Krimmel v. Hopkins

• Decision Date: 01 August 1995
• Docket Number: No. 93-3534,93-3534
• Citation: 56 F.3d 873
• Parties: Vernon S. KRIMMEL, Appellant, v. Frank X. HOPKINS, Warden, Nebraska State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 873

56 F.3d 873

Vernon S. KRIMMEL, Appellant, v. Frank X. HOPKINS, Warden, Nebraska State Penitentiary, Appellee.

No. 93-3534.

United States Court of Appeals,

Eighth Circuit.

Submitted April 13, 1995.

Decided May 30, 1995.

Rehearing and Suggestion for Rehearing

En Banc Denied

Aug. 1, 1995.

Andrew D. Strotman, Lincoln, NE, argued for appellant.

Kimberly A. Klein, Asst. Atty. Gen., Lincoln, NE, argued, for appellee (Donald A. Kohtz, on brief).

Before McMILLIAN and WOLLMAN, Circuit Judges, and NANGLE, ^* Senior District Judge.

McMILLIAN, Circuit Judge.

Vernon S. Krimmel appeals from a final judgment entered in the District Court ¹ for the District of Nebraska, denying Krimmel's 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus. We originally filed an opinion in this case on January 13, 1995. However, because of a concern with the disposition, we vacated that opinion and sua sponte ordered a rehearing by the panel. For the reasons discussed below, we affirm.

I. BACKGROUND

On November 5, 1982, the body of Louis Garland was discovered in his bathtub with multiple stab wounds in his neck and back. After learning that Krimmel had done odd jobs for Garland, police officers contacted Krimmel at his home on November 6, and Krimmel agreed to go to the police station for questioning. Police gave Krimmel Miranda warnings after Krimmel admitted that he had done some odd jobs for Garland. Police officers then misrepresented to Krimmel that they had found his fingerprints on the bathtub and had a witness who had seen him at Garland's house. Krimmel admitted that he was in Garland's house the day before and found Garland's body in the bathtub, but that he did not report the incident for fear of being implicated. When police officers asked Krimmel why he had killed Garland, Krimmel requested an attorney. A public defender arrived, spoke with Krimmel, and then told police officers Krimmel did not wish to talk to them further. Police officers then arrested Krimmel.

Krimmel asked police officers to retrieve his ulcer ² medication from his mother. Police officers returned with the medication, but told Krimmel they would give him the medication after they talked with him further about the homicide "to clear up some new facts." Police officers gave Krimmel new Miranda warnings and reinitiated the interview. Krimmel then confessed to killing Garland in a fit of anger over Garland's homosexual advance. In an audio-taped statement, he also told the officers that a meter reader had seen him at Garland's house and that his friend helped him hide his blood-stained clothing, Garland's wallet, and other physical evidence (hereinafter referred to as the second statement). The deputy county attorney arrived and took a second audio-taped statement from Krimmel (hereinafter referred to as the third statement). Police obtained additional incriminating information from the friend Krimmel identified in his second statement.

At his state trial, Krimmel's counsel filed a motion to suppress only the first statement, which the state trial court denied. The prosecution did not introduce the second and third statements in its case-in-chief, but introduced other evidence derived from the second and third statements, e.g., the testimony of the friend and meter reader, the blood-stained clothing, and Garland's wallet. Krimmel's counsel did not object to the admission of this evidence.

After the State's case-in-chief, the state trial court held a conference in chambers on Krimmel's decision to testify. Krimmel's counsel advised Krimmel to testify because he thought his testimony would give him a better chance of a reduced charge, but he told Krimmel the second and third statements would be admissible on impeachment or rebuttal if he chose to testify. Krimmel took the stand and testified about his prior felony conviction and that he had lied in his statements to the police. The prosecutor cross-examined Krimmel on his inconsistent statements to police and then played the second and third recorded statements to the jury on rebuttal. The jury convicted Krimmel of first-degree murder, and the state trial court sentenced him to life imprisonment.

On direct appeal, Krimmel argued only that there was insufficient evidence to convict him and that the state trial court erred in admitting certain photographs. The Nebraska Supreme Court affirmed his conviction and sentence. State v. Krimmel, 216 Neb. 825, 346 N.W.2d 396 (1984). Krimmel filed a pro se state post-conviction petition claiming he was unlawfully arrested, was illegally interrogated, and received ineffective assistance of trial and appellate counsel. The state court appointed counsel for Krimmel and conducted a hearing, at which Krimmel and his trial counsel testified. The state court denied post-conviction relief, and the Nebraska Supreme Court summarily affirmed.

Krimmel filed the instant habeas petition in federal district court, claiming that all three statements he gave to police and the evidence derived therefrom were fruits of an unlawful arrest, in violation of the Fourth Amendment; that the statements were obtained in violation of his Fifth and Fourteenth Amendment rights because the first statement was involuntary and was obtained before Miranda warnings were administered, and the second and third statements were obtained after police unlawfully reinterrogated him in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); that his Fifth Amendment rights were violated when police withheld his antischizophrenia medication as a means to reinterrogate him; that he was denied his Sixth Amendment right to effective assistance of trial counsel when counsel failed to create an adequate record at the suppression hearing, failed to object to the introduction of evidence derived from the tainted statements, improperly advised him to testify, failed to present evidence of his psychological problems, and failed to properly investigate the crime; that he was denied effective assistance of appellate counsel when appellate counsel failed to assert all these claims on direct appeal and to ensure a complete suppression hearing transcript was included in the bill of exceptions to the Nebraska Supreme Court; and that he was denied effective assistance of post-conviction counsel. Without holding an evidentiary hearing, the magistrate judge recommended denying as procedurally barred the Fourth Amendment and related ineffective-assistance-of-counsel claims, and denying all the other claims on the merits. The district court, adopting the recommendations of the magistrate judge over Krimmel's objections, denied habeas relief. This appeal followed.

II. DISCUSSION

In most habeas corpus cases, the ubiquitous specter of procedural default overshadows our consideration of alleged constitutional violations. This case is no different. We note that on direct appeal to the Nebraska Supreme Court, Krimmel's counsel raised only two issues: the sufficiency of the evidence and the propriety of the prosecution's introduction of a number of graphic photographs of the murder victim. In his state postconviction motion, Krimmel, acting pro se, alleged several constitutional deficiencies with his conviction and a number of corresponding claims that his trial and appellate counsel were ineffective. The state postconviction court did not indicate, in its opinion denying relief, that any of the allegations were in any way barred from postconviction review because of Krimmel's failure to raise them on direct appeal. ³ Rather, the state court broadly stated that it found "there was no denial or infringement as to render the judgment void or voidable under the constitution of this state or the Constitution of the United States." State v. Krimmel, Doc. 114, No. 026 (Aug. 31, 1988) (Order). The unlimited language of the state court's disposition may have allowed Krimmel to argue he had obtained a review on the merits of all of his alleged errors, albeit to no avail. However, on appeal from this postconviction hearing to the Nebraska Supreme Court, Krimmel's appointed counsel only raised three of the many issues Krimmel alleged in his pro se petition for state postconviction relief. Those appellate issues were that (1) trial counsel provided ineffective assistance in that he failed to adequately consider Krimmel's psychological problems in determining his competency to stand trial, (2) appellate counsel provided ineffective assistance in failing to allege misconduct on the part of the prosecutor, and (3) the prosecutor who took Krimmel's third statement was guilty of prosecutorial misconduct.

"A prisoner seeking a writ of habeas corpus from a federal court must first fairly present his claims to the state courts in order to meet the exhaustion requirement of 28 U.S.C. Sec. 2254(b)." Forest v. Delo, 52 F.3d 716, 719 (8th Cir. Mar. 28, 1995) (Forest ). We have held repeatedly that a claim has not been fairly presented to the state courts unless the same factual grounds and legal theories asserted in the prisoner's federal habeas petition have been properly raised in the prisoner's state court proceedings. See id.; Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.1995), petition for cert. filed, (May 3, 1995) (No. 94-1118). We have also held that a claim is considered exhausted "when the petitioner has afforded the highest state court a fair opportunity to rule on the factual and theoretical substance of his claim." Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir.1993).

In the present case, Krimmel, on direct appeal to the Nebraska Supreme Court, raised only two issues, neither of which form a part of his federal habeas petition. In his postconviction relief appeal before the state's highest court, he raised only the three issues cited above. While the state supreme court summarily affirmed the state district court's disposition of the postconviction motion, we can presume that it, like most...