Newman v. Hopkins, 4:96CV3287.

• Decision Date: 27 April 1998
• Docket Number: No. 4:96CV3287.,4:96CV3287.
• Citation: 6 F.Supp.2d 1111
• Parties: John Byron NEWMAN, Plaintiff, v. Frank X. HOPKINS, Defendant.
• Court: U.S. District Court — District of Nebraska

6 F.Supp.2d 1111

John Byron NEWMAN, Plaintiff, v. Frank X. HOPKINS, Defendant.

No. 4:96CV3287.

United States District Court, D. Nebraska.

April 27, 1998.

John Byron Newman, Lincoln, NE, pro se.

John C. Vanderslice, Federal Public Defender's Office, Lincoln, NE, for John Byron Newman.

Kimberly A. Klein, Attorney General Office, for Frank X. Hopkins.

MEMORANDUM AND ORDER ON AMENDED PETITION FOR HABEAS CORPUS

URBOM, Senior District Judge.

On March 26, 1998, there was filed a Report and Recommendation of United States Magistrate Judge David L. Piester that the petitioner's Amended Petition for Writ of Habeas Corpus be denied in all respects. Filing 21. Objection to that report and recommendation was made by the petitioner on April 9, 1998. The respondent moved to strike the petitioner's objection. The petitioner moved to strike the respondent's motion to strike. The respondent then moved to strike the petitioner's motion to strike. The petitioner filed a second motion to strike the respondent's motion to strike.

I must move quickly to resolve these motions, lest the giddiness of this merry-go-round becomes an addiction.

The report and recommendation of the magistrate judge was filed and copies mailed to counsel on March 26, 1998. The objection to the report and recommendation was filed and served by mail on April 9, 1998, the fourteenth day after March 26. The question is whether the objection was timely made. That depends upon the interrelatedness of three sets of rules: the Federal Rules of Civil Procedure, the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. § 636(b)(1)(C), and the Local Rules of this court (NELR).

Because this is a case filed under 28 U.S.C. § 2254, it seems sensible to begin with the Rules Governing Section 2254 Cases in the United States District Courts. They became effective February 1, 1977. Rule 8 of those rules allows a magistrate judge to be designated to submit recommendations for disposition and says that any party may serve and file written objections to the recommendations "[w]ithin ten days after being served with a copy." Title 28, U.S.C. § 636, having to do with a magistrate judge's procedures, uses the same language. No other provision of those rules or of § 636 explains how to calculate the ten-day period. The ten-day limit could be expanded beyond ten days if Rule 6 of the Federal Rules of Civil Procedure were to apply to § 2254 cases, because that rule does explain how to compute time, by not including the first day, including the last day unless it is a Saturday, a Sunday, or a legal holiday or when the court is inaccessible for the filing, and excluding Saturdays, Sundays, and legal holidays if the time prescribed is less than eleven days, and adding three days after service by mail. Whether any of the features of Rule 6 of the Federal Rules of Civil Procedure can be employed in the computation of times for § 2254 cases is therefore critical in this case.

The only rule of the Rules Governing Section 2254 Cases in the United States District Courts that suggests when the Federal Rules of Civil Procedure are applicable is Rule 11, which says:

"The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to, petitions filed under these rules."

Rule 81(a)(2) of the Federal Rules of Civil Procedure says:

"These rules are applicable to ... habeas corpus ... to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions...."

In Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), the court observed that, while habeas corpus proceedings are characterized as "civil," such a label is "gross and inexact." Id. at 293-94, 89 S.Ct. 1082. "Essentially," the court said, a habeas corpus proceedings is "unique." Id. at 294, 89 S.Ct. 1082. In deciding that the discovery provisions of the Federal Rules of Civil Procedure were not intended by the drafters to be extended to habeas corpus as a matter of right, the Court said:

"In considering the intended application of the new rules to habeas corpus, it is illuminating to note that in 1938 the expansion of federal habeas corpus to its present scope was only in its early stages.... In these circumstances it is readily understandable that, as indicated by the language and the scanty contemporary exegesis of Rule 81(a)(2) which is available, the draftsmen of the rule did not contemplate that the discovery provisions of the rules would be applicable to habeas corpus proceedings."

Id. at 295.

One of the particular reasons the Supreme Court used in deciding that the discovery rules were not applicable to habeas corpus proceedings was that their specific provisions were "ill-suited to the special problems and character" of habeas corpus proceedings. That, however, does not appear to be true with respect to the matter of computation of time. No guidance for computing time is suggested in the Rules Governing Section 2254 Cases in the United States District Courts, other than its reference to the Federal Rules of Civil Procedure, "to the extent that they are not inconsistent with these rules ... [and] when appropriate." It appears to me that Rule 6 of the Federal Rules of Civil Procedure is not inconsistent with the Rules Governing Section 2254 Cases in United States District Courts and that it is appropriate to apply that rule to habeas corpus cases, given the absence of guidance otherwise in computing time limits.

In Harris v. Nelson, supra, the court in footnote 7, said:

"In fact, it is our view that the rule-making machinery [of district courts] should be invoked to formulate rules of practice with respect to federal habeas corpus and § 2255 proceedings, on a comprehensive basis and not merely one confined to discovery. The problems presented by these proceedings are materially different from those dealt with in the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure and reliance upon usage and the opaque language of Civil Rule 81(a)(2) is transparently inadequate. In our view the results of a meticulous formulation and adoption of special rules for federal habeas corpus and § 2255 proceedings would promise much benefit."

Consistent with the footnote in the Harris case, this court has adopted its local rules. NELR 72.4 provides:

"A party may object to a recommendation entered by a magistrate judge in a dispositive matter (i.e., excepted by 28 U.S.C. § 636(b)(1)(A) and (2)) by filing a `Statement of Objection to Magistrate Judge's Recommendation' within ten days after being served with a copy of the recommendation, unless a different time is established by order."

That local rule is not particularly helpful, because it, too, gives no guidance in how to compute the ten days or whether to exclude certain days or add days for mailing. My sense is that practicing lawyers have, by and large, assumed that Rule 6 of the Federal Rules of Civil Procedure applies to habeas corpus cases.

Accordingly, because the history of the intent of the drafters of the Federal Rules of Civil Procedure is scanty and murky, because habeas corpus proceedings have generally been characterized as civil in nature, because to apply Rule 6 of the Federal Rules of Civil Procedure to § 2254 cases would not be inconsistent with the rules specifically designed for those cases, I find that it is appropriate to apply Rule 6 to this case.

Supportive of this result is Smith v. Housewright, 667 F.2d 689, 694 (8th Cir. 1981).

It follows that, upon excluding Saturdays and Sundays, the objection to the magistrate judge's report and recommendation was timely filed on the tenth day after the filing and service of the report and recommendation.

None of the motions to strike will be granted. When I deny the first motion to strike, the other motions to strike have (and never have had) any purpose.

That brings us to the substance of the objection to the report and recommendation. The analysis by the magistrate judge of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) regarding the Fourth Amendment, the proposed voice exemplar and the Fifth Amendment, the admission of evidence of other crimes and acts, the photo array and the sufficiency of the evidence is on target. The recommendation of the magistrate judge will be adopted.

IT IS ORDERED that:

1. the Motion to Strike Objections of Petitioner to Magistrate's Report and Recommendation, filing 23, is denied;

2. the Motion to Strike Respondent's Motion to Strike, filing 24, is denied;

3. the Motion of Respondent to Strike Petitioner's Motion to Strike Objections of Petitioner to Magistrate's Report and Recommendation, filing 25, is denied;

4. the Second Motion to Strike Respondent's Motion to Strike, filing 26, is denied;

5. the Report and Recommendation of the magistrate judge, filing 2 1, is adopted; and

6. the Amended Petition for Writ of Habeas Corpus, filing 10, is denied.

REPORT AND RECOMMENDATION

PIESTER, United States Magistrate Judge.

March 26, 1998.

The Amended Petition for habeas corpus relief raises five claims in challenging John Newman's 1994 conviction, in the Lancaster County Nebraska District Court, of first degree sexual assault. Petitioner's first trial ended in a mistrial when the jury was unable to agree on a verdict. His second trial resulted in a conviction. He was sentenced to imprisonment for a term of 25-50 years.

On direct appeal to the Nebraska Court of Appeals, the conviction and sentence were affirmed. State v. Newman, 4 Neb.App. 265, 541 N.W.2d 662 (1996). Petitioner then petitioned the Nebraska Supreme Court for further review, which was granted. That court also affirmed the conviction and sentence. State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996). He then filed his petition in this court, raising the same...