Zemina v. Solem, 573 F.2d 1027 (8th Cir. 1978). · Go Syfert
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Zemina v. Solem, 573 F.2d 1027 (8th Cir. 1978). Cases Citing This Book View Copy Cite
72 citation events (15 in the last 25 years) across 28 distinct courts.
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 9 distinct citers. How cited ↗
cited Cited as authority (rule) Justin Wischer v. Commonwealth of Kentucky
Ky. · 2025 · confidence medium
Zemina v. Solem, 573 F.2d 1027, 1028 (8th Cir. 1978). 9 Id. at 466.
discussed Cited as authority (rule) Ronald Davis v. Wayne Strack, Superintendent, Fishkill Correctional Facility and Dennis C. Vacco, New York State Attorney General (2×) also: Cited "see, e.g."
2d Cir. · 2001 · confidence medium
See Means v. Solem, 646 F.2d 322, 332 (8th Cir.1980) (granting habeas relief for error of state law on justification in jury instruction); Barker v. Yukins, 199 F.3d 867, 875-76 (6th Cir.1999) (same); Zemina v. Solem, 573 F.2d 1027, 1028 (8th Cir.1978) (adopting reasoning of Zemina v. Solem, 438 F.Supp. 455 (D.S.D.1977)) (same).
cited Cited as authority (rule) Randy Lee Closs v. Walter Leapley, Warden, South Dakota State Penitentiary, and Mark W. Barnett, Attorney General, State of South Dakota
8th Cir. · 1994 · confidence medium
Means v. Solem, 646 F.2d 322, 332 (8th Cir.1980); and Zemina v. Solem, 573 F.2d 1027, 1028 (8th Cir.1978) (per curiam).
discussed Cited "see" Dendy v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Zemina v. Solem, 573 F.2d 1027 (8th Cir.1978) (affirming the grant of habeas corpus relief that the defendant's Sixth Amendment right to counsel was violated when the trial court allowed the prosecutor to suggest in closing argument that the defendant's phone call to his attorney after his arrest indicated his guilt); United States ex rel.
cited Cited "see" Owens v. Wolff
D. Nev. · 1981 · signal: see · confidence high
See Zemina v. Solem, 438 F.Supp. 455 (D.C.S.D.1977), affirmed 573 F.2d 1027 .
cited Cited "see" United States Ex Rel. Means v. Solem
D.S.D. · 1978 · signal: see · confidence high
See Zemina v. Solem, 438 F.Supp. 455 (D.S.D.1977), aff’d 573 F.2d 1027 (8th Cir. 1978).
discussed Cited "see, e.g." Stacey Barker v. Joan Yukins, in Her Official Capacity as Warden of the Scott Correctional Facility
6th Cir. · 1999 · signal: see also · confidence low
See also Zemina v. Solem, 438 F.Supp. 455, 466-70 (D.S.D. 1977), aff'd, 573 F.2d 1027 (8th Cir. 1978) (erroneous jury instruction which went to defendant's theory of defense supported a finding of constitutional error); Miller v. South Dakota, 338 N.W.2d 673, 676 (S.D. 1983) (although errors in instructing the jury do not always rise to a constitutional level, "if the error goes to the heart of a defendant's theory of defense it can infringe upon defendant's rights to due process and jury trial."). 29 Barker's sole defense is that she killed the victim in order to prevent an imminent rape.
discussed Cited "see, e.g." Barker v. Yukins
6th Cir. · 1999 · signal: see also · confidence low
See also Zemina v. Solem, 438 F.Supp. 455, 466-70 (D.S.D.1977), aff'd, 573 F.2d 1027 (8th Cir.1978) (erroneous jury instruction which went to defendant’s theory of defense supported a finding of constitutional error); Miller v. South Dakota, 338 N.W.2d 673, 676 (S.D.1983) (although errors in instructing the jury do not always rise to a constitutional level, “if the error goes to the heart of a defendant’s theory of defense it can infringe upon defendant’s rights to due process and jury trial.”).
cited Cited "see, e.g." Robert Allen, Cross-Appellant v. T.L. Morris, Cross-Appellee
6th Cir. · 1988 · signal: see also · confidence medium
See also Zemina v. Solem, 573 F.2d 1027, 1028 (8th Cir.1978).
Retrieving the full opinion text from the archive…
Fred J. Zemina, Appellee-Appellant
v.
Herman Solem, as the Duly Appointed, Qualified and Acting Warden of the South Dakota State Penitentiary, Appellant-Appellee
77-1899.
Court of Appeals for the Eighth Circuit.
Apr 10, 1978.
573 F.2d 1027
Cited by 2 opinions  |  Published

573 F.2d 1027

Fred J. ZEMINA, Appellee-Appellant,
v.
Herman SOLEM, as the duly appointed, qualified and acting
Warden of the South Dakota State Penitentiary,
Appellant-Appellee.

Nos. 77-1899, 77-1846.

United States Court of Appeals,
Eighth Circuit.

Submitted March 13, 1978.
Decided April 10, 1978.

Peter H. Lieberman, Asst. Atty. Gen., Pierre, S. D., for appellant-appellee; William J. Janklow, Atty. Gen., Pierre, S. D., on brief.

Stuart L. Tiede, of Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., for appellee-appellant.

Before LAY and BRIGHT, Circuit Judges, and VAN SICKLE, District Judge.[*]

PER CURIAM.

[*~1027]1

Herman Solem, acting warden of the South Dakota State Penitentiary, appeals from a district court order granting habeas corpus relief to prisoner Fred J. Zemina.[1] Zemina cross-appeals, contending that the district court erred in rejecting several other grounds asserted in his petition. We affirm.

2

Zemina was convicted of first degree manslaughter in a South Dakota state court and sentenced to life imprisonment. The Supreme Court of South Dakota affirmed the conviction. State v. Zemina, 87 S.D. 291, 206 N.W.2d 819 (1973). In this habeas corpus action, Zemina alleges numerous defects in his trial. After analyzing the entire record in detail, Chief Judge Nichol, in a well-reasoned opinion, granted Zemina's petition on two grounds and rejected the remaining allegations. First, Chief Judge Nichol concluded that the trial court had violated Zemina's right to a trial by jury and to due process of law by refusing to give the jury a proposed instruction on Zemina's defenses of justification, excuse, and self-defense. Second, he found that the trial court had violated Zemina's sixth amendment right to counsel by allowing the prosecutor to suggest in closing argument that Zemina's phone call to his attorney after his arrest indicated his guilt. We adopt Chief Judge Nichol's reasoning and affirm the judgment granting the writ of habeas corpus on the basis of that opinion.

[*~1028]3

Zemina's contentions on his cross-appeal (No. 77-1846) relate to errors in the trial that are unlikely to occur again if he is retried. We therefore do not reach the issues raised by Zemina's cross-appeal, and we dismiss that appeal.

*

BRUCE M. VAN SICKLE, United States District Judge, District of North Dakota, sitting by designation

1

The Honorable Fred J. Nichol, Chief Judge, District of South Dakota. Chief Judge Nichol's opinion is published at 438 F.Supp. 455