Petition for Writ of Certiorari — Clarke v. Ross

Supreme Court brief1991

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In The

Supreme Court of the United

October Term, 1990

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HAROLD W. CLARKE, THE WARDEN OF THE

NEBRASKA STATE PENITENTIARY,

Petitione”,

WELDON ROSS,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

Don STENBERG

Nebraska Attorney General

*J]. Kirk BRowNn

Assistant Attorney General

Chief, Criminal Appellate Section

Nebraska Department of Justice

2115 State Capitol

Lincoln, NE 68509-8920

(402) 471-2682

TERRI M. WEExks

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509-8920

(402) 471-2682

Counsel for Petitioner

March 7, 1991

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

1. Whether or not there is a Fourteenth Amendment

constitutional right to credit for presentence incarcera-

tion, when the prisoner is held for a bailable offense, the

prisoner is unable to make bail because of indigence, and

upon conviction the prisoner is sentenced to less than the

statutory maximum and/or said sentence in addition to

the presentence incarceration time does not exceed the

statutory maximum sentence for such offense.

LIST OF PARTIES

The parties to the proceedings below were the peti-

tion Harold W. Clarke, the Warden of the Nebraska State

Penitentiary and the respondent Weldon Ross.

iii

TABLE OF CONTENTS

Page

gs ne i

I TET EERE ERT EEE Eee ii

se | Vv

I eee eee eee eee eee 2

CS whee kK Sc aon Sek Sheed ase ceevassees 2

CONSTITUTIONAL PROVISION INVOLVED....... 3

ee es la ne 3

REASONS FOR GRANTING THE WRIT

I. THE EIGHTH CIRCUIT’S JUDGMENT

GRANTING THE RESPONDENT CREDIT

FOR TIME SPENT IN JAIL BEFORE SEN-

TENCE FOR FAILURE TO MAKE BAIL DUE

TO INDIGENCE WHEN THE CONVICT’S

SENTENCE DID NOT EXCEED THE STATU-

TORY MAXIMUM AND/OR THE SENTENCE

IMPOSED IN ADDITION TO THE PRESEN-

TENCE INCARCERATION TIME DID NOT

EXCEED THE STATUTORY MAXIMUM SEN-

TENCE FOR SAID OFFENSE, CONFLICTS

WITH DECISIONS OF THIS COURT AND

oe 8 rae 6

Il. THE CHANGE IN CIRCUMSTANCE SINCE

THE JUDGMENT OF THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIR-

CUIT MAY HAVE RENDERED THIS APPEAL

MOOT, HOWEVER IF THE IMMEDIATE

ISSUE IS MOOT, THE PUBLIC INTEREST

EXCEPTION ALLOWS THIS COURT TO REN-

DER A DECISION ON THE MERITS........ 13

a CSS beeen ses hacen ccetaense 19

APPENDIX

TABLE OF CONTENTS - Continued

Judgment of the United States Court of Appeals for

the Eighth Circuit, dated December 7, 1990.......

Order of the United States Court of Appeals for

the Eighth Circuit denying the Appellee’s peti-

tion for rehearing en banc, dated February 26,

1991

TA PA eC PEA EAE OE ae SERA EE 8.0.4 BES SES BS OSS. OSA OO 26

Order of the United States District Court for the

District of Nebraska denying the petition for writ

of habeas corpus, dated April 10, 1990.........

Report and Recommendation of the United States

Magistrate recommending that the petition for

writ of habeas corpus be denied, dated February

Si ROME NNSA a CEPES Sw EE SER SASREOS KERMAN ESO NS Ke's

Notice of Appeal of intent to prosecute an appeal

to the Eighth Circuit, dated April 17, 1990.....

Order of the United States District Court for the

District of Nebraska ordering that a certificate of

probable cause shall issue, dated April 26, 199U...

Excerpt portions of testimony from the bill of

exceptions at Weldon Ross’ sentencing hearing in

hee PERRY Lata ys OC yy

————

TABLE OF AUTHORITIES

Page

CASES:

FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct.

7 a am Rs Be, | Sa 18

Hook v. Arizona, 496 F.2d 1172 (9th Cir. 1974)....... 8

King v. Wyrick, 516 F.2d 321 (8th Cir. 1975)....5, 9, 10

Lewis v. Continental Bank Corporation, 494 U.S.

__, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)........ 14

Matthews v. Dees, 579 F.2d 929 (5th Cir. 1978)....... 8

Palmer v. Dugger, 833 F.2d 253 (11th Cir. 1987) ...... 7

Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20

LE WER RENEE CaN abd ect auika penae nok neNs ais 14

Southern Pac. Terminal Co. v. Interstate Com-

merce Commission, 219 U.S. 498, 31 S.Ct. 279,

ee Gs ee EE obs Ses Ke A OK CKD es eee 16

State v. Patterson, 237 Neb. 198, _.§ N.W.2d ___

CRUE Sao 6 00a hh OCG EE OR Tee ee Ca ln ee 16

State v. Ross, 220 Neb. 843, 374 N.W.2d 228 (1985)

S RAPS eae oa eee aioe ata are er ae eae rere, Fe

Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d

5. he , : | Ranney Pe Minn Bas tem nema pe ary TAM ACE He 6, 7, 13

Vasquez v. Cooper, 862 F.2d 250 (10th Cir. 1988) ..... 8

Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26

me & Ci. PNT rene wr i ae Vis

STATUTES:

RE 6 Pn see 2

Gr Oe eee 2, 3

TABLE OF AUTHORITIES - Continued

Page

Neb.Rev.Stat. § 28-932 (Cum. Supp. 1984) ....12, 16, 18

Neb.Rev.Stat. § 29-2221 (Reissue 1979)................ 3

OTHER:

Spe ee, PAUONE, FEM, BD Do csc a scslvaseccudvevacnd« 3

No.

In The

Supreme Court of the United States

October Term, 1990

HAROLD W. CLARKE, THE WARDEN OF THE

NEBRASKA STATE PENITENTIARY,

Petitioner,

WELDON ROSS,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

The petitioner Harold W. Clarke respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Eighth Circuit,

entered in the above-entitled proceeding on December 7,

1990.

OPINIONS BELOW

The judgment of the Court of Appeals for the Eighth

Circuit is reprinted in the appendix hereto, p. 1a, infra.

The report and recommendation and the Order of

denial of Writ of Habeas Corpus of the United States

District Court for the District of Nebraska (Urbom, D.]J.)

has not been reported. It is reprinted in the appendix

hereto, pp. 3a-7a, infra.

JURISDICTION

Invoking federal jurisdiction under 28 U.S.C. § 2254,

the respondent brought this suit in the District Court of

Nebraska. On April 10, 1990, the District Court denied

the respondent’s petition for a writ of habeas corpus. See

p. 3a, infra.

On respondents’ appeal, the Eighth Circuit on

December 7, 1990, entered a judgment reversing the Dis-

trict Court’s order and directing that respondent's action

be remanded to the United States District Court for the

District of Nebraska with directions to grant the respon-

dent credit for time spent in jail before sentence for

. failure to make bail due to indigence. See p. 1a, infra. The

petitioner sought rehearing and rehearing en banc

wherein both requests were denied by the United States

Court of Appeals for the Eighth Circuit on February 26,

1991. See p. 2a, infra.

The jurisdiction of this Court to review the judgment

of the Eighth Circuit is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

All persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

U.S. Const. Amend. XIV, § 1.

STATEMENT OF THE CASE

Weldon Ross, an inmate at the Nebraska State Peni-

tentiary, appealed the denial of his petition for a writ of

habeas corpus to the United States Court of Appeals for

the Eighth Circuit. The habeas corpus relief was sought

pursuant to 28 U.S.C. § 2254. The dismissal of the Appel-

lant’s habeas corpus action was his first brought in the

United States District Court for the District of Nebraska.

Ross was tried and convicted by a jury for assault by

a confined person in the District Court of Lancaster

County, Nebraska, on September 17, 1984. After a hear-

ing, the District Court found that Ross was an habitual

criminal and the court sentenced him under Neb.Rev.Stat.

§ 29-2221 (Reissue 1979), to a minimum term of 10 years

imprisonment. Ross appealed his conviction and sentence

to the Nebraska Supreme Court contending that there

should have been a mistrial due to prosecutorial miscon-

duct, and that he should have received credit for presen-

tence jail time. The Nebraska Supreme Court affirmed his

conviction and sentence, holding that the alleged exam-

ples of prosecutorial misconduct did not entitle Ross to a

mistrial, and that it was within the discretion of the trial

court to deny credit for jail time prior to sentencing. State

v. Ross, 220 Neb. 843, 374 N.W.2d 228 (1985). Subse-

quently, Ross sought post-conviction relief in the District

Court of Lancaster County, Nebraska, but relief was

denied.

Ross then filed his petition for writ of habeas corpus

in the United States District Court for the District of

Nebraska, contending that he should have been given

credit for time served prior to his sentencing. Ross spent

approximately one year as a pretrial and presentence

detainee from the date of the offense of assault by a

confined person, March 27, 1984, until sentencing,

November 2, 1984 (220 days). When Ross committed the

underlying criminal offense of assault by a confined per-

son (which was subsequently enhanced to an habitual

criminal charge) he was already imprisoned on other

criminal charges (pp. 10a-11a, infra).

United States Magistrate Piester found no merit in

Ross’ petition and recommended that the petition for a

writ of habeas corpus be denied (pp. 4a-7a, infra). Ross

filed an objection to the Magistrate’s Report and Recom-

mendation. United States District Court Judge Urbom

adopted the Magistrate’s Report and Recommendation

and ordered that the petition for a writ of habeas corpus

be denied (p. 3a, infra). Ross appealed the denial of the

writ of habeas corpus to the United States Court of

Appeals for the Eighth Circuit (pp. 8a-9a, infra).

On December 7, 1990, without presentation of oral

argument, the Eighth Circuit entered a judgment ordering

that the matter be remanded to the United States District

Court for the District of Nebraska with directions to grant

Ross credit for time spent in jail before sentence for

failure to make bail due to indigence (p. 1a, infra). The

Eighth Circuit cited King v. Wyrick, 516 F.2d 321, 324 (8th

Cir. 1975) as legal precedent in support of their judgment.

On Dece:nber 13, 1990, Ross was discharged from the

legal authority of the Nebraska Department of Correc-

tional Services for time served irrespective of the Eighth

Circuit judgment dated December 7, 1990 (p. 1a, infra).

On December 20, 1990, Harold Clarke, the Warden of

the Nebraska State Penitentiary, petitioned the Eighth

Circuit for rehearing and suggestion for rehearing en

banc. The petition for rehearing and suggestion for

rehearing en banc were both denied on February 26, 1991

(p. 2a, infra).

REASONS FOR GRANTING THE WRIT

THE EIGHTH CIRCUIT’S JUDGMENT GRANTING

THE RESPONDENT CREDIT FOR TIME SPENT IN

JAIL BEFORE SENTENCE FOR FAILURE TO MAKE

BAIL DUE TO INDIGENCE WHEN THE CONVICT’S

SENTENCE DID NOT EXCEED THE STATUTORY

MAXIMUM AND/OR THE SENTENCE IMPOSED IN

ADDITION TC THE PRESENTENCE INCARCERA-

TION TIME DID NOT EXCEED THE STATUTORY

MAXIMUM SENTENCE FOR SAID OFFENSE, CON-

FLICTS WITH DECISIONS OF THIS COURT AND

OTHER CIRCUITS.

Through broad interpretation, the Eighth Circuit has

provided the respondent, Weldon Ross, undue protection

pursuant to the Fourteenth Amendment of the United

States Constitution. The Eighth Circuit has afforded Ross

with the constitutional right to equal protection whereby

the court granted credit for time spent in jail before

sentence for failure to make bail due to indigence when

Ross’ sentence did not exceed the statutory maximum

and/or the sentence imposed in addition to the presen-

tence incarceration time did not exceed the statutory

maximum sentence for said offense. Such a broad inter-

pretation deserves this Court’s attention.

The Eighth Circuit’s broad expansion of a doctrine of

equal protection as it pertains to presentence jail time

credit directly conflicts with this Court’s ruling in Wil-

liams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586

(1970) and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28

L.Ed.2d 130 (1971). In Williams v. Illinois, supra, the State

sought to confine the defendant for longer than the statu-

tory maximum to make him “work off’ the fine the

sentencing judge had imposed along with the maximum

sentence. The Court struck down Illinois’ practice of

incarcerating beyond the maximum term those defen-

dants unable to pay a fine. The Court in Williams con-

cluded “that when the aggregate imprisonment exceeds

the maximum period fixed by the statute and results

directly from an involuntary nonpayment of a fine or

court costs we are confronted with an impermissible dis-

crimination that rests on ability to pay...” Id. 399 US. at

240-41, 90 S.Ct. at 2022, 26 L.Ed.2d at 592. The Court held

that “the Equal Protection Clause of the Fourteenth

Amendment requires that the statutory ceiling placed on

imprisonment for any substantive offense be the same for

all defendants irrespective of their economic status.” Id.

399 U.S. at 244, 90 S.Ct. at 2023-24, 26 L.Ed.2d at 594.

The following year after the Williams decision, the

Court in Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28

L.Ed.2d 130 (1971), extended Williams to bar imprison-

ment of an indigent defendant who was unable to pay the

fine for an offense that was punishable only by fine. The

holdings of Williams and Tate stand for the proposition

that no person may be incarcerated, upon conviction of a

crime, for a period longer than the maximum sentence set

by statute solely on the basis of his or her inability to pay

a criminal fine. They do not stand for the sweeping

proposition that whenever a person spends more time

incarcerated than a wealthier person would have spent,

the equal protection clause is violated.

Equally in conflict with the judgment below is Palmer

v. Dugger, 833 F.2d 253 (11th Cir. 1987). In Palmer, the

Eleventh Circuit held that “a prisoner is entitled to credit

for presentencing incarceration if three conditions are

present: (1) the prisoner is held for a bailable offense; (2)

the prisoner is unable to make bail because of indigence;

and (3) upon conviction the prisoner is sentenced to the

statutory maximum sentence for that offense.” Id. 833

F.2d at 255. Also in conflict with the Eighth Circuit’s

judgment is Matthews v. Dees, 579 F.2d 929 (5th Cir. 1978).

In Matthews, the Fifth Circuit held that there is no consti-

tutional right to credit for presentence confinement when

the total confinement is less than the maximum allowed.

Id. 579 F.2d at 931.

The Ninth Circuit is also in conflict with the judg-

ment below. In Hook v. Arizona, 496 F.2d 1172 (9th Cir.

1974) the court held that a defendant retains the right not

to have the statutory maximum sentence extended by

reason of indigency. Hook was entitled to credit for pre-

sentence confinement suffered due to indigency when he

was liable to serve the statutory maximum sentence or

beyond. In Vasquez v. Cooper, 862 F.2d 250 (10th Cir. 1988),

the Tenth Circuit Court held that the defendant was not

entitled to credit against sentence for time spent in pre-

trial custody. He was not entitled either as a matter of

equal protection or due process where the defendant's

preirial incarceration was one of the factors considered

by the judge in ordering sentence, and the defendant's

total incarceration time was within the statutory limita-

tion set ior that offense. The total time Vasquez spent in

confinement did not exceed the maximum term defined

by statute.

The judgment of the Eighth Circuit ordered that the

matter be remanded to the United States District Court

for the District of Nebraska with directions to grant Ross

credit for time spent in jail before sentence for failure to

make bail due to indigence (p. 1a, infra). The Eighth

Circuit held that there is a constitutional right to credit

for presentence incarceration even where the total time is

less than the maximum penalty for the offense. King v.

Wyrick, 516 F.2d at 321-25. The King Court reasoned as

follows:

Since Williams v. Illinois, 399 U.S. 235, 90

S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v.

Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130

(1971), many federal courts have come to recog-

nize that failure to grant credit on an indigent

prisoner’s sentence for time spent in jail before

sentencing for failure to meet bail due to indi-

gency has constitutional implications. Several

courts have held that it is a denial of equal

protection not to grant an indigent prisoner

credit for jail time served after he has been

unable to meet bail due to indigency when his

sentence plus the previous jail time adds up to a

total period of incarceration longer than the

maximum allowable term prescribed by law for

the offense committed. See, e.g., Parker v. Estelle,

498 F.2d 625 (5th Cir. 1974); Hook v. State of

Arizona, 496 F.2d 1172 (9th Cir. 1974); Hill v.

Wainwright, 465 F.2d 414 (Sth Cir. 1972); Hart v.

Henderson, 449 F.2d 183 (5th Cir. 1971). See also

Reanier v. Smith, 83 Wash.2d 342, 517 P.2d 949

(1974) (credit on statutory maximum and mini-

mum sentence); In re Young, 32 Cal.App.3d 68,

107 Cal.Rptr. 915 (1973) (credit on statutory min-

imum sentence). This result follows from the

holding in Williams v. Illinois, supra, 399 U.S. at

244, 90 S.Ct. at 2023, that “the Equal Protection

Clause of the Fourteenth Amendment requires

that the statutory ceiling placed on imprison-

ment for any substantive offense be the same for

all defendants irrespective of their economic sta-

tus.” It was pursuant to the equal protection

rationale that the Magistrate recommended that

petitioner be granted credit on the maximum 10-

year sentence of burglary.

Id. 516 F.2d at 323.

The holding in King and the Eighth Circuit’s reliance

thereon far exceeds the Supreme Court of the United

States’ holding in Williams v. Illinois, supra, wherein they

held that there is a federal constitutional right not to be

subjected to imprisonment beyond the statutory maxi-

mum solely because of indigence. The Eighth Circuit's

ruling in King and its reliance in support of its judgment

which is at issue in the present petition is at odds with

other Courts of Appeals, e.g. Sth, 9th, 10th and 11th

circuits.

In the present case, Ross was sentenced to the statu-

tory minimum, i.e. ten years for being found guilty of

beine on habitual criminal. See, State v. Ross, 220 Neb. 843,

843-44, 374 N.W.2d 228, 229 (1985). Ross asked for credit

from the date of the offense, March 27, 1984, until sen-

tencing, November 2, 1984 (220 days). The fact of the

matter is that “[o]n March 27, 1984, while confined to the

Lancaster County jail and awaiting trial on other charges,

the defendant struck Officer Michael Craft.” Id. 220 Neb.

at 844, 374 N.W.2d at 229. The testimony from the sen-

tencing hearing also demonstrates that indigence was not

the reason, the appellant was denied credit:

tre OGUME: ...

The Court is going to impose the minimum

sentence provided by law; ten years confine-

ment in an institution under the control of the

Nebraska Department of Public Institutions, of

Correctional Services, plus the costs of this

action.

The Court is midful [sic] of the statute of no

credit for offenses of this nature and the Court

will not give any credit.

Fine, thank you.

The Court would remand you to the cus-

tody of the Department of Correctional Services.

MR. GOOCH: Your Honor, with respect to

that, I think the statute only says that you can-

not give credit prior to the event, not subse-

quently. But I’d ask the Court maybe just to look

at the statute because, certainly, from March

28th on, Weldon has been in custody on this

charge and has not been able to make the bond

on this charge. And that statute is real clear that

the time before that the Court is not supposed to

give credit, but I don’t think the statute even

suggests that the Court ought to give credit after

that. And perhaps if we could just take a

moment and look at the statute.

THE COURT: I have. I have read it many,

many times since this question was brought up

some time ago. He’s still being held on those

other charges and I guess this alleged offense

happened while he was being held on those

other charges. So then I don’t think even the

recent case law that has come down from our

Supreme Court where they have given credit

after a plea or after a conviction and they gave

credit then - I think it was a Grand Island, a

Hall County case - I don’t even think that’s

appropriate in this case because, again, he was

still being held under those cases, those other

cases, and they were still pending in court. So I

don’t think any credit is available.

Fine, thank you.

(pp. 10a-12a, infra).

Moreover, the underlying criminal statute, assault by

a confined person, Neb.Rev.Stat. § 28-932 (Cum. Supp.

1984) provides:

(1) Any person who is legally confined in a jail

or correctional or penal institution and inten-

tionally, knowingly, or recklessly causes bodily

injury to another person shall be guilty of a

Class IV felony, except that if a deadly or dan-

gerous weapon is used to commit such assault

he or she shall be guilty of a Class III felony.

(2) Sentences imposed under subsection (1) of

this section shall be consecutive to any sentence

or sentences imposed for violations committed

prior to the violation of subsection (1) of this

section and shall not include any credit for time

spent in custody prior to sentencing unless the

time in custody is solely related to the offense

for which the sentence is being imposed under

this section.

Ross’ time in custody was not solely related to the offense

for which the sentence was being imposed under

Neb.Rev.Stat. § 28-932 (Cum. Supp. 1984), but rather Ross

was being held on other charges (pp. 11a-12a, infra). It

was not until after he was found guilty of being an

habitual criminal (p. 10a, infra) that the other charges for

which he was being held, were dismissed (pp. 11a-12a,

infra). Therefore, it is clear, that according to Neb.Rev.Stat.

§ 28-932, Ross was not entitled to credit for time served.

See also, State v. Ross, 220 Neb. at 846-47, 374 N.W.2d at

230-31.

It is Clarke’s position that the judgment rendered on

December 7, 1990, is contrary to law. The judgment did

not grant Ross a writ of habeas corpus but it did remand

for the imposition of presentence jail credit. Ross was

never subjected to imprisonment beyond the statutory

maximum sentence allowed by law nor was he detained

because of indigence. The Eighth Circuit’s far reaching

interpretation of Williams v. Illinois, supra, and Tate v.

Short, supra, is likely to generate further confusion among

the circuits. The holdings of Williams and Tate do not

stand for the sweeping proposition that whenever a per-

son spends more time incarcerated than a wealthier per-

son would have spent, the equal protection clause is

violated. Plenary consideration of the matter by this

Court is essential.

Il.

THE CHANGE IN CIRCUMSTANCE SINCE THE

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT MAY HAVE

RENDERED THIS APPEAL MOOT, HOWEVER IF THE

IMMEDIATE ISSUE IS MOOT, THE PUBLIC INTER-

EST EXCEPTION ALLOWS THIS COURT TO RENDER

A DECISION ON THE MERITS.

The appellant, Weldon Ross, was discharged from the

authority of the Nebraska Department of Correctional

Services on December 13, 1990. His discharge was based

upon his time served. The Eighth Circuit’s judgment on

December 7, 1990, played no part on Ross’ discharge.

Under Article III of the Constitution, federal

courts may adjudicate only actual, ongoing

cases or controversies. Deakins v. Monaghan, 484

U.S. 193, 199, 108 S.Ct. 523, 528, 98 L.Ed.2d 529

(1988); Preiser v. Newkirk, 422 U.S. 395, 401, 95

S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975). To

invoke the jurisdiction of a federal court, a liti-

gant must have suffered, or be threatened with,

an actual injury traceable to the defendant and

likely to be redressed by a favorable judicial

decision, Allen v. Wright, 468 U.S. 737, 750-51,

104 S.Ct. 3315, 3324, 82 L.Ed.2d 556; Valley Forge

Christian College v. Americans United For Separa-

tion of Church and State, Inc., 454 U.§. 464,

471-473, 102 S.Ct. 752, 757-59, 70 L.Ed.2d 700

(1982). Article III denies federal courts the

power “to decide questions that cannot affect

the rights of litigants in the case before them,”

North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct.

402, 404, 30 L.Ed.2d 413 (1971), and confines

them to resolving “ ‘real and substantial contro-

vers[ies] admitting of specific relief through a

decree of a conclusive character, as distin-

guished from an opinion advising what the law

would be upon a hypothetical state of facts.’ ”

Ibid. (quoting Aetna Life Insurance Co. v. Haworth,

300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617

(1937)). This case-or-controversy requirement

subsists through all stages of federal judicial

proceedings, trial and appellate. To sustain our

jurisdiction in the present case, it is not enough

that a dispute was very much alive when suit

was filed, or when review was obtained in the

Court of Appeals,. Deakins, supra, 484 U.S., at

199, 108 S.Ct., at 528; Steffel v. Thompson, 415 U.S.

452, 459, n. 10, 94 S.Ct. 1209, 1216, n. 10, 39

L.Ed.2d 505 (1974). The parties must continue to

have a “ ‘personal stake in the outcome’ ” of the

lawsuit, Los Angeles v. Lyons, 461 U.S. 95, 101,

103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983) (quot-

ing Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691,

703, 7 L.Ed.2d 663 (1962)).

Lewis v. Continental Bank Corporation, 494 U.S.__, __, 110

S.Ct. 1249, 1253-54, 108 L.Ed.2d 400, 411 (1990).

Clarke is aware that in Sibron v. New York, 392 U.S. 40,

88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) this Court dealt with

the issue of whether or not the petitioner’s appeal was

moot because he had completely served his sentence.

The Court stated that mere release of the

prisoner does not automatically foreclose con-

sideration of the merits of the case by the Court,

provided the case falls under one or both of the

exceptions to the “doctrine of mootness” recog-

nized by the Court in St. Pierre, supra. First, the

Court held that the State may not effectively

deny the prisoner access to the appellate courts

until he has been released and then argue that

his case has become moot... .

The second exception recognized in St.

Pierre permits adjudication of the merits of a

criminal case where the petitioner may suffer

future state or federal penalties or disabilities as

a result of the judgment. This exception has

been expanded to include a wide array of

“penalities or disabilities.” See, Fiswick v. United

States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196

(1946) (case was not moot because the petitioner

might later be subject to deportation for com-

mitting a crime of moral turpitude); United

States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98

L.Ed. 248 (1954) (petitioner’s case was not moot

because subsequent convictions might carry

heavier penalties and civil rights might be

affected); Pollard v. United States, 352 U.S. 354, 77

S.Ct. 481, 1 L.Ed.2d 393 (1957) (the mere possi-

bility of consequences collateral to the imposi-

tion of sentence is enough to justify hearing the

merits of the case); Ginsberg v. New York, 390 U.S.

629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (the

possibility that the appellant’s license to engage

in the luncheonette business might be revoked

because of a criminal conviction was enough to

bring the case within this second exception).

The Court in Sibron, supra, held that a crimi-

nal case is moot only if it is shown that there is

no possibility that any collateral legal conse-

quences will be imposed on the basis of the

challenged conviction. Since Sibron’s credibility

as a witness would be subject to impeachment

by use of the conviction and the conviction

might be considered by a court in sentencing in

the future, the Court concluded that Sibron

would suffer future penalties and disabilities

and his case was not moot under St. Pierre.

State v. Patterson, 237 Neb. 198, 202-03, | N.W.2d

— (1991).

It cannot be clearly demonstrated that there is no

possibility that any legal consequences would be imposed

on the basis of the challenged conviction.

This Court has stated that it may adjudicate an

apparently moot case if it is one “capable of repetition” as

to the wronged party “yet evading review” because of the

time required to move the case through the courts. South-

ern Pac. Terminal Co. v. Interstate Commerce Commission,

219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).

The present case presents a wrong capable of repetition

yet evading review requiring an authoritative adjudica-

tion for future guidance. Clarke contends that a prisoner

may not be given credit for presentence incarceration

uniess three conditions are present: (1) the prisoner was

held for a bailable offense; (2) the prisoner was unable to

make bail because of indigence; and (3) upon conviction

the prisoner was sentenced to the statutory maximum

sentence for that offense. Furthermore, Neb.Rev.Stat.

§ 28-932 specifically prohibits credit for time served, if

the inmate is being held on other charges in addition to

the charge for which the sentence is being imposed. An

enhancement hearing was held after Ross was adjudi-

cated guilty of assault by a confined person and was

found to be an habitual criminal (p. 10a, infra). It is

axiomatic that being charged with assault by a confined

person, that one must be detained in custody pursuant to

other charges. It also follows, that situations as the one at

bar will occur again and again, as long as the statutory

provision prohibiting such credit exists. As demonstrated

by the present case, a case of this nature is capable of

repetition as to the wronged party yet evading review

because of the time required to move the case through the

courts. In the case at bar, Ross was discharged from the

authority of the Nebraska Department of Correctional

Services on December 13, 1990, because he had served his

time required by state law.

If the issue will in the future continue to evade

review, this Court has the power and duty to render a

decision on the merits. The issue of whether or not there

is a constitutional right to credit for presentence incarcer-

ation, when the prisoner is held for a bailable offense, the

prisoner is unable to make bail because of indigence, and

upon conviction the prisoner is sentenced to less than the

statutory maximum and/or said sentence in addition to

the presentence incarceration time does not exceed the

statutory maximum sentence for said offense, is an issue

presented in the case at bar and may continue to evade

review in the future. Therefore, Clarke respectfully

requests that this Court grant a writ of certiorari to con-

sider the matter on the merits.

More importantly, the present case involves a matter

of great public interest because of the need for uniformity

of granting a prisoner credit for presentence confinement.

There still remains the possibility that other prisoners

may file petitions for federal habeas corpus relief who

were charged, convicted, and sentenced under

Neb.Rev.Stat. § 28-932 (Cum. Supp. 1984) seeking credit

for presentence incarceration. A resolution is sought to

clarify and have a uniform approach to pr2sentence

detention credit when a prisoner is held for a bailable

offense, the prisoner is unable to make bail because of

indigence, and upon conviction the prisoner is sentenced

to less than the statutory maximum sentence and/or the

sentence imposed in addition to the presentence deten-

tion does not exceed the statutory maximum for said

offense.

Federal courts have never been empowered to issue

advisory opinions. FCC v. Pacifica Foundation, 438 U.S.

726, 735, 98 S.Ct. 3026, 3033, 57 L.Ed.2d 1073 (1978).

Clarke is not suggesting that this Court render an advi-

sory opinion, however, it is his position that Ross’ claim

is still alive, however, in the alternative if this Court

determines that this matter is moot that it is a case

capable of repetition as to the wronged party yet evading

review because of the time required to move the case

through the courts and/or it is a case of great public

interest which requires this Court to issue a writ of cer-

tiorari.

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review the judgment of the Court of Appeals for

the Eighth Circuit.

Respectfully submitted,

Harold W. Clarke, Petitioner,

J. Kirk Brown, #10456

Assistant Attorney General

Chief, Criminal Appellate Section

Nebraska Department of Justice

2115 State Capitol

Lincoln, NE 68509

Tel: (402) 471-2682

Counsel of Record

Terri M. Weeks, #18349

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509

Tel: (402) 471-2682

Counsel for Petitioner

March 7, 1991

Pf c= i Tied 5 =

Bei ae

4, eel

a 0 - e

: bie

Cat

In The

Supreme Court of the United States

October Term, 1990

HAROLD W. CLARKE, THE WARDEN OF THE

NEBRASKA STATE PENITENTIARY,

Petitioner,

WELDON ROSS,

Respondent.

APPENDIX

INDEX

Page

Judgment of the United States Court of Appeals

for the Eighth Circuit, dated December 7, 1990..

Order of the United States Court of Appeals for

the Eighth Circuit denying the Appellee’s peti-

tion for rehearing en banc, dated February 26,

SOF eatin eA UGE OS hod CEU EE REO ae eke es

Order of the United States District Court for the

District of Nebraska denying the petition for writ

of habeas corpus, dated April 10, 1990..........

Report and Recommendation of the United States

Magistrate recommending that the petition for

writ of habeas corpus be denied, dated February

Ce PR EOE ENT ere Pere ee ET OR Te MST ET Pee er

Notice of Appeal of intent to prosecute an appeal

to the Eighth Circuit, dated April 17, 1990......

Order of the United States District Court for the

District of Nebraska ordering that a certificate of

probable cause shall issue, dated April 26, 1990.

Excerpt portions of testimony from the bill of

exceptions at Weldon Ross’ sentencing hearing in

SR eee Per ee Pare kage | ee Ne Wt

.la

.9a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 90-1694NE

Weldon Ross, °

nppesam, Appeal from the United

vs. * States District Court for

Seid Ctacke * the District of Nebraska

Appellee. *

JUDGMENT

This matter was submitted on the briefs without oral

argument. It is hereby ordered and adjudged that this

matter be remanded to the United States District Court

for the District of Nebraska with directions to grant

appellant credit for time spent in jail before sentence for

failure to make bail due to indigency. See King v. Wyrick,

516 F.2d 321, 324 (8th Cir. 1975).

“The Court’s mandate shall issue forthwith.

December 7, 1990

Order Entered at the Direction of the Court.

Robert D. St. Vrain

Clerk, U.S. Court of Appeals, Eighth Circuit

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 90-1694NE

Weldon Ross, r

Apparent, Appeal from the United

VS. * States District Court for

Harold Clarke, : the District of Nebraska

Appellee. *

Appellee’s petition for rehearing en banc has been

considered by the Court and is denied as being untimely

filed.

February 26, 1991

Order entered at the direction of the Court.

Robert D. St. Vrain

Clerk, U.S. Court of Appeals, Eighth Circuit

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

WELDON ROSS, CV90-L-26

Petitioner, + ORDER OF DENIAL OF

VS. . WRIT OF HABEAS

. i]

HAROLD CLARKE, ; CORPUS

Respondent. *

for the reasons stated in the magistrate’s report and

recommendation dated February 6, 1990.

IT IS ORDERED that the petition for writ of habeas

corpus is denied.

Dated April 10, 1990.

BY THE COURT

Warren K. Urbom

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

WELDON ROSS, 5 CV90-L-26

Petitioner, , REPORT AND

VS. : RECOMMENDATION

HAROLD CLARKE, =

Respondent. *

Petitioner, an inmate at the Nebraska State Penitenti-

ary, has filed a petition for a writ of habeas corpus~

pursuant to 28 U.S.C. §2254. Liberally construing the

allegations of the petition, Haines v. Kerner, 404 U.S. 519,

520-21 (1972), I conclude it tails to provide a basis for

habeas relief. Because amendment of the petition would

be futile, I shall recommend that the petition be denied.

On November 2, 1984, the District Court of Lancaster

County, Nebraska convicted petitioner of one count of

assault on a confined person. After finding that petitioner

was an habitual criminal, the court sentenced him under

Neb. Rev. Stat. §29-2221 (Reissue 1979), to a term to 10

years imprisonment. Petitioner appealed the conviction

and sentence to the Nebraska Supreme Court, which

affirmed. State v. Ross, 220 Neb. 843, 374 N.W.2d 228

(1985). Thereafter, petitioner sought post-conviction relief

in the district court, but such relief was denied.

While the petition indicates that petitioner advances

three grounds for relief, he has, in reality one claim. He

contends that he should have been given credit for time

served prior to his sentencing. Petitioner allegedly spent

one year as a pretrial detainee, and this time was not

served on any other sentence of imprisonment.

Given that petitioner presented this claim to the

Nebraska Supreme Court on direct appeal, and the claim

was resolved against him, I conclude he has exhausted

his available state court remedies. See Rose v. Lundy, 455

U.S. 509, 518-19 (1982).! I therefore turn to the merits of

his petition.

The “Equal Protection Clause of the Fourteenth

Amendment requires that the statutory ceiling placed on

imprisonment for any substantive offense be the same for

all defendants, irrespective of their economic status.” Wil-

liams v. Illinois, 399 U.S. 235, 244 (1970).2 Thus, where an

indigent defendant is unable to post bond, and where his

sentence, together with the time spent in presentence

detention, amounts to more than the maximum statutory

penalty for the offense of which he was convicted, equal

protection requires that he receive credit for the time

served prior to sentencing. King v. Wyrick, 516 F.2d 321,

323 (8th Cir. 1975).

' Petitioner also presented the claim in his post-conviction

motion, but alleges that the district court refused to give it

independent consideration, rejecting it on the basis of the

Nebraska Supreme Court's decision. Under Nebraska law, this

was a correct result, since post-conviction actions cannot be

used to litigate matters already decided on direct appeal. See

State v. Meis, 223 Neb. 935, 937, 395 N.W.2d 509, 512 (1986).

2 While petitioner does not directly aiiege that he was

detained prior to trial due to an inability to post bail, I shall

assume that to be the case, since such an assumption is the

most favorable construction of the petition possible.

Here, the sentence imposed on petitioner was less

than the maximum under the habitual criminal statute.

Indeed, it was the minimum sentence which could be

imposed under that statute. Where a sentence imposed is

less than the statutory maximum, a federal court must

conclusively presume that presentence detention time

was taken intc account in imposing the sentence, in the

absence of direct evidence to the contrary. King, 516 F.2d

at 324; Davis v. Parratt, 460 F.Supp. 1227, 1233 (D. Neb.

1978). There are statements in the opinion of the

Nebraska Supreme Court which indicate that credit for

presentence detention was expressly denied by the dis-

trict court. Ross, 220 Neb. at 847, 374 N.W.2d at 331.

However, this does not necessarily mean that the district

court did not consider that time in determining the length

of petitioner’s sentence. Stated another way, if this court

were to grant this petition, vacate petitioner’s sentence,

and order the Nebraska courts to either resentence peti-

tioner or release him, it would be permissible for the trial

court to expressly grant petitioner one year for the time

he served prior to sentencing and sentence him to 11

years imprisonment, resulting in the same net sentence.

Equal protection prohibits only the imposition of a sen-

tence which exceeds the statutory maximum when pre-

sentence detention is taken into account. Petitioner’s

sentence does not do this. The petition should be denied.

IT THEREFORE IS HEREBY RECOMMENDED, pur-

suant to 28 U.S.C. §636(b)(1)(b), that the petition for a

writ of habeas corpus be denied.

Petitioner is hereby notified that unless objection is

made within eleven days after he is served with a copy of

this recommendation, he may be held to have waived any

right he may have to appeal the court’s order adopting

this recommendation.

Dated February 6, 1990.

BY THE COURT

David L. Piester

United States Magistrate

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

WELDON ROSS, ' CV90-L-26

Petitioner, +» = NOTICE OF APPEAL

VS. .

HAROLD CLARKE, .

Respondent. *

COMES NOW Weldon Ross, Petitioner in the above

entitled case and notify this court of his intent to pros-

ecute an appeal to the Eighth Circuit Court of Appeals,

from an order entered by this Court on April 10, 1990.

Petitioner believes this case has merits and is not

moot or frivolous.

Respectfully submitted,

Weldon Ross

Petitioner

Dated this 17th day of April, 1990.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

WELDON ROSS, . CV90-L-26

Petitioner, - ORDER

VS. 7

HAROLD CLARKE,

Respondent.

Petitioner has filed a notice of appeal, filing 8.

IT IS ORDERED that the petitioner is granted leave to

appeal in forma pauperis and a certificate of probable

cause shall issue.

Dated April 26, 1990.

BY THE COURT

Warren K. Urbom

United States District Judge

10a

IN THE DISTRICT COURT

OF LANCASTER COUNTY, NEBRASKA

THE STATE ) Docket No. 66

OF NEBRASKA, ) Page No. 278

—, )

Fisintif, SENTENCING

V. ) PROCEEDINGS

) and

WELDON ROSS, ) MOTION FOR

Defendant. ) NEW TRIAL

Proceedings had before the HONORABLE ROBERT

R. CAMP, JUDGE, at Lincoln, Nebraska, on November 2,

1984.

APPEARANCES

For the Plaintiff For the Defendant

David W. Stempson Michael D. Gooch

Deputy County Attorney Deputy Public Defender

County-City Building County-City Building

Lincoln, Nebraska Lincoln, Nebraska

Letitia E. Whittemore

Official Court Reporter

Lincoln, Nebraska

* * *

[p. 10] THE COURT: The Court will find that

Weldon Ross is an habitual criminal and the Court does

so find.

+* * ©

[p. 15] THE COURT: ***

lla

The court is going to impose the minimum sentence

provided by law; ten years confinement in an institution

under the control of the Nebraska Department of Public

Institutions, of Correctional Services, plus the costs of

this action.

The Court is midful [sic] of the statute of no credit for

offenses of this nature and the Court will not give any

credit.

Fine, thank you.

The Court would remand you to the custody of the

Department of Correctional Services.

MR. GOOCH: Your Honor, with respect to that, |

think the statute only says that you cannot give credit

prior to the event, not subsequently. But I’d ask the Court

maybe just to look at the statute because, certainly, from

March 28th on, Weldon has been in custody on this

charge and has not been able to make the bond on this

charge. And the statute is real clear that the time before

that the Court is not supposed to give credit, but I don’t

think the statute even suggests that the Court ought to

give credit after that. And perhaps if we could just take a

moment and look at the statute.

THE COURT: I have. I have read it many, many

times since this question was brought up some time ago.

He’s still being held on those other charges and | guess

this alleged offense happened while he was being held on

those other charges. So then I don’t think even the recent

case law that has come down from our Supreme Court

where they have given credit after a plea or after a

conviction and they gave credit then — I think it was a

12a

Grand Island, a Hall County case - I don’t even think

that’s appropriate in this case because, again, he was still

being held under those cases, those other cases, and they

were still pending in court. So I don’t think any credit is

available.

Fine, thank you.

+* * *

[p. 18] MR. STEMPSON: The State would move to

dismiss counts - at 66, page 3.

THE COURT: What? Sixty-six, page 3?

MR. STEMPSON: Sixty-six, page 55, and 66, page

238 at the State’s cost.

THE COURT: Two-thirty-eight?

MR. STEMPSON: Yes.

MR. GOOCH: We have no objection to any of those

cases being dismissed.

THE COURT: Those matters will stand dismissed

on the State’s motion at State’s cost.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.