Jackson v. Sigler , 320 F. Supp. 106 ( 1970 )

MEMORANDUM

URBOM, District Judge.

The petitioner has tendéred to this court for consideration documents titled “Petition for Writ of Habeas Corpus, “Statement regarding Exhaustion of State Remedy,” and “Forma Pauperis Affidavit.”

The petitioner, Roscoe H. Jackson, is presently incarcerated in the Nebraska Penal and Correctional Complex pursuant to his conviction in the District Court of Douglas County, Nebraska, for the crime of attempted burglary. A jury found him guilty and on January 22, 1969, a sentence of two to five years was imposed.

In his petition Jackson alleges his conviction is invalid for three reasons: first, illegal evidence was admitted in his trial; second, suggestions were “made to the jury”; and third, he was not provided with counsel “during the early stages of the criminal proceeding.” In addition, the petition includes an allegation which does not contest the validity of his conviction but relates to an indigent’s right to receive a free trial transcript or other records of his criminal proceeding for use in preparing a motion to vacate, set aside or correct a sentence so that he may collaterally attack his conviction in the state courts.

This court cannot and should not exercise jurisdiction over these issues unless the same issues have already been considered by the Supreme Court of Nebraska or unless it would be futile for the petitioner to present the issues to the Supreme Court of Nebraska. That court has not been afforded the opportunity to decide the issues, since Jackson did not appeal his conviction or the ruling of the District Court of Douglas County regarding a trial transcript. No other effort to obtain relief from the state court has been made by the petitioner. I cannot say that the Supreme Court of Nebraska would not grant the petitioner relief if it were given the opportunity. Until it is given that opportunity I cannot decide the issues Jackson seeks to have decided.

An appropriate order dismissing the petition without prejudice will be entered.