Petition — Schmidt v. Iowa

52-2027

IN THE SUPREME COURT:¢

UNITED STATES

OCTOBER TERM, 1982

NO.

DALE EUGENE SCHMIDT,

Petitioner,

Vv.

STATE OF IOWA, THCMAS J. MILLER,

ATTCRNEY GENERAL OF STATE CF ICWA,

Respondent,

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

Dale Zuzene Schmidt, Pro Se

Sse - 13th Street, S.k.

Mason City, Iowa 50401

Telephones (515) 423-5309

QUESTIONS PRESENTED FOR REVIEW

Was petitioner denied Assistance

of Counsel?

Was petitioner denied right to

confront witness against him?

Was petitioner compelled to be a

witness against himself?

Opinions Below ---------------------

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Questions Presented -------------

Constitutional Provisions

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Reasons for Granting Writ’ -------

Appendix A

Denial of Petition to Rehear by

the United States Court of

Appeals for the Eighth Circuit --

Order of the United States

Court of Appeals for the Eighth

Circuit of 7 February 1983 ------

Appendix B

Judgment and Order of the

United States District Court

for the Northern District

of Iowa -------------------------

TABLE OF CASES

Wainright v. Sykes, 433 U.S. 72,

90 (1976) --------------------------

CONSTITUTIONAL PROVISIONS

Amendments V, VI, and XIV to The

Constitution for the United States

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To the Honorable, the Chief Justice and

Associate Justices of the Supreme Court of

the United States:

DALE EUGENE SCHMIDT, petitioner herein,

prays that a writ of certiorari issue to

review the judement of the United States

Court of Appeals for the Eighth Circuit

entered in the above-entitled case on

9 March 1983.

CPINIONS BELOW

The orders of 7 February 1983 and 9

March 1933 of the United States Court of

Appeals for the Eighth Circuit are printed

in Appendix A hereto, infra. The Judement

and order of the United States District

Ccurt for the Northern District of Iowa of

13 December 1982 are printed in Appendix 8.

JURISDICTION

The order of the United States Court of

Appeals for the Eighth Circuit was entered on

7 February 1983. A timely petition for

reconsideration was denied on 9 March 1983.

ee

Seid denial is printed in Appendix A, infra.

The jurisdiction of the Supreme Court is

|

invexed under 28 U.S.C.S.. section 1254.

VESTIONS PRESENTED

1. Was petitioner denied Assistance of

Counsel?

2.. Was petitioner denied right to confront

witness against him?

3..Was petitioner compelled to be a

witness against himself?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V:

No person shall...be compelled in any

Criminal case to be a witness against

himself,. nor be deprived of life,. liberty,

or property,. without due process of law...

United States Constitution, Amendment VI:

In all criminal prosecutions, the accused

shall...be confronted with the witnesses

against him...and to have the Assistance

of Counsel for his defence.

United States Constitution, Amendment XIV:

No state shall...deprive any person of

life, liberty,. or property without due

process of law; nor deny to any person...

the equal protection of the laws.

STATEMENT OF CASE

Petitioner was charced with operating

a motor vehicle under the influence of

alconol. At police station petitioner was

read partial Miranda warnings. Being

unemployed and with no income, petitioner

requested Assistance of Counsel. Police

said they could not do that ance continued

questioning which was used at trial.

+ no time did petitioner waive rich

to counsel (Transcript, page 5, line &).

Moments before trial, Mazistrate

instructed prosecutor to “help him,. too,

with premptory challenges, to show him the

lines." (Transcript, page 17, lines 2 and 3).

A prosecution witness, Nr. Rehbdere,

submitted written testimony used at trial,

but was not present for cross-examination.

Petitioner was convicted and appealed to

Iowa Supreme Court which refused to “react

the question whether defendant's richt to

counsel was violated by the state."

Petitioner appealed to United States

te

District Sourt which cited Wainricht v.

~

Svkes, 433 U.S. 72, 90 (1976) where there

were no “contemporaneous objections." In

the oresent case there were clearly

"contemporaneous objections."

Petitioner appealed to Court of Appeals

which affirmed District Court with no reasons.

REASONS FOR GRANTING THs WRIT

"I recognize also that one of the prime

responsibilities of the Federal Government

is to assure that not one single citizen

in this country can be denied his or her

constitutional rights without the Federel

Government cominz in and gvaranteeine these

rights." (New York Times, Dec. 18, 1981).

Since vetitioner has been denied his

constitutional rights, it behooves this

Honorable Court to review the record and

come in and guarantee those rischts.

Resvectfully submitted,

Deb & <hncn

DATED: Dale Eusrené Schmidt, oro se

S52 «= iL5th Street, 3.s.

3 June 1983 Mason City, Iowa 50401

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Misc. No. 83-3019

Apoellant's mction for reconsideration

of this Court's order of February 7, 19383

is genied. The order remains in full

force anc effect.

March 9, 1983

APPENDIX -Al-

UNITED STATES CCURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Mise. No. 33-8010

Dale Eusene Sennidt,

Appellant,

vs.

State of Iowa and Attorney

General of the State of Iow:,

Avvelless.

case from the United States District Court

for the Northern District of Iowa comes

before the court on consideration of

appellant's application for certificate

of probable cavse. In connection therewith,

the Court has carefully examined the

original file of the aforesaid district

court in case number C-$2-151. Being

fully advised in the premises, it is now

here ordered that appellant's application

for certificate of probable cause be,

and it is hereby, denied.

APPENDIX -A2-

UNITED STATES DISTRICT CCURT

FOR THE NORTHERN DISTRICT OF IOWA

Civil Action File No. C 82-151

DALE EUGENE SCHMIDT,

Plaintiff,

vs.

STATE OF IOWA and ATTORNEY GENERAL

OF THE STATE OF IOWA,

Defendants.

JUDGMENT

This action came on for decisicn

before the Court, Honorable Edward J.

McManus, United States District Judge,

presiding, and the issues having been duly

decided and a decision having been duly

rendered, It is Ordered and Adjudged that

the plaintiff take nothing, that the

action be dismissed,

Dated at C iar Rapids, Iowa, this 13th day

of December, 1982

William J. Kanak-Clerk

APPENDIX -Bl-

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION

DALE EUGENES SCHMIDT

Petitioner, :

NO. © 82-151

E OF IOWA,. and the ATTORNEY

RAL OF THE STATE OF IOWA

Resvondent.

This matter is before the court on

petitioner's amendment to his petition filed

on December 6, 1982 in response to the court's

order of November 23,.1982. Dismissed,

In the November 23, 1982 order tne court

Gismissed the petition in which the only

claim was that petitioner's rizht te counsel

was deniec at the time that certain

incriminatine evidence used at trial was

adduced from petitioner. The basis for the

dismissal was that the auestion cf admission

of the evidence was not vroperly vreserved

for state appellate review and therefore

cculd not be considered in a habeas corpus

action absent a showing of cause for the

APPENDIX -Be2-

noncompliance and some showings of actual

prejudice. Wainricht v. Sykes, 433 U.S. 72,

90 (1976); Hicks v. Scurr, 671 F.2d 255, 259

(8th Cir. 1982). Plaintiff, however, was

given an opportunity to amend his petiticn

to show the “cause” and "prejudice."

In his amendment vetitioner asserts

that sufficient objections were made in the

state proceedings to constitute preservation

of the question of admission for appellate

review. Petitioner also cites the differenc

between the present case wnere odjections

were made at some points in the voroceedings

to the admission of the evidence but net at

all points anc the facts in Wainright where

no objections to the admission cf evidence

were made.

The court ccencludes, however, that

petitioner has failed to snow cause for the

noncompliance with the contempcranecus

objection rule and has failed to maxe any

showing of prejudice. The stateis entitled

APPENDIX -53-

to interpret petitioner's counsel's

failure to object to the admission of

the evidence as a waiver of any previous

odfections and Wainricht does not preclude

state courts from applying this weiver

principle as part of the contemporaneous

Dismissed.

December 13, 1982.

L8L

EGwara J. McManus, Chief Jucee

UNITED STATES DISTRICT CCURT

APPENDIX -B4-

AFFIDAVIT OF SERVICE

Pursuant to Rule 28.5(c) of the United

States Suoreme Court, I hereby certify that

on the 3rd day of June, 1983, I mailed first

Class postage orepaid from Mason City, Iow:, .!

forty ccpies of the foregoing Petition for

Writ of Certiorari to the Clerk of the

United States Supreme Court and three

copies to Honorable Thomas J. Miller,

Attorney General of the State of Iowa,

Hoover Building, Des Moines, Iowa 50319.

Dale Eugene Schmidt

532 - 13th Street, 5,=..

Mason City, Iowa 50401