443 F.2d 329 (8th Cir. 1971), 71-1014, Collins v. Swenson

Docket Nº:71-1014.
Citation:443 F.2d 329
Party Name:Jesse Franklin COLLINS, Petitioner, v. Harold R. SWENSON, Warden, Respondent.
Case Date:May 24, 1971
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 329

443 F.2d 329 (8th Cir. 1971)

Jesse Franklin COLLINS, Petitioner,

v.

Harold R. SWENSON, Warden, Respondent.

No. 71-1014.

United States Court of Appeals, Eighth Circuit.

May 24, 1971

Page 330

Jesse F. Collins, filed brief pro se.

John C. Danforth, Atty. Gen. and Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., filed brief for appellee.

Before ALDRICH, [*] LAY and BRIGHT, Circuit Judges.

LAY, Circuit Judge.

Petitioner, a state prisoner, appeals from the denial of his petition for a writ of habeas corpus. In 1963 defendant was convicted of an unlawful sale of a narcotic drug under Missouri law. He was charged, as well, under the Missouri Second Offender Act. Mo.Ann.Stat. § 556.280. The Missouri Supreme Court affirmed his conviction on the drug violation, but remanded to the trial court for additional evidence as to whether petitioner had been incarcerated or fined, placed on probation or paroled under his earlier conviction, such a finding being a prerequisite to enhanced punishment under the Missouri Second Offender Act. State v. Collins, 383 S.W.2d 747 (Mo.1964). On a second appeal his sentence under the habitual criminal law was affirmed. 394 S.W.2d 368 (Mo.1965). Thereafter he sought post-conviction relief under Missouri Rule 27.26, V.A.M.R. This was denied and on appeal, the denial affirmed. 454 S.W.2d 917 (Mo.1970). In his petition in federal district court he essentially alleges: (1) that he was illegally arrested and detained; (2) that he was denied a preliminary hearing with retained counsel; and (3) that he was denied the right to retained counsel at arraignment. We affirm the denial of relief.

Petitioner complains that he was arrested without warrant on January 30, 1963, and held in jail without a finding of probable cause for his arrest (by way of preliminary hearing) until the grand jury indicted him on March 7. This appears to be in direct violation of Missouri law, which requires an immediate appearance before a magistrate to test probable cause for the arrest. Mo.Sup.C.

Page 331

Rule 23.02. Nevertheless, under Missouri law if the denial of a preliminary hearing is not raised before trial it is deemed waived. See e.g. State v. Keeble, 399 S.W.2d 118, 120-121 (Mo.1966).

Missouri law also requires that a person arrested without warrant be discharged from custody unless he has been charged with a criminal offense within 20 hours by the oath of some credible person. Mo.Sup.Ct. Rule 21.14. If this rule was violated, presumably petitioner had a right to obtain his release by habeas corpus before trial. He did not file for a writ. Defendant claims he was held incommunicado; however, the record disputes this. Although the record is not clear as to when petitioner retained counsel, it does...

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