312 F.Supp. 635 (E.D.Mo. 1970), 70 C 114 2, McClain v. Swenson

Docket Nº:70 C 114 2
Citation:312 F.Supp. 635
Party Name:McClain v. Swenson
Case Date:May 14, 1970
Court:United States District Courts, 8th Circuit, Eastern District of Missouri
 
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Page 635

312 F.Supp. 635 (E.D.Mo. 1970)

E. J. McCLAIN, Petitioner,

v.

Harold R. SWENSON, Warden, Missouri State Penitentiary, Respondent.

No. 70 C 114(2).

United States District Court, E.D. Missouri, Eastern Division.

May 14, 1970

E. J. McClain, pro se.

John C. Danforth, Atty. Gen., State of Missouri, Kenneth M. Romines, Asst. Atty. Gen., State of Missouri, Jefferson City, Mo., for respondent.

MEMORANDUM

MEREDITH, District Judge.

Petitioner, a prisoner confined in the Missouri State Penitentiary at Jefferson City, Missouri, filed a petition for writ of Habeas corpus under 28 U.S.C. 2254, in the United States District Court for the Western District of Missouri. That Court granted the petitioner leave to proceed in forma pauperis and transferred the case to this Court, because the records and witnesses are located in the Eastern District of Missouri. This Court issued a show-cause order and the State has responded.

McClain was convicted of first degree murder, by a jury, in 1941. In his petition

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he states five grounds on which he bases his allegation that he is being held in custody unlawfully: (a) he was denied counsel at arraignment; (b) he was denied effective assistance of counsel during trial; (c) he was denied assistance of counsel during the jury deliberation; (d) he was denied assistance of counsel during sentencing; and (e) he was denied his statutory right of direct appeal from a conviction of first degree murder. He has exhausted his state remedies on grounds a, c, and d. McClain v. State, 448 S.W.2d 599 (Mo.1970).

The petitioner's first allegation is that he was denied counsel at arraignment. Arraignment is not a critical step in the proceedings in Missouri and absence of counsel is not a per se violation of the Sixth Amendment. State v. Benison, 415 S.W.2d 773 (Mo.1967). Here, the trial court entered a plea of not guilty for the petitioner, no defenses were waived and no prejudice could have resulted. This ground is without merit and will be dismissed.

The petitioner's next allegation is that he was deprived of his right to counsel during the jury's deliberations. He states that while the jury was deliberating, his attorney left the courtroom. During this time the jury foreman returned and asked the judge if the jury could return a verdict for assault. The judge told the foreman to return to the jury room and consider the...

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