Wilwording v. Swenson, Civ. A. No. 73CV55-W-3.

• Decision Date: 19 October 1973
• Docket Number: Civ. A. No. 73CV55-W-3.
• Parties: Alan Daniel WILWORDING, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

394 F. Supp. 76

Alan Daniel WILWORDING, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 73CV55-W-3.

United States District Court, W. D. Missouri, W. D.

October 19, 1973.

Alan Daniel Wilwording, pro se.

Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

FINAL JUDGMENT DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS WITHOUT PREJUDICE

WILLIAM H. BECKER, Chief Judge.

This is a petition for a writ of habeas corpus by a state prisoner in custody at the Missouri State Penitentiary, Jefferson City, Missouri. Petitioner seeks an adjudication that his conviction and sentence were illegally imposed upon him in violation of his federal constitutional rights. Petitioner has requested leave to proceed in forma pauperis. By prior order of this Court on February 16, 1973, petitioner was granted leave to proceed in forma pauperis.

Petitioner states that he was convicted upon a finding of guilt by a jury in the Circuit Court of Greene County, State of Missouri, of robbery in the first degree in violation of Section 560.120 RSMo, V.A.M.S.; that he was sentenced on that conviction on the 25th day of June, 1964, to a term of twenty years imprisonment; that he appealed from the judgment of conviction and imposition of sentence to the Missouri Supreme Court; that the judgment of conviction and imposition of sentence was affirmed in State of Missouri v. Wilwording, 394 S.W.2d 383 (Mo.Sup.1965).

With respect to postconviction relief from the judgment of conviction, petitioner states that he has filed the following motions on the following dates in the following respective courts with the following results: (1) a motion to vacate sentence and conviction under Missouri Supreme Court Rule 27.26, V.A. M.R., in the Circuit Court of Greene County, State of Missouri, which was denied on March 18, 1968, and affirmed on appeal in Wilwording v. State of Missouri, 438 S.W.2d 447 (Mo.Sup.1969); (2) a petition for federal habeas corpus in this Court, which was denied on October 6, 1969, in Wilwording v. Swenson, 331 F.Supp. 1188 (W.D.Mo.1969), and (3) a petition for federal habeas corpus in this Court which was denied on November 12, 1970, in Wilwording v. Swenson, 326 F.Supp. 1145 (W.D.Mo. 1970), affirmed 446 F.2d 553 (8th Cir. 1971) (also a petition for federal habeas corpus concerning conditions of confinement was filed in this Court which was denied in Wilwording v. Swenson, 331 F.Supp. 1188, reversed 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971)).

Petitioner states that he is "not certain" whether he was represented by counsel at his arraignment and plea but was represented by counsel at all other stages of the proceedings against him.

Petitioner further states that the grounds for relief set forth in paragraph ten of the questionnaire form required of habeas corpus petitioners by Local Rule 22 of this Court, have not been previously presented to this Court or any other federal or state court. In explanation thereof, at paragraph sixteen of the printed form, petitioner states:

"None of these grounds were raised in any prior proceeding and the reason for these grounds not being raised, is that Movant's past arroney's (sic) did not investigate the case, and the Prosecuting Attorney used his evidence as the truth, when he knew same not to be the truth. These grounds were discovered in the month of April 1971, after petitioner allowed Bobby George Stroud, a jailhouse lawyer, to read the record of petitioner's third trial."

As grounds on which he bases his allegation that his conviction and sentence were illegally imposed in violation of his federal constitutional rights, petitioner states as follows: (1) that he was denied due process of law when perjured testimony was used against him at trial; (2) that the State purposely "created a false impression of the facts to lay a foundation for the introduction of officer Mickle's . . . false and perjured testimony"; (3) that the State suborned perjured testimony of William James Wilkinson; (4) that the State suppressed evidence; (5) that the use of evidence by the State of other crimes committed by petitioner was prejudicial; (6) that the use of evidence by the State of petitioner's arrest in another state and the use of evidence "showing flight" where petitioner "attempted to escape following that arrest" was prejudicial; (7) that petitioner was denied due process of law and effective assistance of counsel "on his recent post conviction appeal to the Missouri Supreme Court . . . by reason of said Court's denial of petitioner's first and second trial transcripts to his Court Appointed Counsel William P. Sanford"; and (8) that petitioner was denied due process of law ". . . by refusal of the trial and Supreme Courts of Missouri to grant petitioner an evidentiary hearing on the serious issues raised in this petition."

On February 16, 1973, this Court entered an order granting petitioner leave to proceed in forma pauperis and directing respondent to show cause why the petition herein for a writ of habeas corpus should not be granted.

Following the filing of a motion for extension of time to respond to the above show cause order and the grant thereon by this Court on March 6, 1973, the respondent filed herein on April 2, 1973, his response to this Court's show cause order, including therewith the following exhibits: (1) a true and correct copy of the transcript of the record on appeal in the case of Wilwording v. State of Missouri, (Mo.) 487 S.W.2d 578 in the Supreme Court of Missouri; (2) a true and correct copy of the appellant's brief filed in the above noted cause of Wilwording v. State of Missouri, (Mo.) 487 S.W.2d 578, in the Supreme Court of Missouri; and (3) a true and correct copy of respondent's brief in the above action of Wilwording v. State of Missouri, (Mo.) 487 S.W.2d 578, in the Supreme Court of Missouri.

On April 24, 1973, petitioner filed herein his traverse to the response of the respondent to this Court's show cause order of February 16, 1973.

The record in this cause establishes that petitioner has been involved in extensive postconviction litigation. In respect to the question of exhaustion of state remedies, petitioner states that he filed one motion to vacate his judgment of conviction and sentence under Missouri Supreme Court Rule 27.26 in the Circuit Court of Greene County, State of Missouri. Petitioner further states that this 27.26 motion was filed on December 20, 1967. After the holding of an evidentiary hearing thereon, the Court overruled petitioner's motion and entered a memorandum opinion on March 18, 1968. That decision was appealed to the Missouri Supreme Court where it was subsequently affirmed in State of Missouri v. Wilwording, 394 S.W.2d 383 (Mo.Sup. 1965), cited above.

The record further reveals, and petitioner failed to state, that two additional 27.26 motions to vacate his sentence and judgment of conviction were apparently filed by petitioner in the Circuit Court of Greene County, State of Missouri, on March 18, 1966,¹ and June 16, 1971, respectively. Although his June 16, 1971, motion stated five separate paragraphs as grounds for relief, it would appear that the following two basic contentions were presented: (1) that the testimony of Officer Mickle concerning the arrest in Kansas of the petitioner several days after the crime charged, and his testimony concerning the petitioner's attempts to flee was improperly admitted, was the subject of perjury and was evidence of another crime which prejudiced the jury and deprived the petitioner of due process; and (2) that the alleged conflict of the testimony of identification witness William James Wilkinson (who testified at the second trial of the petitioner, which resulted in a hung jury) that he was not positive that the petitioner was one of the robbers until the police had the petitioner upstairs in the police station by himself, and Mr. Wilkinson's testimony at the third trial that he identified the petitioner as one of the robbers after seeing him in a five man lineup, was deliberate suppression of evidence by the prosecution and a demonstration that the prosecution had suborned perjury of the witness William James Wilkinson.

It appears that petitioner's first basic contention was presented in paragraphs 8(a), 8(b), and 8(d) of his 27.26 motion filed June 16, 1971, and that his second basic contention was presented in paragraphs 8(c) and 8(e) of that same motion. It is further apparent that the present petition for a writ of habeas corpus presents these same two basic contentions, along with the allegation that he was unlawfully denied a full and fair hearing on these grounds in state court. The first basic contention heretofore noted is presented in paragraphs 10(a), 10 (b), 10(e) and 10(f) of petitioner's present petition for habeas corpus. The second basic contention heretofore noted is presented in paragraphs 10(c), 10(d), and 10(g) of petitioner's petition herein. Thus, the grounds presented in petitioner's third motion under Rule 27.26 and the grounds presented herein in petitioner's petition for a writ of habeas corpus are identical.

The Circuit Court of Greene County, Missouri, overruled petitioner's third 27.26 motion without a hearing. In his memorandum opinion (respondent's exhibit AA, pages 35-45), Judge Keet found that the facts which formed the basis for petitioner's contentions were known to him at the time of the hearing on his second motion under Rule 27.26. Judge Keet stated that:

"Rule 27.26(d) withholds power from this court to entertain a second or successive motion where the ground is new but could have been raised in the prior motion. The burden is on the Movant to establish that any new ground could not have been raised by him in the prior motion. Defendant, by the allegations in his present motion, in the setting of all of the prior procedure, makes it clear that as

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