435 F.2d 327 (8th Cir. 1970), 20314, McClain v. Swenson

Docket Nº:20314.
Citation:435 F.2d 327
Party Name:E. J. McCLAIN, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.
Case Date:December 16, 1970
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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435 F.2d 327 (8th Cir. 1970)

E. J. McCLAIN, Appellant,

v.

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

No. 20314.

United States Court of Appeals, Eighth Circuit.

December 16, 1970

Page 328

Gerard F. Hempstead, St. Louis, Mo., for appellant.

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

Before MATTHES, Chief Judge, LAY, Circuit Judge, and REGISTER, Chief District Judge.

MATTHES, Chief Judge.

Nearly 30 years ago, to be exact, on March 6, 1941, after a six-day trial, a jury in the Circuit Court of St. Louis, Missouri, found E. J. McClain guilty of murder in the first degree, and assessed his punishment at life imprisonment. On March 28, 1941, the state trial judge, now deceased, entered judgment of conviction and formally sentenced McClain to imprisonment for the rest of his natural life.

Although McClain was represented by counsel in the trial no appeal was taken from the judgment of conviction. On October 27, 1967, approximately 26 1/2 years after being sentenced, McClain filed a motion in the convicting court to vacate the sentence under Missouri Supreme Court Rule 27.26 V.A.M.R. The judge who was assigned to hear the motion denied it without a hearing. The Supreme Court of Missouri, on appeal, remanded the cause to the Circuit Court for an evidentiary hearing. Such a hearing was held on January 17, 1969, at which appellant was represented by court appointed counsel. At the close of all the evidence the motion to vacate was again denied and the reasons for taking such action were announced by the hearing judge from the bench. On appeal, the Supreme Court of Missouri affirmed the denial of relief. McClain v. State, 448 S.W.2d 599 (1970).

On February 27, 1970, McClain filed a petition for writ of habeas corpus in the United States District Court for the Western District of Missouri. That court transferred the case to the United States District Court for the Eastern District of Missouri, pursuant to 28 U.S.C. § 2241(d). In seeking habeas relief, McClain alleged five grounds: (1) he was denied counsel at his arraignment; (2) he was denied effective assistance of counsel during trial; (3) he was denied assistance of counsel during the jury's deliberation; (4) he was denied assistance of counsel during sentencing; (5) he was denied his statutory right of direct appeal from a conviction of first degree murder due to the ineffective assistance of counsel. Judge Meredith, relying upon the post-conviction proceedings in the circuit court and the supreme court, found that McClain had exhausted his state remedies on grounds 1, 3 and 4, and proceeded to consider them on the merits. He declined

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to consider grounds 2 and 5 and dismissed the petition as to those grounds without prejudice to petitioner's right to seek relief in the state court. The district court's opinion is reported at 312 F.Supp. 635 (1970). McClain's motion for leave to proceed on appeal in forma pauperis was granted and after the case reached this court, we appointed counsel to represent him. Appellant's counsel presented for review the same three contentions considered and disposed of by the district court and urged that the court erred in denying habeas relief on those grounds. Appellant also filed a pro se brief, urging in substance that he had exhausted all of his state remedies as to the five grounds set forth in his petition for writ of habeas corpus, and that the district court erred in not considering all of such claims.

We first determine whether appellant has exhausted his state remedies as to all matters incorporated in his petition for habeas relief. We are in agreement with Judge Meredith that appellant has failed to exhaust such remedies as to grounds 2 and 5 set out above. As Judge Lay pertinently stated in Barry v. Sigler, 373 F.2d 835, 838 (8th Cir. 1967), Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) 'emphasizes that a federal district court should not 'upset a state conviction without an opportunity to the state courts to correct a constitutional violation. '' In footnote 3, page 838 of 373 F.2d, Judge Lay observed that a state prisoner may not deliberately bypass any available appeal to the supreme court of the state. See also Kennedy v. Sigler, 397 F.2d 556 (8th Cir. 1968), where, as here, the prisoner had exhausted his state remedies as to some but not all of the claims presented to the federal court. Cf. Swenson v. Donnell, 382 F.2d 248 (8th Cir. 1967); Bosler v. Swenson, 423 F.2d 257 (8th Cir. 1970).

We have meticulously examined the proceedings in the Missouri state trial court relating to the 27.26 motion, the brief filed by appellant in the Missouri Supreme Court on appeal from the judgment denying him post-conviction relief, and the opinion of the...

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