Williams v. Clarke

• Decision Date: 16 March 1993
• Docket Number: No. 4:CV87-0-134.,4:CV87-0-134.
• Citation: Williams v. Clarke, 823 F.Supp. 1486 (D. Neb. 1993)
• Parties: Robert E. WILLIAMS, Petitioner, v. Harold CLARKE, Respondent.
• Court: U.S. District Court — District of Nebraska

823 F. Supp. 1486

Robert E. WILLIAMS, Petitioner, v. Harold CLARKE, Respondent.

No. 4:CV87-0-134.

United States District Court, D. Nebraska.

March 16, 1993.

Robert E. Williams, pro se.

James H. Hoppe, Watkins, Scott Law Firm, Lincoln, NE, for petitioner.

William L. Howland, Neb. Dept. of Justice, Lincoln, NE, for respondent.

MEMORANDUM OPINION

STROM, Chief Judge.

This matter is before the Court on the memorandum, order and recommendation of the magistrate judge (Filing No. 27), the objections of petitioner to the findings of the magistrate judge (Filing Nos. 29 and 31), and the response of the respondent advising the Court that respondent had no objection to the report and recommendation of the magistrate judge (Filing No. 30). Neither party has submitted any additional briefs.

Because of the amount of time which has elapsed since the filing of petitioner's motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, a brief summary of the procedural history of this case is in order. On March 3, 1987, petitioner filed his first petition under 28 U.S.C. § 2254 (Filing No. 2). The respondent was ordered to file an answer and on April 21, 1987, filed a motion to dismiss or for more definite statement (Filing No. 5), which was denied on April 28, 1987 (Filing No. 6). Then the petitioner filed an amended petition on November 20, 1987 (Filing No. 11). On January 14, 1988, respondent filed his answer (Filing No. 13). On February 11, 1988, a scheduling order was entered by the Court (Filing No. 17). On January 11, 1989, the magistrate judge entered an order calling to the parties' attention their failure to comply with his scheduling order and directing that it be complied with in ten (10) days, or show cause in writing why this matter should not be dismissed and counsel found in contempt or subjected to other disciplinary measures by the Court (Filing No. 21). The parties then filed a certificate of filing of the record and stipulation, as had been previously required by the Court. On October 20, 1989, the magistrate judge entered his memorandum and order (Filing No. 24), in which he analyzed each of the claims being made by petitioner, finding that they were without merit except the petitioner's challenge to the aggravating factor set forth in Neb.Rev.Stat. § 29-2523(1)(d) as it applied to the sentence of death imposed upon defendant for the murder of Patricia McGarry. The magistrate judge then stayed this action pending a final decision in Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990), cert. denied, ___ U.S. ___, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992). On July 15, 1992, the magistrate judge entered a further memorandum, order and recommendation (Filing No. 27), in which the Court recommended that the amended petition for habeas corpus relief be granted as to the petitioner's claim that the aggravating factor set forth in Neb. Rev.Stat. § 29-2523(1)(d) is unconstitutionally vague as applied to the petitioner in the murder of Patricia McGarry, and that in all other respects, the amended petition for writ of habeas corpus should be denied. That order further granted the parties forty (40) days from its date in which to file objections to the recommendation. The parties have filed their respective responses to the magistrate judge's memorandum, order and recommendation, as noted above, and this case is now ready for final decision.

Initially in his amended petition, petitioner raised thirteen (13) claims as the basis for the granting of that petition. In petitioner's brief, seven (7) of those were abandoned (Magistrate judge's memorandum and order (Filing No. 24)). The six (6) claims which remain and which were addressed by the magistrate judge in his memorandum and order and to which petitioner has filed objections are:

1) Petitioner was unconstitutionally denied a jury trial on the issue of the death penalty in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States (¶ 12C).

2) Petitioner was denied his constitutional rights as a result of the three-judge sentencing panel's use of a presentence investigation as its use denied petitioner his constitutional right to confront witnesses, to be represented by counsel, and to not incriminate himself, all in violation of the Fifth, Sixth and Fourteenth Amendments of the United States Constitution (¶ 12F).

3) Petitioner's rights under the Eighth and Fourteenth Amendments to the United States Constitution were violated by the sentencing panel's finding that petitioner's crimes were "especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence, as an aggravating circumstance under Neb.Rev.Stat. 29-2523(1)(d) (¶ 12I).

4) Petitioner's right to a fair trial and due process under the Fifth and Fourteenth Amendments to the United States Constitution was violated as a result of exclusion of jurors with reservations concerning the death penalty (¶ 12K).

5) The petitioner's conviction was based upon a confession obtained in violation of petitioner's constitutional rights under the Fifth, Sixth, and Fourteenth Amendments (¶ 12L).

6) The prosecution willfully and prejudicially withheld relevant and favorable evidence, thereby denying petitioner his constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution (¶ 12M).

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of the record in this matter as it pertains to these six claims, and they will now be addressed.

1) Plaintiff's claim that he was entitled to a jury determination on the finding of the existence of aggravating circumstances necessary to support the death penalty

This claim is premised on the decision of the United States Court of Appeals for the Ninth Circuit in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988). The magistrate judge rejected petitioner's claim in a carefully reasoned analysis of Adamson v. Ricketts and the prior decisions of this Court. The magistrate judge's opinion recognized that the Adamson case was the subject of a pending petition for certiorari which had been filed with the United States Supreme Court. That petition was denied on June 28, 1990, 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d 795 (1990). However, the day prior to the entry of that order, the Supreme Court decided Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). This case also addressed the issue of the right of a defendant to jury trial to determine the existence of aggravating or mitigating circumstances in a capital sentencing case. Walton's first argument to the Supreme Court was that every finding of fact underlying the sentencing decision must be made by a jury, not by a judge, and that the Arizona scheme would be constitutional only if the jury decides what aggravating and mitigating circumstances are present in a given case. This was essentially the same issue raised in Adamson, supra. The Supreme Court rejected that argument, stating any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence, has been soundly rejected by prior decisions of this Court, citing Clemons v. Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 1446, 108 L.Ed.2d 725 (1990). The Supreme Court went on to state:

Walton also suggests that in Florida aggravating factors are only sentencing "considerations" while in Arizona they are "elements of the offense." But as we observed in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), an Arizona capital punishment case: "Aggravating circumstances are not separate penalties or offenses, but are `standards to guide the making of the choice' between the alternative verdicts of death and life imprisonment. Thus, under Arizona's capital sentencing scheme, the judge's finding of any particular aggravating circumstance does not of itself `convict' a defendant (i.e., require the death penalty), and the failure to find any particular aggravating circumstance does not `acquit' a defendant (i.e., preclude the death penalty)." Id., at 156, 106 S.Ct. 1749, 1755, 90 L.Ed.2d 123 (citation omitted).

The Walton decision supports the magistrate judge's analysis and decision. The Court now approves and adopts the reasoning of the magistrate judge as it addresses this issue and finds that this claim is without merit and should be denied.

2) Use of the presentence report at sentencing hearing

The substance of this claim is petitioner's contention that he was deprived of his constitutional right to confront witnesses, his right to be represented by counsel, and his right not to incriminate himself by the sentencing panel's use of a presentence investigation report. As the magistrate judge noted, the petitioner cites no authority to support his claim. However, the magistrate judge went on to carefully review the applicable case law, and concluded that this claim was without merit. The petitioner has not cited any further case authority but simply takes exception to the findings of the magistrate judge as set forth in his memorandum and order. Having reviewed the briefs and the order of sentence and commitment entered by the District Court of Lancaster County, Nebraska, the Court now approves and adopts the magistrate judge's memorandum, report and recommendation on this issue, and finds that it should be denied.

3) The vagueness of the aggravating factor set forth in Neb.Rev.Stat. § 29-2523(1)(d).

The magistrate judge found that this claim was valid as it applied to the sentencing of the petitioner for the murder of Patricia McGarry, but rejected petitioner's claim that it also was a basis for invalidating the sentence of petitioner for the murder of Catherine Brooks. The petitioner's objection is addressed only to that portion of the magistrate judge's opinion as it relates to the application of this factor...