Rolling v. Grammer

• Decision Date: 26 January 1987
• Docket Number: No. CV 85-L-395.,CV 85-L-395.
• Parties: Walter W. ROLLING, Petitioner, v. Gary E. GRAMMER, Respondent.
• Court: U.S. District Court — District of Nebraska

665 F. Supp. 780

Walter W. ROLLING, Petitioner, v. Gary E. GRAMMER, Respondent.

No. CV 85-L-395.

United States District Court, D. Nebraska.

January 26, 1987.

Vincent M. Powers, Lincoln, Neb., (Court-appointed), for petitioner.

Robert M. Spire, Atty. Gen. and Bernard L. Packett and Laura L. Freppel, Asst. Attys. Gen., Lincoln, Neb., for respondent.

MEMORANDUM

LAY, Circuit Judge, Sitting by special designation.

Walter E. Rolling seeks relief from the 20-year sentence he is serving in the Nebraska prison system. In essence, Rolling argues that subsequent imposition of a higher sentence than that originally imposed by the trial court violates his right to due process of law. His case has been reviewed by the Nebraska Supreme Court on four occasions. See State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981); State v. Rolling, 215 Neb. xxi (1983); State v. Rolling, 218 Neb. 51, 352 N.W.2d 175 (1984); State v. Rolling, 219 Neb. 800, 366 N.W.2d 441 (1985).¹

Procedural Background

On April 29, 1980, Rolling was charged with five criminal counts. Following a trial, at which a jury found Rolling guilty, the state district court² sentenced him as follows: count I (misdemeanor theft), 161 days in jail; count II (felony theft), 1 year; count III (attempted robbery, a felony), 5 years; count IV (use of a firearm to commit a felony), 4-7 years; and count V (being a habitual criminal), 4-7 years. The trial court ordered the sentences for counts I, II, and III to be served concurrently, and the sentences for counts IV and V to be concurrent with each other but consecutive to the sentences on the first three counts. The cumulative sentence was 9-12 years. According to Nebraska "good time" provisions under Neb.Rev.Stat. § 83-1,107 (1981), Rolling was to be eligible for parole on January 11, 1984, and absolute discharge was to occur on September 11, 1986.

Rolling appealed his conviction (on sufficiency of the evidence) and sentence (as harsh and an abuse of discretion). The state objected in its brief to "plain error" in the sentence imposed. The Nebraska Supreme Court rejected Rolling's appeals. The court, however, did find plain error in the district court's failure to properly sentence Rolling under the habitual criminal provision, Neb.Rev.Stat. § 29-2221 (1979).³ The supreme court remanded the case for proper sentencing. Rolling I, 209 Neb. at 245-46, 307 N.W.2d at 125.

On remand the trial court resentenced Rolling as follows: counts I, II, and III remained concurrent at 161 days, one year, and five years respectively; count IV was increased to 10-60 years, in compliance with the language of the Nebraska Habitual Criminal Act; count V was dropped as a separate offense. Rolling then faced a sentence of up to 65 years.

Rolling attempted to file a direct appeal from the first resentencing, but this challenge apparently was dropped after Rolling's court-appointed attorney withdrew from the case. See State v. Rolling, 212 Neb. xxii (1982).

On December 14, 1982, Rolling filed his first petition for post conviction relief under Neb.Rev.Stat. §§ 29-3001 to -3004 (1979), alleging that his increased sentence violated due process under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The state district court denied this petition, and Rolling appealed to the state supreme court. The supreme court rejected the appeal without issuing a written opinion. See Rolling II, 215 Neb. xxi (1983).

Rolling again sought post conviction relief on September 12, 1983, reasserting his argument that the increased sentence violated due process under Pearce. Judge Bartu again denied the motion, and again Rolling appealed. This time the Nebraska Supreme Court found that Rolling's sentence still failed to comply with § 29-2221, so the court vacated the sentence and remanded the case with explicit directions for proper sentence. See Rolling III, 218 Neb. 51, 57, 352 N.W.2d 175, 179 (1984).

Pursuant to those directions, Judge Bartu resentenced Rolling for the second time on August 27, 1984. The sentences on counts II and III were increased to ten years each, to be served concurrently, and the new sentence of ten years on count IV was to be served consecutive to the sentences on counts I, II, and III. The net effect was that Rolling received a "flat" 20-year sentence, which he is currently serving. His latest discharge date is September 11, 1990.⁴

Rolling filed a third petition for post conviction relief, again Judge Bartu denied the petition, and again Rolling appealed to the Nebraska Supreme Court. On this appeal Rolling sought relief under Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1963), as well as under Pearce. The supreme court rejected all of Rolling's claims, declaring "that there must be an end to the litigation of a particular case." See Rolling IV, 219 Neb. 800, 801, 366 N.W.2d 441, 442 (1985).

The present petition for a writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 (1982) on July 2, 1985.

The Merits⁵

1. The claim under Pearce

Rolling has repeatedly argued to the Nebraska Supreme Court that the increase of his sentence after his (unsuccessful) appeal violates due process⁶ as interpreted in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This argument revolves around the allegation that Rolling received a higher sentence because he sought to appeal his conviction and sentence, a right guaranteed him by the Constitutions of Nebraska and the United States. Under the theory of Pearce, any retaliation for exercising a procedural right thus denies due process. The Pearce Court required that "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." 395 U.S. at 726, 89 S.Ct. at 2081.

At the outset, it is important to recognize the differences between the present case and Pearce. In Pearce the defendant received a stiffer sentence after a successful appeal had forced retrial. Id. at 713, 89 S.Ct. at 2074. The Supreme Court held that an increase in that context was presumptively "vindictive" on the part of the sentencing judge, whose judgment had been reversed on the first appeal. See id. at 726, 89 S.Ct. at 2081. The present case is different in that Rolling was unsuccessful in his direct appeal after conviction and sentencing. Rolling's resentencings took place only after findings by the Nebraska Supreme Court in Rolling I and Rolling III that the trial court had imposed illegal sentences due to the trial court's incorrect application of the habitual criminal statute. The Pearce presumption of vindictiveness could hardly apply under these circumstances.

The literal logic of Rolling's appeal — that he would be free had he not appealed his conviction — compels this court to analyze it closely under the cases decided since Pearce.⁷

The most recent Supreme Court pronouncement on the due process concerns of Pearce came last term in Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). In McCullough the Court upheld a sentence that was increased from 20 years to 50 years after a successful defense motion for a new trial. The majority wrote that "vindictiveness of a sentencing judge is the evil the Court sought to prevent rather than simply enlarged sentences after a new trial." 106 S.Ct. at 979. The Court found that the prophylactic Pearce rule did not apply because "there was no realistic motive for vindictive sentencing," id. at 980, and because "different sentencers assessed the varying sentences that McCullough received," id. Moreover, the Court found that even if the presumption were to apply, the trial judge's findings overcame the presumption. Id. at 980-82.

McCullough demonstrates that the basic concerns underlying the Pearce rule are why the sentence was increased and the need to guard against improper motivation in resentencing. The 150% increase in McCullough's sentence was upheld by the Court when the resentencing entity⁸ based its decision on new evidence not presented at the original trial, and when the retrial had been granted by the trial court itself because of prosecutorial misconduct. Id. at 979. The Court was not swayed by the fact that had McCullough not moved for a new trial — which he had a due process right to do — his 20-year sentence would have remained intact.⁹

Walter Rolling's case is strikingly similar to the defendant's in McCullough. The justification given for the higher sentence was that Nebraska law required an enhancement for habitual offenders. In effect the ultimate "resentencer" was the Nebraska Supreme Court, which mandated the flat 20-year term. Twice the supreme court vacated improper sentences, the first because it was too low and the second because it was too high. There is no hint of vindictiveness.¹⁰ Cf. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) (allowing higher sentence by jury on retrial after successful appeal does not offend due process as long as jury is unaware of first sentence and no showing of vindictiveness); Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) (finding no vindictiveness under Pearce when trial court on de novo appeal from inferior tribunal imposed a higher fine than lower court had; Supreme Court noted difference in sentencers and lack of motive to be vindictive or evidence of vindictiveness); Holloway v. Lockhart, 754 F.2d 252, 254 (8th Cir.) (affirming denial of habeas petition when no showing of vindictiveness; different prosecutor, judge, and jury on retrial; second judge had no knowledge of first sentence), cert. denied, 474 U.S. 836, 106 S.Ct. 111, 88 L.Ed.2d 90 (1985); Blankenship v. Parratt, 554 F.2d 850, 852 (8th Cir.1977) (...