404 F.2d 469 (8th Cir. 1968), 19165, Howard v. Swenson

Docket Nº:19165.
Citation:404 F.2d 469
Party Name:Frank HOWARD, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Appellee.
Case Date:November 20, 1968
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 469

404 F.2d 469 (8th Cir. 1968)

Frank HOWARD, Appellant,


Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Appellee.

No. 19165.

United States Court of Appeals, Eighth Circuit.

November 20, 1968

Page 470

Theodore E. Beckemeier, St. Louis, Mo., for appellant.

Walter W. Nowotny, Jr., Asst. Atty. Gen. of Missouri, Jefferson City, Mo., for appellee, Norman H. Anderson, Atty. Gen. of Missouri, Jefferson City, Mo., on the brief.

Before MATTHES, MEHAFFY and HEANEY, Circuit Judges.

MATTHES, Circuit Judge.

This is an appeal by Frank Howard, a Missouri state prisoner, from an order of the United States District Court for the Eastern District of Missouri, Honorable James H. Meredith, denying appellant's petition for a writ of habeas corpus. The district court filed two opinions: The first in October, 1967, and the second in December, 1967. Howard v. Swenson, 293 F.Supp. 18 (E.D.Mo.1967).

Appellant, indicted under the Missouri Habitual Criminal Statute, § 556.280 R.S.Mo.1959, V.A.M.S., was convicted by a jury in the Circuit Court of the City of St. Louis, Missouri, of forcible rape of a female over the age of sixteen years, in violation of § 559.260 R.S.Mo.1959, V.A.M.S. His appeal from the judgment

Page 471

of conviction was affirmed. State v. Howard, 360 S.W.2d 718 (Mo.1962). Thereafter, appellant filed a motion to vacate the sentence and judgment pursuant to Missouri Supreme Court Rule 27.26, V.A.M.R. The motion was denied without a hearing. The denial was affirmed. State v. Howard, 383 S.W.2d 701 (Mo.1964).

Appellant advances four contentions in an effort to void his conviction. 1 The first two relate to his confession. The third is focused upon the ruling of the state court relating to a newspaper article. The final claim of error concerns a post-trial matter.

Appellant initially claims that denial of counsel during interrogation by police officers after the arrest violated the Sixth Amendment to the United States Constitution and the due process and equal protection clauses of the Fourteenth Amendment. A brief resume of the relevant facts will suffice. Appellant was arrested on June 14, 1961. He confessed in writing on June 17. 2 He was not represented by counsel during the course of the interrogation which was conducted sporadically between the time of his arrest and the confession.

Appellant relies upon Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Escobedo applies only to cases commenced after June 22, 1964. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Appellant was tried on October, 1961. The question must be resolved in light of Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958), and prior cases. In Crooker, as here, the defendant complained of the denial of counsel during the interrogation which led to the confession. The Supreme Court examined the constitutional question and concluded:

'Under these principles, state refusal of a request to engage counsel violates due process not only if the accused is deprived of counsel at trial on the merits, Chandler v. Fretag, supra (348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4), but also if he is deprived of counsel for any part of the pretrial proceedings, provided that he is so prejudiced thereby as to infect his subsequent trial with an absence of 'that fundamental...

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