Robinson v. Wolff

• Citation: 349 F. Supp. 514
• Decision Date: 14 February 1972
• Docket Number: Civ. No. 1713 L.
• Parties: Enoch ROBINSON, Petitioner, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal and Correctional Complex, Respondent.
• Court: U.S. District Court — District of Nebraska

349 F. Supp. 514

Enoch ROBINSON, Petitioner, v. Charles L. WOLFF, Jr.,^* Warden, Nebraska Penal and Correctional Complex, Respondent.

Civ. No. 1713 L.

United States District Court, D. Nebraska.

February 14, 1972.

COPYRIGHT MATERIAL OMITTED

William D. Kuester, Lincoln, Neb., for petitioner.

Melvin Kammerlohr, Asst. Atty. Gen., for respondent.

MEMORANDUM OF DECISION

URBOM, Chief Judge.

The petitioner, Enoch Robinson, is incarcerated in the Nebraska Penal and Correctional Complex. He is serving a sentence of life imprisonment imposed by the District Court of Thurston County, Nebraska, after a jury found him guilty of first degree murder.

His conviction and sentence were affirmed on direct appeal. State v. Robinson, 185 Neb. 64, 173 N.W.2d 443 (1970). Although he has not availed himself of the remedies offered by the Nebraska Post-Conviction Act, §§ 29-3001 to 3004, R.R.S.Neb., he did file a habeas corpus action in the District Court of Lancaster County in which he asserted that the State of Nebraska lacked jurisdiction to try him for the offense which led to his incarceration. A dismissal of that petition was affirmed by the state supreme court. Robinson v. Sigler, 187 Neb. 144, 187 N.W.2d 756 (1971).

In his present petition the petitioner raises a number of issues which he contends serve to render his present confinement constitutionally invalid. These may be placed into three general categories:

1. The State of Nebraska had no jurisdiction to try the petitioner for the offense charged.

2. The jury selection system of Thurston County, Nebraska, systematically excludes Indians from the jury panel, thereby depriving the petitioner of his right to be tried by a fair and impartial jury of his peers.

3. There were constitutional errors in the trial.

As to the issue numbered 3, the petitioner has alleged these specific claims:

a. The instructions of the trial court could only tend to convict;

b. The trial court refused to give the defendant's requested instructions;

c. The trial court refused to grant the defendant a change of venue;

d. The admission of a photograph which could only serve to inflame the passions of the jury;

e. The admission into evidence of the deceased's bloodstained clothing which was in a putrid and deteriorated state;

f. The trial judge made an improper comment as to the importance of a state's witness' testimony;

g. There was no evidence of premeditation presented at the preliminary hearing and the defendant was therefore improperly tried on the charge of first degree murder;

h. The petitioner's trial counsel was ineffective;

i. The prosecution knowingly suppressed evidence favorable to the petitioner;

j. The prosecution knowingly used false and perjured testimony;

k. The petitioner was denied the right to counsel during his sentencing.

The facts surrounding the petitioner's conviction have been fairly set forth by the Supreme Court of Nebraska:

"The defendant, the deceased, and several of the witnesses are Omaha Indians. All of the Indians involved were residents of or staying temporarily in the vicinity of Macy, Thurston County, Nebraska. They were drinking, primarily beer, throughout the afternoon and evening of Sunday, January 12, 1969. The deceased Norman Grant was a physically strong man, about 5 feet 9 inches in height, weighing in excess of 200 pounds, and 32 years of age, but his left arm had been amputated above the elbow. His party ran out of beer and several of them drove to Homer, Nebraska, to replenish their supply. As Norman Grant entered a Homer tavern about 4 or 4:30 p. m., he was accosted by the defendant who had a knife in his sleeve and placed it against Norman's neck informing Norman that: `* * * he had a knife to his neck.' Norman knocked the defendant's arm up and then knocked him down. Defendant was ejected. A short time later Norman Grant's brother Donald was assaulted by defendant outside the tavern. In the struggle, defendant dropped the knife which was picked up by another member of the party and left with the bartender.

"Later that night, at approximately 1 a. m. on January 13, 1969, Norman Grant and another brother Mathew Grant left the home of friends in Macy and walked toward their own home in that village. They were overtaken by the defendant and a sister of the defendant.

Defendant asked them: `* * * if we wanted to settle it now.' He had an object in his hand and swung at Mathew Grant who backed away. He then went after Norman who kept backing away for a considerable distance but was steadily pursued by defendant. In the meantime, defendant's sister struck Mathew with a club of some nature, inflicting a cut on his scalp. Mathew ran away but returned when defendant and his sister left the scene. He found Norman injured and bleeding; and helped him walk to the house of an acquaintance who was aroused and conveyed them to the hospital at Winnebago, Nebraska. There a nurse examined Norman, found he was dead, and called a doctor who verified that fact. The doctor also sutured Mathew's scalp wound.

"The county sheriff was called. After viewing the body and talking with the doctor and Mathew Grant, he met an investigating officer of the Nebraska State Patrol at the hospital and they proceeded to Macy. On arriving at Macy about 4 a. m., they checked the scene of the crime and found numerous blood stains in the snow and a bloodstained knife blade broken in three parts.

"On the afternon of January 13, 1969, defendant went to the home of a teacher in a local churchschool and asked to use the phone saying: `My name is Enoch Robinson and I want to turn myself in, I want to call the police.' The teacher then called for the sheriff. Defendant remained there until the arrival of the sheriff. While waiting, defendant was asked by the teacher what had happened. Defendant said: `* * * He had been in a fight, he guessed he had used a knife * * *.'

"Defendant testified in his own behalf. He indicated he was drunk and his memory very hazy about events occurring on January 12 and 13, 1969, but denied having injured Norman Grant.

"An autopsy was performed on the body of Norman Grant. The examining physician found lacerations on the right ear and checkbone, the chin, and below the left eye. He also found stab wounds below the sternal notch, below the breastbone, and on the left side of the neck above the clavicle. The neck wound which was 3 inches in depth appears in photographs to have been at least 1 inch in length. He indicated the wounds were made with a pointed, narrow instrument such as a screwdriver or sharp paring knife. He also found that the left carotid artery and the left jugular vein had been severed as a result of the wound in the neck. Death was caused by bleeding from the neck wound.

"Two colored photographs of the blood covered face, head, and torso of deceased and one full length photograph were received without objection. One full length colored picture taken after the body had been washed was also admitted without objection. Defendant objected strenuously to the admission of a colored photograph taken during the course of the autopsy. Part of the flesh over the left chest, shoulder, and neck had been folded back and a forceps inserted through the wound in the neck to show its size and location. The picture was admitted as exhibit 13."

EXHAUSTION OF STATE REMEDIES

The respondent contends that, as to several of the issues, the petitioner has not exhausted available state remedies.

As to the petitioner's first contention, that the State of Nebraska was without jurisdiction to try him, the Supreme Court of Nebraska has ruled adversely to that claim in the appeal from the habeas corpus action. In that case, the state supreme court affirmed the district court's dismissal of Robinson's habeas corpus petition. No evidentiary hearing was held in the district court. Counsel was appointed for appeal, and the supreme court did consider the merits of Robinson's jurisdictional claim. The petitioner asserts that an evidentiary hearing should be held, as one was not granted in the state court. However, I think that no hearing is necessary, as the only questions presented are questions of law.

The petitioner's second ground for relief, that the jury selection system of Thurston County, Nebraska, systematically excludes Indians from jury panels, has never been presented to a state court for determination. The petitioner urges that in view of the recent Nebraska case of State v. Reichel, 187 Neb. 464, 191 N.W.2d 826 (1971), the petitioner is precluded from presenting that issue to the state courts. State v. Reichel held that after a first petition for post-conviction relief had been determined on the merits, the court need not entertain a second motion if that motion raises grounds that were available to the petitioner at the time of his first motion, even though those grounds may not have been presented in the first petition. That case was addressed only to successive petitions under the post-conviction act. It should not be inferred from that case that because the petitioner has once presented a petition for habeas corpus to the state courts he is thereby precluded from raising different grounds in a motion for post-conviction relief, when no prior post-conviction request has been presented.

The petitioner further contends that he is procedurally barred from raising the jury selection issue in the Nebraska courts, citing the well-established rule in Nebraska that "objections to the mode of selecting petit jurors must be made before the trial to be of avail." State v. Nelson, 182 Neb. 31, 38, 152 N.W.2d 10, 14 (1967). See also, State v. Eggers, 175 Neb. 79, 120 N.W.2d 541 (1963); Satterfield v. State, 172 Neb. 275, 109 N.W.2d 415 (1961); Davis v. State, 31 Neb. 247, 47 N.W. 854 (1891). However, none of these cases involved an objection to the constitutionality of the method of selecting petit jurors. In the recent case of State v. Gutierrez, 187 Neb. 383, 191...