382 F.2d 248 (8th Cir. 1967), 18638, Swenson v. Donnell

Docket Nº:18638.
Citation:382 F.2d 248
Party Name:Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellant, v. William B. DONNELL, Appellee.
Case Date:August 08, 1967
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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382 F.2d 248 (8th Cir. 1967)

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


William B. DONNELL, Appellee.

No. 18638.

United States Court of Appeals, Eighth Circuit.

Aug. 8, 1967

Howard L. McFadden, Asst. Atty. Gen., Jefferson City, Mo., for appellant; Norman H. Anderson, Atty. Gen., Jefferson City, Mo., was with him on the brief.

P. Pierre Dominique, Jefferson City, Mo., for appellee.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT, MATTHES, BLACKMUN, MEHAFFY, LAY and HEANEY, Circuit Judges, Sitting En Banc.

MATTHES, Circuit Judge.

The crucial question presented in this habeas corpus proceeding is whether Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, (1963), is to be applied retrospectively to the case of William B. Donnell, an indigent Missouri prisoner, whose conviction in 1960 was affirmed by the Supreme Court of that state in November, 1961. State v. Donnell, 351 S.W.2d 775 (Mo.1961). The district court, Judge Oliver, decided the retroactivity issue in favor of Donnell and entered an

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order which determined that he was entitled to the relief sought in his application for writ of habeas corpus, but which suspended issuance of the writ for a period of ninety days in order to afford the State of Missouri an opportunity to reprocess Donnell's appeal. Donnell v. Swenson, 258 F.Supp. 317, 335-36 (W.D.Mo.1966). Swenson, as warden of the Missouri State Penitentiary, has appealed from that order.

Judge Oliver demonstrated in an exhaustive and fully documented opinion that the rule promulgated in Douglas has been given retrospective application by the Supreme Court and other federal and state courts. Donnell v. Swenson, supra at 329-332. In view of Judge Oliver's full discussion of all the relevant authorities it would be a needless exercise here to survey the law he so thoroughly explored. 1

At the outset we observe that no question is presented as to the exhaustion of Donnell's state remedies. He filed a motion to vacate the sentence pursuant to Missouri Rule 27.26. Mo.Sup.Ct. (Crim.) R. 27.26. From the denial of this motion Donnell perfected an appeal through appointed counsel. The Supreme Court of Missouri, after due consideration of all constitutional allegations attacking the validity of the sentence, affirmed. State v. Donnell, 387 S.W.2d 508 (Mo. 1965).

The validity of Donnell's attack upon his conviction turned in the first instance upon the resolution of the paramount question whether the long-standing Missouri practice of disposing of appeals of nonrepresented indigent defendants comported with the constitutional standards enunciated in Douglas. That issue was squarely presented in Bosler v. Swenson, 363 F.2d 154 (8th Cir. 1966), where we held, after full consideration of the Missouri system, that 'despite Missouri's forward treatment of indigents under the...

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