Lee v. Clarke

• Decision Date: 10 November 1992
• Docket Number: No. 4:CV91-3157.,4:CV91-3157.
• Citation: 806 F. Supp. 1421
• Parties: Edward E. LEE, Petitioner, v. Harold CLARKE, Respondent.
• Court: U.S. District Court — District of Nebraska

806 F. Supp. 1421

Edward E. LEE, Petitioner, v. Harold CLARKE, Respondent.

No. 4:CV91-3157.

United States District Court, D. Nebraska.

November 10, 1992.

Robert B. Creager, Berry, Anderson, Creager & Wittstruck, P.C., Lincoln, Neb., for Edward E. Lee.

Mark D. Starr, Atty. Gen., Lincoln, Neb., for Harold W. Clarke.

Donald B. Stenberg, Atty. Gen., Lincoln, Neb., interested party.

MEMORANDUM OPINION AND ORDER

CAMBRIDGE, District Judge.

This matter is before the court on the Petitioner's objections, (Filing No. 19), to the Magistrate Judge's report and recommendation, (Filing No. 18).

This case was brought pursuant to 28 U.S.C. § 2254. Judge Piester recommends that the petition be denied. The Petitioner objects specifically on three grounds, all of which were discussed at great length by Judge Piester in his report and recommendation. The Petitioner then objects to the entire report and recommendation, stating: "That the Magistrate otherwise erred in failing to recommend that the Petition be granted."¹

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule of Practice 49(B), this Court has conducted a de novo review of the portions of the Magistrate Judge's findings and recommendations to which specific objections have been made. The Court concludes that the Magistrate Judge's report and recommendation is consistent with the evidence and the law and should therefore be adopted.

IT IS ORDERED:

1. The Magistrate Judge's report and recommendation, (Filing No. 18), is adopted; and

2. The Petitioner's objections, (Filing No. 19), are overruled.

REPORT AND RECOMMENDATION

PIESTER, United States Magistrate Judge.

Before the court for consideration is the writ of habeas corpus filed by Edward E. Lee. For reasons discussed more fully below, I shall recommend the writ be denied.

Under attack are petitioner's convictions for first degree murder and felon in possession of a firearm; he was sentenced to life imprisonment on the murder conviction and 20 months to 5 years imprisonment on the felon in possession conviction. Petitioner's convictions were upheld on direct appeal. See State v. Lee, 216 Neb. 63, 341 N.W.2d 600 (1983).

Petitioner then filed a postconviction motion in the Douglas County District Court, requesting his convictions¹ be set aside on grounds he was denied effective assistance of counsel when: (1) trial counsel failed to investigate or move for a change of venue due to pretrial publicity; (2) trial counsel failed to interview and/or produce a particular character witness for the defense; (3) trial counsel failed to object to the introduction of uncharged criminal activity, and failed to move to strike such evidence and obtain a precautionary jury instruction regarding the evidence; and (4) trial counsel failed to challenge on appeal the sufficiency of the evidence to support the convictions. Additionally, due to statements made by petitioner during a deposition taken for purposes of the postconviction proceedings, the court, on its own motion, also considered the claim that trial counsel was ineffective for failing to permit petitioner to testify at trial. Following a hearing on the matter, the postconviction motion was denied. (Filing 11, Exhibit G at 15, 23).

After perfecting an appeal from the denial of postconviction relief, petitioner's court-appointed counsel filed a motion to withdraw on grounds he believed the appeal to be frivolous. Upon finding the appeal "wholly frivolous," the Nebraska Supreme Court granted counsel's motion to withdraw and affirmed the judgment of the district court denying postconviction relief. See State v. Lee, 226 Neb. xxix (1987).

Petitioner now challenges his convictions on the following seven grounds, five of which were presented in his postconviction motion:

(1) trial counsel failed to investigate and/or move for a change of venue following adverse pretrial publicity;

(2) trial counsel failed to interview and/or produce character witnesses for the defense regarding petitioner's good character and reputation for nonviolence;

(3) trial counsel failed to object to the introduction of irrelevant evidence of uncharged criminal activity and failed to move to strike such evidence and obtain a precautionary jury instruction to disregard such evidence;

(4) trial counsel failed to permit petitioner to testify in his own defense at trial;

(5) trial counsel failed to challenge on appeal the sufficiency of the evidence supporting the convictions;² (6) petitioner's postconviction counsel was ineffective when he moved to withdraw on grounds the appeal from the denial of postconviction relief was frivolous;

(7) the Nebraska Court Rule which allowed petitioner's court appointed counsel to withdraw upon a showing that the appeal was frivolous deprived petitioner of Equal Protection and Due Process of Law as secured by the United States Constitution, and denied petitioner his right to appeal as secured by the Nebraska Constitution and unidentified state statutes.

Exhaustion and Procedural Default

The initial inquiry in any habeas proceeding is whether petitioner has exhausted his available state court remedies. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The exhaustion doctrine, codified in 28 U.S.C. § 2254(b), is based upon notions of federalism and comity, and requires a federal court, before considering the merits of a habeas claim, to determine that the identical claims raised in the habeas petition have either been presented to the highest court of the state in which the judgment of conviction was entered, or that there are no procedures presently available for such presentation. Rose v. Lundy, supra.

In this instance respondent's answer specifically admits that petitioner has exhausted his state court remedies with respect to the claims presented herein. (Filing 7 at 1, 3).³ When, as here, the state unequivocally concedes in pleadings that petitioner's claims have been exhausted in the state courts, that concession constitutes an express waiver of the exhaustion requirement. Purnell v. Missouri Dept. of Corrections, 753 F.2d 703, 708 (8th Cir. 1985). See also Hampton v. Miller, 927 F.2d 429, 431 (8th Cir.1991) (state expressly waives exhaustion requirement by conceding in pleadings that petitioner's claims have been exhausted in state courts); Wade v. Armontrout, 798 F.2d 304, 306 n. 1 (8th Cir.1986) (by failing to notify district court that petitioner had not exhausted a particular claim, the state waived the exhaustion requirement); Mercer v. Armontrout, 643 F.Supp. 1021, 1022 (W.D.Mo. 1986) (although 2 of the 5 claims presented in habeas petition were not properly raised in the state courts, state waived this exhaustion defect and thereby consented to have court adjudicate all 5 claims).

Therefore, although certain of petitioner's claims clearly have not been presented in the state courts⁴, the state has expressly admitted exhaustion with respect to the habeas claims presented in this federal action. There being no apparent reason to reject the state's waiver of exhaustion in this instance, see Hampton v. Miller, 927 F.2d at 431 (federal courts will only reject state's waiver of exhaustion when doing so avoids injustice or manifestly serves the public interest), I shall proceed to consider the merits of petitioner's claims.

Before I do so, however, I must first address the arguments propounded in respondent's brief regarding issues of fair presentment and procedural default. Although respondent concedes that petitioner has exhausted his available state court remedies by filing a direct appeal, a postconviction motion and an appeal of the denial of postconviction relief, respondent nonetheless argues that — due to the procedural posture of the postconviction motion on appeal — the claims presented to the district court were not "fairly presented" to the Nebraska Supreme Court.⁵ The procedural posture of the case on appeal resulted from the following chain of events.

After perfecting an appeal to the Nebraska Supreme Court from the denial of postconviction relief, petitioner's court appointed counsel filed a motion to withdraw on grounds he believed the appeal to be frivolous. (Filing 11, Exhibit G at 28). At that time, Nebraska Court Rule 3(B) provided that if court appointed counsel in a postconviction action determined that an appeal was frivolous, the attorney could file a motion requesting leave to withdraw, supported by a brief and affidavit setting forth facts suggesting counsel had made a thorough and conscientious review of the record and had determined that the appeal was without merit and wholly frivolous.⁶ See, e.g., State v. Harper, 214 Neb. 911, 917, 336 N.W.2d 597 (1983) (discussing the origins and purpose of Nebraska Court Rule 3(B) providing for attorney withdrawal in frivolous postconviction appeals), cert. denied, 465 U.S. 1013, 104 S.Ct. 1016, 79 L.Ed.2d 246 (1984). In this instance, counsel's motion to withdraw was supported by a brief and an affidavit stating he had reviewed the record, researched the applicable law, and determined the appeal was without merit and wholly frivolous.⁷

The Nebraska Supreme Court notified petitioner by certified letter of his counsel's motion to withdraw, and petitioner was given 30 days to respond to the motion by explaining "what was wrong with the trial and why the judgment of the District Court should be changed." (Filing 11, Exhibit G at 32). Petitioner timely responded by filing a letter explaining why he believed his appeal had merit. (Filing 11, Exhibit G at 33-34). The Nebraska Supreme Court subsequently found the appeal "wholly frivolous" and affirmed the district court's denial of postconviction relief, granting counsel's motion to withdraw. (Filing 11, Exhibit I at 2:5-8).

Respondent suggests that, due to the manner in which the supreme court summarily affirmed the denial of postconviction relief, those claims presented to the district court in the postconviction motion ...