Sandy Patrick Kerns v. Robert F. Parratt, Warden , 672 F.2d 690 ( 1982 )

PER CURIAM.

Sandy Kerns, an inmate at the Nebraska State Penitentiary, appeals from the district court’s¹ denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Kerns advances four grounds for the issuance of a writ of habeas corpus, each of which was rejected below. We affirm.

Kerns pled guilty in 1975 to charges of rape and robbery and was sentenced to ten years on the rape count and five to ten years on the robbery count, to be served concurrently. These convictions are not at issue here. While serving his sentence, Kerns allegedly raped one of his cellmates, which led to both prison disciplinary action and to criminal charges. Through prison administrative proceedings, Kerns was determined to have violated inmate disciplinary rules and therefore lost more than three years accrued “good time” credits. Kerns was also charged with first degree sexual assault and with being an habitual offender. A jury found Kerns guilty on the sexual assault charge in February, 1981. Because this was his third conviction, the state court adjudged Kerns to be an habitual offender and sentenced him to twelve to fifteen years to be served consecutively with the prior sentences.

Kerns first argues that the double jeopardy clause bars criminal prosecution for the assault because he had been previously punished through the loss of statutory good time. This argument is without merit. The loss of good time credits arose through administrative proceedings based upon violation of prison disciplinary rules. Although due process protection is implicated, such proceedings do not place an offender in jeopardy for purposes of the double jeopardy clause. It is well settled that there is no bar to separate criminal prosecution for an offense such as Kerns’ assault upon his fellow inmate. See, e.g., United States v. Cluck, 542 F.2d 728, 735 (8th Cir. 1976); United States v. Salazar, 505 F.2d 72 (8th Cir. 1974).

Kerns next contends that an evidentiary ruling by the state trial court was erroneous and sufficiently prejudicial as to warrant habeas corpus relief. The state court admitted into evidence a bedsheet taken from Kerns’ “deadlock cell” to which he had been transferred after the alleged assault. The foundation for this exhibit was testimony that it is prison routine to transfer an inmate’s bedding along with the inmate when he is transferred into deadlock. Kerns argues there is a fatal gap in the chain of custody in that the state could not affirmatively establish that the linen was on Kerns’ bed in the cell where the assault took place. The state argues that prison routine is a sufficient foundation to permit the jury to infer that the linen was in the relevant cell at the relevant time.

We need not decide this issue because we are persuaded that admission of the exhibit, whether erroneous or not, did not so prejudice Kerns as to justify habeas relief. The only significance of the exhibit was related testimony that it contained a semen stain with a blood type which matched that of both Kerns and the victim. Although this evidence arguably shows an increased likelihood that sexual activity took place, it alone does not prove that there was a sexual assault much less that Kerns committed the assault. Thus, Kerns could not have been so prejudiced by the evidence as to warrant habeas corpus relief.

The third and fourth claims raised by Kerns involve the constitutionality of the Nebraska habitual offender statute as applied in this case. Kerns contends that the statute violates the separation of powers doctrine by conferring excessive sentencing discretion upon prosecutors. He also argues that because his first two convictions arose from the same “criminal episode,” it is unconstitutional to treat his next “episode” as a third offense for purposes of the statute. Kerns concedes, however, that his first two convictions involved separate counts (rape and robbery) and that the Nebraska Supreme Court has held the habitual offender statute properly applies to a third conviction even where the first two convictions are not separated by any time interval. See State v. Pierce, 204 Neb. 433, 283 N.W.2d 6 (1979). Kerns’ third constitutional attack is essentially that the foregoing factors render application of the habitual offender statute violative of the Eighth Amendment ban against cruel and unusual punishment. We summarize Kerns constitutional claims because each of them has been considered and squarely rejected by this Court. See Pierce v. Parratt, 666 F.2d 1205 (1981); Brown v. Parratt, 560 F.2d 303 (8th Cir. 1977); Martin v. Parratt, 549 F.2d 50 (8th Cir. 1977).

The district court is therefore affirmed.

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