423 F.2d 257 (8th Cir. 1970), 19900, Bosler v. Swenson

Docket Nº:19900.
Citation:423 F.2d 257
Party Name:Clarence Richard BOSLER, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.
Case Date:March 19, 1970
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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423 F.2d 257 (8th Cir. 1970)

Clarence Richard BOSLER, Appellant,

v.

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

No. 19900.

United States Court of Appeals, Eighth Circuit.

March 19, 1970

Clarence R. Bosler, pro se.

John C. Danforth, Atty. Gen. of Missouri, and Dale L. Rollings, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and GIBSON, Circuit judges.

PER CURIAM.

This is another chapter in the seemingly unending controversy between appellant and the State of Missouri, emanating from his conviction of first degree robbery and his sentence of 25 years in the Missouri State Penitentiary in October, 1962. See State v. Bosler, 366 S.W.2d 369 (Mo.1963); Bosler v. Swenson, 363 F.2d 154 (8th Cir. 1966), affirmed, Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967); State v. Bosler, 432 S.W.2d 237 (Mo.1968).

This appeal is from a denial by the United States District Court for the Western District of Missouri of appellant's petition for writ of habeas corpus, without prejudice, on the ground that state post-conviction remedies had not been exhausted.

Prior to initiating his action for federal relief, appellant filed a motion to vacate sentence under Rule 27.26, Mo.R.Crim.P., V.A.M.R., in the Circuit Court of the City of St. Louis. At the time the petition for federal relief was filed in the district court, this Rule 27.26 motion was still pending in the state court. However, appellant contended that the

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state court had inordinately delayed in holding an evidentiary hearing and in acting on his motion. He argued that this delay rendered his state remedy inadequate and ineffective and warranted federal intervention without regard to the requirement of 28 U.S.C. § 2254, that a state prisoner exhaust all currently available state remedies before seeking federal habeas corpus relief. Thus, he asked that the district court hold an evidentiary hearing and proceed to a disposition on the merits.

In response to a show cause order, the district court was informed in August, 1969, that the motion was still pending, but that counsel had been appointed to represent appellant, that a pre-trial conference had been scheduled for the last week of that month, and that an evidentiary hearing had been set. With this knowledge of the progress of the state...

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