Tyndall v. Gunter
| Decision Date | 30 April 1987 |
| Docket Number | CV86-L-360. |
| Citation | 681 F. Supp. 641 |
| Parties | Dennis TYNDALL, Petitioner, v. Frank GUNTER and John Dahm, Respondents. |
| Court | U.S. District Court — District of Nebraska |
Dorothy Walker of Mowbray, Chapin & Walker, Lincoln, Neb., for petitioner.
Laura Freppel, Asst. Atty. Gen., Lincoln, Neb., for respondents.
I accept the report and recommendation of the magistrate dated March 6, 1987, filing 21, and
IT THEREFORE IS ORDERED that the application for writ of habeas corpus is denied.
DAVID L. PIESTER, United States Magistrate.
The petitioner, Dennis Tyndall, an inmate at the Nebraska Department of Correctional Services, Lincoln Correctional Center, has submitted an amended petition for habeas corpus pursuant to 28 U.S.C. § 2254. The parties have submitted briefs in support of their respective positions, and the matter is now before me for a report and recommendation on the merits of the issues raised.1
The procedural history of this unique case is rather long and complicated, but an understanding of its history is essential to a proper appreciation of its present status. What follows is merely a brief overview.
On July 26, 1969, a woman was kidnapped and raped in Big Elk Park, within the Omaha Indian Reservation in Thurston County, Nebraska. Two of the men involved were the petitioner, Dennis Tyndall, and Wayne Goham, both of whom were enrolled members of the Omaha Tribe of Indians. Both men were tried and convicted of kidnapping and rape in the District Court of Thurston County. Jurisdiction was exercised pursuant to 18 U.S.C. § 1162(a) (1970), in which Congress, in 1953, had ceded to Nebraska exclusive criminal and civil jurisdiction over offenses committed by or against Indians in the Omaha and Winnebago Reservations in Nebraska. Goham was tried, convicted, and sentenced in March of 1970. Tyndall was tried and convicted on October 15, 1970, and was sentenced on October 26, 1970. As of October 24, 1970, Goham's appeal to the Nebraska Supreme Court was pending, and Tyndall filed an appeal shortly thereafter.
Meanwhile, in 1968, the Congress had authorized the United States to accept a retrocession by any state of "all or any measure of the criminal or civil jurisdiction ... acquired by such State pursuant to the provisions of section 1162 of Title 18 ..." 25 U.S.C. § 1323(a). In response, in 1969 the Nebraska Legislature passed Resolution 37, which offered to retrocede all criminal jurisdiction over offenses committed by or against Indians in Indian country located in Thurston County, Nebraska, with the exception of traffic offenses. This offer of retrocession was accepted in part by the Secretary of the Interior, acting under his authority provided in Executive Order 11435. In keeping with the respective wishes of the two tribes, the Secretary accepted the jurisdiction over the Omaha Tribe, but declined the jurisdiction over the Winnebago Tribe. The Secretary's acceptance was published in the Federal Register on October 24, 1970, and by its terms became effective on October 25, 1970, at 12:01 a.m. EST. Dissatisfied with the partial acceptance of jurisdiction, in 1971 the Nebraska Legislature passed Resolution 16, which purported to withdraw the earlier offer of retrocession.
In their direct appeals, Goham and Tyndall contended that they were denied due process of law because the Nebraska courts, in the absence of an express provision saving pending cases, lost jurisdiction over their cases as of 12:01 a.m. EST on October 25, 1970. The Nebraska Supreme Court rejected this contention, holding that the purported retrocession was invalid because the partial acceptance was not in accordance with the terms of the offer. State v. Goham, 187 Neb. 34, 46-48, 187 N.W.2d 305, cert. denied, 404 U.S. 1004, 92 S.Ct. 561, 30 L.Ed.2d 558 (1971). The court thus found it unnecessary to decide what effect a valid retrocession would have on pending prosecutions. Id., 187 Neb. at 48, 187 N.W.2d 305. Subsequently, however, the federal courts ruled that the validity of the retrocession was a question of federal law, and held that the retrocession was in fact valid and effective, so as to give the United States exclusive jurisdiction for offenses committed after October 25, 1970. See Omaha Tribe of Nebraska v. Village of Walthill, 334 F.Supp. 823 (D.Neb.1971), aff'd, 460 F.2d 1327 (8th Cir.1972), cert. denied, 409 U.S. 1107, 93 S.Ct. 898, 34 L.Ed.2d 687 (1973); United States v. Brown, 334 F.Supp. 536 (D.Neb.1971).
Goham and Tyndall then sought federal habeas relief in this court. Their cases, CV71-L-365 and CV71-L-366, were consolidated as both involved no factual dispute and presented the same legal issue. Initially, Judge Urbom dismissed the petitions for failure to exhaust available state court remedies. Goham v. Wolff, CV71-L-365 (D.Neb. unpublished memorandum of decision dated February 7, 1972). Thereafter, Goham and Tyndall sought and were denied leave to docket original petitions for writs of habeas corpus in the Supreme Court of Nebraska. On reapplication in federal court, Judge Urbom treated the Nebraska Supreme Court's action as either a satisfaction or waiver of the exhaustion requirement, and proceeded to a resolution of the merits. Goham v. Wolff, CV71-L-365 (D.Neb. unpublished memorandum of decision dated May 26, 1972) at 2. Habeas relief was then granted, on the basis that the Nebraska state courts lost jurisdiction over the petitioners' cases because the Nebraska Legislature failed to provide an express provision in Resolution 37 saving pending prosecutions. Id. at 4-6.
On appeal the Eighth Circuit reversed and remanded, with directions that the petitions be dismissed for failure to exhaust state remedies. Goham v. Wolff, 471 F.2d 52 (8th Cir.), cert. denied, 414 U.S. 834, 94 S.Ct. 174, 38 L.Ed.2d 69 (1973). In so doing, the Eighth Circuit noted as follows:
Thereafter, Goham filed an action for post-conviction relief in the District Court of Thurston County, Nebraska. The district court denied relief, and that denial was affirmed on appeal by the Nebraska Supreme Court in State v. Goham, 191 Neb. 639, 216 N.W.2d 869 (1974). Although adhering to its earlier view that the retrocession had not been validly accepted, the court observed that the effect of the retrocession on pending state criminal cases was primarily a question of state law, to be decided by the state courts in the first instance. Id. at 641, 216 N.W.2d 869. The court went on to hold that even if the retrocession had been effective, the state courts did not lose jurisdiction over cases pending at 12:01 a.m. EST, October 25, 1970. This was because the Nebraska Legislature, in enacting Resolution 37, did not intend to abandon jurisdiction over crimes committed on the Omaha Reservation prior to the effective date of the retrocession. Id. at 644, 216 N.W.2d 869. In reaching this determination, the court employed the rule of construction that it give effect to the presumed intent of the legislature to reach a "sensible, just, and reasonable result," id. at 642, 216 N.W.2d 869, and avoid, in its view, an "absurd or glaringly unjust result". Id. at 644, 216 N.W.2d 869 (quoting Sorrells v. United States, 287 U.S. 435, 450, 53 S.Ct. 210, 216, 77 L.Ed. 413 (1932)). The court observed that unless the state court retained jurisdiction, the petitioner and others similarly situated would be able "to exploit their crimes with complete impunity," as there could be no federal jurisdiction over offenses committed prior to the effective date of the retrocession. Id. at 642-43, 216 N.W.2d 869. For further support, the court relied upon Neb.Rev.Stat. § 49-301 (Reissue 1943), the general savings clause enacted by the Nebraska Legislature in relation to the repeal of statutes. Although noting that the general savings statute was not strictly applicable, the court noted that it nonetheless provided guidance in determining the legislature's intent in similar situations. Id. at 643, 216 N.W.2d 869.
A little over twelve years after the Nebraska Supreme Court's decision was handed down, petitioner Tyndall has now come back to reapply for federal habeas relief in this court.2 In essence, the petitioner asks this court to reaffirm its prior ruling and grant him habeas relief. Given the Nebraska Supreme Court's decision in this matter, however, I conclude that this court is not at liberty to do so.
Under 28 U.S.C. § 2254(a), a federal court may grant a writ of habeas corpus for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." In the present case, the petitioner contends that his conviction deprived him of due process of law because the state court lost jurisdiction over his case before his conviction was final. As will be discussed below, however, the petitioner's contention ultimately rests upon an alleged misinterpretation of state law by the Nebraska Supreme Court. This is not a proper ground for federal habeas relief, and I shall accordingly recommend that the petition be denied.
In an effort to base his claim on federal law, ...
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