Shupe v. Sigler

• Citation: 230 F. Supp. 601
• Parties: Brown SHUPE, Jr., Petitioner v. Maurice H. SIGLER, Warden, Respondent.
• Decision Date: 16 June 1964
• Court: U.S. District Court — District of Nebraska

230 F. Supp. 601

Brown SHUPE, Jr., Petitioner v. Maurice H. SIGLER, Warden, Respondent.

Civ. 649 L.

United States District Court D. Nebraska.

June 16, 1964.

Norman Krivosha, Lincoln, Neb., for petitioner.

Richard H. Williams, Asst. Atty. Gen., of the State of Nebraska, Lincoln, Neb., for respondent.

VAN PELT, District Judge.

This matter is before the court upon a petition for writ of habeas corpus. A full and complete hearing has been held and counsel have submitted briefs. The matter now stands ready for decision.

Shupe is presently incarcerated at the Nebraska Penal and Correctional Complex serving a nine year sentence for assault with the intent to commit robbery. Sentence was imposed on January 5, 1959, for an offense which occurred on September 19, 1958. Shupe is presently 36 years of age and achieved an eighth grade education at the age of fifteen. However, while attending school at the reformatory he was returned to the level of third grade.

Petitioner alleges that his present confinement is unconstitutional and violative of the Fifth and Fourteenth Amendments of the Constitution of the United States claiming that he was deprived of counsel at his preliminary hearing at which time he entered a plea of guilty and at his arraignment at which he entered a plea of not guilty. He further alleges that he changed his plea of not guilty to one of guilty as a result of threats and coercion. It is petitioner's contention that such deprivation of counsel and coercion of a guilty plea make his present incarceration unconstitutional and illegal.

The initial issue for determination is whether petitioner has a presently available and unexhausted remedy in Nebraska of which he must first avail himself before applying to this court for relief.

It is true that the petitioner did not appeal his original conviction and sentence to the Nebraska Supreme Court.

It further is undisputed that petitioner has made no attempt to apply to the state courts for habeas corpus as provided by § 29-2801 or § 24-204 R.R.S.1943, Nebr. or writ of error coram nobis, both state post-conviction remedies. It is petitioner's contention that the present scope of these remedies available in Nebraska courts are limited so as to be inapplicable to his contentions and ineffective to provide relief assuming the truth of his allegations. This court is compelled to join in petitioner's interpretation of the law of Nebraska as it exists today.

A prisoner in state custody seeking federal habeas corpus relief must have first "exhausted the remedies available in the courts of the State * * *." 28 U.S.C.A. § 2254. Under the language of the statute such exhaustion is not necessary if there is an "absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." It thus becomes necessary to determine if petitioner has a presently available and effective remedy in the state courts which is still open to him and would provide relief in the event he could sustain the burden of proving the allegations made in his petition. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 2d 837.

Nebraska law recognizes and provides a writ of error coram nobis. Such writ, discussed by the Nebraska Supreme Court in Hawk v. State, 151 Neb. 717, 39 N.W.2d 561, is not to be considered as a substitute for the statutory remedy of a writ of error, but is "to enable the court to recall some adjudication, made while some fact existed which, if before the court, would have prevented rendition of the judgment, and which, through no fault of the party, was not presented. * * *" However, as pointed out by the court in Hawk, supra, the facts to be considered must also have been unknown to the defendant at the time of trial. While this court held in Geaminea v. State of Nebraska, D.C., 206 F.Supp. 308, that it is possible that a prisoner could raise constitutional questions arising at the time of trial through the use of the writ, such use would not be possible in the case at bar, the facts having been known to the defendant at the time of trial.

It further is the opinion of the court that the issues for determination herein cannot be successfully raised or advanced by petitioner in a state habeas corpus proceeding. The court reluctantly reaches the conclusion after examining the scope of the remedy in Nebraska as defined by the Nebraska courts. Judge Delehant extensively examined the scope of the writ in Nebraska in Grandsinger v. Bovey, D.C., 153 F. Supp. 201. It was there determined, under circumstances of that particular case, that an effective and available state remedy existed, but that in view of the "later Hawk opinions" the writ of habeas corpus may not be used to remedy the reception of an involuntary or coerced statement or confession or the denial of the effective assistance of counsel. In other words, the standards of the due process clause of the 14th Amendment of the United States Constitution are not utilized in determining the scope of the writ in Nebraska.

The analysis of the scope of the Nebraska habeas corpus remedy thus remains as announced by this court in Geaminea, supra. This position was recently reiterated by the Nebraska court in Van Bokelman v. Sigler, 175 Neb. 305, 121 N.W.2d 572. This court is of the opinion that under the principles of Fay v. Noia, supra, petitioner need not attempt to exhaust potentially unavailable state court remedies to satisfy the requirements of 28 U.S.C.A. § 2254; and that this court must accept jurisdiction of this matter since the petitioner alleges nothing that would question the trial court's jurisdiction of his person, of the offense or the court's power to render the sentence given.

While it is true that petitioner did not attempt to raise the issues relevant here on direct appeal from his conviction, and in fact perfected no appeal from his conviction, the record is void of any evidence from which this court could determine that petitioner bypassed the orderly procedure of the state courts in such a manner as to justify dismissing the present petition because of forfeiture of state court remedies. There is nothing in the record indicating that petitioner intentionally relinquished his known right to appeal as required to find such a waiver of his state remedies under Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 and Fay v. Noia, supra.

Because the particular facts involved herein appear to fall outside the above described scope of habeas corpus in Nebraska and for reasons already set forth could not be presented through coram nobis, the court must conclude that the petitioner has no presently available remedy in Nebraska and the requirements of 28 U.S.C.A. § 2254 have been satisfied.

The primary contention of the petitioner is that his plea of guilty tendered to Judge English in the District Court of Douglas County, Nebraska, was induced by threats and promises and thereby the resulting judgment and sentence is void and of no effect.

There is no question but that petitioner was taken into custody on September 19, 1958. He was severely wounded by gunshot wounds inflicted during the arrest and taken to the Emanuel Hospital in Omaha, Nebraska. The wound required surgery, but before the operation was performed William Ryan, Deputy County Attorney for Douglas County, Nebraska, appeared at the hospital with a court reporter and took petitioner's statement while he was on the operating table. Mr. Ryan testified, in answer to a question by petitioner's counsel, that petitioner appeared to be a little weak but was in generally good condition considering. Later, in answer to a question propounded by the Assistant Attorney General, he stated that he proceeded to the surgery room and asked some questions as to what had taken place and that petitioner was not entirely conscious.

Shupe remained in the custody of the Douglas County Sheriff and on November 3, 1958 he appeared before the County Court of Douglas County, Nebraska, for preliminary hearing without counsel. The transcript shows that Shupe waived preliminary hearing and plead guilty. Shupe testified at the hearing before this court that no one offered him counsel, and when he asked Ryan for legal assistance he was told that none was provided. Bond was fixed at $10,000.00.

Shupe remained in custody. On November 6, 1958 an information was filed against him in the District Court charging him with assault with the intent to commit robbery. On December 12, 1958, Shupe was arraigned on the charge in District Court, the Public Defender was appointed to represent him, and he entered a plea of not guilty to the charge against him. The transcript further shows that on January 5, 1959, petitioner was brought before Judge English whereupon he withdrew his plea of not guilty and entered a plea of guilty. The Deputy Public Defender appeared in his behalf.

Mr. Ryan talked with petitioner on several occasions between December 12, 1958 and January 5, 1959 out of the presence of the Public Defender appointed to represent petitioner. The specific dates he could not recall. He further stated that he had discussed with petitioner the matter of the sentence and had discussed with him the extent of the sentence. In answer to the question "Do I further understand, sir, that you had promised him a sentence of nine years?" he stated:

"On the basis of information — let me explain it this way. We began the discussion of a plea, I'm sure, even prior to his arraignment in December, and he at times expressed a wish that he would like to get four years. I'm sure I told him that in my opinion would be out of the question, so at some time as we draw near January 5th the term of nine years came about. I can't say who suggested it or such as that. I discussed the matter or told the chief probation officer of Douglas County that he would plead if this were acceptable, and he probably was

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