Neal v. Grammer

• Decision Date: 23 May 1991
• Docket Number: No. CV89-L-549.,CV89-L-549.
• Citation: 769 F. Supp. 1523
• Parties: Michael NEAL, Petitioner, v. Gary GRAMMER, Respondent.
• Court: U.S. District Court — District of Nebraska

769 F. Supp. 1523

Michael NEAL, Petitioner, v. Gary GRAMMER, Respondent.

No. CV89-L-549.

United States District Court, D. Nebraska.

May 23, 1991.

COPYRIGHT MATERIAL OMITTED

J. Michael Coffey (court-appointed), Omaha, Neb., for petitioner.

Robert M. Spire, Atty. Gen., and Terry P. Schaaf, Sp. Asst. Atty. Gen., Lincoln, Neb., for respondent.

MEMORANDUM ON PETITION FOR WRIT OF HABEAS CORPUS

URBOM, Senior District Judge.

Michael Neal, an inmate at the Nebraska State Penitentiary, has submitted a petition for writ of habeas corpus under 28 U.S.C. § 2254. Magistrate Judge David L. Piester has recommended that the petition be denied. I agree that it must be.

I have studied the entire file, consisting of records of proceedings before the District Court of Douglas County, Nebraska, and the Supreme Court of Nebraska. I also have received letters from Fellowship Community Church of Lincoln, Nebraska; Dorothy Eure, a paralegal at the Legal Aid Society in Omaha; Mark Pomeroy of Lincoln, Nebraska; and Michael E. Neal. Those letters, all recounting confidence in the petitioner, and some reflecting belief of a sincere change of thought patterns and significant growth, are not a part of the court file and are not appropriately considered in any way. I mention them only by way of acknowledgement that I have received them.

My review of the file persuades me that writing extensively would be of no value, because the District Court of Douglas County, Nebraska, the Supreme Court of Nebraska and the United States Magistrate Judge have carefully analyzed and fully examined and written about the facts of the case. The report and recommendation of the magistrate judge is detailed, examining each issue carefully and thoughtfully. I now adopt it.

REPORT AND RECOMMENDATION

DAVID L. PIESTER, United States Magistrate Judge.

Pending before the court is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, filed by Michael Neal, an inmate at the Nebraska State Penitentiary. The parties have submitted the state court records and their respective briefs on the merits of petitioner's claims, and the matter is now ripe for review.

The petitioner was convicted in the District Court of Douglas County, Nebraska, following entry of a guilty plea to one count of robbery, of a "Town & Country" store, and one count of use of a firearm to commit a felony. He was sentenced to consecutive terms in the Nebraska Penal and Correctional Complex of not less than 14 years nor more than 50 years on the robbery count and not less than 5 years nor more than 20 years on the use of a firearm charge. Petitioner filed an appeal to the Nebraska Supreme Court which affirmed his conviction and sentence. State v. Neal, 216 Neb. 709, 346 N.W.2d 218 (1984).

While the appeal was pending, petitioner, through new counsel, filed a "Motion For New Trial And Leave To Withdraw Plea" in the district court. That motion was amended and became an "Amended Motion For New Trial And Petition For Postconviction Relief And For Writ Of Error Coram Nobis." The district court set that motion for an evidentiary hearing, which commenced on August 23, 1983, at which time petitioner's counsel withdrew the "postconviction" portion of the motion and the hearing proceeded on the motion for a new trial and for a Writ of Error Coram Nobis. Evidence was received and testimony was taken from the petitioner, a co-defendant, Walter Bray, and petitioner's trial counsel, Michael Gutowski. On September 13, 1983 the district court entered an order denying the petitioner's motion for lack of jurisdiction based on its finding that petitioner's direct appeal was still pending in the Nebraska Supreme Court. The petitioner then appealed that judgment of the district court to the Nebraska Supreme Court, with that court ultimately granting the appellee's motion for summary dismissal pursuant to the court's Rule 7 B(1). State v. Neal, 216 Neb. xxv (1984).

Subsequent to the affirmance of petitioner's direct appeal on the "Town & Country" robbery, a motion for post-conviction relief was filed in the district court. Petitioner's motion raised two grounds for relief — ineffective assistance of counsel, and a concomitant challenge to the voluntariness of his guilty plea, and denial of the right to counsel of his choice. The court denied the request for an evidentiary hearing and relied upon the court's records from petitioner's August 23, 1983 hearing on the coram nobis writ. The district court denied relief, and on appeal the Nebraska Supreme Court affirmed. State v. Neal, 231 Neb. 415, 436 N.W.2d 514 (1989).

In addition to the conviction for the "Town & Country" robbery in 1982, the petitioner was also convicted in two separate jury trials on two other robbery charges, one stemming from the robbery of an "Empire Cleaners" establishment on March 30, 1982, and the other from the robbery of a "Dividend Gas Station" on March 8, 1982. Prior to his sentencing for the "Town & Country" robbery discussed above, petitioner had been sentenced by the District Court of Douglas County to a term of not less than seven years nor more than ten years for the "Dividend Gas" robbery, and received a term of not less than three years nor more than five years for the "Empire Cleaners" robbery. Although this court does not have the benefit of the state court records from the sentencings on these convictions, the Nebraska Supreme Court stated in its opinion on the "Town & Country" direct appeal that "the sentences for the two previous convictions were consecutive." State v. Neal, 216 Neb. at 713, 346 N.W.2d 218. At the time of sentencing for the "Town & Country" robbery the district court ordered that petitioner's consecutive sentences for the robbery and firearm convictions were to be served "consecutively to each sentence previously imposed on you by the District Court of Douglas County, Nebraska in Docket 112, Number 277 and Docket 112, Number 291 the "Empire Cleaners" and "Dividend Gas" convictions. (See Filing #11, September 9 and 22, 1982 BE-35:23-25, 36:1-2).

In this habeas proceeding the petition raises these grounds for relief:

(1) Petitioner's guilty plea was not voluntarily and intelligently entered in that the plea was "equivocal," and, in addition, there was an insufficient factual basis upon which to base the plea;

(2) The sentences imposed upon the petitioner, having been ordered to be served consecutively, constitute cruel and unusual punishment in violation of the Eighth Amendment;

(3) The petitioner was denied his right to "counsel of his own choosing," (Filing # 1, at ¶ XI(g)); and

(4) Petitioner was denied effective assistance of counsel "by reason of his appointed counsel's failure to interview Walter Bray, a material witness whose testimony could have exonerated him." (Filing # 1, at ¶ XI(h)).

At this juncture I note that the petitioner's brief attempts to raise claims which were not included in his petition filed in this court. Specifically, the brief attempts to raise claims challenging his conviction on the "Dividend Gas" robbery without having made reference in his petition to those claims or that conviction.¹ It is not the brief which controls the issues which may be raised in this action. The petition governs the claims which this court will address, and as such, I shall address only those claims set forth above which relate to the "Town & Country" robbery convictions and sentences.

EXHAUSTION AND WAIVER

The respondent asserts that the petitioner has failed to meet the exhaustion requirements of 28 U.S.C. § 2254(b) as to his claims of ineffective assistance of counsel and the voluntariness of his plea. On the contrary, the petitioner raised the voluntariness issue in his direct appeal, and raised that issue in conjunction with his ineffective assistance claim (on the specific grounds alleged here) in his state postconviction action. The state court records also show that petitioner has raised all of the additional claims to be addressed in this action in the state supreme court. I therefore conclude that petitioner has exhausted his state court remedies on the claims presented here, and this court may review those claims on their merits.

VOLUNTARINESS OF PLEA

Petitioner's claim alleging that his plea of guilty was not voluntarily and intelligently entered is based on assertions that he did not understand the nature of the proceedings, suffered from "nervous anxiety," and lacked the "mental capacity to plead to the charges." (Filing # 1, at ¶ VI). These assertions are, however, contrary to the answers given to the trial court at the time of his plea taking. A defendant's "representations at a plea-taking carry a strong degree of verity and pose a `formidable barrier in any subsequent collateral proceedings.'" Ingrassia v. Armontrout, 902 F.2d 1368, 1370 (8th Cir.1990) (quoting, Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir.1985)). The law in this circuit is well established that a voluntary plea of guilty has the effect of waiving all nonjurisdictional defenses to a criminal charge. See, e.g., Johnson v. Petrovsky, 626 F.2d 72, 73 (8th Cir.1980); United States v. Petrangelo, 599 F.2d 261, 262 (8th Cir.1979).

Nonetheless, a plea may still be found to have been involuntary if a petitioner can show that the plea was a result of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985); Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1975). Here the petitioner does allege that his court-appointed trial counsel was ineffective for his failure to interview a material witness, Walter Bray, and thus discover evidence which would have "exonerated" the petitioner. Therefore, petitioner's challenge to the voluntariness of his guilty pleas is dependent upon his success on the claim of ineffective assistance of trial counsel.

INEFFECTIVE ASSISTANCE OF COUNSEL

Claims of ineffective assistance of counsel are...