Martin v. Parratt, Civ. No. 73-L-265.
| Citation | 412 F. Supp. 544 |
| Decision Date | 06 May 1976 |
| Docket Number | Civ. No. 73-L-265. |
| Parties | Melvin MARTIN, Petitioner, v. Robert PARRATT, Warden, Nebraska Penal Complex, Respondent. |
| Court | U.S. District Court — District of Nebraska |
Fredric H. Kauffman, Lincoln, Neb., for petitioner.
Bernard Packett, Asst. Atty. Gen., State of Neb., for respondent.
This habeas corpus matter comes before the Court pursuant to 28 U.S.C. § 2254 subsequent to an evidentiary hearing and the submission of the State court record.1 In accordance with Rule 52, F.R.Civ.P., the Court makes the following findings of fact and conclusions of law.
Petitioner, Melvin Martin, an inmate at the Nebraska Penal and Correctional Complex, was charged in the District Court of Adams County, Nebraska, with the offense of receiving stolen copper of the value of more than $100 and with being an habitual criminal. A jury found him guilty on August 1, 1972, and petitioner was sentenced to 17 years imprisonment as an habitual criminal. Petitioner appealed his conviction to the Supreme Court of Nebraska, which affirmed the lower court. State v. Martin, 190 Neb. 212, 206 N.W.2d 856 (1973).
Petitioner now seeks a writ of habeas corpus from this Court upon two grounds: (1) Prosecutorial suppression of favorable evidence; and (2) Unconstitutionality of the Nebraska habitual criminal statute.2
The transcript of the State court trial reflects that petitioner was originally charged in a two-count information. Count 1 charged the commission of the offense of burglary and Count 2 charged the offense of receiving stolen property and with being an habitual criminal. Martin was brought before the County Court of Adams County on March 3, 1972. Counsel was appointed and a preliminary hearing was held on March 29, 1972. Following the preliminary hearing, Count 1 was dismissed and Martin was bound over for trial. Although bond was set for Martin at $10,000.00, he remained in custody until his trial.
The prosecution's main witness was Ned Nelson, Martin's alleged accomplice. Nelson's testimony, which was denied by Martin, may be briefly summarized as follows. On or about February 13, 1972, Nelson and Martin went to the Naval Ammunition Depot and found three or four tons of copper with large quantities of iron pipe and cinder block, located in a gutted building. They placed the copper away from the wall and departed without the copper during the early morning because of daylight and nearby factories. The two men returned about 10:45 P.M. with hammers, chisels and axes, stripped 1100 pounds of copper and transported it to the Glenville dump, where they unloaded it. The next morning, the men returned to the dump, loaded the copper, and transported it to Council Bluffs, Iowa, where it was sold to a scrap metal dealer for $400.00.
Martin disputed Nelson's testimony and testified that he did not participate in the original taking of the copper and was unaware that it was stolen.
Petitioner bases his claim of suppression of favorable evidence upon the alleged failure of the State to disclose that Nelson had been promised immunity in exchange for his testimony. Petitioner relies on Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
The State initially argues that Martin should be required to first exhaust his State remedies upon this issue, for the reason that this claim was not adjudicated by the Supreme Court of Nebraska. Martin raised this ground in his petition for habeas corpus and respondent's answer alleged that petitioner had raised all grounds being asserted before the Supreme Court of Nebraska. Respondent did not raise the exhaustion argument until the evidentiary hearing before this Court on October 30, 1975.
The exhaustion doctrine should not be applied inflexibly. Rice v. Wolff, 513 F.2d 1280, 1289-1291 (8th Cir.), cert. granted 422 U.S. 1055, 95 S.Ct. 2677, 45 L.Ed.2d 707 (1975). The exhaustion of State remedies is not measured by the language of the court's opinion, but by the record before the reviewing court. Petitioner argued in his brief before the Supreme Court that it is inferable that Ned Nelson was made promises by the County Attorney for favorable testimony. The Court, therefore, concludes that Martin effectively presented this issue to the Nebraska courts.
Upon the merits of petitioner's claim, Martin has failed to prove any promises of immunity. Nelson testified before this Court that he conferred once with the County Attorney prior to Martin's trial and there was no discussion of his pending charges. Nelson repeatedly denied that a deal had been made, and stated that he wasn't prosecuted because there was a "shake-up" after the elections in the office of the County Attorney.
William Connolly, the County Attorney who prosecuted Martin, corroborated Nelson's denial of immunity. Connolly testified that he diligently prosecuted Martin first because, of the two defendants, he preferred to obtain a conviction of Martin whom he considered the more culpable participant.
Petitioner argues that there exists two bases for a finding that a promise of immunity had been made to Nelson. One is the fact that the charges against him were eventually dismissed. The second basis is that on three occasions Nelson worked for the County Attorney of Adams County and law enforcement officials as an informer in narcotic cases, and testified in one of the cases. Nelson never received payment for his services and following his testimony against Martin he performed no other services for the Adams County law enforcement officials.3
The Court is unwilling to infer from these facts and Nelson's ultimate treatment that any prior promises of immunity or leniency had been made. See Weiland v. Parratt, 530 F.2d 1284 (1976). Nelson testified on cross-examination as follows:
Connolly credibly explained the reason that he prosecuted Martin first and Nelson's explanation of why his charges were eventually dismissed by the new County Attorney is also credible. The Court cannot properly infer promises of immunity or leniency from defendant's participation as an informer for the Adams County Attorney. It is equally plausible that Nelson's actions were motivated by repentance or perhaps self-interest, in the hope that leniency might emanate from his cooperation with the prosecution in this case and others.
Petitioner asserts that the prosecutor not only suppressed the promise of immunity but intentionally elicited perjured testimony. Nelson testified on direct examination by the State as follows:
This testimony is repeated at the close of direct examination:
Nelson's testimony elicited at the evidentiary hearing before this Court proved that he had not in fact pleaded guilty to the pending charges, but had waived his right to a preliminary hearing. In response to questioning by the Court, Nelson explained that at the time he thought he had pleaded guilty. Petitioner did not offer any proof that the prosecution knew the testimony was false. See Holt v. United States, 303 F. 2d 791 (8th Cir. 1962), cert. denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132. Furthermore, the Court finds that any prejudice which Martin may have suffered was cured by the testimony of Nelson upon cross-examination as follows:
The credibility of witnesses is a question for the jury. The Court properly instructed the jury that "the testimony of a claimed accomplice should be closely scrutinized for any possible motives for falsification, and if you find that he has testified falsely in regard to any material matter, you should be hesitant to convict upon his testimony without corroboration . . .." Instruction No. 8. Presumably, "the jury was made up of people of judgment and common sense" and they must have known that...
To continue reading
Request your trial
-
Boothe v. Wyrick, 77-0830-CV-W-4.
...the record and pleadings before those courts. United States ex rel. Geisler v. Walters, 510 F.2d 887 (3rd Cir. 1975); Martin v. Parratt, 412 F.Supp. 544 (D.Neb.1976). From state court records, it is clear that petitioner has never presented his claim concerning the alleged failure to give a......
-
Greenhaw v. Wyrick, 78-0967-CV-W-1.
...compiled in or submitted to the state courts. United States ex rel. Geisler v. Walters, 510 F.2d 887 (3d Cir. 1975); Martin v. Parratt, 412 F.Supp. 544 (D.Neb.1976). The records of petitioner's direct state appeal show that he presented seven claims to the Missouri Court of 1. The state fai......
-
Martin v. Parratt, 76-1490
...counsel was present or waived, this point was neither argued nor briefed before the district court or the state courts. Martin v. Parratt, 412 F.Supp. 544, 545 (1976). The issue was not pressed in the district court nor was it passed upon. Accordingly, we refuse to consider for the first ti......