Patterson v. Dahm

• Decision Date: 23 April 1991
• Docket Number: No. CV89-L-342.,CV89-L-342.
• Citation: 769 F. Supp. 1103
• Parties: Lee Wayne PATTERSON, Petitioner, v. John DAHM, Respondent.
• Court: U.S. District Court — District of Nebraska

769 F. Supp. 1103

Lee Wayne PATTERSON, Petitioner, v. John DAHM, Respondent.

No. CV89-L-342.

United States District Court, D. Nebraska.

April 23, 1991.

James Michael Edgar, Lincoln, Neb., for petitioner.

Robert M. Spire, Atty. Gen., Sharon Lindgren, Asst. Atty. Gen., and Jill Gradwohl Schroeder, Lincoln, Neb., for respondent.

MEMORANDUM AND ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

URBOM, Senior District Judge.

Having reviewed Magistrate Judge David L. Piester's report and recommendation of September 10, 1990, filing 28, the parties' briefs on the matter, and the relevant materials and opinions from the state courts, I find that I am in agreement with the magistrate judge's well-reasoned and supported analysis.

IT IS ORDERED that the petition for a writ of habeas corpus, filing 2, be granted, unless the petitioner is granted a new trial within 60 days after the judgment becomes final.

REPORT AND RECOMMENDATION

DAVID L. PIESTER, United States Magistrate Judge.

Pending before the court is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from Lee Wayne Patterson, an inmate at the Lincoln Correctional Center. The parties have submitted the state court records and their respective briefs on the merits of petitioner's claims, and the matter is now ripe for review.

Petitioner was initially charged with murder in the first degree in the shooting death of Brian Crittenden. On November 18, 1980 the petitioner was convicted in the District Court of Hall County of conspiracy to commit murder. Petitioner was sentenced to sixteen years, eight months to fifty years imprisonment. On direct appeal, which challenged only the propriety of his sentence, the Nebraska Supreme Court affirmed without opinion. State v. Patterson, 209 Neb. xx (1981). The petitioner thereafter sought post-conviction relief in the district court. The district court denied relief on the motion and the Nebraska Supreme Court, with one judge dissenting, affirmed. State v. Patterson, 232 Neb. 304, 440 N.W.2d 242 (1989).

A brief recitation of the facts surrounding the petitioner's conviction will be of assistance in understanding the petitioner's claims. In February of 1980 the petitioner was living in a house in Grand Island, Nebraska with his wife Debra Patterson. Also residing at their home at that time were two brothers, Phillip and Michael McNitt. At some point in the early morning of February 1, 1980 the victim, Brian Crittenden, arrived at the Patterson residence, according to the testimony to engage in a drug transaction. Crittenden, who had been driving most of the night, at some point went into the basement of the home and went to sleep.

The petitioner and Mike McNitt gave two competing versions of the events which followed. McNitt testified that when Patterson awoke and was told that Crittenden was in the house asleep, the petitioner suggested that they kill Crittenden and sell his drugs to make rent money. According to McNitt, Patterson eventually went into the basement with a rifle and shot Crittenden while he slept.

The petitioner testified at trial and maintained that in fact McNitt suggested that Crittenden be killed and at some time later McNitt went into the basement with Patterson's rifle and shot the victim. While each of the two asserted that the other took the lead in later disposing of the body, which was placed in the trunk of Crittenden's own car and driven to Lincoln to be abandoned, each admitted that they, along with Phillip McNitt, assisted in disposal of Crittenden's body.

Phillip McNitt asserted his Fifth Amendment right to remain silent at the petitioner's trial. Debra Patterson, who was apparently not involved in the killing, essentially corroborated the testimony of her husband.

The jury was informed that Michael McNitt was testifying at the petitioner's trial as part of a plea bargain where, in exchange for that testimony, his first degree murder charge would be reduced to conspiracy to commit murder.

The petitioner now raises three claims challenging his conviction. First, he contends that his counsel at trial was ineffective in several respects, as follows:

a. His trial attorneys requested a jury instruction on conspiracy to commit murder as a "lesser-included" offense of first-degree murder, and that instruction was accepted and given by the court;

b. His trial attorneys persuaded him to withdraw a motion for new trial filed subsequent to his conviction upon the erroneous advice that the granting of such motion would subject him to a second prosecution on the charge of first degree murder; and

c. His trial attorneys failed to perfect and prosecute a meaningful appeal on the mistaken belief that the withdrawal of the motion for a new trial waived his right to appeal any issue except "excessive sentence."

Second, petitioner asserts that the trial court erred in instructing the jury that "conspiracy to commit murder" was a lesser-included offense of first degree murder. Finally, the petitioner contends that the trial court erred in permitting a witness to testify who had been hypnotized to aid in his recall of certain facts.

Petitioner has abandoned his third claim regarding the hypnotized witness based on an admission that the claim was not properly presented to the state courts for review, and that "no cause and prejudice can be shown from this record" as required by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

The respondent does not dispute that petitioner's claim 1(a) and 1(b) have been fully and fairly presented to the state courts, and thus are properly exhausted for purposes of this habeas action. Respondent does argue that all other claims of the petitioner were not properly presented to the state courts and, the petitioner having failed to show "cause for and prejudice from" such procedural default, these claims are barred.

Contrary to the argument of respondent, claim 1(c) was raised in petitioner's state post-conviction action. As relevant to the issue of ineffectiveness of counsel for failure to prosecute a meaningful direct appeal, the district court found that the "doctrine of invited error would have precluded a successful direct appeal," and, found, in general, none of the actions of trial counsel amounted to ineffective assistance of counsel. However, this specific ruling was not assigned or discussed as error in petitioner's brief on appeal from his post-conviction action to the Nebraska Supreme Court, and, for that reason, was not addressed by that court. Clearly the petitioner could have presented this issue on appeal from denial of post-conviction relief and chose not to do so. Such a claim, having not been presented on direct appeal, may not now be raised an any subsequent state court action, State v. Meis, 223 Neb. 935, 936-37, 395 N.W.2d 509 (1986) and, thus, is deemed exhausted.

Having failed to raise claim 1(c) on appeal in state court, the petitioner may not bring that claim in this court absent a showing of "cause" for and "prejudice" from that procedural default. Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Wainwright v. Sykes, supra. Petitioner has made no argument or showing as to "cause for" or "prejudice from" his default on this claim, thus this court cannot address that claim on its merits.

Claim 2 is essentially a direct due process challenge to the action of the trial court in giving the "conspiracy to commit murder" instruction as a lesser-included offense of first degree murder. The respondent argues that this claim was raised before the state courts only as part of petitioner's ineffective assistance claim and not as a direct challenge to the conduct of the court in giving the instruction. Respondent's argument is well taken. My reading of the record herein indicates that this claim has not been presented to the state courts in either petitioner's direct appeal or in his post-conviction action. Indeed, the petitioner would probably have been barred from raising this claim in any state court by the doctrine of "invited error" since the instruction was offered by counsel for the petitioner, and, obviously, not objected to when given. Nebraska law provides that "ordinarily, a party will not be permitted to benefit from an error which he has invited." State v. Blue, 223 Neb. 379, 382, 391 N.W.2d 102 (1986). While any error on the part of counsel on offering the instruction may be the basis for a later ineffective assistance claim challenging this instruction, (see discussion below), a direct challenge to the giving of the instruction would be barred by counsels' actions.

Despite this default on claim 2, there is no presently available state court remedy on this claim, and it therefore has been exhausted. As with claim 1(c) discussed above, in order for petitioner to raise this claim in this court Sykes requires that the petitioner show "cause for" and "prejudice from" the state court default. Although not directly argued by the petitioner, in this case appropriate "cause" for such a default may be a successful claim of ineffective assistance of counsel, such as that asserted in claim 1(a). Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). As will be more fully set forth below, I conclude that the petition for habeas corpus relief should be granted on the basis of claim 1(a). While my conclusion would allow petitioner's second claim to be considered on its merits in this court, I find such consideration unnecessary given my recommendation that relief be granted as to claim 1(a). Therefore claim 2 will not be addressed on its merits in this report.

The respondent initially argues that the doctrine of "invited error" bars the petitioner from raising his ineffective assistance claim based on the "lesser-included" jury instruction in a habeas action. In essence the respondent asserts that the actions of petitioner's trial counsel in proffering the "conspiracy...