Victor v. Hopkins
| Citation | 890 F. Supp. 844 |
| Decision Date | 15 June 1995 |
| Docket Number | No. 4:CV94-3263.,4:CV94-3263. |
| Parties | Clarence VICTOR, Petitioner, v. Frank X. HOPKINS, Warden, Respondent. |
| Court | U.S. District Court — District of Nebraska |
Rick D. Lange, Rembolt Ludtke & Berger, Lyle J. Koenig, Lincoln, NE, for petitioner.
Don Stenberg, Atty. Gen., J. Kirk Brown, Kimberly A. Klein, Asst. Attys. Gen., Lincoln, NE, for respondent.
In this habeas corpus case brought pursuant to 28 U.S.C. § 2254, Petitioner challenges his conviction for first-degree murder and use of a knife or dangerous weapon in the commission of a felony, and the sentence of death with a consecutive 20-year prison term which resulted. (Filing 18, Am.Pet.Writ Habeas Corpus, at 1-2, 11.) Pending before me are Magistrate Judge Piester's memorandum, order, and recommendation regarding Petitioner's motion to hold his habeas petition in abeyance and maintain the existing stay of execution pending exhaustion of state remedies (filing 44); Respondent's appeal from Judge Piester's order holding this proceeding in abeyance (filing 45); and Respondent's objection to Judge Piester's recommendation that the stay of execution previously entered by this court remain in effect while this matter is held in abeyance (filing 45).
After de novo review of the memorandum, order, and recommendation, I shall adopt Judge Piester's recommendation, as supplemented by the following discussion of the objection and appeal filed by Respondent, and I shall deny Respondent's objection and appeal. Further, I shall certify the controlling question of law in this case to the Eighth Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(b).
On April 7, 1995, Petitioner filed a motion to hold this habeas corpus matter in abeyance and maintain the existing stay of execution pending Petitioner's exhaustion of state remedies, claiming that (1) Petitioner is entitled under Nebraska law to bring a second post-conviction proceeding because the basis now being relied upon for relief was not available to him when his first post-conviction action was filed on May 10, 1991; and (2) Petitioner needs to engage in incompetency proceedings under Neb.Rev.Stat. § 29-2537 (Reissue 1989) in order to exhaust state remedies.1 (Filing 37.)
More specifically, Petitioner's motion alleges that Mr. Thomas Riley, the attorney who represented Petitioner at trial, sentencing, and on direct appeal, also prepared Petitioner's pro se motion for post-conviction relief and coordinated its filing in the District Court for Douglas County, Nebraska. (Filing 37 at 1-2 & attached aff. of Thomas C. Riley.) Although the post-conviction motion which Riley prepared raised ineffective assistance of trial and appellate counsel for failure to raise certain issues outlined in the motion (id., attached Motion to Vacate Sentence and Conviction at 5), such motion did not raise Riley's failure to adequately investigate and present evidence at trial and sentencing regarding Petitioner's disadvantaged background and his alleged physical, mental, and emotional defects, as compounded by Riley's undisclosed conflict of interest in preparing Petitioner's post-conviction pleadings when Riley was not counsel of record for those proceedings (filing 37 at 2). The latter are the "new" claims at issue here.
Petitioner's motion alleges that these bases of ineffective assistance of counsel were not "available" to Petitioner at his first post-conviction proceeding and were not alleged in Petitioner's first post-conviction motion because of Riley's "actual and material conflict of interest" in raising such claims. (Filing 37 at 3.) Accordingly, Petitioner filed a motion requesting that this court hold this matter in abeyance and maintain the existing stay of execution to allow Petitioner to exhaust his state remedies. (Id. at 4.) 28 U.S.C. § 2254(b), (c).
On April 21, 1995, Judge Piester issued a memorandum, order, and recommendation (filing 44) regarding Petitioner's motion, finding that:
Accordingly, Judge Piester granted Petitioner's motion to hold this habeas proceeding in abeyance in order to allow Petitioner to return to the state courts and present his "new" claims of constitutionally ineffective assistance of counsel. (Filing 44 at 9 & 11.) Judge Piester also recommended, pursuant to 28 U.S.C. § 636(b)(1)(B), that Petitioner's motion to maintain the existing stay of execution (filing 5) be granted. (Filing 44 at 12.)
On May 4, 1995, Respondent filed both an appeal from Judge Piester's order holding this proceeding in abeyance and an objection to Judge Piester's recommendation that the stay of execution be maintained (filing 45), and on May 10, 1995, this court issued an order setting Judge Piester's memorandum, order, and recommendation and the objection thereto for oral argument on May 25, 1995. (Filing 46.)2 Petitioner responded to Respondent's objection and appeal on May 15, 1995.
At the conclusion of oral argument on this matter, I asked counsel for Respondent to provide written responses to four questions: (1) whether Respondent is willing to waive the exhaustion requirement, including cause and prejudice, thereby enabling this court to move forward and address the merits of the pending ineffective assistance of counsel claims; (2) whether the State of Nebraska can assure the court that it will not seek from the Nebraska Supreme Court a death warrant, provided that Petitioner is pursuing the state court action with all deliberate speed; (3) whether Petitioner and Respondent could agree on a question and an appropriate factual context for certification to the Nebraska Supreme Court of the "availability" question, as suggested by Respondent; and (4) whether I should allow an interlocutory appeal to the Eighth Circuit Court of Appeals under 28 U.S.C. § 1292(b) if I adopt Judge Piester's recommendation, hold this matter in abeyance, and maintain the existing stay of execution.3 (Tr. 51:25-53:19.)4 I asked Petitioner's counsel to only address questions three and four, as questions one and two required responses from Respondent only.
Written responses were received from counsel for both Petitioner and Respondent on or before June 12, 1995. Because I was uncertain about the meaning of the Respondent's written response insofar as it pertained to the question of waiver of exhaustion, and because this uncertainty in turn clouded my understanding of Respondent's answers to the other questions, I conferred with counsel for Petitioner and Respondent in my chambers on June 13, 1995. Counsel gave me candid and helpful explanations of their positions. I now believe that I understand the position of the parties.
With regard to the first question — whether Respondent is willing to waive the exhaustion requirement, including cause and prejudice, thereby enabling this court to move forward and address the merits of the pending ineffective assistance of counsel claims — Respondent is willing to partially, but not completely, waive the exhaustion requirement. Essentially, Respondent wishes to preserve his argument for appeal purposes that Petitioner engaged in a procedural default when he failed to raise his "new" claims in the Nebraska courts as a part of the first post-conviction action and therefore Petitioner should be required to show cause and prejudice (or fundamental miscarriage of justice) as a precondition of the federal courts reaching the merits of his "new" ineffective assistance of counsel claims.
Specifically, Respondent agreed that he would not compel Petitioner to try to exhaust these "new" claims in state court if this court determined that Petitioner either had an available state remedy or this court was uncertain about the existence of an available state remedy. Under those circumstances, Respondent would consent to a determination by this court of the merits of Petitioner's "new" claims. However, Respondent, nevertheless, intended to preserve for appeal the argument that this court should not have reached the merits of the "new" claims because Petitioner "defaulted" on those issues when he failed to raise them in the Nebraska courts as a part of the first post-conviction action.5
With regard to the second question — whether the State of Nebraska can assure the court that it will not seek from the Nebraska Supreme Court a death warrant, provided that Petitioner is pursuing the state court action with all deliberate speed—Respondent would not agree to such a concession because the Respondent may wish to present the "availability" question to the Nebraska Supreme Court in the context of seeking a death warrant.
With regard to third question—whether Petitioner and Respo...
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... ... Victor v. Hopkins, 890 F.Supp. 844, 859 n. 4 (D.Neb.1995), rev'd on other grounds, 90 F.3d 276 (8th Cir.1996). I do not view a motion for a stay of an ... ...