Robert Cole, Appellant, v. Robert Parratt, Appellee, 688 F.2d 59 (8th Cir. 1982)

Robert Cole appeals from the denial of his petition for a writ of habeas corpus. We affirm.

In 1974, Cole was convicted of robbery in a Nebraska state trial court. At that time, he was also adjudged an habitual criminal on the basis of two prior convictions in 1956 and 1962; this resulted in an enhanced sentence. The conviction and sentence were affirmed on direct appeal. State v. Cole, 192 Neb. 466, 222 N.W.2d 560 (1974).

Cole subsequently sought post-conviction relief in state court, alleging, inter alia, that because the 1956 conviction used in the habitual criminal proceeding was constitutionally defective,¹  his adjudication as an habitual criminal was invalid. No objection to the use of the prior conviction had been raised at the habitual criminal proceeding. The Nebraska Supreme Court denied relief, concluding that Cole's failure to challenge the validity of the 1956 conviction of the habitual criminal hearing waived the issue and precluded him from raising it collaterally in a post-conviction proceeding. State v. Cole, 207 Neb. 318, 298 N.W.2d 776, 778 (1980).

In June 1981, Cole initiated the present federal habeas corpus action, again asserting that the use of the allegedly unconstitutional 1956 conviction rendered his adjudication as an habitual criminal invalid. The federal magistrate to whom the case was referred concluded that Cole, by failing to object to the use of the challenged conviction, had waived the alleged constitutional defect. Because Cole had not demonstrated that his failure to object was justified by "cause" and had resulted in "actual prejudice," Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), the magistrate recommended that the petition be dismissed. The district court²  adopted the magistrate's report and entered an order dismissing the action. This appeal followed.

We agree that Cole's failure to contest the use of the 1956 conviction at the state habitual criminal hearing, as required, precludes federal habeas review of his constitutional claim. Absent a showing of cause for noncompliance with a state's contemporaneous-objection rule and a demonstration of actual prejudice resulting from the alleged constitutional deprivation, the failure of trial counsel to raise a constitutional issue in state court will bar the defendant from raising the issue in a federal habeas corpus action. Wainwright v. Sykes, 433 U.S. at 87, 97 S. Ct. at 2506; see Graham v. Mabry, 645 F.2d 603, 605-06 (8th Cir. 1981); Parton v. Wyrick, 614 F.2d 154, 157 (8th Cir.), cert. denied, 449 U.S. 846, 101 S. Ct. 131, 66 L. Ed. 2d 56 (1980).

Cole has not advanced a specific reason for his attorney's failure to contest the use of the 1956 conviction. Counsel on this appeal speculates that because relevant records of the 1956 conviction are unavailable, proof of Cole's constitutional claim at the habitual criminal hearing was not possible. This impossibility, counsel argues, constitutes adequate "cause" for the failure to raise the constitutional issue at the habitual criminal proceeding. We cannot agree. While the unavailability of these records would undoubtedly have compounded the difficulty in reviewing Cole's constitutional claim, there is nothing to indicate this difficulty would have actually precluded effective consideration of the claim by the state court. A finding of "cause" in these circumstances would undermine the reasoning of Sykes.³  See 433 U.S. at 90, 97 S. Ct. at 2508.

In sum, we agree with the district court that Cole has shown no cause of his noncompliance with state procedures during the habitual criminal proceeding.⁴  Accordingly, the order dismissing his petition for a writ of habeas corpus is affirmed.