McClain v. Swenson

Citation435 F.2d 327
Decision Date16 December 1970
Docket NumberNo. 20314.,20314.
PartiesE. J. McCLAIN, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

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 26½ 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 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 Missouri Supreme Court affirming the decision of the circuit court. 448 S.W.2d 599. Considering all of this, the conclusion is inescapable (1) that appellant has not processed to finality in the Missouri courts the alleged denial of constitutional rights 2 and 5 above enumerated; (2) that exceptional circumstances do not appear which would relieve appellant from exhausting his state remedies; and (3) that appellant's state remedies are still open to him under Rule 27.26. To further demonstrate that appellant is premature in seeking federal relief on the two claims that we have been discussing, we point out that the motion to vacate filed in the state court under Rule 27.26 did predicate relief upon all of the five grounds presented to the United States District Court, and there was some evidence offered in connection with all five allegations. However, for some reason not apparent from the record, the attorneys who represented appellant on appeal filed a brief in the supreme court in which they presented only three contentions of error: (1) failure to provide counsel at time of arraignment; (2) failure to have counsel for appellant present when the trial judge responded to an inquiry from the jury during its deliberations; (3) failure of counsel to be present when appellant was sentenced. The substantial question whether appellant's trial counsel had abandoned him after trial and had failed to appeal from the judgment of conviction was not an issue on appeal. Furthermore, as we read the opinion of the Supreme Court of Missouri, that question was not decided by that court. It may be that for strategic reasons appellant knowingly and voluntarily abandoned his right to appeal.

Be that as it may, we are convinced that this important issue should be fully explored in another 27.26 proceeding. See Maness v. Swenson, 385 F.2d 943 (8th Cir. 1967), where on similar facts, we held that the Missouri courts should first decide whether Ma- ness desired to appeal or whether he knowingly and voluntarily waived his right to appeal from the judgment of conviction. We recognize, insofar as this case is concerned, that the passage of nearly 30 years, the death of the trial judge, the death of appellant's trial attorney and the non-existence of a transcript of the trial proceedings necessarily will make it difficult for the Missouri courts to ascertain the truth with respect to whether or not appellant was in fact denied the right to appeal. However, it is settled law that a defendant may not be deprived of the assistance of counsel to the end that he is divested of a statutory right to appeal. Williams v. United States, 402 F.2d 548 (8th Cir. 1968); Maness v. Swenson, supra. See also Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Moreover, we have complete confidence in the ability and wisdom of the trial judges of the City of St. Louis and of the Supreme Court of Missouri, and believe that these tribunals will responsibly determine whether appellant was deprived through no fault of his, of an appeal from the judgment of conviction, to the end that justice will be served.

This brings us to the three alleged constitutional errors which have been considered by the Missouri courts and carefully reviewed by the United States District Court.

I. DENIAL OF COUNSEL AT ARRAIGNMENT.

Appellant argues that because the trial court refused to grant him time to employ counsel to represent him at the arraignment proceeding he was denied his Sixth Amendment right to counsel. The undisputed fact is that when appellant appeared on the date set for arraignment he declined to plead to the indictment and thereupon the court entered a plea of not guilty for him. See Missouri Supreme Court Rule 25.04 and § 546.020 RSMo 1959, V.A.M.S. Appellant's argument necessarily embodies the principle that an arraignment in Missouri is a critical stage of a criminal proceeding. The settled law of Missouri is to the contrary. McClain v. State, supra, 448 S.W.2d at 601; State v. Benison, 415 S.W.2d 773, 775 (Mo.1967), holding that the absence of counsel during arraignment is not per se a violation of the Sixth Amendment; State v. Donnell, 430 S.W.2d 297 (Mo.1968), where the court held that from arraignment through the trial a defendant has an absolute right to consideration on the merits of objections to indictments and similar pre-trial attacks. "In short, the appellant lost nothing and the state gained no advantage by reason of lack of counsel at this stage arraignment of the proceedings." McClain v. State, supra, 448 S.W.2d at 601.

Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), heavily relied upon by appellant, is clearly distinguishable and not controlling, in that arraignment in Alabama is a critical stage in a criminal proceeding. Neither does the recent case of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), also relied upon by appellant, lend any support to his position. Coleman stands for the proposition that a perliminary hearing is a critical stage and that counsel is essential at that proceeding to protect the accused...

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