Hegwood v. Swenson

Citation344 F. Supp. 226
Decision Date07 June 1972
Docket NumberNo. 19515-4.,19515-4.
PartiesJoe HEGWOOD, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
CourtU.S. District Court — Western District of Missouri

Malcolm Robertson (Blanchard, Van Fleet, Robertson & Dermott), Joplin, Mo., for petitioner.

Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

ELMO B. HUNTER, District Judge.

Petitioner, a convicted state prisoner who is currently confined in the Missouri State Penitentiary at Jefferson City, Missouri, has filed in forma pauperis a petition for writ of habeas corpus challenging the constitutional validity of his state conviction and sentence. Leave to proceed in forma pauperis was granted by the Court in the order to show cause which was entered on July 28, 1971.

On August 20, 1964, petitioner was sentenced by the Circuit Court of McDonald County, Missouri, to a term of life imprisonment following his earlier plea of guilty to charges of robbery in the first degree. At the same time, petitioner also received a concurrent two year term of imprisonment after his plea of guilty to a "bogus check" charge. He then filed a motion in the Circuit Court of McDonald County pursuant to Missouri Rule 27.26, V.A.M.R., which was denied after an evidentiary hearing. That denial was affirmed on appeal by the Supreme Court of Missouri. State v. Hegwood, 415 S.W.2d 788 (Mo.1967). Subsequently, Missouri Rule 27.26 was amended and petitioner was allowed to file a successive Rule 27.26 motion in the Circuit Court of McDonald County, Missouri. Again, the Rule 27.26 motion was denied by the Circuit Court of McDonald County following a full evidentiary hearing and the denial of petitioner's motion was affirmed by the Supreme Court of Missouri on appeal. Hegwood v. State, 465 S.W.2d 476 (Mo. 1971).

In this proceeding for a writ of habeas corpus, petitioner presents basically the identical contentions that he earlier raised in his second Rule 27.26 motion and the appeal from the denial of that motion. Petitioner urges: (1) that his plea of guilty to robbery in the first degree was involuntary, (2) that he was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and (3) that counsel was not present to represent him at the time he waived a preliminary hearing, a contention which was raised during the evidentiary hearing in this proceeding, but not in petitioner's initial petition for writ of habeas corpus. During the evidentiary hearing in this cause, petitioner conceded that any contentions relating to his "bogus check" charge and conviction rendered in the Circuit Court of McDonald County, which was to run concurrently with the conviction presently under attack, have not been presented to the Missouri state courts and that his state post-conviction remedies have not been fully exhausted as to them.

Because petitioner had not filed a petition for rehearing or for a transfer of his appeal to the Supreme Court of Missouri en banc for rehearing with regard to his latest appeal to that court, respondent contends that petitioner has not fully exhausted his available state post-conviction remedies with relation to his contentions arising from his conviction for robbery in the first degree. However, as indicated by this Court at the evidentiary hearing in this cause, the transfer of an appeal to the Missouri Supreme Court en banc for rehearing or a rehearing of an appeal by the panel which initially decided that appeals are largely discretionary procedures which are not presently available to petitioner since the time for filing appropriate motions has passed. Neither the requirements of 28 U.S.C. § 2254, which compel the exhaustion of "any available procedure," nor considerations of comity between the state and federal courts require that petitioner, in the absence of a dissent to the opinion of the Supreme Court of Missouri, must now attempt to initiate a further Rule 27.26 proceeding simply because he did not file motions in the Supreme Court of Missouri for rehearing or for transfer of his appeal to the Supreme Court en banc. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed. 418 (1971); Robinson v. Swenson, 331 F.Supp. 483 (W.D.Mo.1971); Harris v. Swenson, Civil Case No. 19,703-3 (W.D.Mo.1972) (unreported). Thus, contrary to the assertions of respondent, it is clear that petitioner has, in fact exhausted all his currently available state post-conviction remedies with regard to the contentions he now seeks to raise in this Court.

The following facts underlying petitioner's state criminal proceedings are revealed by the record of petitioner's second Rule 27.26 hearing and the testimony and evidence adduced in the hearing held in this federal habeas action. Petitioner was initially arrested in Mt. Clemens, Michigan upon first degree robbery charges then pending in McDonald County, Missouri. He waived extradition and returned to Missouri voluntarily. Approximately one week later, petitioner appeared in the Magistrate Court of McDonald County, Missouri, where he appeared before the Magistrate Judge for preliminary hearing. Petitioner was advised by the Magistrate that he was present for preliminary hearing upon the criminal charges pending against him. Since petitioner advised the Magistrate that he desired the service of counsel prior to the preliminary hearing, the Magistrate continued the proceedings so as to enable petitioner to obtain an attorney. Later, petitioner appeared again before the Magistrate and waived preliminary hearing in the criminal proceedings against him.

On August 14, 1964, petitioner was brought before the Circuit Court of McDonald County for the purposes of arraignment upon the pending first degree robbery charge and the "bogus check" charge. During this arraignment proceeding petitioner advised the court that he desired to enter a plea of guilty to the charges. However, because petitioner was not represented by counsel at the time, the state judge refused to accept petitioner's tendered plea of guilty and continued the criminal proceedings until petitioner could appear with counsel. Shortly thereafter, the state judge, on his own motion, appointed a local attorney to represent petitioner in the defense of the pending criminal charges. Later, however, after being advised that petitioner's appointed counsel also represented the complaining witness in the criminal action against petitioner, the state court allowed petitioner's first appointed attorney to withdraw as attorney of record for the defense.

On August 17, 1964, petitioner again appeared before the Circuit Court of McDonald County for arraignment. In light of the withdrawal of petitioner's previously-appointed counsel, the court appointed another local attorney, who was then present in the courtroom. Following a recess in the proceedings petitioner again appeared before the court with his court-appointed counsel and entered a plea of guilty to the charges pending against him. The record of that arraignment, as set forth in the findings of the state judge following petitioner's second Rule 27.26 hearing, is as follows:

The Prosecutor (In response to court-directed inquiry as to the underlying facts of petitioner's offense):
"The facts are, your Honor, that on the night of July 16 of this year, last month, Joe Hegwood and another young man came to McDonald County from Benton, Arkansas, driving an automobile. They went to the Big Sugar Drive-In, drank some beer; they had been drinking beer and whiskey during that day. They had consumed probably, according to Mr. Hegwood, maybe a pint and a half of whiskey and possibly three cases of beer. They went to Big Sugar Drive-In, which is in McDonald County between Pineville and State Line, on present Highway 71, stayed there for some time that night. And when they got ready to leave there, Mr. Hegwood here wrote the check to the Big Sugar Drive-In and at that time he bought a case of beer and received the change and difference in money.
The Court: That's here in McDonald County?
The Prosecutor: Yes, sir, that is the $10 check which is the subject of the companion charge. Mr. Hegwood obtained beer and money for the $10 check and he had no funds in the Bank of Pea Ridge, on which the check was drawn at that time. Mr. Hegwood and his companion left; his companion is a younger man, about 18 years old or thereabouts. They left the Big Sugar Drive-In and proceeded in this 1953 Chevrolet, I believe it is, on down toward the State Line, and they stopped in at the State Line, and Mr. Hegwood got a .12 gauge double-barrel shotgun out of the back seat of that old car and went inside and held up the M and A Liquor Store, which the trade name, which is operated as a liquor store—filling station, by Mr. John M. Ralston.
Mr. Hegwood walked in the store and when he walked in, he did not appear to be drunk, and he pointed the shotgun at Mr. Ralston and said, according to Mr. Ralston's statement, "I am going to kill you," and he stepped back behind the counter, and he said, "Open that cash register." Mr. Ralston opened the cash register and Mr. Hegwood said, "Put your hands in front of your head, walk in front of the counter, I am going to kill you." The cash register was then opened as Mr. Ralston complied, did what he was asked to do. He had his back turned to the defendant. The shotgun sounded, the blast sounded, and Mr. Ralston was completely surprised. He felt shock and surprise and no immediate pain, and he slumped over, fell and slumped over against the counter, but did not go down, and he asked the defendant if he could sit down, and Mr. Hegwood said, "Hell no, I'm going to kill you." and he made him stand on his feet during the entire rest of the time of the robbery.
Mrs. Ralston screamed and came out of the back room, and the
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4 cases
  • Fisher v. Trickey, 86-1312-CV-W-1.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 9 d4 Abril d4 1987
    ......9 .          Kelley v. Swenson, 481 F.2d 86 (8th Cir. 1973), decided the exhaustion question presented under the 1945 Constitution of Missouri. That case considered an Eastern ...Swenson, supra , as that later reached by the Court of Appeals in Kelley. Judge Hunter also reached the same conclusion in Hegwood v. Swenson, 344 F.Supp. 226 (W.D.Mo.1972). As the Court of Appeals noted in Kelley, Chief Judge Meredith's decision in Corlew v. Swenson, 336 ......
  • State v. Sneed, 62
    • United States
    • United States State Supreme Court of North Carolina
    • 1 d5 Fevereiro d5 1974
    ...determine whether an accused has been deprived of effective assistance of counsel. Walker v. Caldwell, 5th Cir., 476 F.2d 213; Hegwood v. Swenson, 344 F.Supp. 226; Timmons v. Peyton, D.C., 240 F.Supp. 749 (Reversed on other grounds 4th Cir., 360 F.2d 327); Palmer v. Adams, In instant case, ......
  • Huffman v. State of Missouri, 20746-4.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 25 d3 Junho d3 1975
    ...has not been retroactively applied by the Court of Appeals for the Eighth Circuit, and therefore does not apply herein. Hegwood v. Swenson, 344 F.Supp. 226 (W.D.Mo.1972); Vaugn v. Swenson, 446 F.2d 1009 (8th Cir. 1971); Crosswhite v. Swenson, 444 F.2d 648 (8th Cir. 1971); Meller v. State of......
  • Kelley v. Swenson, 73-1077.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 22 d5 Junho d5 1973
    ...Publishing Co., 368 S.W.2d 469, 479 (Mo.Sup.Ct. 1963); Robinson v. Swenson, 331 F. Supp. 483 (W.D.Mo.1971); Hegwood v. Swenson, 344 F.Supp. 226 (W.D.Mo. 1972), see State v. Harris, 321 S.W.2d 468 While distinguishable in some respects, Corlew v. Swenson, 336 F.Supp. 592 (E.D.Mo.1971), and C......

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