Shuman v. Wolff, CIV-R-78-118-ECR

Decision Date24 March 1982
Docket NumberNo. CIV-R-78-118-ECR,CIV-R-78-119-ECR.,CIV-R-78-118-ECR
PartiesRaymond Wallace SHUMAN, Petitioner, v. Charles L. WOLFF, Jr., et al., Respondents.
CourtU.S. District Court — District of Nevada

COPYRIGHT MATERIAL OMITTED

Daniel Markoff, Federal Public Defender, Reno, Nev., for petitioner.

Douglas G. Lohse, Reno, Nev., amicus curiae.

ORDER

EDWARD C. REED, Jr., District Judge.

Petitioner, Raymond Wallace Shuman, was convicted after a trial by jury in the state court for murder in the first degree in 1958 and sentenced to prison for life without possibility of parole. While serving that sentence he was again convicted of first degree murder in 1975 and sentenced under Nevada Revised Statute § 200.030 in effect from 1975-1977 which provided, inter alia, mandatory capital punishment for individuals under the sentence of life without possibility of parole.

In July, 1978, Shuman simultaneously filed separate petitions for habeas corpus pursuant to 28 U.S.C. § 2254 in this court attacking the 1958 and 1975 convictions. The state court's warrant for execution of petitioner has been stayed by this court during the pendency of this proceeding and the two petitions have been consolidated for all purposes by an earlier order of the court.

A. 1958 Conviction
1. Deliberate Bypass.

In general exhaustion of state remedies is required as a prerequisite to consideration of each claim presented in a federal habeas corpus petition. 28 U.S.C. § 2254(b). Pitchess v. Davis, 421 U.S. 482, 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975). The deliberate bypass of the orderly procedure of state courts resulting in the forfeiture of available state court remedies may in some cases act as a bar to federal habeas corpus relief. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Journigan v. Duffy, 552 F.2d 283 (9th Cir. 1977).

Here, the petitioner did not seek to challenge his 1958 conviction until after approximately twenty years and after his second conviction for first degree murder which came in 1975. At that time he filed a petition for post-conviction relief in the state court setting forth the identical grounds for relief proffered in the instant petition. The state court dismissed all of the petitioner's claims except for one on the ground that such issues were waived because they could have been raised in a direct appeal but were not. The remaining jurisdictional claim was also subsequently denied. An appeal then taken by petitioner to the Nevada Supreme Court was dismissed.

The respondent herein contends that the instant petition should also be denied because petitioner failed to follow proper state court procedure or offer any excuse therefor.

The standard which should be applied in considering whether constitutional claims raised in a federal habeas corpus petition are barred because of a procedural default resulting in the inability to have such claims previously considered on the merits in state court is whether or not the petitioner deliberately bypassed the opportunity to raise such claims in the state court. Rinehart v. Brewer, 561 F.2d 126 (8th Cir. 1977); Patterson v. Brown, 393 F.2d 733 (10th Cir. 1968). More specifically, in Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963), the Supreme Court stated that the appropriate standard to be applied in determining whether a federal habeas petition had in fact deliberately bypassed orderly procedure of the state courts and in so doing forfeited his state court remedies was:

The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019 1023, 82 L.Ed. 1461"an intentional relinquishment or abandonment of a known right or privilege" — furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate bypassing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits — though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant's default.

Of course, the court must indulge every presumption against waiver in a case such as this. In re Kravitz, 488 F.Supp. 38 (M.D. Pa.1979).

Based on the record before it, the Court simply cannot find that a deliberate waiver or bypass of the state court remedies available to petitioner following his 1958 conviction took place. The strongest indication that such a waiver may have occurred is found in the affidavit of attorney Paul A. Richards who represented petitioner throughout the 1957-58 proceedings. Attorney Richards states that he felt that under the circumstances of the case a "victory" of sorts was obtained in averting the death penalty for petitioner after the 1958 trial. He further states that the petitioner was then facing additional murder charges in California and that he advised that a direct appeal from the Nevada murder conviction not be taken "... by reason of the impending charge of the Macklin murder in the State of California."

Utilizing the above standard it is clear that the Court could possibly find that petitioner's failure to appeal the 1958 conviction did amount to an intentional bypass of preventment of his constitutional claims through orderly state appellate procedure. Other than the sparse detail provided in the affidavit of attorney Richards there is no indication as to what information petitioner had following his conviction regarding availability of post-conviction relief. In addition to the above-cited comment by attorney Richards nothing else in the record indicates that murder charges were in fact pending against petitioner in California following petitioner's 1958 conviction or that the apparent failure of the California authorities to prosecute him on such charges had anything to do with petitioner's decision about whether or not to take an appeal and the potential results thereof. Because of the gravity and nature of the rights involved this Court cannot find under these circumstances that the record convincingly demonstrates a factual background which shows a deliberate waiver and bypass of orderly state procedure barring him from seeking federal habeas corpus relief as to his 1958 conviction.

2. State Jurisdiction Over Petitioner.

The first issue regarding petitioner's 1958 murder conviction is whether the State of Nevada had jurisdiction to prosecute Shuman, a non-Indian, for a crime committed on an Indian reservation located within the State of Nevada.

Despite the broad wording of 18 U.S.C. § 1152 which relates to the law governing the punishment of offenses occurring within Indian country, it has been consistently held that crimes committed by non-Indians against non-Indians are subject to state jurisdiction. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978).

3. Right to Speedy Trial.

Petitioner was first charged on December 17, 1957. His trial began on May 26, 1958. Petitioner contends simply that the delay of some five months in bringing him to trial constituted a denial of his constitutionally guaranteed right to a speedy trial.

A five-month delay does not appear patently unreasonable, much less a violation of the Sixth Amendment where, as here, petitioner has failed to even assert prejudice as a result of the delay. The Court need not look further to examine the merits of the claim. United States ex rel. Placek v. Illinois, 546 F.2d 1298 (7th Cir. 1976); Stubbs v. Harris, 480 F.Supp. 523 (S.D.N.Y.1979). The Court recognizes that a long delay in addition to a request for speedy trial by a defendant, as well as lack of good cause by the government for the delay, may well present an appropriate case for federal habeas corpus relief. See United States ex rel. Mangiaracina v. Case, 439 F.Supp. 913 (E.D.Pa.1977). No such showing has been made here.

Other courts have applied the Supreme Court's four factor test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) in determining whether the state court denied petitioner his Sixth Amendment right to a speedy trial in this context. That is: (1) length of delay; (2) reason for delay; (3) defendant's assertion of his right; and (4) prejudice to defendant. Foran v. Metz, 463 F.Supp. 1088 (S.D.N.Y.1979). In a case such as this where the delay is relatively short (5 months) and petitioner has neither asserted or shown that he was either prejudiced by the short delay or that he made demand for an earlier trial the reason for the delay is irrelevant.

4. Effective Assistance of Counsel.

Petitioner has also alleged that he was denied his constitutional right to effective counsel. To this end petitioner points to several omissions on part of his attorney occurring during the defense of the 1957-58 charges to support his claim. These involve the failure of his attorney to file a pretrial petition for writ of habeas corpus, perfect a direct appeal from the conviction or informing petitioner how to do the same and have petitioner examined by a psychiatrist before trial to determine his mental competence.

The applicable standard for incompetent counsel in the Ninth Circuit is the reasonably competent and effective representation test which is as stated in Rinehart v. Brewer, 561 F.2d 126, (8th Cir. 1977):

"The standard for measuring effective assistance of counsel was articulated in United States v. Easter, 539 F.2d 663, 666 (9th Cir. 1976):
Trial counsel fails to render effective assistance when he does not exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.
In addition, the defendant must
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    ... ... James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); Schuman v. Wolff, 543 F.Supp. 104, 109 (D. Nev. 1982) (a petitioner must make more than bare allegations as to both ... ...
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