Williams v. Wolff

• Decision Date: 24 June 1980
• Docket Number: No. CIV-R-79-252-ECR.,CIV-R-79-252-ECR.
• Citation: 497 F. Supp. 122
• Parties: Billy WILLIAMS, Petitioner, v. Charles L. WOLFF, Jr., and Attorney General of the State of Nevada, Respondents.
• Court: U.S. District Court — District of Nevada

497 F. Supp. 122

Billy WILLIAMS, Petitioner, v. Charles L. WOLFF, Jr., and Attorney General of the State of Nevada, Respondents.

No. CIV-R-79-252-ECR.

United States District Court, D. Nevada.

June 24, 1980.

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COPYRIGHT MATERIAL OMITTED

Billy Williams, pro se.

Richard H. Bryan, Atty. Gen., Carson City, Nev., Calvin R. X. Dunlap, Dist. Atty. of Washoe County, Jerry H. Mowbray, Deputy Dist. Atty., Reno, Nev., for respondents.

MEMORANDUM DECISION

EDWARD C. REED, Jr., District Judge.

The petitioner, a prisoner of the State of Nevada, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

He was convicted by a jury in 1968 of a robbery that occurred in Reno, Nevada, on September 6, 1967, and sentenced to life imprisonment as an habitual criminal. The Nevada Supreme Court affirmed the conviction and sentence in Williams v. State, 85 Nev. 169, 451 P.2d 848 (1969), cert. den. 396 U.S. 916, 90 S.Ct. 239, 24 L.Ed.2d 194 (1969).

Petitioner Williams then sought a writ of habeas corpus in this United States District Court. Denial of the writ was affirmed in Williams v. Hocker, 463 F.2d 234 (9th Cir. 1972). However, the Ninth Circuit's opinion declared that the record before the state court contained substantial evidence which raised serious doubt about Williams' mental competency. It suggested presenting that matter to the Nevada courts.

A petition to a Nevada district court for a writ of habeas corpus then was denied. However, the Nevada Supreme Court reversed, ordering Williams discharged from confinement unless the State elected within a reasonable time to retry him. Williams v. Warden, Nevada State Prison, 91 Nev. 16, 530 P.2d 761 (1975). The opinion required a prior special hearing to determine mental competency to stand trial, if the State should elect a retrial.

The State did elect to retry Williams. However, the proceedings were stayed pending resolution of the competency issue. On December 19, 1975, a State district court judge ruled that Williams was competent to stand trial. A trial was held and the jury convicted him of robbery on January 7, 1976. Williams again was sentenced to a term of life imprisonment as an habitual criminal, on February 3, 1976. Upon appeal, the Nevada Supreme Court affirmed. Williams v. State, 93 Nev. 405, 566 P.2d 417 (1977). The instant petition for a writ of habeas corpus, then, must attack the 1976 conviction and sentence. The petition alleges six grounds for relief:

1. The three prior convictions used to invoke the habitual criminal life sentence were constitutionally infirm, according to Williams. He contends that a 1952 California burglary conviction was entered without his being represented by counsel. A 1960 Ohio conviction was for operating a vehicle without the owner's consent. Williams argues that such offense is not a felony within the contemplation of Nevada's Habitual Criminal Act (NRS 207.010), which requires that the defendant "... shall previously have been three times convicted, whether in this state or elsewhere, of any crime which under the laws of the situs of the crime or of this state would amount to a felony, ...." Further, the petitioner complains that the Ohio judgment of conviction is unconstitutional on its face in that it reflects conviction for operating a motor vehicle without consent, yet the sentence imposed was for robbery. The third prior conviction, in Kansas in 1961 for grand larceny, was not a felony under the Habitual Criminal Act, either, in Williams' view.

It is well established that recidivist statutes and enhanced sentence laws are constitutionally permissible. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Nevada's habitual criminal law has been upheld against constitutional attack. McGarry v. Fogliani, 370 F.2d 42 (9th Cir. 1966).

Under Nevada law, admission into evidence of an exemplified copy of a felony conviction is prima facie evidence of conviction of a prior felony (NRS 207.010(8)) and of the type of prior felony, where committed, identity of the sentencing court, whether defendant was represented by counsel, etc. Anglin v. State, 86 Nev. 70, 464 P.2d 504 (1970). The Anglin opinion declares that the court may rely upon the exemplified record and make its determination to enhance punishment therefrom, unless a constitutional infirmity appears from the face of the record. On the other hand, if a prior conviction is constitutionally infirm, but such infirmity is not reflected upon the face of the exemplified record, "... that infirmity is to be established through an appropriate proceeding in the state where the conviction occurred and not otherwise. Until it is thus established the forum court may rely upon the exemplified record." Id., at 464 P.2d 506.

The exemplified record of the Superior Court of the State of California, in and for the County of Yolo, reveals that petitioner Williams was represented by attorney Thomas E. Reynolds when judgment of conviction on three counts of first degree burglary was entered on July 14, 1952. Said judgment was entered upon Williams' pleas of guilty. Mr. Reynolds is identified in the record as Public Defender of Yolo County.

The exemplified record from the Court of Common Pleas, Ottawa County, Ohio, reveals that petitioner Williams in September 1960 was charged with robbery and with operating a motor vehicle without the owner's consent. Attorney Myron Rosentreter was appointed to represent Williams. Subsequently Williams, in open court and with said counsel present, pleaded guilty to violation of Ohio Revised Code § 4549.04 (operating a motor vehicle without the consent of the owner). He was sentenced for said crime to a term of not less than one nor more than twenty years, pursuant to Ohio Revised Code § 4549.99. That Code section sets forth the penalties for violations of various sections of the Ohio Criminal Code, including § 4549.04. The one-to-twenty year term conformed with the penalties statute's provisions applicable to a felony, as contrasted to joyriding penalties.

The robbery charge was "nollied" on the recommendation of the prosecuting attorney. Robbery, in Ohio, is a felony of the second degree. Ohio Revised Code § 2911.02. The penalty for a felony of the second degree is a minimum term of two, three, four or five years (the choice to be made by the trial court), and a maximum term of fifteen years. Ohio Revised Statutes § 2929.11. It is, therefore, apparent from the record that petitioner Williams was sentenced for operating a motor vehicle without the consent of the owner, and not for robbery. Further, the crime for which he was sentenced would amount to a felony in the State of Nevada. NRS 193.120; NRS 205.220; Holbrook v. State, 90 Nev. 95, 518 P.2d 1242 (1974).

Petitioner Williams pleaded guilty to grand larceny in the District Court of Reno County, Kansas, on December 8, 1961. His attorney, John K. Leighnor, was present when he so pleaded. Grand Larceny amounts to a felony in Nevada. NRS 205.220; NRS 193.120.

From the foregoing it is concluded that the legality of the sentencing of the petitioner as an habitual criminal is supported by the record.

2. The petitioner contends that he had served the maximum statutory penalty for robbery pursuant to his 1968 conviction before he was retried in 1976. Therefore, he argues, the retrial violated the double jeopardy provision of the Fifth Amendment to the U.S. Constitution.

The punishment for robbery is "... imprisonment in the state prison for not less than 1 year nor more than 15 years." NRS 200.380. Accordingly, the maximum term for Williams' 1968 conviction was fifteen years. He correctly contends that he must be credited with any good time he had earned in determining whether he had fully served the sentence at the time of the retrial. See NRS 213.1099(2) and 209.433. The latter section specifies the amounts of good time credits that could be earned by prisoners sentenced on or before June 30, 1969. (The petitioner was sentenced on March 6, 1968). His retrial commenced January 5, 1976. Thus, he had served slightly less than eight years. The record does not show how much good time credit had been earned, but even if he was entitled to the maximum possible, his sentence would not have been satisfied. Using the schedule of credits set out in NRS 209.433, if he had served a full eight years, the maximum credit he could have earned would have been two years and eight months. Accordingly, the total of his actual time served and good time credits could not have exceeded ten years and six months at the time of the retrial. This would not have satisfied the sentence of one-to-fifteen years set by statute.

When an appellant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). The successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, poses no double jeopardy bar to retrial on the same charge. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). The reversal of Williams' 1968 conviction and sentence was based upon his entitlement to a hearing concerning his mental competency, and not because of insufficiency of the evidence. Williams v. Warden, Nevada State Prison, 91 Nev. 16, 530 P.2d 761 (1975).

Thus, the retrial of the petitioner in 1976 did not violate his constitutional protection against being placed in double jeopardy.

3. The petitioner asserts that the procedure which led to his identification by the robbery victim was unconstitutional. Williams alleges that the initial confrontation took place at the preliminary hearing held on October 9, 1967, where he was required to don clothes allegedly worn by the robber during the commission of the crime. Among the...