United States ex rel. Miner v. Erickson

• Decision Date: 23 September 1969
• Docket Number: Civ. No. 69-66S.
• Court: U.S. District Court — District of South Dakota
• Parties: UNITED STATES of America ex rel. Nelson MINER, Plaintiff and Petitioner, v. Donald R. ERICKSON, as the duly appointed, qualified, and acting Warden of the South Dakota State Penitentiary, Defendant.

303 F. Supp. 960

UNITED STATES of America ex rel. Nelson MINER, Plaintiff and Petitioner, v. Donald R. ERICKSON, as the duly appointed, qualified, and acting Warden of the South Dakota State Penitentiary, Defendant.

Civ. No. 69-66S.

United States District Court D. South Dakota, S. D.

September 23, 1969.

C. L. Anderson, Sioux Falls, S.D., for plaintiff and petitioner.

Roger A. Schiager, Special Asst. Atty. Gen., Sioux Falls, S.D., for defendant.

MEMORANDUM DECISION

NICHOL, Chief Judge.

Petitioner, Nelson Miner, presently being held in custody in the South Dakota State Penitentiary pursuant to the judgment of a state court, brings this application for a writ of habeas corpus under Sec. 2254 of Title 28 of the United States Code. Petitioner is an Indian, 47 years of age, who pleaded guilty on March 28, 1962, in Circuit Court for Dewey County, South Dakota, to a charge of indecent molestation of minor children under 15 years of age. He claims not to have understood the full significance and consequence of the proceedings against him at the time he entered a plea of guilty, and his principal basis for seeking release on the writ of habeas corpus is that he was without counsel at the time of his arraignment, plea and sentencing, and did not, by virtue of his race, limited understanding of the English language, and lack of education, knowingly and intelligently waive said right to counsel.

The Attorney General, in its return to the writ, generally denies the allegations contained in said application, and specifically sets up as a bar to the granting of said writ the fact that said petitioner has not exhausted his state court remedies, as required by Sec. 2254.

Subsequent to his conviction in 1962, petitioner filed two actions in Dewey County Circuit Court, one in December of 1966 for post-conviction relief, and one in April of 1968 in the Circuit Court for Dewey County, South Dakota, by way of a state habeas corpus action. Both the application for post-conviction relief and the state habeas corpus action were denied, and it is conceded that no appeal was taken from either action to the State Supreme Court.

Petitioner, however, claims that in the state habeas corpus action, where he was represented by one Raymond H. Kintz, a duly licensed and practicing attorney at Dupree, South Dakota, he requested his attorney to take an appeal from the order dated May 29, 1968, quashing the state habeas corpus writ, and that said request to counsel was made prior to the expiration of the time for appeal.

The evidentiary hearing accorded the petitioner by this Court was adjourned, with leave for counsel to furnish the Court and opposing counsel with copies of any letters that Mr. Kintz had in his possession from the petitioner in which said petitioner requested his counsel to take an appeal to the State Supreme Court. Mr. Kintz furnished the Court and counsel with letters from Nelson Miner dated June 9, 1968, June 30, 1968, and September 22, 1968, and it is clear from all three letters that in each instance he requested counsel to take an appeal from Judge Hersrud's decision quashing the writ of habeas corpus on May 29th.

The Court feels, therefore, as the United States Supreme Court held in the case of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), that if a petitioner fails to appeal his conviction, he nevertheless is entitled to a hearing in federal court, if the petitioner did not deliberately bypass his remedy of appeal to the highest court of the state in which he was sentenced. The Court therefore resolves this question in favor of the petitioner, and finds that there was no deliberate bypass of his state court remedy.

The sole question involved, therefore, is whether petitioner has knowingly and intelligently waived his right to counsel. Following the evidentiary hearing accorded to petitioner, and after the Court indicated its desire to examine the correspondence between the petitioner and his counsel at the habeas corpus action, counsel for both the State of South Dakota and the petitioner advised the Court in writing that they did not desire to offer any further testimony other than that received at the evidentiary hearing, and that the Court could proceed with its decision on the basis of the three court files received in evidence, namely, the original conviction in Dewey County Circuit Court in 1962, the post-conviction hearing in Dewey County Circuit Court in 1966, and the Dewey County habeas corpus action in 1968.

The Court has carefully examined the transcript of the record made by Judge Hersrud at the time of the plea and sentence in March of 1962. It is clear from the record before this Court that Judge Hersrud not only carefully explained to the petitioner all of his Constitutional rights and particularly his right to counsel, but urged him on at least three separate occasions to accept court appointed counsel. In addition, he carefully explained to the petitioner the nature of the charge against him; explained that it was a most serious criminal offense; advised him of the maximum penalty that he could...