Winegar v. Corrections Department

• Decision Date: 09 August 1977
• Docket Number: No. M103-73 C.A.,M103-73 C.A.
• Citation: 435 F. Supp. 285
• Parties: William W. WINEGAR, Petitioner, v. CORRECTIONS DEPARTMENT, Respondent.
• Court: U.S. District Court — Western District of Michigan

435 F. Supp. 285

William W. WINEGAR, Petitioner, v. CORRECTIONS DEPARTMENT, Respondent.

No. M103-73 C.A.

United States District Court, W. D. Michigan, N. D.

August 9, 1977.

William W. Winegar, in pro per.

Frank J. Kelley, Atty. Gen. of Michigan, Lansing, Mich., for respondent.

OPINION

FOX, Chief Judge.

This habeas case is before the court upon remand from the United States Court of Appeals for the Sixth Circuit, with directions to reopen the case in light of the decision of the Michigan Supreme Court in a case involving petitioner's accomplice, Robert Mauch. People v. Mauch, 397 Mich. 646, 247 N.W.2d 5 (1976). Both petitioner and the respondent have consented to the remand.

The habeas petition had been heretofore denied by this court without prejudice because subsequent to its filing the conviction of petitioner's accomplice had been reversed by the Michigan Court of Appeals and a new trial granted.¹ Since the issue raised by Mauch was also applicable to petitioner, it appeared that petitioner could obtain the same relief in the state courts which had been afforded to Mauch. Therefore, the court, in the interest of federal-state comity, dismissed the habeas petition without prejudice to allow petitioner to pursue relief in the state courts. The order of this court dismissing the petition further specified that in the event the Michigan courts refused to grant petitioner relief similar to that granted to Mauch, petitioner could reopen the present case.

At the time of the dismissal of petitioner's habeas petition by this court, Mauch's conviction had been reversed by the Michigan Court of Appeals on the ground that although he had pleaded guilty to the crime of kidnapping, the trial court in accepting the plea made no mention of asportation. The Michigan court held that asportation was necessary for the crime of kidnapping, and that the trial court's failure to mention the element of asportation during the plea taking proceeding violated the rule of People v. Barrows, 358 Mich. 267, 99 N.W.2d 347 (1959). Barrows dealt with the trial court's duties in accepting guilty pleas and particularly the necessity for the trial judge to directly question the accused to establish the crime and the defendant's participation in it. The Michigan Court of Appeals reversed Mauch's conviction and ordered a new trial. However, the Michigan Supreme Court has now reversed the decision of the Michigan Court of Appeals and reinstated Mauch's conviction. People v. Mauch, 397 Mich. 646, 247 N.W.2d 5 (1976). The Michigan Supreme Court held, among other things, that the proper course in reviewing a plea of guilty made, as here, in 1962 is to evaluate the record according to the law as it existed at the time the plea was entered rather than by current standards, and that Mauch's plea was not rendered fatally defective by failure of the record to disclose Mauch's acknowledgment of the element of asportation of the kidnapping victim. The court held that the law governing the validity of a plea of guilty in 1962 was that the trial judge personally address the accused and satisfy himself that the accused's plea was both true and voluntary, and that the accused understood the offense to which he pleaded guilty. Since the record established these requirements in Mauch's case, his conviction upon his guilty plea was held to be valid.

Since Mauch's conviction has now been reinstated, the court will proceed to consider the present petition. It is directed to petitioner's conviction on January 25, 1962, in the Circuit Court of Jackson County, upon his plea of guilty to two counts of kidnapping in violation of MCLA § 750.349. Petitioner attacks the validity of his conviction on seven grounds which are quoted verbatim:

"(a) Michigan's kidnapping statute is vague and overbroad, and the state has so held, but denies this petitioner Equal Protection of the Law by refusing to apply it's modified construction to his cases. A fortiorari, the convictions were obtained through an involuntary plea without any evidence or factual basis whatsoever.

"(b) The convictions are based on involuntary and COERCED PLEAS. The court never advised the petitioner of the true nature of the accusation, the consequences of his plea, his right to confront witnesses or of the protection afforded against self-incrimination and denied equal protection of the law thereby.

"(c) The assistance of counsel was denied at the `plea-taking' stage and several crucial preliminaries despite three specific requests for it, and the effective assistance of counsel was denied thereafter and on appeal.

"(d) There was a denial of due process and equal protection because the normal legal proceedure (sic) was not followed and the Examining Magistrate deliberately perjured his Return to conceal the truth and permit conviction for two uncommitted crimes.

"(e) The doctrine of former jeopardy forbade both these prosecutions because they arose out of the same transaction, or offense, for which a sentence had already been imposed.

"(f) The courts lacked jurisdiction because they failed to set bail.

"(g) Cruel and Unusual Punishment was inflicted in violation of the 8th Amendment."

The respondent has filed a motion to dismiss the petition for failure to state a claim upon which relief can be granted. The primary ground for dismissal is failure to exhaust state court remedies with respect to most of the grounds asserted as a basis for relief.² Respondent appears to be correct in its position that the petitioner has not exhausted his state court remedies with respect to most of the claims which he now asserts here. Following his conviction in the Jackson County Circuit Court, petitioner appealed to the Michigan Court of Appeals which affirmed his conviction. People v. Winegar, 13 Mich.App. 162, 163 N.W.2d 821 (1968). Leave to appeal to the Michigan Supreme Court was denied by that court. 381 Mich. 799 (1969). A petition for a writ of certiorari was denied by the United States Supreme Court on November 24, 1969. The opinion of the Michigan Court of Appeals is set forth here in its entirety:

Per Curiam. On January 25, 1962, defendant was convicted, upon a plea of guilty, of 2 counts of kidnapping (CL 1948, § 750.349 Stat.Ann.1954 Rev. § 28.581) and was sentenced to a prison term of 20 to 30 years on each count. He filed a motion for a new trial urging that his plea of guilty be set aside and the sentence vacated. From a denial of his motion defendant appeals.

Defendant asserts that the court below erred in denying his motion because at the time his plea was accepted he had not been informed of the nature of the accusation against him (as required by the then applicable section 2 of Court Rule 35A 1945) and that his plea was not freely, understandingly and voluntarily made.

As the provisions of this court rule were interpreted in People v. Winegar (1968), 380 Mich. 719, 158 N.W.2d 395, and People v. Stearns (1968), 380 Mich. 704, 158 N.W.2d 409, we find compliance therewith from our examination of the record. We find no error in denying defendant's motion to set aside his conviction and with his plea.

Affirmed.

Some time later, petitioner filed a complaint for habeas corpus in the state courts. The Michigan Court of Appeals treated the petition as an application for leave to take a delayed appeal, which the court upon due consideration denied. Winegar v. Department of Corrections, 41 Mich.App. 318, 199 N.W.2d 874 (1972). Leave to appeal to the Michigan Supreme Court was denied. The opinion of the Michigan Court of Appeals on this appeal is also set forth here in its entirety:

Per Curiam. Defendant has filed a complaint for habeas corpus which is treated herein as an application for leave to take a delayed appeal from a conviction based upon a plea of guilty to the crime of kidnapping. M.C.L.A. § 750.349; M.S.A. § 28.581.

On January 24, 1962, the defendant entered his plea of guilty. An appeal was taken and the conviction upon the plea was affirmed by this Court. People v. Winegar, 13 Mich.App. 162, 163 N.W.2d 821 (1968). Leave to appeal was denied, 381 Mich. 799 (1969).

Defendant alleges that his plea did not conform to the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972). The Supreme Court has determined that the requirements of Boykin are not to be made retroactive beyond June 2, 1969. People v. Butler, 387 Mich. 1, 195 N.W.2d 268 (1972); People v. Carlisle, 387 Mich. 269, 195 N.W.2d 851 (1972).

Leave to appeal denied.

It appears from the opinions of the Michigan Court of Appeals that the only issues raised in that court were that petitioner was not informed of the nature of the charge against him, that his guilty plea was not freely, understandingly, and voluntarily made, and that his plea did not conform to the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972) with respect to advice as to his constitutional rights. These issues are substantially the same issues set forth in claim (b) in the present petition as quoted above. It may be that petitioner presented the other issues on motions for new trials in the trial court or in his applications for leave to appeal to the Michigan Supreme Court. However, petitioner cannot be deemed to have exhausted his state court remedies as required by 28 U.S.C. § 2254(b) and (c) as to any issue, unless he has presented that issue both to the Michigan Court of Appeals and to the Michigan Supreme Court.³ The decisions of the Michigan Court of Appeals which are quoted above set forth the issues that were presented to that court. It would appear that none of the issues listed in the present petition are among them, except the issue designated (b). This issue is stated in the petition as follows:

"(b) The convictions are based on involuntary and COERCED PLEAS. The

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