Jimmy Neuschafer v. Harol Whitley Attorney General for the State of Nevada, Respondents

860 F.2d 1470 Jimmy NEUSCHAFER, Petitioner-Appellant, v. Harol WHITLEY; Attorney General for the State of Nevada, Respondents- Appellees. No. 88-1688. United States Court of Appeals, Ninth Circuit. Argued Feb. 29, 1988. Submitted May 6, 1988. Decided Nov. 3, 1988. Mary E. Boetsch, Mooney & Boetsch, Ltd., Reno, Nev., for petitioner-appellant. Brian McKay, Attorney General and David Sarnowski, Deputy Atty. Gen., Carson City, Nev., for respondents-appellees. Appeal from the United States District Court for the District of Nevada. Before CHAMBERS, ALARCON and HALL, Circuit Judges. CYNTHIA HOLCOMB HALL, Circuit Judge: 1 Jimmy Neuschafer appeals from the dismissal of his petition for writ of habeas corpus on abuse of the writ grounds. We reverse and remand. I. 2 Jimmy Neuschafer was sentenced to death on April 12, 1983 for killing fellow inmate Johnnie Johnson. He appealed his conviction to the Nevada Supreme Court which affirmed it on August 27, 1985. Neuschafer v. State, 101 Nev. 331 , 705 P.2d 609 (1985). On October 7, 1985 the state trial court held a hearing during which Neuschafer's counsel was relieved. No new counsel was appointed and the court set an execution date of…

Jimmy Neuschafer appeals from the dismissal of his petition for writ of habeas corpus on abuse of the writ grounds. We reverse and remand.

I.

Jimmy Neuschafer was sentenced to death on April 12, 1983 for killing fellow inmate Johnnie Johnson. He appealed his conviction to the Nevada Supreme Court which affirmed it on August 27, 1985. Neuschafer v. State, 101 Nev. 331 , 705 P.2d 609 (1985). On October 7, 1985 the state trial court held a hearing during which Neuschafer’s counsel was relieved. No new counsel was appointed and the court set an execution date of November 5, 1985.

On October 22, 1985, with some assistance from the state public defender’s office, Neuschafer filed a pro se state habeas petition, requested a stay of execution, and requested counsel. Neuschafer’s state petition raised two issues: (1) Neuschafer’s fifth and sixth amendment rights were violated because a confession was obtained after he requested counsel, and (2) there might be other grounds that would come to light once a lawyer was appointed.

On October 24, 1985 the state trial court held a hearing on this petition at which Neuschafer was present. The court denied relief and dismissed the petition…

concurring in the result:

I agree that we must reverse and remand this matter because the district court *1478 erred in ruling that Neuschafer abused the writ. I write separately to explain why I do not agree with the majority that our decision in Tannehill v. Fitzharris, 451 F.2d 1322 (9th Cir.1971) necessarily “allows petitioners to exhaust their state remedies one by one and to bring a new federal habeas petition each time they exhaust a state claim.” Maj. op. supra at 1475. I also suggest a procedure which, if followed by district courts, is fully protective of the petitioner’s rights, consistent with our decision in Tannehill , and responsive to my colleague’s concern that the law of our circuit appears to allow petitioners to file a judicially uncontrollable succession of petitions.

The issue we must resolve in this matter is whether a petitioner abuses the writ of habeas corpus by filing a petition in federal court before exhausting all his federal constitutional claims in state court, in a case where:

This grave question arises from the following procedural history: Neuschafer’s conviction and sentence were affirmed by the Nevada Supreme Court on August 27, 1985. The…

concurring:

Reluctantly,' I concur.

When the case was here before, I dissented. Neuschafer v. McKay, 807 F.2d 839, 842 (9th Cir.1987). That decision has become the law of the case.

I am sure that the majority did not foresee that counsel for the State of Nevada would seek to invoke “Abuse of the Writ.”

On remand, the district court should be certain that the prisoner has exhausted all of his points before the courts of Nevada and the Federal district court, except possibly the one that his present counsel has incompetently represented him which has not yet emerged. Surely he can’t use that one more than four or five successive times.

In preparing for our first round, Neus-chafer, 807 F.2d 839 , I was worried that counsel seemingly did not bear down on the “buggery” that Neuschafer asserted was what provoked his deed. But that was before we found in the record his disgusting criminal record in the sex field when he was not in custody. When we found that, then I knew why his trial counsel chose to emphasize the weak Miranda point. The original trial record tells me that he was competently represented at his trial and that his trial counsel made a wise choice.

I repeat what Mr.…