Palmer v. Clarke

• Citation: 961 F.2d 771
• Decision Date: 20 May 1992
• Docket Number: No. 90-2829,90-2829
• Parties: Charles Jess PALMER, Appellant, v. Harold CLARKE, Warden of Nebraska State Penitentiary, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 771

961 F.2d 771

Charles Jess PALMER, Appellant, v. Harold CLARKE, Warden of Nebraska State Penitentiary, Appellee.

No. 90-2829.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 14, 1991.

Decided April 10, 1992.

Rehearing and Rehearing En Banc Denied May 20, 1992.

Gary L. Dolan, Lincoln, Neb., argued, for appellant.

J. Kirk Brown, Lincoln, Neb., argued, for appellee.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

FAGG, Circuit Judge.

Charles Jess Palmer appeals the district court's denial of his 28 U.S.C. § 2241 habeas petition. We affirm the district court's rejection of Palmer's double jeopardy challenge to his second conviction. We remand Palmer's double jeopardy challenge to his third trial and retain jurisdiction to consider the findings and conclusions made on remand.

This is a procedurally complex case. Although the complete history is not necessary to our decision, we believe we should explain the course of state and federal proceedings over the past eleven years. Nebraska has tried Palmer three times for the murder of a Grand Island coin dealer. Each time, a jury convicted Palmer of capital felony murder and judges sentenced him to death. The Nebraska Supreme Court reversed Palmer's first conviction because the trial court erroneously admitted the testimony of witnesses who had been hypnotized. State v. Palmer, 210 Neb. 206, 313 N.W.2d 648, 655 (1981) (Palmer I ). The Nebraska Supreme Court reversed Palmer's second conviction because his wife gave prejudicial eyewitness testimony against him in violation of Nebraska's marital privilege statute, Neb.Rev.Stat. § 27-505(2) (1979). State v. Palmer, 215 Neb. 273, 338 N.W.2d 281, 284 (1983) (Palmer II ). Although Palmer's wife had filed for divorce after Palmer I, Palmer's divorce appeal was pending and thus the Palmers were still technically married when Palmer's wife testified. Id. at 282-84.

After the Nebraska Supreme Court reversed Palmer's second conviction in September 1983, Palmer filed a pro se motion in state court to dismiss the proceedings against him. Palmer asserted a third trial would violate the Double Jeopardy Clause because at his second trial the prosecutor and judge committed misconduct in offering and admitting the testimony of Palmer's wife. Palmer contended that without his wife's inadmissible testimony, the evidence was insufficient to convict him. In December 1983 the Nebraska trial court denied Palmer's motion. On March 1, 1984, Palmer filed this habeas action under 28 U.S.C. § 2241(c)(3) asserting "his second trial had subjected him, and his third trial also would subject him, to double jeopardy because the remaining evidence in Palmer I and Palmer II--the properly admitted evidence that remained after the erroneously admitted evidence had been thrown out--was legally insufficient to convict him." Palmer v. Grammer, 863 F.2d 588, 590 (8th Cir.1988). Palmer also asserted his third trial would violate double jeopardy and due process because in his second trial, the prosecutor offered and the judge admitted the testimony of Palmer's wife in bad faith. Palmer sought a stay preventing Nebraska from trying him a third time while his habeas was pending. The same day, the district court dismissed Palmer's petition for failure to exhaust state remedies, stating that although Palmer might not have a current avenue of appeal to the Nebraska Supreme Court, he could seek habeas relief after his third trial if convicted. On March 2, 1984, Palmer appealed the district court's dismissal of his habeas petition. State proceedings, however, continued. On March 8, 1984, a Nebraska jury convicted Palmer a third time. See 28 U.S.C. § 2251 (1988) (when a stay is not granted, state court proceedings are valid as if no habeas appeal is pending). The testimony of Palmer's wife was admissible at Palmer's third trial because the Nebraska legislature amended the marital privilege statute in response to Palmer's case. See State v. Palmer, 224 Neb. 282, 399 N.W.2d 706, 714-15 (1986) (Palmer III ), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987).

We remanded Palmer's habeas case to the district court for further consideration on May 10, 1984. We believed the district court should reconsider the exhaustion question in light of a recent Supreme Court case, Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 303, 104 S.Ct. 1805, 1810-11, 80 L.Ed.2d 311 (1984) (plurality opinion) (holding exhaustion of a double jeopardy claim does not require undergoing the impending challenged trial). On May 17, 1984, Palmer filed a motion for a stay of state proceedings. On May 22, 1984, the district court denied Palmer's motion and dismissed Palmer's petition as frivolous without deciding whether Palmer had exhausted his state remedies. Because the two state court reversals did not involve the sufficiency of the evidence, the district court concluded Palmer's double jeopardy claims lacked merit. The district court also rejected Palmer's misconduct claim as irrelevant because no mistrial occurred. In addition to his claims on the merits, Palmer had sought leave to amend his petition " 'to set forth in greater clarity [his] double jeopardy claims and [their] basis.' " 863 F.2d at 590. Believing Palmer could not amend his petition to assert a nonfrivolous double jeopardy claim, the district court denied leave to amend.

Palmer appealed the district court's ruling on May 24, 1984, and we held the appeal in abeyance pending resolution of proceedings in Nebraska state courts. After a capital sentencing hearing, a panel of Nebraska judges sentenced Palmer to death. On December 29, 1986 the Nebraska Supreme Court affirmed Palmer's third conviction and sentence. Palmer III, 399 N.W.2d at 738. The court concluded sufficient evidence supported Palmer's third conviction. Id. at 714. The court also rejected Palmer's double jeopardy challenges to his third trial based on the sufficiency of the evidence at his second trial and prosecutorial and judicial misconduct at his second trial. Id. at 718-19. In October 1987 we heard oral argument in Palmer's case. While the appeal was pending, the Supreme Court held the Double Jeopardy Clause does not bar retrial of a defendant whose conviction is reversed because evidence was erroneously admitted and the admissible evidence was insufficient to support conviction, unless all the evidence, including the inadmissible evidence, was insufficient to support conviction. Lockhart v. Nelson, 488 U.S. 33, 34, 109 S.Ct. 285, 287, 102 L.Ed.2d 265 (1988). Based on Lockhart, we affirmed the district court's ruling that Palmer's petition challenging the sufficiency of the admissible evidence was without merit. Palmer v. Grammer, 863 F.2d at 594. Nevertheless, we reversed the district court's denial of leave to amend and remanded Palmer's case to the district court with instructions allowing Palmer to amend his petition. We stated:

A properly exhausted and nonprocedurally barred claim by Palmer challenging the sufficiency of all the evidence in his first or second trial (or both) would constitute a cognizable double jeopardy claim.... We certainly do not decide, but only note that it is conceivable ... that the state did not muster enough evidence in Palmer's first or second trials even to submit its case to the jury, so that ... Palmer should not have been retried. It is because of this possible double jeopardy violation that we remand this case rather than affirm outright the decision of the [d]istrict [c]ourt.

We recognize that any such amended petition must persuade the [d]istrict [c]ourt that Palmer has exhausted his state remedies. Because that issue is not properly before us, we express no opinion [on the issue]. If an amended petition is filed, it will be for the [d]istrict [c]ourt to determine whether Palmer has exhausted his state remedies (and, if he has not, whether there is a procedural bar) with respect to a double jeopardy claim based on the theory that the totality of the evidence at either his first or second trial (or both) was insufficient to warrant submission of the case to the jury.

Id. at 594-95 (citations omitted).

Palmer filed his amended petition on March 9, 1989, asserting his imprisonment before his third trial violated double jeopardy and due process for several reasons. Palmer contended the totality of the evidence at each of his first two trials was insufficient to convict him. Palmer asserted the district court should not consider his former wife's testimony when reviewing the sufficiency of the evidence at his second trial because the testimony was obtained through judicial and prosecutorial misconduct. Palmer contended the judge and prosecutor knew Palmer's wife's testimony was inadmissible, but offered and admitted it anyway, knowing that Palmer could be retried if his conviction was reversed based on admission of his wife's testimony. To develop the facts of Palmer's misconduct claim, the magistrate judge originally granted Palmer's request to depose the prosecutors and trial judge in Palmer's...