Nesbitt v. Hopkins, 4:CV91-3364.

• Decision Date: 01 March 1995
• Docket Number: No. 4:CV91-3364.,4:CV91-3364.
• Parties: Thomas Edward NESBITT, Petitioner, v. Frank X. HOPKINS, Respondent.
• Court: U.S. District Court — District of Nebraska

907 F. Supp. 1317

Thomas Edward NESBITT, Petitioner, v. Frank X. HOPKINS, Respondent.

No. 4:CV91-3364.

United States District Court, D. Nebraska.

March 1, 1995.

COPYRIGHT MATERIAL OMITTED

Thomas Edward Nesbitt, Nebraska State Penitentiary, Lincoln, NE, Pro Se.

Thomas C. Riley, Douglas County Public Defender's Office, Omaha, NE, Donald B. Fiedler, Donald Fiedler, Omaha, NE, for plaintiff.

Delores N. Coe-Barbee, Attorney General, Lincoln, NE, for defendant.

MEMORANDUM AND ORDER

KOPF, District Judge.

This matter is before the court on Magistrate Judge David L. Piester's report and recommendation (Filing 104) suggesting that Petitioner's petition for habeas corpus be denied. Petitioner filed a lengthy objection (Filing 109) to the report and recommendation. Petitioner has also appealed from Judge Piester's order (Filing 108) denying an evidentiary hearing. By letter (Filing 112) Petitioner apparently requests that additional counsel be appointed to assist him. Finally, Petitioner has filed a motion for extension of time (Filing 114) to file an amendment to the objection and statement of appeal and related briefs.

I have conducted a de novo review of the report and recommendation and the related objection. With a brief qualifying observation, I adopt the report and recommendation after de novo review.

I shall comment only briefly on Petitioner's "double jeopardy" argument. Petitioner argues that felony murder and premeditated murder are simply two ways of committing the same crime; therefore, when the trial court dismissed the felony murder charge for lack of sufficient evidence, but allowed the premeditated murder charge to proceed, the court violated the Double Jeopardy Clause of the Constitution. Even if I agreed with Petitioner's premise, I would not agree with his conclusion.

Applying the Blockburger test, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), Judge Piester found that felony murder and premeditated murder are separate offenses; thus, the Double Jeopardy Clause was not violated when the state proceeded with the charge of premeditated murder but not the felony murder charge. Judge Piester found that the Double Jeopardy Clause was not implicated because Petitioner had not been put in jeopardy twice for the same offense. At least one federal appellate court arrived at the same conclusion in a nearly identical case. Clayton v. Crist, 860 F.2d 1088 (9th Cir.1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1763, 104 L.Ed.2d 198 (1989) (tbl.) (text available in Westlaw, 1988 WL 57698, at *1-2) (applying Blockburger and affirming dismissal of habeas corpus petition over "double jeopardy" objection where prosecution dismissed a premeditated murder count at trial but was allowed to proceed on felony murder count).

Assuming for the sake of argument, however, that I were to agree with Petitioner that felony murder and premeditated murder are alternative ways of committing the same crime, to wit, murder in the first degree, Petitioner would still not prevail for he would not have been twice put in jeopardy. At worst, Nesbitt was tried once on alternative theories of murder. American law has long permitted the assertion of alternative theories of first-degree murder in one murder prosecution without concern that the defendant is subjected to "double jeopardy" if convicted on one theory but acquitted on the other. See, e.g., Delap v. Dugger, 890 F.2d 285, 314 (11th Cir.1989), cert. denied, 496 U.S. 929, 110 S.Ct. 2628, 110 L.Ed.2d 648 (1990) (where defendant was acquitted of felony murder in first trial because trial judge believed evidence insufficient to support theory, but defendant was also convicted at first trial on theory of premeditated murder involving the same victim, and where first conviction set aside on appeal, acquittal on felony-murder theory barred reprosecution for felony murder, but acquittal did not bar reprosecution and conviction on premeditated murder theory). Cf. Schad v. Arizona, 501 U.S. 624, 648-52, 111 S.Ct. 2491, 2505-07, 115 L.Ed.2d 555 (1991) (Scalia, J., discussing the development of alternative theories of first-degree murder in America, including felony murder and premeditated murder, and concurring in the Supreme Court's finding that the Constitution was not violated where a defendant was prosecuted and convicted on alternative theories of first-degree murder (felony murder and premeditated murder) even though the jury made no explicit determination of which theory it relied upon to convict the defendant).

As to Petitioner's appeal from the magistrate judge's denial of an evidentiary hearing, Judge Piester's decision not to hold an evidentiary hearing was correct as a matter of law, and not clearly erroneous from a factual point of view. Moreover, to the extent that the proper standard of review is de novo, I believe Judge Piester's decision was correct.

As to Petitioner's request for yet another lawyer, I shall deny the request for the reason that Petitioner is adequately represented by his present lawyer.

As to Petitioner's request for additional time, I shall deny the request. Petitioner has already been given two extensions of time. (Filings 106, 110.) Moreover, the detailed documents that Petitioner filed as "objections," (Filing 109, at 1-17), and "statement of appeal," (Filing 108, at 1-4), are also in essence briefs. Still further, Petitioner does not tell me what it is he wishes to address further that has not already been fully explored. There is simply no good reason given for further delay in this case, now more than three years old.

Accordingly,

IT IS ORDERED that:

(1) The magistrate judge's report and recommendation (Filing 104) is adopted;

(2) Petitioner's objection (Filing 109), appeal (Filing 108), request for additional counsel (Filing 112), and motion for extension of time (Filing 114) are denied;

(3) A separate judgment shall be entered specifying that "judgment is entered providing that the petition for habeas corpus is denied on the merits and dismissed."

PIESTER, United States Magistrate Judge.

Before the court for consideration is the petition for writ of habeas corpus filed by Petitioner Thomas Edward Nesbitt. (Filing 26.) For reasons discussed more fully below, I shall recommend that the writ be denied.

BACKGROUND

On March 7, 1986, petitioner was convicted of first degree murder and sentenced to life imprisonment. He appealed the conviction to the Nebraska Supreme Court, raising three claims: 1) improper use of character evidence; 2) insufficient evidence; and 3) prosecutorial misconduct. The court upheld the conviction, finding no merit to any of petitioner's claims. State v. Nesbitt, 226 Neb. 32, 409 N.W.2d 314 (1987). On September 7, 1990, petitioner filed a motion for postconviction relief claiming, inter alia, the conviction violated his double jeopardy rights. The postconviction motion was still pending in the Douglas County District Court as of the submission date of petitioner's brief, July 13, 1994.

Petitioner raises two claims in his petition: 1) double jeopardy; and 2) due process arising out of a bail denial.¹ (See Filing 26.) In filing 27 I concluded that petitioner had properly exhausted his due process claim by presenting it to the Nebraska Supreme Court.² I further concluded, however, that petitioner had failed to similarly present his double jeopardy claim, and that therefore that claim was not exhausted. Pursuant to Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1202-03, 71 L.Ed.2d 379 (1982), I granted petitioner the option of dismissing his entire petition, without prejudice, or filing an amended petition deleting the "unexhausted" double jeopardy claim. In filing 29 Judge Urbom concluded that whether the double jeopardy claim was exhausted was unclear from the incomplete record then before the court. Without deciding whether the double jeopardy claim was properly presented, Judge Urbom directed that counsel be appointed and that respondent be directed to respond to the exhaustion issue. Judge Urbom later concluded that the double jeopardy claim had been fairly presented to the Nebraska Supreme Court in a brief in support of a motion for rehearing. (See Filing 43, at 2.) Judge Urbom further concluded that the fact that there may be a postconviction motion pending is "not controlling" to the exhaustion inquiry. (See id. at 3.)

Petitioner later filed a motion requesting leave to file an amended habeas petition. (Filing 75.) In filing 83 I concluded that the proposed (unexhausted) claims to be presented in that amended petition would render the petition a "mixed petition," requiring the Rose v. Lundy election referred to above. Petitioner refused to make such election until directed to do so by Judge Kopf. (See filing 95.) In filing 96 petitioner elected to proceed with his two original claims: 1) double jeopardy; and 2) due process arising out of a bail denial.³

DOUBLE JEOPARDY

Despite the unnecessary length (sixty pages) and superficial complexity of petitioner's meandering argument,⁴ his double jeopardy claim is straightforward. Petitioner was charged with first degree murder under two alternate theories: premeditation or felony murder (sexual assault). At the close of the state's evidence the trial court granted petitioner's motion for a directed verdict on the felony murder theory.⁵ Petitioner argues that that dismissal, under double jeopardy and other estoppel/preclusion doctrines, barred his subsequent conviction on first degree premeditated murder.

The Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." United States Constitution Amendment 5. This protection applies both to successive punishments and to successive prosecutions for the same criminal offense. United States v. Dixon, ___ U.S. ___, ___ _ ___, 113 S.Ct. 2849, 2855-56, 125 L.Ed.2d 556 (1993) (citing North Carolina v. Pearce, ...