Norfolk v. Houston, No. 4:CV94-3302.
| Court | United States District Courts. 8th Circuit. United States District Court of Nebraska |
| Writing for the Court | Kopf |
| Citation | 941 F.Supp. 894 |
| Parties | Robert C. NORFOLK, Petitioner, v. Robert HOUSTON, Respondent. |
| Docket Number | No. 4:CV94-3302. |
| Decision Date | 26 December 1995 |
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v.
Robert HOUSTON, Respondent.
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Robert C. Norfolk, Lincoln, NE, pro se.
Douglas K. Wolgamott, Lincoln, NE, for Robert C. Norfolk.
Mark D. Starr, Attorney General, Lincoln, NE, for Robert Houston.
Donald B. Stenberg, Attorney General, Lincoln, NE, for other interested parties.
KOPF, District Judge.
This matter is before the Court on the Magistrate Judge's Report and Recommendation (filing 19) and the objections to such Report and Recommendation (filing 23) filed as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.
I have conducted, pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4, a de novo review of the portions of the Report and Recommendation to which objections have been made. I find after de novo review that the Report and Recommendation should be adopted. Inasmuch as Judge Piester has fully, carefully and correctly found the facts and applied the law, I need only state that Petitioner's claims for habeas relief are without merit and should be dismissed.
IT IS ORDERED:
1. the Magistrate Judge's Report and Recommendation (filing 19) is adopted;
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2. Petitioner's objections to the Report and Recommendation (filing 23) are denied; and
3. Petitioner's petition for habeas relief is dismissed with prejudice.
PIESTER, United States Magistrate Judge.
Before the court for consideration is the petition for writ of habeas corpus of Petitioner Robert C. Norfolk. (Filing 1.) For reasons discussed more fully below, I shall recommend that the petition be denied.
On May 13, 1984 petitioner was taken into custody by Omaha police in connection with a homicide investigation. The victim of the homicide, petitioner's aunt, had been stabbed and strangled to death in the early morning hours of May 12, 1984 and the phone lines in her home had been cut. Upon arrival at the police station petitioner was informed of his Miranda1 rights. He orally waived those rights and signed a standard Miranda advisory form used by the Omaha police. Petitioner was interrogated for approximately two hours, during which time he gave an oral statement admitting that he had stabbed the victim, strangled her, and had sexual intercourse with her. One of the interrogating officers had told petitioner that he "knew everything," because he had a copy of the autopsy report when, in fact, no autopsy report had been issued. A second officer had told petitioner that he would "feel better" if he would tell the officers "everything."
After his oral statement petitioner agreed to give a tape-recorded statement. Petitioner was again informed of his Miranda rights. At commencement of the recorded interrogation, one of the interrogating officers commented that the statement being recorded was for "the official record." Petitioner then requested an attorney for the first time. Despite petitioner's request, the recorded interrogation continued.
The State filed an information charging petitioner with first degree murder. Specifically, the state alleged that petitioner had killed the victim "purposely and of deliberate and premeditated malice or in the perpetration of, or in an attempt to perpetrate a sexual assault in the first degree ..." in violation of Neb.Rev.Stat. § 28-303 (Reissue 1979). Petitioner sought to exclude from evidence the custodial statements he made to police. After an evidentiary hearing the District Court of Douglas County determined that the tape-recorded statement was obtained in violation of petitioner's Miranda rights and ruled that statement inadmissible except for impeachment purposes or as part of the State's rebuttal evidence. The court also concluded, however, that petitioner had "knowingly and voluntarily" waived the Miranda rights concerning his oral statement made prior to the recorded statement and that the oral, nonrecorded statement was thereby admissible for the State's case in chief.
On December 19, 1984, after a bench trial, petitioner was found guilty of first degree murder in violation of Neb.Rev.Stat. § 28-303. He received a life sentence. Petitioner appealed the conviction to the Nebraska Supreme Court, raising the following claims: (1) the oral, nonrecorded custodial statement was improperly admitted into evidence because (a) there was a deficiency in the Miranda warning, and (b) the statement was not voluntary; (2) a lay witness' testimony concerning Norfolk's mental state was improperly admitted as evidence; and (3) the evidence was insufficient as a matter of law to support a finding of guilt for first degree murder. The Nebraska Supreme Court considered petitioner's claims and affirmed the conviction. State v. Norfolk, 221 Neb. 810, 381 N.W.2d 120 (1986).
On September 26, 1994 petitioner filed the present habeas action on his own behalf. His petition raised the following grounds for relief:
(1) Conviction obtained by use of oral, nonrecorded statement
(a) made without sufficient warnings required by Miranda and without an intelligent
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waiver of his right to remain silent; and
(b) made involuntarily;
(2) The lay witness' testimony concerning Norfolk's "mental state" was improperly admitted as evidence; and
(3) The evidence is insufficient as a matter of law to support a finding of guilt for first degree murder.
(Filing 1.)
I considered the petition and concluded that petitioner's claim (2), regarding admission of the lay witness' testimony, did not present a proper basis for habeas relief. (See filing 3.) I recommended dismissal of that claim.2 (Id.) I also concluded that petitioner's remaining grounds for relief (claims (1) and (3)) appeared to have been properly exhausted by presentment, and that further consideration of those claims was beyond the scope of the court's initial review. I therefore ordered respondent to respond to those claims. (Id.)
On October 13, 1994 respondent submitted a response addressing petitioner's remaining claims. (See filing 4.) On October 18, 1994 I entered a progression order requiring, among other things, that the parties submit pertinent state court records and briefs on the issues raised by this action. (See filing 5.) The parties have since done so and petitioner's claims are considered below.
As a preliminary matter I note that respondent has admitted that petitioner's claims were exhausted by presentment to the Nebraska Supreme Court on direct appeal. (Response, filing 4, at 2; Respondent's Brief, at 1-3.) Thus, I shall forego any discussion regarding exhaustion and proceed to consideration of the merits of petitioner's remaining claims (claims (1) and (3)).
Petitioner claims that the Miranda warning administered prior to his oral, nonrecorded statement was insufficient because "the interrogating officer failed to inform him that any oral statement he made could be used against him." (Petition, filing 1, at 5.) Petitioner further claims that he did not intelligently waive his right to remain silent because he was unaware that his oral, nonrecorded statement "would be made a part of the official record and could be used as evidence against him." (Id.)
The challenge to the sufficiency of the Miranda warning itself may be quickly dispensed with. Petitioner's brief does not address that specific claim.3 This court has adopted a local rule requiring parties to argue their claims in briefs to the court. See NELR 39.2(c). Local Rule 39.2 states, in part, that "[w]hen a judge has set a time for submitting a brief, the failure to submit a brief or to discuss an issue in the brief submitted may be treated as an abandonment of that party's position on any issue not discussed." NELR 39.2(c). Petitioner's failure to argue in his brief that the Miranda warning itself was insufficient is a violation of Local Rule 39.2(c) and compels a finding that the unargued claim is abandoned. See NELR 39.2(c); Reeves v. Hopkins, 871 F.Supp. 1182, 1217-18 (D.Neb.1994); cf. Williams v. Armontrout, 679 F.Supp. 916, 922 (W.D.Mo.1988) (when brief and traverse prepared by petitioner's counsel failed to provide any factual or legal argument in support of certain claims presented in the pro se petition, those claims were considered abandoned), aff'd, 912 F.2d 924 (8th Cir. 1990), cert. denied, 498 U.S. 1127, 111 S.Ct. 1092, 112 L.Ed.2d 1197 (1991).4 As such,
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petitioner is not entitled to habeas relief on his claim that the officer failed to inform him of his right to remain silent.5
Petitioner's challenge to the validity of his Miranda waiver was briefed and therefore requires further consideration. An individual "may waive effectuation of [Miranda] provided the waiver is made voluntarily, knowingly and intelligently." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The Supreme Court has explained the waiver analysis as follows:
The inquiry [into the validity of a waiver] has two distinct dimensions.... First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the `totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (emphasis added) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197 (1979)). The "totality of the circumstances in each case" may include "the background, experience, and...
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Whittington v. State, No. 1143
...rendered confession involuntary; declining to draw bright line prohibition because false documents were used); Norfolk v. Houston, 941 F.Supp. 894, 902 (D.Neb.1995) (holding statement voluntary when officer pretended to be looking at autopsy report); Swann v. State., 247 Va. 222, 441 S.E.2d......
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Ryan v. Clarke, No. 4:99CV3318.
...claims IV or V in his brief on the merits, those claims are considered abandoned pursuant to Local Rule 39.2.23 See Norfolk v. Houston, 941 F.Supp. 894 (D.Neb.1995). Claim VI Cumulative Trial Misconduct In this claim petitioner argues that even if the court were to find that none of the ins......
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Scott v. Hopkins, No. 4:98CV3157.
...respondent did not raise this argument in his brief. I therefore consider this position abandoned. See NELR 39.2(c); Norfolk v. Houston, 941 F.Supp. 894, 897 (D.Neb. 1995) (citing Reeves v. Hopkins, 871 F.Supp. 1182, 1217-18 4. Prior to the passage of the AEDPA, federal habeas courts were n......
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Ryan v. Clarke, No. 4:99CV3318.
...claims IV or V in his brief on the merits, those claims are considered abandoned pursuant to Local Rule 39.2.23 See Norfolk v. Houston, 941 F.Supp. 894 (D.Neb.1995). Claim VI Cumulative Trial Misconduct In this claim petitioner argues that even if the court were to find that none of the ins......
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Whittington v. State, No. 1143
...rendered confession involuntary; declining to draw bright line prohibition because false documents were used); Norfolk v. Houston, 941 F.Supp. 894, 902 (D.Neb.1995) (holding statement voluntary when officer pretended to be looking at autopsy report); Swann v. State., 247 Va. 222, 441 S.E.2d......
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Scott v. Hopkins, No. 4:98CV3157.
...respondent did not raise this argument in his brief. I therefore consider this position abandoned. See NELR 39.2(c); Norfolk v. Houston, 941 F.Supp. 894, 897 (D.Neb. 1995) (citing Reeves v. Hopkins, 871 F.Supp. 1182, 1217-18 4. Prior to the passage of the AEDPA, federal habeas courts were n......