Lyle E. NELSON, Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary and Mark V. Meierhenry, Attorney General, State of South Dakota, Appellees.
No. 82-2452
United States Court of Appeals, Eighth Circuit
August 15, 1983
714 F.2d 57
Two sections of the South Dakota statutes especially provide for indemnification clauses. Section 56-3-16 provides:
Indemnification of architect or engineer for own errors prohibited in construction contract. Construction contracts, plans and specifications which contain indemnification prоvisions shall include the following provision:
The obligations of the contractor shall not extend to the liability of the architect or engineer, his agents or employees arising out of
(1) the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications, or
(2) the giving of or the failure to give directions or instructions by the architect, or engineer, his agents or emplоyees provided such giving or failure to give is the primary cause of the injury or damage.
Conflicting provision in construction contract unlawful and unenforceable. Any indemnification provision in a construction cоntract in conflict with
§ 56-3-16 shall be unlawful and unenforceable.
It is undisputed that Kirwan and Van Lent prepared and approved the design and specifications for the signs and barricading of the damaged portion of the road where the accident occurred. The district court determined, and we agree, that Kirwan and Van Lent were agents or employees of “the” engineer if not “the” engineer themselves. Kirwan was a district engineer and Van Lent was a resident engineer, both employed by the State; both were personally connected to this project. Section 1.23 of the contract between Lien and the State defines “Engineer” as “The State Highway Engineer acting directly or through his duly authorized representatives, who is responsible for engineering supervision of the construction.” (Emphasis added). Section 1.22 defines “District Engineer” as “A representative of the State Highway Engineer in chаrge of assigned operations within his designated district.” (Emphasis added).
Kirwan and Van Lent contend that
For the reasons set forth in the district court opinion denying indemnity, we affirm.
Mark V. Meierhenry, Atty. Gen., Grant Gormley, Asst. Atty. Gen., Pierre, S.D., for appellees.
James D. Leach, Rapid City, S.D., for appellant.
Before LAY, Chief Judge, and BRIGHT and ARNOLD, Circuit Judges.
PER CURIAM.
Lyle E. Nelson appeals from the district court‘s1 dismissal of his petition for writ of habeas corpus under
Nelson is currently serving a seventeen-year sentence in the South Dakota State Penitentiary for grand theft. On December 2, 1981, Nelson filed a federal habeas petition challenging his conviction on four separate grounds. The district court, after determining that two of the four grounds had never been presented to the state courts, dismissеd the entire petition under Rose v. Lundy, supra, 455 U.S. at 522, 102 S.Ct. at 1205 (district court must dismiss state habeas petition containing both exhausted and unexhausted federal claims). Nelson then requested the district court to reconsider its petition without the unexhausted claims. The district court, treating Nelson‘s request as a motion to amend his petition to delete the two unexhausted claims, granted Nelson‘s request.
Thereaftеr, the district court again dismissed Nelson‘s habeas petition, ruling that the alibi defense claim had not been presented to the South Dakota Supreme Court as a federal due process claim. Although the district court determined that this was the only remaining unexhausted claim, the court, following Rose v. Lundy, again dismissed the entire petition. The district court stayed its dismissal order for thirty days to allow Nelson to amend his petition for a second time, but he did nоt attempt to do so.
II. Discussion.
On appeal, Nelson argues that he did, in fact, present his alibi defense claim to the South Dakota Supreme Court as a federal due process issue. He concedes, howevеr, that he did not rely on any federal cases or law. In Thomas v. Wyrick, 622 F.2d 411, 413 (8th Cir.1980), this court held that a habeas petitioner had not sufficiently presented his federal claim to the state courts where he simply alleged a denial of his right to а fair trial without citing any constitutional provision or federal case. The Supreme Court‘s most recent pronouncement on the subject of exhaustion supports this court‘s conclusion in Thomas. In Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam), the Court stаted, “[i]t is not enough that all of the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made * * *. In addition, the habeas petitioner must have ‘fairly presented’ to the state courts the ‘substance’ of his federal habeas corpus claim.” Id. 103 S.Ct. at 277.
Applying Thomas and Harless to this case, it becomes clear that Nelson has failed to exhaust his alibi defense claim. Although the facts of the claim were presented to the South Dakota Supreme Court, Nelson‘s state court brief relied exclusively on South Dakota cases and law relevant to the alleged deprivation of his аlibi defense. Nelson contends that certain phrases from his brief should have alerted the South Dakota Supreme Court to his federal due process claim. However, Nelson never used the term “due process” in connection with his claim, and the opinion of the South Dakota Supreme Court indicates that it discerned no due process implications in Nelson‘s brief on this issue.
Nelson urges this court to take the approach adopted by the Second Circuit and determine that his claim has been exhausted despite his failure to cite federal law to the state court. In Daye v. Attorney General of New York, 696 F.2d 186 (2d Cir. 1982) (en banc), the Second Circuit outlined several ways in addition tо direct reference to the Constitution by which a habeas petitioner may show that he has presented his federal constitutional claim to the state courts.
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) rеliance on state cases employing constitutional analysis and like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitu
tion, and (d) allegation of a pattern of facts that is well within the main stream of constitutional litigation. [Id. at 194].
Assuming, without deciding, that Daye is consistent with our approach in Thomas, we conclude that, even under the lenient standards set forth in Daye, Nelson has failed to establish that he exhausted his alibi defense claim. Nelson did not rely on federal cases in his state appeal on this issue, nor did he cite any state cases that employed a federal constitutional analysis. Although his alibi defense claim falls within the boundariеs of possible federal due process claims,2 the facts underlying the claim do not necessarily bring the due process clause to mind. Finally, Nelson‘s challenge to a jury instruction which allegedly undermined his alibi defensе does not fall within the main stream of constitutional litigation.3
Nelson also argues that the district court should have given him notice or an opportunity to be heard before dismissing his petition a second time. According to Nelson, the district court‘s order of March 24, 1982 which explicitly found two of his claims to be unexhausted, thereby implicitly found the remaining claims to be exhausted. In addition, Nelson contends that the district court abused its discretion in fаiling to appoint counsel for him. Both of these arguments are without merit. Nelson was not entitled to assume that the March 24, 1982 order constituted a final disposition of the exhaustion issue for all of his claims. On the contrary, Nеlson was on notice that the State had requested the district court to dismiss his amended petition for lack of exhaustion. The district court was not obligated to invite Nelson to respond on an exhaustion issue, nor was the district court required to hold a hearing on the issue since no facts were in dispute. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Lindner v. Wyrick, 644 F.2d 724, 729 (8th Cir.) cert. denied, 454 U.S. 872, 102 S.Ct. 345, 70 L.Ed.2d 178 (1981). Moreover, we conclude that the district court did not abuse its discretion in refusing to appoint counsel.
III. Conclusion.
The district court correctly concluded that the South Dakota courts have not yet had the opportunity to consider the due process implications of Nelson‘s alibi defense claim. Because there has been no showing thаt further resort to state procedures for post-conviction relief would be futile, we affirm the district court‘s decision to dismiss Nelson‘s habeas petition without prejudice for lack of exhaustion.
LAY, Chief Judge, Concurring.
I concur. However, I would dismiss all claims on the merits. Notwithstanding the technical requirements of exhaustion under Rose v. Lundy, federal courts still have the prerogative to dismiss all nonmeritorious claims which are frivolous on their face. It becomеs ludicrous to dismiss claims for further procedural consideration by either state or federal courts when the claims facially lack merit. Here all claims asserted clearly lack substance; we should not provide false hope to litigants or more work for the courts.