Goodloe v. Parratt Court Opinion
Public Court Documents
August 28, 1979

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Case Files, Bozeman & Wilder Working Files. Goodloe v. Parratt Court Opinion, 1979. 86dea965-ed92-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/9c6aa29c-ca9f-4dbc-b60d-c60b088a7cef/goodloe-v-parratt-court-opinion. Accessed May 23, 2025.
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GOODLOE v. PARRATT Clt. rt tot Frd l(xt (trZE) l04l i jtlrcrnmcn- dutrict court progr joint urne ruffrcient r &frnitc Plan ;rd rught rqr;rerrert a.s of the Unit- tr rwluert<l trr Onl.v uJnn ilr,uld the r dr<rt'c it- t crn takt' rrrilehlc ulnn Thr' court .r 3n ret'k out for purrhr*' rr ,,rc;rrl.r' trrorl to Put> trl micl ett8tts tnct)me brfon' this plerntrff chss clrcum- tr. willing Ltl to find a lr, tht Crtl of ' of m<rlrak. Tlr clr$ has nnrrrnriltilrt.r .r for tht rytt nind at rato tlx. Crtl' to truild lou Jrl hrc indi- hrtrlrt-t to rn hrr. l9?Ir tht dut.r kr rn itr ef- rncomt of Blrcl ruund of Uat dtcree. h rdtrbnr of the City of Black Jack because of possi- offense, was enhanced because of repetitive ble local governmentsl opposition. criminal conduct. u.s.c.A.const. imend. We are hopeful that, upon remand of this 8. cese, the parties will finally reach a meet- 2. Criminal Law e1177 ing-of the minds and put an end to this long Concurrent sentence doctrine wouldand bittcrly fought conflict. As costs of not be applied where it could not be said construction continue to spiral upward, it that there was no possibility that adverse becomes more and more difficult to remedy collateral .onr"qr"n.", would flow from the wrong done to the plaintiff class. avoidance of one of several charges on Reverged and remanded. which defendant received concurent terms of imprisonment. 3. Conetitutional [,aw c=265 Indictment and Information e11914; Defendant was deprived of fair trial and due process due tp lack of fair and reasonable notice of offense charged where, although complaint was phrased in terms of statut€, it did not allege additional element which court instructed jury was required to be proven for conviction and where ele_ ments of offense were modified at trial without notice or amendment of informa- tion. R.R.S.Neb.r94i|, SS 29-U1, 89-669.- 04 to 39-669.06, 60-4ii0.0?; g 29-102 (Re- pealed); R.S.Supp.Neb.19?8, SS,B-1OS(B), %-107; U.S.C.A.Const. Amends. E, 6, 14; Const.Neb. art. 1, g 11. 4. Automobiles e-35i(4) Evidence supported defendant's convic- tion of willful and reckless driving. R.R.S. Neb.1943, g 39-609.06. 5. Habeas Corpus 645.3(l) In federal habeas corpus proceedings brought by state prisoner, court would re- quire that issue of validity of double penal- tv enhancement through application of both specific subsequent offense statut€ and ha- bitual criminal statute be raised in state court, through petiti<rn for postconviction relief, before constitutional questions in- volved in such issue *'ere determined in federal court. R.R.S.Neb.l94g, SS 29-105, 29-106, 2s 109, 60 {30.01; g 29-102 (Re- pealerl); R.S.Supp.Neb.l9Z8, S$ 28_101 ro 28 1335, 2E 107(1). Nanfito & Nanfito, Omaha, Neb., Charles A. Nanfito and James A. Nanfito (argued), Omaha, Neb., on brief, for appellant. Ronald F. GOODLOE, Appellant, v. Robert PARRATT, Warden, Nebraeka Penal & Correctional Complex, Appellee. No. 28-1560. United States Court of Appeals, Eighrh Circuit. Submitted Dec. lb, l9?8. Decided Aug. IZ8, 19?9. Appeal was taken from the action of the United States District Court for the District of Nebraska, 458 F.Supp. l3g0, Robert V. Denney, J., in denying a state prisoner's petition for federal habeas corpus relief. The Court of Appreals, La1', Circuit Judge, held, inter alia, that the petitioner's trial was fundamentally unfair due to lack of fair and reasonable notice of the offense charged. Reversed and remanded for further proceedings. l. Criminal La* e1213 Eighth Amendment ban against cruel and unusual punishment was not violated when severe criminal sentence , arguabll' disproportionate and excessive for trafficbtrdrdc. t042 605 FEDERAL REPORTE& 2d SERIES . Paul L. Douglas, Atty. Gen., C. C. Shel_don, Asst. Atty. Gen. (arguedi, iil;i; Neb., on brief, for appellee. Before LAy and HENLEY, Circuit Judges, and WANGELIN,. Distric, j;;: LAY, Circuit Judge. This unusual state habeas corpus case isan e.xtremely perplexing one wiih a tarsirgrrl!. The petirioner,.Ronatd F. G;t"". ri'as_driving his automobil" ;;;. ;;;;i; of May 7,lg7b, when a police officer in ti! - community of Blair, Nebraska sa* l,lm and suspected he was driving with a .urpend"d driver's licens€. Goodloe was *"ll k;;;;; the police; he had been convicted of willful and reckless driving on four otf,", o"*ion, and had two state felony convictionr- i""_ing the police car's flashing ligh;, G*di; accelerated to a high rate of,p"ua, "ra tt.officer gave chase. Goodloe *;; -ij;;til . The Honorable H. Kenneth Wangelin, UnitedStates District Coun for ttre Easteil ard We:;ern Districts of Missouri, sitting Ui, j.s-ignit;;. 1., fn thr: day of supposedly modern criminalra!r, and procedure, it is somewhat unusual, tosay the least, for an individual ," .".Lir.l'i6year penitentiar).sentence for driving " _oro.vehicle in a willful and reckless _;r'";';;;- ll:::.y:lls o3T"r" to persons or propen). r ne severity of the sentence seems anichronii-tic and brings to mind tf,e foffo*inf-si;;;;;;, by Justice Benjamin N. Cardozo: I have faith that a centur].or lessfrom now, our descendants *ttt toof- UaXupon the penal system of toda1. *.itfr-itre $ame surprise and horror that fill ou, o*nminds when we are told that only "t;; ;9entury ago 160 crimes u,ere lisited underEnglish lau, with rhe punishment of Oeatiand thar in t80l a child of f e "r, f,lrg.j "iTyburn for the larcenl- of " ,poon. -D".k chapters are these in our history of fa*. -Wl think of them \,rith a shuddei, "r; ;)';;ourselves that we have risen to heights ofmercy and of reason far removed f.oi, ,uJenormities. The future ma1. judge us less _ leniently than we choose to.;udge ourselves.B. N. Cardozo, what Medicine-c.i ai r*-Gi.in Setected wririnss 381 (M. e. n"ri"O,'rilii. 2. InJ975, when Goodloe was rndicted andtFied, operating a motor vehicle to """i;;;;;;u'as punishable in several different "."1s. -l.j.i. lev-Slat S 60-430.07 (1974). rrr" #ri_ui1penalty was a fine not to exceed $5OO, and the ::S,:l:T] 1.,_1a uu imprisoned i; il;;;;;): JaU ror up to six months or in the penitentiarv for one to three years. If ,h" ;;;;;;: apprehended and charged with willful and ,reckless driving (third offense), Neb.Rev. S.t*! S 39-{69.06 (19?4), ope"ating " ;;;"vehicle to avoid arrest, Neb.Rev.SLt S 60_ €0.07 (1974), and being an habitual cnlmi- nal, Neb.Rev.Srat. S n_mt l:rgfyl). He was convicted by a jury on all counts, and sentenced to two concurrent l0 to lb year terms of imprisonment.r The Nebraska Su_ preme Court affirmed the conviction, but modified the sentence to two concurrent l0 year terms.2 Goodloe sought a writ of ha_ beas corpus in federal district court. t;; denial this appeal followed. .The scenario began when Goodloe was tried on one count of a two count informh_ lln for driving with a suspended Iicense in Washington County court. Much to the chagrin of the prosecutor, the eonviction was reversed by the district court for insuf_ ishment were imposed, the offense would be a-fetonl' under Nebraska la,*.. s"r, ,ll lro] :l:_1, 16? Neb. le2, te6, e2 N.w.2d it;; ( I 958) (quoting Goeden v. Jones, l5O N;;' fi:7U,36 N.W.2d l19, 120 (r949)j. Th;;r;;; was_amended to provide tt"t " p"r*n op.i"i-rng a motor vehicle to flee in an effon to avoidarrest for violation of a misdemeano, o, ,r"mlinfraction could not be imprisoned ", foi "lelonv, but would be guitty, oi a ctars tiimi-.ae]m€anor. A person operating a motor vetricleitnee ln an effon to avoid arrest for a felonywould be punished for a class IV felonv. S_6H30 02, as amended oy L.e.-lld, *i".ii;;May.23, 1979. tf Goodloe *"ru inai"t.J-"ij convicted today of avoiding ".r".t fo, ariJn!with a suspended license, as was the charge iithe. complaint and r.r,arrant, he would b" f;;;;guilty of a misdemeanor, and the habituat of.fender statute would not be applicable. Because of rerisions in the Nebraska Crimi-,"1, 9d",- it is no longer clear if u,illful andrecruess driving (third offense) is a felonl.foipurposes of the habitual criminal statute. - S;; SS^ 29--102 (repeared lg78); 28_lOs(3), iO;(1978 Supp.). Thus, Goodloe's I0 ],ea; s;;-tence would appear to be no longei possible under the amended Nebraska .,",J,"ri"r-"r,1, lJ_l.T-"{".*s charged tn t975, tro*er.r,through the exercise of asrute prosecutorial discretion. in stacking criminal statutes oneupon.another, a l0 year sentence was not onlypossible, but due to the Nebrasfa traUiiuafcriminal act's..mandator), sentencing provi-slons, ineritable upon conviction -oi tt"charges. $'ith willful and 'fense), Neb'Rev. perating a motor b.Rev.Stat. $ 60- n habitual crimi- nt 0964} He n all counts, and nt 10 to l5 Year 'he liebraska Su- : conviction, but ro concurrent 10 rht a urit of ha- rict court. UPon en Goodloe was o @unt inform\- rended license in . Much to the . the conviction I court for insuf- rffense wou.ld be a State 11 Staro- I li.\r'.2d I94, I97 rnes. 150 Neb. 783, H9)) The statute I t parson operat- en effon to avoid "Er.anor or traffic cnsoned as for a I r class lll misde- r motor vehicle to rtest for a felony clrss lV felony. L B lag. effective *'cre indicted and rrrest for driving *'rs the charge in rc would be found d the habirual of- tpphcable. Nebraska Crimi- rar if n'illful and rt rs a felony for unal statute. See 28- t05(3). 107 r'r l0 year sen- o longer possibte | 3tatutes for any r 1975. however, ute prosecutorial nll 3trtutes one ,nc? was not only cbreska trabitual antancing provi- rttction of the ficient evidence. However, sweet prosecu- torial revenge was in the offing. Following reversal, the State amended the filed infor- mation to include not only the remaining count of operating a motor vehicle to avoid arrest, but also a second count of being an habitual criminal. This information was consolidated with another information, pre- viously filed, which alleged one count of willful and reckless driving (third offense) and a second count of being an habitual criminal.3 The 15 year concurrent sentences (later modified to 10), were made possible in the following manner. The prosecutor charged _avoidance of arrest as a felony. Willful and reckless driving, normally a misde- meanor, becomes a felony by operation of enhanced penalty provisions when it is a third offense or subsequent offense, and the prosecutor charged third offense.. Habitu_ al offender counts were added to each in- formation. Upon conviction of a felonv committed in Nebraska, proof of two prior felony convictions results in imposition of a rnandatory lO-year prison term under the habitual criminal statute. Neb.Rev.Stat. $ n-ru|(1964).5 Thus, even with use of concurrent sentences, no Nebraska court 3. Goodloe offered stipulations, affidavits from two Nebraska county attorneys, which state that for the past t\{'enty years or so neither kneu' of cases in q'hich the habitual criminal act was applied *'hen *'illful and reckless driv_ ing (third offense) was charged. 4. The possible term of imprisonment for the first offense of willful and reckless driving is a maximum of 30 days, while the maximum term for a second offense is 60 days. Neb.Rer..Stat. SS 3H69.04-.05 (1924). Upon a rhird or sub_ sequent conviction, imprisonment in the Ne- braska Penal and Correctional Complex for not less than one year nor more than three years is mandatory. S 3H69.06 (1974). Thus, at- though the offense is unlabeled, the third con_ viction became a felony by virtue of the Ne_ braska criminal code's general definition of fel- ony at the time of Goodloe's indictment and trial: "[t]he term felony signifies such an of- fense as may be punished with death or impris- onment in the Nebraska penal and Correctional complex. Neb.Rev.stat. s 2$102 (repealed 1978); State v. Knoles,199 Neb.2It, 213, 256 N.W.2d 87J, 8?4 (t9ZZ); see a/so Bright v. State, t2S Neb. El7, 252 N.W. 386 (1934). GOODLOE v. PARRATT Clte rs 0O5 fzd r(xt (1070) r043 could give Goodloe a term of imprisonment less than 10 years for what was an attempt'to evade arrest for the misdemeanor of driving with a suspended license. Although Goodloe's eounsel raises several distinct points on appeal we find these can be basically summariz,ed as: 1. Due process and double jeopardy challenges to prosecution for both operation of a motor vehicle to avoid arrest and will- ful and reckless driving when the evidence demonstrating operation of the vehicle to avoid the arrest was the same as that which showed the reckless driving. Stated in an- other way, the issue is whether a person in a motor vehicle being pursued by a police officer for reckless operation of the vehicle may be charged with avoidance of anest for the same reckless driving incident. tll 2. Due process and double jeopardy challenges to simultaneous application of t'wo penalty enhancement statutes, one thit made a subsequent misdemeanor offense into a felony, (i. e., third offense reckless driving), aird an habitual criminal statute that enhanced the penalty for this offense upon proof of conviction of prior felonies.s 5. At a subsequent hearing the coun found Goodloe was guiltt' of being an habitual crimi- nal, as charged in count II of each information. ln support of the habitual charges, the prosecu- tion proved tu'o l9Z2 third offense r+,illfut and reckless drir4ng convictions, (each using the same two prior convictions to enhance the pen- alty), felonies under Nebraska lau,. The iudge relied instead, however, on proof of a t96t state burglary coniiction, a lg72 state posses_ sion of controlled substance con!,tction, and 1973 federal convictions for possession of and receipt of a firearm in interstate commerce bv a convicted felt-rn. 6, Goodloe also attacks the harsh sentence re- sulting from application of the habitual offend- er act under the Eighth Amendment. We agree $'ith the district court that there is no merit to the claim. The severity of the sentence, argu_ ably disproportionate and excessive for a traf- fic offense, was enhanced because of repetitive criminal conduct. Such legislative judgment on sentencing is permissible, and habitual crim- inal statutes have been upheld against Eighth Amendment challenges. See Spencer v. Tixas, 385 U.S. 554, sSHO, 87 S.Cr. il}, t7 L.Ed.2d 606 (1967); Wessling v. Bennett, 4tO F.2d 2OS, t0M 605 FEDERAL REFORTER. 2d SERIES [2,3] Avoidance of Anest-Due proc- ess. We need not pass on the double jeop_ ardy question raised, because we hold the conviction for operation of a motor vehicle to avoid amest should be set aside because of violations of Goodloe's right to due proc_ ess of law, guaranteed by the Fourteenth Amendment to the United Stat€s Constitu_ tion.? In the state court Goodloe chal_ lenged, as violative of due process, the vagueness of the statute which defines the crime of operating a motor vehicle to avoid arrest as applied in his case.8 He makes the same arg'ument here. We need not pass on the constitutionality of the statute, but re_ late the challenge to the statute only in a collateral sense, as it affects the fairness of Goodloe's conviction under it. See State v. Etchison, 190 Neb. 6n, ZLt N.W.2d 40b (1973), cert. denied, 416 U.S. 9€, 94 S.Ct. 1950, 40 L.Ed.2d 29b (19?4); Heywood v. Brainard, 181 Neb. ?f,4, L47 N.W.Zd ?22 (1967). The statute's lack of specificity in definition of criminal conduct is reflected in disputes which arose at trial over u,hether a specific prior violation of law had to be alleged and proved for conviction. While we hold Goodloe's trial was fundamentally unfair due to lack of fair and reasonable notice of the offense charged, our conclu_ 207 (8th Cir.) cert. denjed, 396 U.S. 945, 90 S.Ct. 384, 24 L.Ed.2d 248 (1969). Nor does the unfettered discretion given the prosecutor un_ der the Nebraska statute render it unconstitu- tional. Browz v. parratt, 560 F.2d 303 (8th Cir. 1977). 7. We do not make the discretionary decision to apply the concurrent sentence doctrine. Evenif we held the attack made on the uillful and reckless driving conviction failed to disclose a constitutional infirmit),, we could not sa). there is no possibilit)' that adverse collateral conse_ quences would flou' from the avoidance of ar- rest conviction if it *,ere not re\ie\,\,ed. Urited States r,. Belr, 516 F.2d 973, 876 (gth Cir. 1975), cen. denied,423 U.S. 1056, 96 S.Cr. 790, 46 L.Ed.2d 646 (r976). 6. Neb.Rev.Star. S 6H30.O7 (1974) reads as follows: Operating motor vehicle to avoid arrest: penaltS,. It shall be unlar*{ul for any person operating any motor vehicle to flee in such vehicle in an effort to avoid arrest for violat- ing any law of this state. Any person viotat- ing the provisions of this section shall, upon sion is derived from a combination of fac_ tors: the specificity of the complaint and amest warrant that alleged flight from ar_ rest for driving with a suspended license, the general language of the information, the trial court rulings on the elements of the offense, the mid-trial switch in the pros- ecution's case in chief, and the instructions given. It is clear from the arrest warrant and the first information filed, statements made in court and the prog"ess of the trial, that the State based its avoidance of arrest clarge under the statute on the theory that {,he arresb Goodloe was avoiding was an arrest based upon probable cause that he was driving with a suspended license. Dur_ ing trial, the court ruled proof Goodloe had violated a state law was required for the Stat€ to sustain its charge of avoiding ar_ rest. Thus, because Goodloe had been pre_ viously acquitted on the suspended license charge, the district court ruled that proof of flight from amest for driving with a sus_ pended license was precluded and sustained Goodloe's motion to exclude evidence con_ cerning suspension of his license.e There_ after the State, without amending the in_ formation, changed its theory of prosecu_ tion l0 and attempted to prove flight from conviction thereof. be either (l) fined in a sum not exceeding five hundred dollars, (2) imprisoned in the count), jail for not to ex- ceed six months, (3) imprisoned in the Ne_ braska Penal and Correctional Complex for a period not less than one year nor more than three years, or (4) punished by both such fine and imprisonment. The coun shall, as a pan of the judgment of conviction, order such person not to operate any motor vehrcle for any purpose for a period of one year from the date of his release from impnsonment, or in the case of a fine only, foi a period of one year from the date of satisfaction of the fine. 9. The correctness of the state district court,s ruling is not before us. Even if the State werenot able to produce competent evidence to prove that Goodloe \,!.as driving with a sus- pended license, the record indicaies the officer had a good faith suspicion and could have stopped him for questioning. 10. In the habeas proceeding in the federal dis- trict court, Judge Denney found this to be the case, observing in his opinion: Referring to the language of the arrest war- rant, Goodloe established the undisputed fact ombination of fac- Orc comPlaint and flight from ar- ruapended license, tlre information, on the elements of I ru'irh in the pros- the instructions warrant and . rtatements made of the trial, that 'oidance of anest on Oe theory that evoiding was an cause that he license. Dur- proof Goodloe had n{uired for the of avoiding ar- had been pre- ruspended license that proof of ving with a sus- and sust&ined eyidence con- license.t There- mending the in- ' of prosecu- ve flight from (l) fined in a GOODLOE v. pABRATT anesr for any or four vioratioJ'";t'i-#r1,r# r, B7); wa*on v. Jago,*rff i!fl J:"TJi ;:',#ilTi;Hd:itr s:,0, &38 (6rh cir te771,z - l ffij:: il":,:'"*IJt T"i'; *,#, I xi:::ry ?[:;i"jf ffiiT:":fi.ffispecified the underrving ,roLtJn;';: r-yl, nrntiri"r.ltrit"a statcs,4l8 U.S. atstructed the jury trrat it ,rri-iirrl'* ", lt!, 94 sct.'aszl but the requirement ofelement of the offense of operating; ;;; fair norice ;. ;d;vehicle to avoid ar:es^t, tr,"t c*ir*',,iij ;i:.#". ;;;;r.?::ri;,"IT""Xrfj,,iiviolated a taw of thi:-staT, ;;;;;;- withour unv ,riurt",ntv or ambiguitv, set;rffi["JT,fflit; in such a'un'*'^r, forth a, tr* "i"-r*rt" neeessarv to consti- persons o, p"op"*yttesara ror;1; safety of tu.te the "rr.r*-irr""aat -u.eunished.,, -rhe rundamentar right ,,to be inrormed fl:jiiHr,#,.fj i*?J;,,r,ti'ji:of the nature and cause or. tr,u "..r.Jor,; l?f_1. niiir,",ir9 Neb. ?,o, ?n40,nsguaranteed criminar defendants b). il;;. N.w.zd i-i,-iiii. trnrrt.|e]1asla and United Stat". Conrt;;il.: U.S.Const. Amend. vl; N"L.con;;.';;i:',il The indictment upon which Goodloe was$ ll, is implemented prlr".ily ir.n*""1 tried charged that ie did, in the words ofpapers which contain the elements of the -the statute, ,,unlawfully op,u; ;;;;;offense so as to fairly inform ;;;t*#; vehicle to flee ia such vehicle in an effort toof the charge asainst. which he ;ru: avoid arrest foi ,iojating any law of thisfend' Hamlingi ur.i1"9 !t";""liri'u.s. sta14."' rr,"."'i.; no indication from this8?, ll?,94 S.Ct. 2887. u: ili ;-i*i',S i,ii:fi ?,tr $i? ; ti_J ff , illflff: lll ;I, j ii ***il(Sth cir' 1e?6); st,rc y. Haris, rgz N"i. aq erement il;;;;";"n for convi*ion: ac_56-57, 218 N'w.zd 884, 88;(ie?4;.'i;lJ ruar commis"r* Iitr," vioration of sratemost basic ingredient of due p;;;" ;;- !w for il;';# a'"rera"rt fled arresr. iil,L1'J"1;ji ffiT::li:-fi;.{ ffi once prior;j;,;;;; } a.peeiric srar€ srat. ro,.i "",ii" ;#,;,i#'"f l;f o,]i, f; fi ,H ffi iil, :ffi 'Ji*:*, U*Sfares Constitution and _thus *r;;.; entirled ,* *ir.a-lor,. of that generalabridged bv the ro*.r' .*" 1f i"6iiri, fact, but ",*--"J.,rrc notice of what raw ffi:# tr,?'l T"i;?t 4ss' s2 r Ba "osl r'.r"]r,"*"r-:rrTu," *o see r(ecksc,'ira, s2 ffi' ;ifij,iry,"d.,ilx-;T ;iel,,* *iffiffift,trji:o*:::',3,1*ltl; 362' 5; sci il!' si cruikshank,-;fi.1;r, 56ffi, % L.a pr-ove.that ,n" ,.""".1?"tJ"i[]"iil;'#t":: ',:..,11,]..the Due process crause does not re_was the misdemeanor "r a.ir.lrg'", "' "rI quire states to observe r,r,t, ^-"rfr.r,;;;;,pended license -""rr. vrr d strs- sions regarding inoiciment, rt does guarantee "-The reversat of the countl. coun,s decisio, ::::.- p.t.on"rr-" r"ir -tror. Nexander r.. Loui. r,,:i:i:"i{i_:i,i,1:ilf{.,'"H:;Tij::: iii,ii!!:i,';,fi' ,ffi",*"i:i':j,i,,::cutlon assened thar the defendant .outa be ment or information i. onmarity a question of:?il1.':lr,fflJ5j:f,::.Hf;;.;"#,ff iTtr'iI * ;*;*:*10". -,,*t* #,1,I tt;.-3: insrruction, ar reasr insofar as ir skted c-o-gnizable t" t'"t"''"""r"r1t,"H1:r'T5# 1gt t1re.;urrmu-si'i",i"8.*,* uJr,r"[o-I i!{,:r!;i:;;r;?"r..T.1rrr,',,1f& ffiiraw.of the state and was fleeing;;;;;"ff#,; i,,:"fff..;i;S,iJ[T"1":iy:iff##f*y ":!; :;T;:,,i::,u s rose, ;d_i:;";,,:,4 ffil,il, ?i.'i,l;,ija:. ,?*#; ;;; ,'H rndred dollars, (2) ;ail for nol to ex- rn the Ne- Complex for a nor more than b)'borh such fine rhall. as a pan tron, order such motor vetucle for year from the ,orin r period of one of the fine e drstnct coun's lf the State were e\idence to with a sus_ ates the officer could have the federal dis- this to be the lhe arrest war. undisputed fact 1046 605 FEDERAL REPORTE& 2d SERIES 588 (18?5).rs As the trial court's exclusion - of evidence pertaining to the suspended license charge illustrated, whether Goodloe had violated a specific state statute was a crucial factual determination. In such a situation, an information which describes the offense in generic terms fails to ade- quately inform of the specific offense charged so as to allow preparation of a defense. Eusse// v. Unitcd Stares, 869 U.S. 749, 76/-{f,82 S.Ct. 1038, 8 L.Ed.%J 240 (1962); Unitcd SLares v. Hess,lZ4 U.S. 4&9, 487, 8 S.Ct. 571, 31 L.Ed. 516 (1838). Thus the information, while couched in the lan- guage of the statute, nevertheless failed to adequately describe the offense charged be- cause it did not allege an essential substan- tive element. See Unitcd States v. Carll, 105 U.S. 611, 612,26 L.Ed. 1135 (1882); see also Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939). If a defendant is actually notified of the charge, due process notice requirements may be met, even if the information is deficient. See Unitcd States v. Camp, S4l F.kJ 737,740 (8th Cir. 19?6); cf. Ilnited States v. Cartano,534 F.zd ?88, ?91 (8th Cir.). cert. denied,429 U.S. 848,9? S.Ct. 121, 50 L.Ed.2d 113 (1976). Goodloe was noti- fied by complaint and arrest *'arrant of the prosecution's theory that he fled arrest for driving with a suspended license. He was prepared to defend on those grounds and therefore would not necessarily have been prejudiced if the trial court ruling had been limited to requiring commission of the vio- lation for which his arrest was sought, driv- ing *'ith a suspended license, be proven as an essential element of the charge.lr However, even assuming Goodloe \r'as not prejudiced by the information's lack of no- tice of an essential element of the offense, the deficiency of the information was com- pounded by modifications at trial, u'ithout notice or amendment of the information, in 13. The trial judge realized this deficiency when preparing the instructions, and advised the prosecutor that in the future the State should set out the particular violations underlying the main offense. fhe elements of the offense. The lack of pretrial notice by information was aggrava- t d by uncertainty during trial over what specific violation the prosecution would prove. The State urged, as late as the conference on instructions, that the jury could find from its proof that the underly- ing violation was either failing to stop at a stop sign, speeding, careless driving or will- ful and reckless driving, even though the first three violations wer€ never mentioned in a complaint, arrest warr&nt, or informa- tion. Thus, in mid-trial the Stat€ not only changed the underlying violation it sought to prove, but then failed to specify what violation it was att€mpting to prove. The trial court recognized the problem of fair notice to Goodloe and only allowed the jury to find willful and reckless driving as the necessary prior violation element of the avoidance of arrest charge. The instruction to the jury could not, however, cure the fundamental unfairness of requiring Good- loe to defend without notice of specific ele- ments of the offense charged. The mid-trial shift, from proof of flight to avoid arrest for driving with a suspended license, for which Goodloe had prepared a defense, to proof of flight to avoid amest for any one of four possible violations, illus- trates the prejudice inherent in an informa- tion which fails to specify an essential ele- ment of the offense. The defendant is giv- en insufficient notice to prepare a defense, he proceeds to trial with factual issues un- defined, and the prosecution is left,,free to roam at large-to shift its theory of crimi- nality so as to take advantage of each pass- ing vicissitude of the trial and appeal." .EusseJ/ v. United States, 869 U.S. at ?6g, g2 S.Ct. at 1049. Due to a unique combination of circurr- stances, the State's action herr is difficult tn categoiz,e--the trial court ruling meant the information was initially insufficient 14. In fact, the trial court ruling was prompted by concern for fundamental fairness to Good- loe; the court reasoned that when a vehicte has not been stopped and the driver has not been informed he is subject to arrest, proof of a violation of state law was essential to make a gase of flight in an attempt to avoid arrest. The lack of GOODLOE v. pARRATT for omission of an essert,", ",;:;:";:-*;J'ei,,,,li-Ed 2d 606 (re6?); **,,:y:absent element, of which Goodloe did have Bennett,4l0 F.zd iS, ml (gth Cir. lg69).notice, was changed by events at trial, ef- The reasoning is that the statutes do notfectively amending the already deficient in- charge a separate and distinct crime so asformation or creating a variance; and, be- ? prt a defendant again in jeopardy forcause the State did not speeify the element the prior offenses, brt.b"", only on permis_it sought to prove until the end of trial, sible punishment for the latest offense.Goodloe had to prepare to meet, or without notice was ,n"ilt"'to-- meet, proof of four oyler v' Boles' 368 u's' 44s, 82 s'ct. 501, 7 possible statutofi "iot",ion.. Under these L'Ed'zd 4a6 (1962); Gryger v. Burke, 394 circumstance., *..or"rrae Goodloe was not u.s. 7'X,69 S.Ct. l?56,92 L.Ed. 16g3 (lgag); given fair "ni ,"."on"ule notice of the of- Graham v' west virginia,n4 u.s.616,3, iense charged "rd i;; case against which S'ct' 5&3,56 L'Ed. 9l? (1912). Nor is penal- he had to prepare a defense; ti'e resutt *,.s ty enhancement considered multiple punish- a- fundamentally unfair trial that requires ment for one offense, but rather imposition the conviction be set aside. 5." Wr,;;;;:. of a heavier punishment for an offense Jago, 558 F.2d 330 (6th Cir. l9?Z;.rs aggravated by repetitious criminal conduct. t4l wiltful and Reckless Driving. Re- Gryger v' Burke; Graham v' west virginia' maining is Goodloe's attack on dou-ble en- Nonetheless, we have been unable to find hancement of his penalty for willful and any federal cases which consider challenges reckless driving-punishment as a felonv under the United Stat€s Constitution to upon finding the conviction was for a third stacking a specific subsequent offense pen- or subsequent offense followed by imposi- alty enhancement statute and a gene"al ha- tion of the mandatory l0 year minimum bitual criminal statute upon one another in sentence under the habitual criminal stat- sentcncing for a single offense. A statute that enhances punishment on volved use of a statute that enhances a llt b.*': of,subsequent convictions for the misdemeanor to a felony upon repetition ofidentical offense and an habitual criminal the same offense "rJ', g"n""al habitualstatute, which enhanees the penalty on the criminal statute. very few of these cases ute upon proof of two prior felonies.t6 Several state court decisions have in- *:1^::l j:]"r l"t:.r, convictions, have address tr,. tn.t ni .rlr"ii"rln"ffff; *:::*:l^,r^:*]i."*nst armost ev- which-the ;,d,,;; Li,; ;;ilffi;;"i: :l:l:::.:i::T_.lT,ir,rri::ut.chaltenge, in- the offense *r,i.r, ;,ii!g;;"ri,,[i#Ti :1*r:-lr:_ffr1 double jeopardf,,^and rhe rrauituar crimrr"r'"ri"rr", ",:"f;",L:: ffift;;;t,T;cer v- Tcvac RCE TI e EK,,r <<o 4^ or 6 ^.cer v. Texas, B85 u.s. b54, 559--60, az s.ct. status onry by virtue #ft1;rfir'JtJ 15. Goodloe exhausted stare remedies br.presenting the substance of his claim to the Y S , 99 S.Ct. 2781, 6r L.Ed.2d i6o (1979), li.*::i::::: .I_..fTugh, to tr,. "tt"n,i* ;;il;"#lj;decided subsequent to the federaf dista.t of the trial court, through a motion ro dismiss :::,:liJjl.:lj;Jf.",,"";;l*:I:",::;...:;^ll: 17. some cases decide whether an ,,enhancedstructions, problems in definition of the ele. ments of the offense and the resultant lack of misdemeanor" is a felony to be used ^, ^ ia_felonl conriction to enhance the penalty ior a;::::,:j_ITlj**,Ilr,llatron the staie ;;;ilil;;;il:,Hffi:,:T frffiIl,:T:had sought to prove. Fundamental "nf"i-ers, ute. A.lthough it is stated as a general rule thal :n j"",Ti::i'? ::,,:""'s ""::T::;'- "j 15 #;"#Til?";1::H;: ".iTl1#'ilr: ;l#:,:T,,i".t ;j il:? J]l:', ::::1": ^: ir III i;rJ"# ffi ';i#4":';';Jff 1,,:::;:l:1.:r.. attack on the vague language of the statute in briefs in both the Nebraika Supreme Court and this court. 16. We hold the evidence was sufficient to sup- coufts are evenly divided. prohibiting use offlT,#.T#"::nS"f*'::.:::::*1._.::*i;"i';.1"*#;",""J;:i?,,:,i,ffiJl :ff ;.I; 3,"",::' x"9":1""::d:i".:-:,,19{;" "*T,;* ;i"trH:;:* :":,,;U";'"li;:T; lIcted of crimes do not constitute ,.fetonies,. within the meaning of prior felonies that en- hance p€nalties under habitual criminal stat- utes, annot., t9 A.L.R.2d 227,232 (195I), state standard set forth in Jackson v. Virgini6, _ S.E.874 (1895); S&re v. Btown, gi W.Va. iSZl 1048 605 FEDERAL REPORTE& 2d SERIES The practice has been generally condemned on the basis of legislative intent.rs In addi- tion, several states have held that penalty enhancement provisions set forth for subse_ quent offenses of specific crimes must be used when applicable instcad of sentencing under a general recidivist statute, which would imply that both statutes may not be used for double penalty enhancement in sentencing for one offense.re All the state court decisions invalidating double penalty enhancement employ canons of statutorl. construction such as: an habitual offender statute must be strictly construed, because it is penal; a specific statut€ (e. g., subse- quent specific offense statute) controls over a more general one ( e. g., habitual criminal statute); and a subsequent offense statute based upon a specific crime cannot create a "true" felony, for purposes of an habitual offender statute, because it does not define an offense, but merely increases punish_ ment upon a second or subsequent convic_ tion of the same offense. tsl While the weight of authority ap pears to be against double penalty enhance_ ment through applieation of both a specific l12 S.E. 408 (1922). Also, the American Bar Association Special Committee on Minimum Standards for the Administration of Criminal Justice has disapproved enhancement of a felo- ny terrn on the basis of prior misdemeanors. reasoning that misdemeanors by nature do not threaten the security of the public to the same extent as felonies. ABA Standards Relating to Sentencing Nternatives and procedures, dom- p9!t..y, S 3.3(f) at 169 (1968). Decisions up- holding use of a misdemeanor made a felonr. through repetition as a prior felony conliction are: Pmple v. Wilson, 16l Misc. 421. 293 N.Y.S. t78 (1936); people v. Bradley., 3 Cat. App.3d 273, 83 Cat.Rptr. 234 (lg7})i -McKee t.. Stare 576 p.2d 302, 3OZ (Okt.Cr.t978). The rationale in all the cases is construction of the respective statutes and determination of legis_ lative intent, through use of canons of c-on- stnrction and presumptions. 18. New York upholds in part such a practice against constitutional challenge, see people t,. Seager, lI Misc.2d 26r, l?t N.y.S.2d SS4 (1958); People v. Vemon,83 Misc.2d lO2S, 323 N.Y.S.2d 3I4 (1975) (prior felonies elevated "trigger" misdemeanors to felonies), but does not allow sentencing under the general penal code second felony offender statute when the "trigger" offense is driving while intoxicatd, even though it is defined in the traffic and subsequent offense statutc and an habitual criminal statute, the stat€ court decisions mentioned above do nof rest on federal constitutional grounds. Similarly, the iesue of whether upon conviction of a misde_ meanor, sent€nce could be imposed on a felony charge under an habitual criminal statute, has been held not cognizable in federal habeas corpus because it rests upon an interpretation of state law in Glenn v. Patc, 406 F.zd 68, 69 (?th Cir. 1969). Whether the Nebraska legislature intended a third or subsequent conviction of the mis_ demeanor of willful and reckless driving to be a "trigger" felony conviction for applica- tion of the habitual criminal sentencing statute was not raised in Goodloe's appeal to the Nebraska Supreme Court. Thus, while Goodloe has posed serious federal con_ stitutional questions, under the circum_ stances we feel obligated to abstain from passing on these, as the Nebraska Supreme Court's interpretation of Nebraska law may render a decision unnecee3ary. We there_ fore require Goodloe to raise the issue of legislative intent in state court, through a petition for post-conviction relief, before a vehicular raw,s as a felony when a prior exists. because of statutory language indicating only offenses defined as felonies in the pnal coie can be "trigger" offenses. peopte 1,. Spranza, 80 Misc.2d 798. 364 N.y.S.2d 83 (1924); people v. Tyler,46 App.Dir'.2d 997, 36t N.y.S.2d i94 (1974). California has disapproved, on the ba- sis of the specificity of statutory language, use of a misdemeanor made a felony by; virtue of the increased punishment imposed on the basis of a prior felony conviction, as a ..trigger,, felo- n!' in application of an habitual offender stat- ute. Ex Parte Boatwright,2l6 Cal. 677. lS p.Zd 7s5 (1932). 19. See Srate v. Helr+,ard,g0 N.M. ZgO, 56g p.2d 616 (1977) (use of habitual criminat statute to increase sentence on conviction already en- hanced impermissible only if enhancemeni stat_ utes conflict); Uoyd v. State, 139 Ga.App. 625, 229 S.E.zd 106 (1976) (specific se.onJ drug offender sentencing provision controls); Sta; v. Loudermilk, 221 Kan. l5Z, S57 p.Zd l2}g, 1232-33 (1976) (specinc shtute has its own self-contained habituat criminal provision); Willeford v. State, 4S4 S.W.2d ?45 (Iex.Cr. l97O); Broome v. State, UO p.2d ?61 (OkI.Cr. r968). CONTINENTAL BANK & TRUST CO. v. AM. BONDTNG CO. l04g Clte rs oot Frd l|X0 (te70) an habitual lrt decisions on federal ily, the issue bf e misde- fiposed on a l.ral criminal lg:nizsbte in it rests upon in Glenn v. Cir. 1969). hre intended I of the mis- driving to for applica- sentencing 's appeal Thus, federal con- clncum- from Supreme law may lVe there- issue of through a , before a prior exists, ing onll- pnal code v. Spranza, 4l:. People Y.S.2d 79{ on the ba- , use by virtue of on the basis felo- stat- 677. l5 P.2d s68 P.2d statute to already en. stat- App. 625, drug State P.2d t229, its own provision); federal court passes upon the constitutional questions he raises here.a We vacate that portion of the district court decree relating to the constitutionali- ty of the stacking of the two penalty en- hancement statutes. We hold that until the Nebraska state courts construe the legisla- tive intent of the two provisions, passing upon the constitutional questions is prema- ture. We do hold, however, that Goodloe's avoidance of arrest conviction was obtained in violation of the requirements of due process of law and is void. As the convic- tion and concurrent sentence for willful and reckless driving remain, the district court must retain jurisdiction. We therefore in- struct the district court to retain jurisdic- tion pending the outcome of Goodloe's peti- tion to the Nebraska state courts. The state court proceedings, assuming they are completed within a reasonable time, should be certified by the defendant to the federal district court, which may then pass on the remaining constitutional issues, if neces- sary, in this habeas proceeding. THE CAUSE IS REVERSED AND RE- MANDED FOR FURTHER PROCEED- INGS IN ACCORDANCE WITH THIS OPINION. 20. Resolution of the legislative intent issue is not clear-cut and it does not appear futile to require Goodloe to raise it in state court. Both the definition of the offense of willful and reck- less driving and the specific penalty provision for a third offense are found in the section of the Nebraska code entitled Traffic-Rules of the Road, and both were enacted after the more general habitual criminal act (1921), which is located in the section of the code entirled Crim- inal Procedure. There is authorit!'that willful and reckless driving is a crime, despite statuto- ry language indicating it is merel!. a traffic infraction or civil offense, but only for purposes of procedural protections. State y. Knoles, 199 Neb. 2ll, 2t3, 256 N.w.2d 873, 874 (1927). Altholgh unlabeled, a third offense was a felo- ny in 1975 by virtue of the criminal code,s former definition of felony, section 29-102 (re- pealed 1978). Id On the other hand, only one offense is defined by statute, wittful and reck- less driving, with provision for increased penal- ties upon repetition. Cf. State v. Steemer, l7S Neb. 342, l2l N.W.2d 813 (1963) (construing section 6H30.01, operating a motor vehicle without a license). Thus when convicted of CONTINENTAL BANK & TRUST COMPANY, as Truetee for the Lot Purchasers, Appellee, and Calwood Leieure Aeeociation, Inc., I)onald L Ewens, Harold D. Barnhard, Appellees, v. AMERICAN BONDING COMPAI{Y, Appellant v. CALWOOD LEISURE ASSOCIATION, INC., Appellee, v. Richard D. WALKE& John W. Markham, Syetems Lcisure Properties, Inc., and Camp Leieure Lake, Inc., Appelleee. No. 28-189{. United Stat€s Court of Appeals, Eighth Circuit. Submitted April 17, l9?9. Decided Aug. 29, l9?9. Rehearing and Rehearing En Banc Denied Oct. 3, l9?9. Bank brought suit against surety, seek- ing recovery on bonds guaranteeing princi- willful and reckless driving, Goodloe may not have been "convicted of a fetony" as the habit- ual criminal act requires, but merely sentenced as a felon upon conviction of a misdemeanor. In addition, under the rernsed Nebraska Crimi- nal Code, effective in 1979, SS 28-l0l to 1335 (1978 Supp.), sentences for each t)?e and class of offense are specified and each ner*'offense is to be labeled by the legislature. Those offenses defined outside the penal code are punishable as provided in the statute defining them. Neb. Rev.Stat. S 2& 107(l). Although application of the habitual criminal act to felonies is unaffect- ed, there is no indication at the present time whether willfu! and reckless driving (third of- fense), is a felony or misdemeanor for purposes of the act. Nebraska requires that specific statutes govern more general ones, at least within the criminal code, section 29105 (1964), that a penal statute be applied only to those clearly within its terms, section 29-I06 (lg64)i Srate v. Dailey, 76 Neb. 270, tO7 N.W. loglt (1906), and that common understanding of lan- guage be used to define terms, section 2glog (lsc4). /{5 (Tex.Cr 76t (Okt.cr