United States ex rel. Miner v. Erickson

Decision Date05 June 1970
Docket NumberNo. 19977.,19977.
Citation428 F.2d 623
PartiesUNITED STATES of America ex rel. Nelson MINER, Appellant, v. Donald R. ERICKSON, as the duly appointed, qualified and acting Warden of the South Dakota State Penitentiary, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

C. L. Anderson, Sioux Falls, S. D., on brief for appellant.

Gordon Mydland, Atty. Gen., Pierre, S. D., and R. James Zieser, Asst. Atty. Gen., on brief for appellee.

Before BLACKMUN, GIBSON and LAY, Circuit Judges.

BLACKMUN, Circuit Judge.

Nelson Howard Miner, who is an enrolled Cheyenne Indian now 47 years of age and a prisoner in the South Dakota penitentiary, filed his application for a writ of habeas corpus with the United States District Court for the District of South Dakota. He sought relief from his 1962 plea of guilty on a state charge of child molestation (two girls aged 6 and 4, respectively, who were nieces of Miner and also enrolled Cheyennes), in violation of S.D.Code of 1939 § 13.1727 (Supp. 1960)* — now S.D.Comp.Laws 1967 §§ 22-22-7 to -10. Chief Judge Nichol held a full hearing at which counsel appeared for Miner and at which Miner was the sole witness. The transcript of the 1962 state court arraignment and sentence and those of the 1966 and 1968 postconviction state proceedings, hereinafter referred to, were introduced in evidence. After the hearing Judge Nichol denied the application. United States ex rel. Miner v. Erickson, 303 F.Supp. 960 (D. S.D.1969). However, he issued the certificate of probable cause required by 28 U.S.C. § 2253. Miner appeals.

The molestation charge was lodged against Miner in March 1962. He was arraigned before Judge Leslie R. Hersrud in the Circuit Court of Dewey County, South Dakota, on March 28 and, without counsel entered his plea of guilty. With a presentence report showing many prior offenses by Miner, the court imposed a sentence of 15 years.

Four years later, in August 1966, Miner instituted post-conviction proceedings in the Circuit Court for Dewey County pursuant to South Dakota Session Laws 1966, ch. 121, now S.D.Comp. Laws 1967, ch. 23-52. Counsel was appointed for Miner. In that proceeding the arresting sheriff and a justice of the peace testified as to Miner's arrest, as as to their explaining his rights to him, and as to his being bound over to circuit court. Miner was not present and did not testify in person; an affidavit from him was submitted. Judge Hersrud made findings adverse to Miner on the issue of voluntary waiver of counsel. Relief was denied. There was no appeal.

In April 1968 Miner applied for a writ of habeas corpus in the same state court. Judge Hersrud held a full hearing at which new court-appointed counsel appeared for Miner and at which Miner, the justice of the peace, and the sheriff all testified. Again adverse findings were made on the waiver-of-counsel issue. Relief was denied. There was no appeal.

In January 1969 Miner sought habeas relief in the Circuit Court for Minnehaha County, South Dakota. Counsel was appointed and Miner testified. Again adverse findings, this time by Judge Burns, were made on the waiver issue. The application was denied. There was no appeal.

The present federal application was filed in April 1969.

On our own account we raise the question, as did Judge Nichol, whether state remedies have been exhausted, as 28 U.S.C. § 2254 requires, or have been deliberately bypassed. Miner was represented by a Dupree, South Dakota, attorney in the 1968 Dewey County proceeding. In connection with the federal hearing Miner produced copies of three letters he wrote from the penitentiary to this lawyer in June and September 1968. In these he expressed his desire to appeal the state habeas matter to the South Dakota Supreme Court and requested the attorney to take that step on his behalf. Wholly aside from any reason why the appeal was not taken, our examination of those letters convinces us that Miner did not deliberately bypass his right to appeal so as to bar the present federal proceeding. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

We turn to the merits.

As Judge Nichol pointed out, 303 F.Supp. at 962, the sole question is whether Miner, when he submitted his plea of guilty at his arraignment in March 1962, knowingly and intelligently waived his right to counsel. We have carefully reviewed the transcript of that hearing before Judge Hersrud and we set forth in the Appendix the pertinent portions of the colloquy between Miner and the court.

In Miner's brief here it is acknowledged that Judge Hersrud "spent considerable time and effort advising Miner of his rights" and, indeed, "fully explained Miner's rights". The argument, however, is that on all Miner's previous criminal offenses, save one, he had had no lawyer; that on all he "received either small fines, short jail sentences, or suspended sentences" (he testified it was never more than 30 days); that Judge Hersrud did nothing to explain that molestation "was different from all of the other cases that Miner had been involved with" (he testified, "I didn't think I would be over in the penitentiary at all" and "I didn't know that I was going to get this much"); that no attorney was appointed to see that he understood this difference; that there was nothing "to show that Miner was alerted to the need for counsel any more * * * than in previous cases"; that, although he "had been in criminal court some 30 times" and in 1942 had served federal time, on "all other charges he paid a small fine or served a month or less in the County Jail"; that he had acquired "a learned or conditioned response" because he found that if he agreed with the judge and did not cause trouble, "he would get a light sentence" ("I said yes because that way he the judge wouldn't ask me any questions"); that the court this time "said the same things that the appellant had heard before when he received a light sentence"; that even the sheriff did not treat him differently, for he let him "out in the day and locked him up at night"; that this experience disarmed him; that Miner thus possessed no experience which he could use to advantage; that he "was less qualified to pass upon the issue of whether he should have a lawyer than a person with no experience"; that a lawyer would have been aware that Miner did not expect such a long sentence; that Miner did not fully understand the need for a lawyer; that he possessed limited education; and that the more serious the charge and the greater the sentence, the greater the defendant's need to understand.

As is common in these cases, no assertion is made here that Miner was innocent of the state crime with which he was charged.

The assistance of counsel at every critical stage of a felony proceeding pending in a state court is, of course, a cherished right. It is guaranteed by the sixth amendment and by that amendment's application to the states through the fourteenth amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed. 2d 336 (1967). It is guaranteed as well by the South Dakota Bill of Rights, S.D. Const., art. VI § 2 and § 7, and it is implemented as to indigents by S.D.Comp. Laws 1967 § 23-2-1 (Supp.1969) and § 23-35-11 or, at the time of Miner's sentence, by S.D.Code of 1939 §§ 34.1901 and 34.3506 (Supp.1960). Indeed, the Supreme Court of South Dakota, even prior to Gideon v. Wainwright, has repeatedly recognized and enforced this right. State v. Haas, 69 S.L. 204, 8 N.W.2d 569, 570 (1943); State ex rel. Henning v. Jameson, 71 S.D. 144, 22 N.W.2d 731, 732 (1946); State ex rel. Parker v. Jameson, 75 S.D. 196, 61 N.W. 2d 832, 833 (1953); State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130, 131-132 (1957); State ex rel. Warner v. Jameson, 77 S.D. 340, 91 N.W.2d 743, 744 (1958); State ex rel. Stevenson v. Jameson, 78 S.D. 431, 104 N.W.2d 45 (1960); State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712, 715 (1964); In re Trevithick, 81 S.D. 121, 131 N.W.2d 440, 441 (1964); State ex rel. Pekarek v. Erickson, 155 N.W.2d 313, 314 (S.D.1967); State v. Buffalo Chief, 155 N.W.2d 914, 917 n. 1 (S.D.1968); State v. Goode, 171 N.W.2d 733, 734 (S.D.1969).

The right to counsel may be waived, of course, if the waiver is "made voluntarily and intelligently by a competent mind." State v. Haas, supra, 8 N.W.2d at 570; State v. Hillerud, supra, 81 N.W.2d at 132; State ex rel. Baker v. Jameson, 72 S.D. 638, 38 N.W.2d 441, 444 (1949); State ex rel. Warner v. Jameson, supra, 91 N.W.2d at 745; State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121, 122 (1960); In re Trevithick, supra, 131 N.W.2d at 441; S.D.Comp.Laws § 23-2-7 (1967); and S.D.Code of 1939 § 34.2905 (Supp.1960). All this echoes the general law. Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172 (1946); Escobedo v. Illinois, 378 U.S. 478, 490 n. 14, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Butler v. United States, 317 F.2d 249, 258 (8 Cir. 1963), cert. denied, 375 U.S. 836, 838, 84 S.Ct. 67, 77, 11 L.Ed.2d 65; Johnson v. United States, 318 F.2d 855, 856 (8 Cir. 1963); Minor v. United States, 375 F.2d 170, 172 (8 Cir. 1967), cert. denied, 389 U.S. 882, 88 S.Ct. 131, 19 L.Ed.2d 177.

The South Dakota court has gone so far as to say that a defendant has the constitutional right to waive counsel and to defend himself in person. State ex rel. Burns v. Erickson, supra, 129 N.W.2d at 716. On the other hand, the state court has emphasized the duty of the trial judge fully to advise a defendant of his rights. State ex rel. Henning v. Jameson, supra, 22 N.W.2d at 732; S.D. Comp.Laws 1967 § 23-35-19; S.D.Code of 1939 § 34.2302 (Supp.1960). It is said, too, that there is no presumption that a defendant charged with a felony and not represented by counsel understands his fundamental rights and waives them by a plea of guilty. "On the contrary, the courts indulge every reasonable presumption against such waiver." State ex rel. Henning...

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