Weiland v. Parratt, 75--1515

• Decision Date: 24 February 1976
• Docket Number: No. 75--1515,75--1515
• Citation: 530 F.2d 1284
• Parties: Bobby Joe WEILAND, Appellant, v. Robert F. PARRATT, Warden, Nebraska State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1284

530 F.2d 1284

Bobby Joe WEILAND, Appellant, v. Robert F. PARRATT, Warden, Nebraska State Penitentiary, Appellee.

No. 75--1515.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 15, 1976.

Decided Feb. 24, 1976.

Robert F. Craig, Omaha, Neb., for appellant.

Ralph H. Gillan, Asst. Atty. Gen., Lincoln, Neb., for appellee.

Paul L. Douglas, Atty. Gen., Lincoln, Neb., also appeared on brief.

Before CLARK, Associate Justice, ^* and BRIGHT and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

Bobby Joe Weiland, an inmate of the Nebraska State Penitentiary, appeals from an order entered by the United States District Court for the District of Nebraska ¹ denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

In 1970 petitioner was convicted by a jury in the District Court of Dodge County, Nebraska of the offense of breaking into and entering the Shamrock Bar in the City of Fremont, Nebraska, and was sentenced to imprisonment for a period of twelve years. On direct appeal to the Supreme Court of Nebraska petitioner's conviction was affirmed. State v. Weiland, 186 Neb. 325, 183 N.W.2d 244 (1971).

Thereafter, petitioner filed in the sentencing court two applications for post conviction relief as provided by the Nebraska Post Conviction Act, RSN § 29--3001 et seq. Both applications were denied without hearing, and in each instance the action of the sentencing court was affirmed. State v. Weiland, 188 Neb. 626, 198 N.W.2d 327 (1972); State v. Weiland, 190 Neb. 111, 206 N.W.2d 336 (1973).

State remedies having been exhausted, petitioner sought relief in the district court. He alleged that the State had knowingly made use of perjured testimony to convict him, that prosecution witnesses had intentionally injected inadmissible testimony into the trial of the case in the state court, that he had been deprived of his right to know the charge upon which he was to be tried, that the State had wrongfully refused to disclose certain information substantially in advance of trial, and that the Nebraska courts had deprived him of due process of law by refusing him an evidentiary hearing on one or both of his post conviction applications.

The district court appointed counsel to represent petitioner, and a hearing was held on February 20, 1975. Petitioner appeared by counsel, and respondent appeared by an Assistant Attorney General of the State of Nebraska. The cause was submitted to the district court on documentary evidence including a transcript of the original trial of petitioner in the District Court of Dodge County and a stipulation as to certain facts. Neither side requested an ore tenus hearing in connection with the petition.

Thereafter, the district court filed a memorandum opinion incorporating its findings of fact and conclusions of law and denied the petition. A motion for a new trial or for amended findings was denied. A notice of appeal was timely filed, and the district court granted a certificate of probable cause for appeal.

The district court rejected all of petitioner's contentions, and petitioner contends that the district court erred in so doing. We affirm.

The transcript of the state court trial reflects that a little after midnight on August 25, 1969 the dispatcher of the Fremont Police Department received a telephone call advising that a break-in was in progress at the Shamrock Bar. Police Officer Leo Spes and Dodge County Deputy Sheriff James Schiely proceeded to the scene in the automobile of Deputy Sheriff Schiely. They observed that the Bar had been entered and observed two persons inside. As the officers approached the building, the burglars fled, one running in one direction, and the other running in another direction. Deputy Sheriff Schiely pursued the first individual about a block and a half firing warning shots, and at the end of the chase apprehended petitioner standing or sitting in a barn or shed. The individual pursued by Officer Spes was able to escape.

Officer Spes and Deputy Sheriff Schiely formed the impression that the individual who got away was a woman, and later they identified from photographs Ms. Phyllis Croghan as the woman in question. She was charged with breaking and entering the Shamrock Bar, and a preliminary hearing in her case was held. Both officers testified at the hearing and both identified her as the second burglar.

Petitioner, who had been convicted of four prior felonies, was held in the Dodge County Jail awaiting trial. On September 7, 1969 Richard L. Kuhlman, Esq., County Attorney of Dodge County, filed in the Dodge County District Court a two-count felony information against petitioner. In the first count petitioner was charged with the August 25 breakin at the Shamrock Bar. In the second count petitioner's prior criminal record was detailed, and he was charged as an habitual criminal.

Petitioner was held in jail until his trial which took place on February 24, 1970. In the meantime, Ronald Leffel had been placed in the jail around October 28, 1969 on a charge of possession of a forged instrument. It seems that Leffel had been arrested originally in Texas on a car theft charge, which was not pressed, and later had been returned to Nebraska. In a conversation with officers that took place in the Fremont Police Station in December, 1969, Leffel stated that he and petitioner had been the two people who broke into the Shamrock Bar the preceding August. Leffel also admitted that he had engaged in other break-ins or attempted break-ins in Fremont. Leffel's statements appear to have been corroborated by the results of a polygraph test administered by Detective Gerhard Petersen of the Fremont Police Department.

Naturally, the question arose as to whether Leffel would be willing to testify against petitioner who had a much worse criminal record than did Leffel. And equally naturally the question arose as to whether Leffel would be extended leniency or immunity if he testified against petitioner, and that question concededly was discussed.

On the day before the trial Leffel had conversations in the jail with County Attorney Kuhlman and Deputy County Attorney Vrana. Apparently, in the course of those conversations Leffel agreed definitely that he would take the stand against petitioner. On the same day the prosecuting officials sought leave to include the name of Leffel as a State witness; leave was obtained, and Leffel's name was endorsed in handwriting on the information about an hour before the trial began.

On the evening before the trial two other persons, Bill Schnoor and William R. McPhail, were confined in the jail. Schnoor was being held on a charge of driving a car without a license, and McPhail was being held for deportation to Canada. On the following day they testified as defense witnesses as to a conversation that they claimed to have had with Leffel the preceding evening relating to his appearance as a witness.

The trial was held as scheduled, and the principal witnesses for the State were Leffel, Detective Petersen, Officer Spes and Deputy Sheriff Schiely. The defendant testified in his own behalf and called five witnesses, including Schnoor and McPhail.

As might be expected, the testimony elicited at the trial was in sharp conflict. Leffel testified positively that he and petitioner had broken into the Shamrock Bar and had fled therefrom when the officers appeared on the scene. He made no reference to a woman being involved in the case in any way, and he stated that he was the individual who escaped. Deputy Sheriff Schiely insisted on the stand that the man whom he chased from the Bar and eventually caught was the petitioner. Petitioner, testifying in his own behalf, emphatically denied that he had had anything to do with the break-in.

Petitioner also testified that after he was arrested and as he was being taken to the police station, the officers ran over something; that when he got to the station he was put in a cell and went to sleep, and that he was awakened by an officer who told him that Phyllis Croghan had been shot and was bleeding, and that later he was questioned by Detective Petersen about Ms. Croghan and was told that he was being charged with first degree murder.

The State's witnesses were vigorously cross examined by defense counsel, and were obviously impeached seriously although the jury ultimately accepted the State's version of the case and convicted the petitioner. Officer Spes and Deputy Sheriff Schiely naturally had to admit that they were wrong in their initial identification of Ms. Croghan; Schiely admitted that the man he chased was out of his sight for a second or two before he located petitioner. Leffel, of course, admitted his own participation in the break-in at the Shamrock Bar; he also admitted a prior felony conviction and his commission of additional offenses. He further admitted that he had discussed leniency or immunity with the police, although he insisted that no promise had been made to him in exchange for his testimony. Detective Petersen admitted that he had discussed leniency with Leffel, and that while he had made Leffel no promises, Leffel may have gained the impression that if he testified truthfully consideration might be shown him.

Jail inmates Schnoor and McPhail testified that on the evening of February 23, 1970 Leffel told them in the jail that he had been promised immunity if he testified against petitioner and had been told that if he refused to testify he would be prosecuted as an habitual criminal to the fullest limits of the law.

In the course of the trial two references to the polygraph test taken by Leffel were made. On cross examination Petersen stated that he had recommended that charges against Ms. Croghan be dismissed after he had talked with Leffel and had 'taken him on the polygraph.' While Schiely was being cross examined, he was asked what caused him to change his mind about the identity of the person who escaped from the...