Goodloe v. Parratt Court Opinion

    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