Mayes v. Sigler, 19898.

• Decision Date: 17 July 1970
• Docket Number: No. 19898.,19898.
• Citation: 428 F.2d 669
• Parties: Marden A. MAYES, Appellant, v. Maurice H. SIGLER, Warden, etc., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

428 F.2d 669 (1970)

Marden A. MAYES, Appellant, v. Maurice H. SIGLER, Warden, etc., Appellee.

No. 19898.

United States Court of Appeals, Eighth Circuit.

July 17, 1970.

Charles P. Huff, Lincoln, Neb., for appellant, and filed brief.

Harold Mosher, Asst. Atty. Gen., Lincoln, Neb., for appellee, and filed brief; Clarence A. H. Meyer, Atty. Gen., was on the brief with Mr. Mosher.

Before VAN OOSTERHOUT, MEHAFFY and LAY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is a timely appeal by Marden A. Mayes, hereinafter for convenience called defendant, from final order denying habeas corpus relief from defendant's state conviction and resulting sentence of imprisonment. The appeal is in forma pauperis; certificate of probable cause was issued by the trial court. The defendant is represented by court-appointed counsel.

Defendant after a plea of not guilty to an information charging him with uttering a forged instrument was tried by a jury, found guilty, and sentenced to seven-years imprisonment in the Nebraska Penal and Correctional Complex. Defendant's conviction was affirmed upon direct appeal. State v. Mayes, 183 Neb. 165, 159 N.W.2d 203. The underlying facts and the issues determined are fairly set out in the opinion.

In the present proceeding, the trial court in an order filed September 25, 1967, determined the petitioner had not adequately alleged exhaustion of state remedies and that unless supplemental petition setting forth exhaustion of state remedies was filed the petition would stand dismissed. After defendant filed an additional pleading, the court on November 16, 1967, filed an order determining petitioner had not exhausted state remedies available to him under the Nebraska Post Conviction Remedy Law and the court ordered the dismissal of the petition.

After defendant filed further amendments to his petition, the court on June 6, 1968, reactivated the case and directed the respondent to show cause why the writ should not issue. An additional amendment was later filed which made Warden Sigler, who had custody of the defendant, a respondent. Return was made to the order to show cause. An evidentiary hearing was held at which the defendant testified on his own behalf and witnesses testified on behalf of the respondent.

Judge Van Pelt, who heard this case, elected to decide the case on the merits. He has very adequately demonstrated in his well-considered memorandum opinion (not reported) that upon the basis of fact findings made, which are supported by substantial evidence, and the proper application of the law to the facts, the defendant is entitled to no relief and we would have no difficulty affirming upon the basis of Judge Van Pelt's opinion if the exhaustion of remedy issue can properly be bypassed. On the exhaustion of remedy issue, Judge Van Pelt states:

"The cases are legion which hold that a petitioner must exhaust his state court remedies before proceeding in federal court. This requirement of exhaustion is set forth in the statutory provision for habeas corpus. 28 U.S.C.A. § 2254(b). One exception to this rule of law is that a denial of a petitioner for a writ of habeas corpus, on the merits, is permissible even though state remedies may not have been exhausted. Commonwealth of Pa. ex rel. Craig v. Maroney, 348 F.2d 22, 33 (3 Cir.1965), reh. den. 352 F.2d 30, cer. den. 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042; United States ex rel. Drew v. Myers, 327 F.2d 174, 183 (3 Cir.1964), cer. den. 379 U.S. 847, 85 S.Ct. 88, 13 L.Ed.2d 52. This court has considered all of the issues presented by the petitioner and has concluded that he is not entitled to the issuance of a writ of habeas corpus. Thus, it becomes unnecessary to decide whether the petitioner has in fact exhausted available state court remedies."

While additional issues were raised in the trial court, the principal issues relied upon by the defendant on this appeal are: (1) Defendant was arrested without probable cause and hence statements made by the defendant while in custody should be excluded as they were obtained as a result of violations of defendant's constitutional rights. (2) Ineffective assistance of counsel. (3) State incarceration for eight days prior to arraignment.

These issues were never properly raised, nor determined by the state court. The illegal arrest issue was raised for the first time on defendant's direct appeal to the state Supreme Court. Such issue was disposed of on the ground that...