Rogers v. Hocker
| Decision Date | 01 March 1972 |
| Docket Number | Civ. No. R-2597. |
| Citation | 337 F. Supp. 1117 |
| Parties | Walter L. ROGERS, Petitioner, v. Carl HOCKER, Warden, Nevada State Prison, Respondent. |
| Court | U.S. District Court — District of Nevada |
Walter L. Rogers in pro. per.
Robert List, Atty. Gen. of Nev., Carson City, Nev., for respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
On February 12, 1965, Walter L. Rogers, armed with a sawed-off shotgun, committed several robberies in Reno area businesses. Rogers fired the shot-gun while committing each of the robberies.
While robbing the Eagle Bar in Reno, Rogers shot and killed a patron, Newton S. Smalley, who was seated at the bar. Rogers was tried and convicted of the murder of Mr. Smalley. He was then sentenced to life imprisonment without possibility of parole.1
On appeal to the Nevada Supreme Court, the conviction was affirmed. Rogers v. Nevada, 83 Nev. 376, 432 P.2d 331 (1967).
In 1968, Rogers filed his first post-conviction application under the Nevada Post-Conviction Procedure Act, N.R.S. 177.315-177.385. The application was dismissed and Rogers did not perfect an appeal.2
In 1969, Rogers filed a second post-conviction application to the Nevada District Court. The District Court's denial of relief was affirmed on appeal. Rogers v. Warden, 86 Nev. 359, 468 P.2d 993 (1970).
Petitioner now has tendered a petition for a writ of habeas corpus, accompanied by an adequate pauper's oath. Petitioner first alleges that he was denied a cross-section of jurors at his trial since jurors who were opposed to the death penalty were excused. This contention was raised earlier by Petitioner in his first post-conviction application to the state court. The state court there held that the mandates of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), applied only where the jury returned a death penalty. The Witherspoon court, at page 523, note 21, 88 S.Ct. at page 1777, stated: "Nor does the decision in this case affect the validity of any sentence other than one of death." See Bumper v. North Carolina, 391 U.S. 543, 545, 88 S. Ct. 1788, 1790, 20 L.Ed.2d 797 (1968): "Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment." Petitioner has filed a statement withdrawing this point from consideration.
Petitioner next alleges that the shotgun and shells used in evidence against him were obtained by means of an illegal search and seizure. Petitioner did not seek to suppress this evidence prior to trial nor did he object when it was offered into evidence during the trial. He did not raise this issue on direct appeal or in the first post-conviction proceeding. He did, however, raise this issue in his second post-conviction application four years subsequent to the original conviction.
On appeal from the state district court, the Nevada Supreme Court, 468 P.2d at 994, refused to entertain the assertion due to Petitioner's unexplained failure to attack the introduction of the evidence in earlier proceedings. Hence, this Court is faced with a novel question, i. e., what, if any, effect should be given to Petitioner's failure over the years to raise his contention in the state courts, especially in light of the new Nevada post-conviction statute.
Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), gave federal relief to a petitioner who was refused state post-conviction redress because of a failure to directly appeal his conviction. The Supreme Court found good reason for Noia's failure to appeal, since a successful appeal and new trial might have subjected him to a more severe penalty.3
Since the time of Fay, members of the federal judiciary have advocated reform of state procedures to allow for state consideration of the post-conviction claims of its prisoners. George Cochran Doub, in his article "Federal Habeas Corpus", 57 ABAJ 323, 325 (1971), quotes Justice Warren Burger's statement:
Doub goes on to echo a similar 1966 statement by Chief Judge Lumbard:
"We shall recommend adoption by the states of adequate remedies so that federal court review of state convictions will be reduced to a minimum and the facts on which such federal relief is sought will, so far as possible, be found and determined by the state court."
In response to this urging, many states have passed post-conviction relief acts or otherwise modified existing procedures to afford adequate collateral relief for their prisoners.4 The Nevada statute was initiated, at least in part, by a letter written by the author of this opinion to state legislative officials. Many of the acts were liberally written so as to afford as full and fair a review as is available under 28 U.S.C. § 2255; indeed, some of the state acts were based directly on the federal statute.5 Others, such as Nevada's, are based on the Second Revised Uniform Post-Conviction Procedure Act, approved by the Conference and the American Bar Association House of Delegates in August, 1966.6
The burden upon the courts in states which have assumed their responsibility to afford adequate collateral relief to prisoners is no mean one.7
8
To somewhat alleviate this situation, several states9 have incorporated in their post-conviction procedure laws a section requiring that all a petitioner's claims be combined in one application. Nevada, in N.R.S. 177.375, quotes the Second Revised Uniform Post-Conviction Procedure Act directly in this regard:
It is on the basis of this provision of the Nevada post-conviction relief statute that Petitioner failed in his second post-conviction attempt in the Nevada courts. As the Court stated, in Rogers v. Warden, supra, 468 P.2d at 994-995:
At first glance, it would appear that under Fay v. Noia, Petitioner's procedural defaults are no bar to federal habeas corpus consideration of his contentions. As stated by the Court, in Fay:
"The doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas corpus statute." Fay v. Noia, supra, 372 U.S. at 399, 83 S.Ct. at 827.
But, as mentioned supra, since the time of Fay, the states have done much to afford a prisoner full and fair due process in their courts vis-a-vis post-conviction relief. We are no longer talking about the situation where a petitioner was unable to obtain state relief merely because of a failure to directly appeal his conviction. Instead, we have a petitioner who has failed, upon three available occasions, to present his contention to the state and who consequently is denied a fourth chance.
For this Court, under the instant circumstances, to consider Petitioner's claim would surely be offensive to the State of Nevada. Enough conflict already exists between state and federal courts in the matter of federal habeas corpus. As stated by Chief Justice Oscar R. Knutson of the Minnesota Supreme Court, in an address to the Eighth Circuit Judicial Conference, 50 F.R.D. 427, 436 (1970):
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