United States ex rel. Miner v. Erickson, Civ. No. 69-66S.

• Court: United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
• Writing for the Court: NICHOL
• Citation: 303 F. Supp. 960
• 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.
• Docket Number: Civ. No. 69-66S.
• Decision Date: 23 September 1969

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.

303 F. Supp. 961

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

303 F. Supp. 962

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, ...