Wilson v. Parratt

• Decision Date: 01 September 1976
• Docket Number: No. 76-1271,76-1271
• Citation: 540 F.2d 415
• Parties: Gary S. WILSON, Appellant, v. Robert F. PARRATT, Warden, Nebraska Penal and Correctional Complex, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 415

540 F.2d 415

Gary S. WILSON, Appellant, v. Robert F. PARRATT, Warden, Nebraska Penal and Correctional

Complex, Appellee.

No. 76-1271.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 19, 1976.

Decided Sept. 1, 1976.

Michael C. Washburn, Omaha, Neb., for appellant.

C. C. Sheldon, Asst. Atty. Gen., Lincoln, Neb., for appellee; Paul L. Douglas, Atty. Gen., Lincoln, Neb. on brief.

Before BRIGHT, STEPHENSON and HENLEY, Circuit Judges.

PER CURIAM.

In December, 1973 Gary S. Wilson, petitioner below and appellant here, was found guilty in the District Court of Douglas County, Nebraska of having participated, along with Charles Casper, in the murder of James Armstrong on April 27 or 28, 1973; the murder was committed in the course of an attempt by Wilson and Casper to rob Armstrong of the sum of $200.00 which they knew that he had on his person. The defendants were tried separately; both were found guilty and both were sentenced to imprisonment for life. Both men appealed, and the convictions of both were affirmed. State v. Wilson, 192 Neb. 435, 222 N.W.2d 128 (1974); State v. Casper, 192 Neb. 120, 219 N.W.2d 226 (1974).

In connection with his direct appeal Wilson contended that the evidence was insufficient to sustain his conviction, and that the trial court had erred in instructing the jury with respect to Wilson's claim that he had withdrawn from the robbery prior to the murder of Armstrong. Both contentions were rejected by the Supreme Court of Nebraska.

Thereafter Wilson filed his petition for a writ of habeas corpus in the United States District Court for the District of Nebraska advancing the same contentions that he had advanced in the course of his direct appeal and contending that his conviction was tainted with a denial of due process of law due to the alleged insufficiency of the evidence and to the alleged error in the trial court's instruction as to an abandonment of a criminal enterprise which culminates in a murder. A similar petition was filed by Casper, and the two petitions were consolidated. The district court ¹ filed an opinion dealing with each petition and denied both petitions. Wilson appeals. We affirm.

As the district court recognized in petitioner's case, a federal habeas court is not vested with jurisdiction to review the sufficiency of the evidence underlying state criminal convictions. Habeas corpus relief on the ground of lack of evidence to sustain petitioner's conviction is available only where the conviction is totally devoid of evidentiary support. White v. Wyrick, 530 F.2d 818 (8th Cir. 1976); Cunha v. Brewer, 511 F.2d 894, 898 (8th Cir. 1975).

When the evidence is viewed in the light most favorable to the State, we are satisfied that the trial jury could have found, although it was not required to find, substantially the following facts:

On the evening of April 27, 1973 Casper, Wilson and his wife began making the rounds of bars in the Omaha, Nebraska neighborhood; they were joined by the deceased James Armstrong. As the evening progressed, Armstrong obtained two one hundred dollar bills from his sister. Wilson and Casper knew that Armstrong...