Parker v. Parratt

• Citation: 662 F.2d 479
• Decision Date: 28 October 1981
• Docket Number: Nos. 81-1198,81-1259,s. 81-1198
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Parties: Willis PARKER, Appellant, v. Robert F. PARRATT, Warden, Nebraska Penal and Correctional Complex, Appellee. Armstead PIERCE, Appellee, v. Robert F. PARRATT, Warden, Nebraska Penal and Correctional Complex, Appellant.

Page 479

662 F.2d 479

Willis PARKER, Appellant, v. Robert F. PARRATT, Warden, Nebraska Penal and Correctional

Complex, Appellee.

Armstead PIERCE, Appellee, v. Robert F. PARRATT, Warden, Nebraska Penal and Correctional

Complex, Appellant.

Nos. 81-1198, 81-1259.

United States Court of Appeals,

Eighth Circuit.

Submitted June 17, 1981.

Decided Oct. 28, 1981.

Jarve L. Garrett, Omaha, Neb., for Parker.

Paul L. Douglas, Atty. Gen., Harold Mosher, Asst. Atty. Gen., argued, Lincoln, Neb., for Parratt.

Before LAY, Chief Judge, and BRIGHT and STEPHENSON, Circuit Judges.

LAY, Chief Judge.

Willis Parker and Armstead Pierce are both Nebraska state prisoners as a result of convictions of kidnapping and forcible rape. In similar petitions for habeas corpus in the federal district court they urged that joint representation in state court by the same court-appointed attorney denied them effective assistance of counsel because of an actual conflict of interest between the two defendants. The federal district court, the Honorable Robert V. Denney presiding, found that an actual conflict existed and that Pierce was adversely affected, but that Parker was not. Parker appeals from the denial of his petition for a writ of habeas corpus; the State of Nebraska has appealed from the order granting habeas relief to Pierce. We find that the district court erred in granting relief to Pierce; we otherwise affirm the denial of the writ as to Parker.

I. Facts.

The state trial court record reveals that the prosecuting witness, who was 18 years of age, testified that on Sunday, June 1, 1975, a friend took her and her two-year-old nephew to a grocery store in Omaha, Nebraska. Upon discovering the store closed, the prosecutrix and her nephew began walking home across the grocery store parking lot. Two men in an automobile drove into the parking lot and stopped beside them. Pierce, the driver, engaged the prosecutrix in conversation while Parker, the passenger, emerged from the car to place the nephew in the car's back seat. Parker then told the prosecutrix that she had to go with them because they had her nephew. The prosecutrix entered the front seat, and Parker entered the back seat of the car. After driving around and stopping at a liquor store for wine, Pierce drove to a house rented by his brother. After Parker and Pierce drank some wine and smoked some marijuana cigarettes, Pierce asked the prosecutrix to dance, and she acquiesced for a while. When the prosecutrix tried to leave the house, one of the men grabbed her, threw her in a chair, and threw the nephew on a couch. A struggle ensued in which the prosecutrix scratched the two men and bit Parker when he tried to kiss her. Pierce took her into a bedroom, pushed her onto a bed, and ordered her to disrobe. Parker threatened to throw her nephew down some stairs if she did not cooperate. First Pierce, then Parker, had sexual intercourse with her. They then released her in an area which turned out to be near a friend's house. From there the prosecutrix called a teacher to whom she related the incident. The teacher drove her home, whereupon her mother called the police. Subsequent to a police interview the prosecutrix was taken to a hospital for an examination which revealed sperm in her vagina.

Pierce was arrested first. He stated to the police that he had been alone with the prosecutrix, that no one else was present, but minutes later he admitted Parker's presence. Parker was arrested afterwards, at which time he stated that the prosecutrix had scratched him and that she had acted like she wanted to have sexual intercourse with Pierce but not with him. A court-appointed attorney from the public defender's office represented both Parker and Pierce at a joint arraignment, and later at the state trial. The two cases were consolidated for trial. Parker and Pierce testified at their post-conviction hearing that the public defender never apprised them of the potential conflicts and problems with joint counsel and never advised them of the right to separate trials. They further testified that neither the pretrial judge nor the trial judge addressed them regarding the right to separate counsel or the right to separate trials. At the evidentiary hearing in federal court, the pretrial judge testified that his only inquiry of the defendants was regarding whether defendants "were satisfied" with the lawyer that had been appointed at the time of arraignment. However, he inquired of defendants' counsel as to whether there was any problem with his joint representation, and counsel replied that there was none. The state judge stated that, upon his review of the file, he could perceive none.

At the consolidated trial both Parker and Pierce asserted the defense of consent. The jury found them both guilty of kidnapping and forcible rape, and the court sentenced them to concurrent terms of 25 years for each count.

Both appealed to the Nebraska Supreme Court ¹ on the grounds that the trial court had committed reversible error in overruling defense motions for a directed verdict because the evidence was insufficient as a matter of law to show resistance of the prosecutrix amounting to nonconsent, and that the trial court erred in allowing simultaneous representation of conflicting interests by a single attorney. Both convictions were affirmed. State v. Pierce, 196 Neb. 762, 766, 246 N.W.2d 210, 212 (1976).

Parker and Pierce then filed petitions for writs of habeas corpus to the United States District Court for the District of Nebraska, claiming denial of sixth amendment rights by joint representation of conflicting interests by a single attorney. ² Following the guidelines set forth in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the federal district court conducted two evidentiary hearings and found an actual conflict of interest present on the record. The district court further found that this conflict adversely affected Pierce because he had a more credible claim to the defense of consent, and, thus, granted him relief. However, the district court found no adverse effect with regard to Parker and, therefore, denied him relief. Parker v. Parratt, 504 F.Supp. 690, 700 (D.Neb.1981).

II. Exhaustion of State Remedies.

Initially, the State asserts that Pierce and Parker failed to exhaust their state remedies as required by 28 U.S.C. § 2254(b) as a condition precedent to federal habeas relief. We do not agree.

Both the petitioners presented the sixth amendment issue of representation of conflicting interests by a single attorney on direct appeal from their convictions to the Nebraska Supreme Court. The fact that the Nebraska Supreme Court failed to dispose of the precise issues now raised is not necessarily controlling. It is well settled that the state court need not rule on the merits of an issue before the federal habeas court does. It is enough that the state court was on notice of the question and was presented the opportunity to rule on the same question raised in the federal habeas petition. Eaton v. Wyrick, 528 F.2d 477, 480 (8th Cir. 1975); Rice v. Wolff, 513 F.2d 1280, 1290-91 (8th Cir. 1975), rev'd on other grounds sub nom. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971); Losieau v. Sigler, 421 F.2d 825, 828 (8th Cir. 1970). We find that there was sufficient identity of issues before the Nebraska Supreme Court on direct appeal and the federal habeas court to fulfill the exhaustion requirement.

The State also contends that the federal district court was precluded by 28 U.S.C. § 2254(d) from conducting an evidentiary hearing. This court, of course, recognizes that the Supreme Court, in its recent decision of Sumner v. Mata, 449 U.S. 764, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), reaffirmed the presumption of correctness which a federal habeas court must afford state factual determinations, as mandated by 28 U.S.C. § 2254(d). See In re John Parker, 423 F.2d 1021, 1024 (8th Cir.), cert. denied sub nom. Parker v. South Dakota, 398 U.S. 966, 90 S.Ct. 2182, 26 L.Ed.2d 551 (1970). The burden is upon the petitioner to show by clear and convincing evidence that the factual determination by the state court is erroneous, and the federal habeas court must include in its opinion the reasoning which led it to conclude that either one of the first seven factors in 28 U.S.C. § 2254(d) was present or the state finding was not fairly supported by the record. Sumner v. Mata, supra, 101 S.Ct. at 771.

We are convinced, however, that 28 U.S.C. § 2254(d) and Sumner v. Mata, supra, are inapplicable to the instant case. In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Supreme Court characterized questions of conflict of interest in multiple representation as mixed questions of law and fact requiring "application of legal principles to the historical facts of (the) case." 446 U.S. at 342, 100 S.Ct. at 1715. A state court's holding regarding this hybrid factual and legal question of conflict of interest in multiple representation is "open to review on collateral attack in a federal court." Id. Therefore, the limitations upon factual findings set forth in 28 U.S.C. § 2254(d) are inapplicable to federal habeas proceedings based upon multiple representation of conflicting interests.

III. The Sixth Amendment.

The constitutional right to assistance of counsel for defense in all criminal prosecutions means the right to adequate or effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). It is now settled that "(W)here a constitutional right to counsel exists, (our) Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981); see Cuyler v. Sullivan, 446 U.S. 335,...