Charles A. Aby, Petitioner-appellant, v. Robert Parratt, Warden, Respondent-appellee, 660 F.2d 385 (8th Cir. 1981)

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US Court of Appeals for the Eighth Circuit - 660 F.2d 385 (8th Cir. 1981) Submitted Oct. 5, 1981. Decided Oct. 9, 1981

Neal E. Stenberg, Lincoln, Neb., for petitioner-appellant.

Paul L. Douglas, Atty. Gen., John Boehm, Asst. Atty. Gen., Lincoln, Neb., for respondent-appellee.

Before BRIGHT and ARNOLD, Circuit Judges, and DAVIES,*  Senior District Judge.


Petitioner Charles A. Aby was convicted in 1978 in a Nebraska state court of first-degree sexual assault. The Nebraska Supreme Court affirmed the conviction. State v. Aby, 205 Neb. 267, 287 N.W.2d 68 (1980). Thereafter, petitioner sought habeas corpus relief pursuant to 28 U.S.C. § 2254, alleging that the testimony of the prosecuting witness was uncorroborated and that the evidence at trial was insufficient to support the petitioner's conviction beyond a reasonable doubt. The District Court1  denied relief, and petitioner appealed. We affirm substantially for the reasons stated in the District Court's memorandum opinion. See 8th Cir. R. 14.

We are guided, as was the District Court, by the presumption of correctness of the factual findings made by the Nebraska state courts. Sumner v. Mata, --- U.S. ----, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981). The District Court carefully reviewed those findings, and we cannot say that that court erred in concluding that the evidence, when viewed in a light most favorable to the prosecution, would support a finding by a rational trier of fact that the petitioner was guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

We also hold that a rational trier of fact could find that the prosecutrix's testimony was corroborated to the extent required by Nebraska law. It is unnecessary to discuss, and we express no view on the question, whether a state-law requirement of corroboration has any due-process significance in a federal habeas proceeding applying the rule of Jackson v. Virginia, supra. In addition, we note that the District Court dismissed a third claim by petitioner ineffective assistance of counsel without prejudice, for failure to exhaust state remedies. Petitioner does not challenge this holding on appeal.



The Hon. Ronald N. Davies, Senior United States District Judge for the District of North Dakota, sitting by designation


The Hon. Warren K. Urbom, Chief Judge, United States District Court for the District of Nebraska