Opposition Brief — Nebraska v. Yelli

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Supreme Court, U.S.

7. eS

SEP 14 1995

No. 95-267

CLERK |

In The "

Supreme Court of the United States

October Term, 1995

STATE OF NEBRASKA,

Petitioner,

JOHN W. YELLI,

Respondent.

On Petition For Writ Of Certiorari

To The Nebraska Supreme Court

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Submitted by:

Vince Kirsy

Counsel of Record

W. Hwy. 275

P.O. Box 308

Norfolk, NE 68702-0308

(402) 371-3783

On behalf of Holt County

Public Defender, counsel

for Yelli in Nebraska Courts

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

OR CALL COLLECT (402) 342-2831

——————————eeO

QUESTION PRESENTED

Whether there is a Federal question when a State

Supreme Court renders the judgement precluding evi-

dence based on the State hearsay statute.

TABLE OF CONTENTS

Page

OCusstion Poonmnted .. oc icavvs ccdeeaevens etree i

Table of Combet. .... acs cesdaseteacbeartenee tees ii

Tate of Authhocilles occ: odsnnckdhursiadeeasenere iii

Stetement of the Cape ...ss ascii ee 1

ASQUMBORE 200 ce cesccncudecusenecnenrebeeeetuaecers 1

I. THERE IS NO FEDERAL QUESTION .......... 1

Il. THE NEBRASKA SUPREME COURT ISSUED

AN APPROPRIATE REMEDY FOR DEPRIVA-

TION OF INDIVIDUALS FUNDAMENTAL

RIGHT OF COMP 6c cccbccencenvuissupars 3

A. Custis is not Applicabie to the Case at

FEOAG «ooo v6 nkncessecedawe der aeerer ks 3

B. There is no Other Meaningful Remedy for

Nebraska Defendants in State Initiated Pater-

nity Decisions if the Remedy in the Case at

Pian to Tedewe Gor ooo cscvcke cs tare tieies 5

COMNCLEAIIN ne vccedeseaenensbagh ust p gation 6

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23

Burgett v. Texas, 389 U.S. 109 (1967)................ 3, 4

Carroll v. Moore, 228 Neb. 561, 423 N.W.2d 757

ah SIE OC i a

Custis v. United States, 511 U.S. __, 128 L.Ed.2d

ee Me A RE MOOR cov ccccvccescbivecceccs 3,

Gideon v. Wainwright, 372 U.S. 335 (1963).............

Nichols v. United States, 511 U.S. __, 128 L.Ed.2d

a, UE CRUD. ca cccsccceceeceve 4,

STATUTES

Neb. Rev. Stat. Section 27-803(22) (Reissue 1989) .....

STATEMENT OF THE CASE

The Respondent accepts the Petitioner’s Statement of

the case —- The Facts. Respondent does not accept Peti-

tioner’s Statement of the Case - The Federal Question.

The Respondent replies to the Petitioner’s “The Federal

Question” in the first heading of “The Argument”.

ARGUMENT

I. THERE IS NO FEDERAL QUESTION.

Respondent respectfully asserts there is no Federal

Question involved in the case at hand. The sole reference

to a Federal Question in the Appellant’s brief comes on

page 4 on the fact Yelli relied on Carroll v. Moore, 228 Neb.

561, 423 N.W.2d 757 (1988). Indeed Carroll v. Moore, is the

governing case on which the Nebraska Supreme Court

held indigent defendants have a right to Court appointed

counsel in State initiated paternity cases. Carroll itself is a

final judgement. The question presented to trial court and

the Nebraska appellate courts was “What remedy was

appropriate if the defendant’s rights under Carroll were

violated?” The Nebraska Supreme Court held that pater-

nity judgements gained by State initiated petitions were

inadmissable in criminal proceedings if the record did not

show that the defendant had counsel or waived his right

to counsel. Further, the Nebraska Supreme Court in Yelli

held the prior judgements violated Neb. Evid. R. 803(22)

Neb. Rev. Stat. Section 27-803 (22) (Reissue 1989). This is

the Nebraska Statute governing hearsay exceptions.

(App. 11) Since the basis of judgements was in violation

of the Nebraska evidentiary statute there is no Federal

Question involved.

Petitioner asserts that Carroll v. Moore involved in

part Federal Questions and State Questions. Respondent

respectfully asserts that if Petitioner believed Carroll car-

ried a Federal Question then the Petitioner should have

raised any Federal Question at the time it was appropri-

ate to appeal Carroll v. Moore to the United States

Supreme Court. The Nebraska Supreme Court decision in

State v. Yelli does not invoke a Federal Question.

Furthermore, (App. 19) the Petitioner’s action to

recall the mandate was overruled by Nebraska’s High

Court. The fact the motion to recall the mandate was

overruled and the mandate spread means the order is

already final. Given the fact the order in the case Peti-

tioner wishes to appeal is already final, Respondent

respectfully submits that the issue is moot.

Petitioner further claims there are facts from which

an inference can be made that Yelli was not in fact indi-

gent (p.5 Petitioner’s Brief). Petitioner wants to use an

“inference” gained from a Paternity Judgement which

violated the Constitution of Nebraska. In the Paternity

Judgement the Court assessed Yelli the costs. That issue

was fully presented to the Nebraska Appellate Courts

and given the consideration it deserved (App. 1; App.

20).

<-> =

Il. THE NEBRASKA SUPREME COURT ISSUED AN

APPROPRIATE REMEDY FOR DEPRIVATION OF

INDIVIDUAL’S FUNDAMENTAL RIGHT OF

COUNSEL.

Given the fact that Carroll v. Moore, 228 Neb. 561, 423

N.W.2d 757 (1988), was settled law and Yelli had a right

to counsel in paternity cases sought to be used as evi-

dence against him, the Nebraska Supreme Court fash-

ioned the best remedy that was available under the

circumstances. The remedy of exclusion of paternity judg-

ments violating Carroll was a legally appropriate holding.

A. Custis is not applicable to the case at hand.

Custis v. United States, 511 U.S. __, 128 L. Ed.2d 517,

114 S. Ct. 1732 (1994), held that defendants in Federal

sentencings could not challenge the use of state convic-

tions for enhancement on grounds other than previously

established by Burgett v. Texas, 389 U.S. 109 (1967). The

Court in Burgett held that state criminal decisions which

did not, on record, show the defendant had counsel or

had waived his right to counsel in state proceedings,

would not be admissible to increase the defendant’s pen-

alties in Federal Court. The defendant in the federal

sentencing in Custis, wanted to challenge not the fact he

had counsel in the state decision, but rather to attack the

effectiveness of that counsel’s representation. The United

States Supreme Court stated in Custis that the defense

could not attack state convictions in Federal Court on

issues dealing with rights pursuant to Boykin v. Alabama,

395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.3d 274 (1969). The

High Court stated the proper Boykin avenues could be

utilized through other means given the fact the defendant

was still in custody. In fact, the final paragraph, Custis v.

United States stated that the Court, in making this ruling

on the relief sought in Custis, is in no way stating what

the ruling would be if a similar issue was brought up

during the appropriate remedy of Federal Habeas

Corpus.

For Yelli the most encouraging aspect of Burgett and

Custis, is that the issue in the case at hand far more

closely resembles Burgett than Custis. The reason being,

Yelli is seeking to prevent an unconstitutionally gained

paternity judgement entry from being used against him.

In fact, the settled law after Burgett is that the only way a

state conviction cannot be used to increase one’s penalties

in Federal Court, is where that state conviction does not

show on record that the defendant had counsel or waived

his right to counsel. In Yelli’s case that is precisely the

problem with the past paternity judgments. The remedy

of exclusion is used by the Nebraska Hearsay Statute.

Yelli is in no way arguing that the paternity judgements

should be excluded for any reason other than he did not

have counsel in the prior paternity judgements nor waive

his right to counsel.

The Petitioner also relies on Nichols v. United States,

511 U.S. __, 128 L. Ed.2d 745, 114 S. Ct. 1921 (1994). In

Nichols the United States Supreme Court had held that a

State misdemeanor case where the defendant did not

receive jail may be used even if the defendant did not

have counsel or waive that right. In that misdemeanor

case the defendant did not receive jail. Thus there was no

right under Gideon v. Wainwright, 372 U.S. 335 (1963), and

its progeny to have counsel to begin with. The settled law

is one only has a right to counsel in crimes that are

felonies and in misdemeanor crimes where jail is the

result. Therefore, in Nichols it is not surprising at all the

Court held that a misdemeanor which did not incur the

sentence of jail could be used for enhancement even if the

defendant was not represented by or waived the right to

counsel. Clearly, in Yelli the settled Nebraska Law in

Carroll v. Moore required Yelli unconditionally to have

counsel or have waived that right.

B. There is No Other Meaningful Remedy for

Nebraska Defendants in State Initiated Pater-

nity Decisions if the Remedy in the Case at

Hand is Thrown Out.

Petitioner asserts that Yelli had to have appealed his

denial of counsel in the paternity judgements before the

judgements became final in order to have any remedy (p.

12 Petitioner’s Brief). The question then becomes “how is

an indigent defendant who could have a right to counsel

in a state initiated paternity decision, going to perform

the complicated procedures of perfecting an appeal and

preserving the issue through the appellate process?”

Especially when the defendant is not even explained that

he has the right to counsel. In Carroll the Nebraska

Supreme Court held that proceedings were complicated

enough that one needs counsel during the proceedings.

How reasonable can it be then to expect a pro se defen-

dant to be able to adequately represent himself through

an appellate process. Clearly, if the defendant can repre-

sent himself adequately through the appellate process, he

probably is competent enough to represent himself in the

trial proceedings itself.

CONCLUSION

John W. Yelli urges this Court to deny the petition for

writ of certiorari to the United States Supreme Court

since there is not a Federal Question involved.

Respectfully submitted,