Nelson v. Moriarty

• Decision Date: 20 September 1973
• Docket Number: Misc. No. 73-8048.
• Citation: 484 F.2d 1034
• Parties: Sammie L. NELSON, Petitioner-Appellant, v. John MORIARTY, Superintendent of Massachusetts Correctional Institution at Walpole, Massachusetts, Respondent-Appellee.
• Court: U.S. Court of Appeals — First Circuit

484 F.2d 1034 (1973)

Sammie L. NELSON, Petitioner-Appellant, v. John MORIARTY, Superintendent of Massachusetts Correctional Institution at Walpole, Massachusetts, Respondent-Appellee.

Misc. No. 73-8048.

United States Court of Appeals, First Circuit.

Submitted August 21, 1973.

Decided September 20, 1973.

Sammie L. Nelson, pro se on application for certificate of probable cause and petition for emergency relief.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

PER CURIAM.

Petitioner, Sammie L. Nelson, is presently confined at the Massachusetts Correctional Institution, Walpole, Massachusetts, on, inter alia, a sentence for rape and abuse of a child (statutory rape). This is an application for a certificate of probable cause, the district court having dismissed Nelson's petition for a writ of habeas corpus on an opinion by a magistrate, and refused a certificate. Petitioner has also moved for emergency relief consisting of an order that the district court conduct an evidentiary hearing on petitioner's claim that he was denied effective assistance of counsel at his trial, and an order that he be provided with an investigator to assist him in producing exculpatory witnesses for the hearing.

Petitioner claims that his honest belief that the prosecutrix of the statutory rape charge was over sixteen years of age should constitute a defense, of constitutional dimensions, to statutory rape. The effect of mens rea and mistake on state criminal law has generally been left to the discretion of the states. See, e. g., Powell v. Texas, 392 U.S. 514, 535-536, 88 S.Ct. 2145, 20 L. Ed.2d 1254 (1968); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957); Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct. Rev. 107. The Supreme Court has never held that an honest mistake as to the age of the prosecutrix is a constitutional defense to statutory rape, see, e. g., id. at 140-41, and nothing in the Court's recent decisions clarifying the scope of procreative privacy, see, e. g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Stanley v. Georgia, 394 U. S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), suggests that a state may no longer place the risk of mistake as to the prosecutrix's age on the person engaging in sexual intercourse with a partner who may be young enough to fall within the protection of the statute. Petitioner's argument is without merit.

We agree with the magistrate that petitioner's allegations that the trial court admitted various allegedly unreliable, hearsay, or irrelevant testimony do not raise due process issues of constitutional magnitude and do not entitle petitioner to habeas corpus relief. We similarly agree that petitioner has not exhausted available state remedies with respect to other claims of prejudicial action by the prosecutor.

The only claim that may merit further discussion is petitioner's allegation that he was denied effective assistance of counsel. This claim also forms the basis of petitioner's motion for emergency relief, since this relief would consist essentially of ordering a hearing on this aspect of petitioner's habeas corpus claim and assisting him in its presentation. Petitioner alleges that his counsel failed to confer with him adequately before trial and failed to conduct an adequate investigation, and that therefore petitioner was unable to call certain exculpatory witnesses.

In order to be granted federal habeas corpus relief, it is elementary that the petitioner must have exhausted his available state remedies. 28 U.S.C. § 2254(b). The ineffective assistance of counsel claim was heard before a Special Master appointed by the Massachusetts Supreme Judicial Court; the Special Master filed a report recommending that the judgments be affirmed; and the report was confirmed by a single justice of the Supreme Judicial Court. Petitioner...