Head, Atty. Gen., St. Paul, Minn., George M. Scott, Hennepin County Atty., Henry W. McCarr, Jr., Asst. County Atty., Minneapolis, Minn., for appellees.

Before VOGEL and ROSS, Circuit Judges, and STEPHENSON, Chief District Judge.

ROSS, Circuit Judge.

This is an appeal from the denial of Holscher's petition for a writ of habeas corpus under 28 U.S.C. § 2241(c)(3). We affirm.

On February 6, 1959 Holscher was convicted of third degree murder and sentenced to a prison term of not less than fourteen nor more than sixty years under two Minnesota statutes which provided that murder in the third degree should be punished by imprisonment for not less than seven nor more than thirty years¹ and that such punishment must be doubled if the person so convicted had been previously convicted of a felony.² Since Holscher had theretofore been convicted of a felony, grand larceny, the sentence was doubled. On December 17, 1962 the prior conviction for grand larceny was vacated on the grounds that Holscher was a minor at the time of the conviction and his parents had not been notified of the proceedings as required by Minnesota law. No action was taken by the State of Minnesota to reduce the sentence at that time.

Subsequent to his conviction in 1959, Holscher filed a series of post conviction petitions which eventually resulted in two prior decisions by this Court, State ex rel. Holscher v. Tahash, 346 F.2d 556 (8th Cir. 1965) and State ex rel. Holscher v. Tahash, 364 F.2d 922 (8th Cir. 1966). Reiterating the history of Holscher's various actions set forth in these opinions would serve no useful purpose other than to reveal that this Court at 364 F.2d 924 n. 4 recognized that his first felony conviction had been vacated and stated that "state remedies remained available to Holscher to correct this situation".

Thereafter, the Hennepin County District Court, pursuant to this Court's remand order, held a voluntariness hearing and found, on March 16, 1967 that Holscher's statements were voluntary. After a motion for rehearing was denied, Holscher filed an appeal with the Minnesota Supreme Court which, on May 24, 1960, affirmed the district court's decision. State v. Holscher, 280 Minn. 313, 159 N.W.2d 280 (1968). While the Supreme Court of Minnesota dealt primarily with the voluntariness of statements made by Holscher, it did notice that his sentence had not been reduced and made the following statement:

"Although not directly presented on this appeal, the propriety of defendant\'s increased sentence due solely to the now-vacated conviction for a prior felony is still a matter for disposition by this state. It should be resolved now. Prior to sentencing, defendant pleaded guilty to an information charging him with a prior felony conviction, freely admitting commission of the offense involved; but at the same time he disclosed some doubt concerning the validity of the conviction on the ground that, although he was a juvenile at the time of the offense, his parents had not been notified, as required by statute, before he was bound over to district court — the same ground upon which the judgment was vacated on December 17, 1962. The doubled sentence is imposed by the self-executing statutory provision and is not a matter of discretion of the sentencing court. Upon proper application by defendant to the Adult Corrections Commission, therefore, his sentence should forthwith be corrected to limit it to the maximum penalty provided by statute for the crime of third-degree murder without any increased penalty for a prior felony conviction."

State v. Holscher, 159 N.W.2d at 282-283 (footnote omitted and emphasis added).

On May 26, 1968, Holscher applied to the Minnesota Adult Corrections Commission for a correction of the sentence as suggested by the Minnesota Supreme Court. On June 15, 1968, T. F. Telander, Chairman of the Minnesota Adult Corrections Commission, refused to alter or amend the sentence for the reason that he did not have the power to vacate a sentence or impose a new sentence. Therefore, on September 4, 1968, Holscher applied for correction of his sentence to the Minnesota Commissioner of Corrections who, on September 18, 1968, issued an order to the warden of the Minnesota state prison which stated in part:

"While it is recognized that the Adult Corrections Commission has no custody of an inmate until parole is granted, the Commissioner of Corrections does have custody.

Therefore, it being established that, absent a prior conviction, the excess over the maximum penalty provided by law for the offense of which Holscher stands convicted is void, substantial equity and justice would dictate that Holscher\'s sentence should be limited to the maximum provided by law for the offense of which he now stands convicted.

I have been advised that a reasonable construction of the Court\'s holding would substitute `Commissioner of Corrections\' for `Adult Corrections Commission\', and application having been made by Holscher for correction of his sentence, you, as warden of the State Prison, are hereby instructed to record the sentence being served by Glen Ray Holscher as being 7-30 years, the penalty for Murder, 3rd degree, at the time of his conviction in 1959." (emphasis added)

In January of 1969 Holscher filed a petition for post conviction relief in the District Court for Hennepin County, Minnesota, which apparently was not acted upon.

Holscher then filed a petition for a writ of habeas corpus in the United States District Court, District of Minnesota, which was denied on July 7, 1969 because Holscher had not exhausted his state remedies. On August 12, 1969, he applied to the Supreme Court of Minnesota for a writ of habeas corpus ad subjiciendum, which was denied on September 3, 1969.

After exhausting his state remedies, Holscher again filed a petition for a writ of habeas corpus in the United States District Court, District of Minnesota. In his petition, he alleged that he was being held under an illegal sentence and under two separate sentences for the same crime in violation of the double jeopardy and due process clauses of the fifth and fourteenth amendments of the United States Constitution. He further alleged that any sentence he could then be given with credit for time served, would be more than three years over the maximum allowed by law. His petition was denied without a hearing on July 6, 1970. From that denial, after obtaining the necessary certificate of probable cause from the district court, Holscher filed this appeal.

On this appeal, Holscher makes four principal allegations.

1. That the Supreme Court of Minnesota in its attempt to limit his sentence effectively denied his right to a resentencing hearing in violation of the due process and equal protection clauses of the fifth and fourteenth amendments to the United States Constitution and of article 1, section 7 of the Minnesota Constitution;

2. That his current sentence should be credited with the time he served on his vacated conviction;

3. That, if he be resentenced, the resentencing should be done pursuant to the statute in effect at the present time³ rather than the one in effect at the time he was originally sentenced;

4. That, by changing his sentence, the Commissioner of Corrections of the State of Minnesota effectively placed Holscher in double jeopardy and violated his rights to due process and equal protection under the fifth and fourteenth amendments to the United States Constitution and under article 1, section 7 of the Minnesota Constitution.

Holscher's allegations center around the vacation of his prior felony conviction and its effect upon his constitutional rights. Had Holscher's prior conviction not later been vacated, the Court's original sentence would have been valid under applicable Minnesota law. However, since the prior conviction was vacated, three questions are before this Court: First, did the vacation of Holscher's prior felony require his resentencing? Second if it did not, did the changing of his sentence violate any of his constitutional rights? And third, if it did require resentencing, would the new penalty for murder in the third degree be applicable and should he be given credit for time served on the vacated conviction?

Holscher contends that "by denying him his acknowledged right to resentencing hearing, the Court removed all possibility that he might finally be given proper, unbiased, informed evaluation of his conviction, in light of such evidence as might be revealed through presentence investigation, before sentence was imposed." Whereas, the State of Minnesota contends that the later-vacated prior conviction had no other effect but to invoke the double punishment provision of the existing Minnesota law and that the argument that the sentencing judge might conceivably impose a lesser sentence is absurd when considered in the totality of the circumstances as revealed by the record, especially since Holscher's prior conviction was vacated upon only a procedural inadequacy.

Considered as an abstract legal principle, Holscher's contention that resentencing is necessary finds some support in two Minnesota cases and in two federal district court cases. In State ex rel. Holm v. Tahash, 272 Minn. 466, 139 N. W.2d 161 (1965), the Minnesota Supreme Court in a habeas corpus action permitted the appellant Holm to collaterally attack the validity of a prior conviction employed to increase the sentence imposed on the ground of claimed denial of the federal constitutional right of counsel in the prior conviction. In setting forth its reason for its ruling that Holm should be granted a hearing, the Court stated as follows:

"While it may be

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