Wiley v. Daggett, s. 76-1748
| Decision Date | 24 March 1977 |
| Docket Number | Nos. 76-1748,s. 76-1748 |
| Citation | 551 F.2d 776 |
| Parties | Earthia WILEY, Appellant, v. L. DAGGETT, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee. Earthia WILEY, Appellant, v. UNITED STATES of America, Appellee. Earthia WILEY, Appellant, v. P. J. CICCONE, Warden, Medical Center for Federal Prisoners, Springfield, Missouri, Appellee. to 76-1750. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Neal J. Shapiro, Minneapolis, Minn., for appellant.
Daniel M. Scott, Asst. U. S. Atty. (argued), and Robert G. Renner, U. S. Atty., Minneapolis, Minn., on briefs for appellee.
Before BRIGHT and HENLEY, Circuit Judges, and HARPER, District Judge. *
Earthia Wiley, hereinafter called petitioner, appeals from a final order of the United States District Court for the District of Minnesota 1 denying three petitions for post-conviction relief filed in 1974 pursuant to28 U.S.C. § 2255. Petitioner was tried and convicted in the district court in 1973 on a charge that he, being at the time a convicted felon, had unlawfully received and possessed a firearm in violation of 18 U.S.C. App. § 1202(a)(1). 2 His conviction was affirmed by this court. United States v. Wiley, 478 F.2d 415 (8th Cir. 1973), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974). 3
The record reflects that in 1959 petitioner was arrested by police officers in Milwaukee, Wisconsin, on a charge of vagrancy based on a municipal ordinance of the kind that was later held to be unconstitutional in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). While in custody, petitioner confessed to the officers that he had committed the crime of armed robbery in Minnesota. He was returned to that State and was charged, tried and convicted in the District Court of Hennepin County; the conviction followed a trial to the court after petitioner on advice of counsel waived his right to trial by jury. Petitioner did not appeal from that conviction.
When petitioner was tried in the district court in 1973 he was represented by capable counsel, and no complaint is made about the quality of the representation that he received. In the course of the trial petitioner did not challenge the validity of the underlying felony conviction in Minnesota, and, indeed, his attorney stipulated as to the existence of the conviction. It does not appear that petitioner personally agreed to the stipulation which it seems that counsel entered into as a matter of trial tactics.
The § 2255 petitions considered by the district court were submitted by petitioner pro se while he was still in prison. The district court appointed counsel to represent petitioner, and he has been well represented both in the district court and in this court.
In his petitions it was alleged that petitioner's Minnesota conviction had been tainted with denials of due process of law and thus rendered his federal conviction subject to collateral attack. Petitioner contended basically that in the course of the Minnesota proceedings he had lacked the effective assistance of counsel, that his confession had been obtained by duress and coercion and should have been suppressed for those reasons, and that it should have been suppressed for the further reason that it resulted from an arrest that was unlawful because it was based on an unconstitutional municipal ordinance.
The government denied that petitioner had suffered any deprivation of due process of law in connection with the Minnesota proceedings, and contended, further, that since petitioner's trial counsel in 1973 had stipulated the Minnesota conviction into the record, petitioner had effectively waived his right to challenge the validity of that conviction.
When the petitions were filed in 1974, petitioner's application to the Supreme Court for review of our affirmance of his second conviction in the district court was still pending. Moreover, petitioner had pending in the Minnesota state courts an application for post-conviction relief with respect to his 1959 conviction in Hennepin County. In the circumstances the district court deferred ruling on the petitions until the Supreme Court had acted on the pending petition for certiorari and until the post-conviction proceedings in the Minnesota courts were concluded.
In due course the district court again deferred ruling on the petitions until the Supreme Court should hand down its decision in what became the case of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). 4 That case was decided on July 6, 1976, and a week later the district court denied the petitions before it, and in that connection filed a full and well reasoned but unpublished memorandum opinion.
In its opinion the district court took up first the question of whether petitioner's right to question the validity of his 1959 state conviction in this § 2255 proceeding had been waived effectively when his trial counsel in 1973 stipulated as to the conviction. The district court considered the question of waiver to be a close and difficult one and was of the view that it boiled down to the question of whether in the course of the 1973 trial the defendant had had the effective assistance of counsel. Since there had been no showing of inadequacy on the part of counsel, the district court thought that counsel's action was binding on petitioner and amounted to an effective waiver even though petitioner had not personally been advised of his right to object to the introduction of evidence as to an illegal underlying felony conviction and even though petitioner had not assented personally to the action of counsel in entering into the stipulation with respect to the conviction.
However, in view of what it considered to be the closeness of the question of waiver, the district court proceeded to consider petitioner's constitutional claim on the merits. Since we agree with the district court that those claims are without merit, we find it unnecessary to reach the question of waiver.
The district court found that all of the claims of petitioner, except his claim based on the alleged invalidity of the Milwaukee vagrancy ordinance, had been fully and fairly presented to the Minnesota state courts, that an adequate record had been made in those courts, and that there was no occasion for a further evidentiary hearing in the federal court. See Franklin v. Wyrick, 529 F.2d 79, 81 (8th Cir.), cert. denied, 425 U.S. 962, 96 S.Ct. 1747, 48 L.Ed.2d 208 (1976); Jones v. Swenson, 469 F.2d 535, 537 (8th Cir. 1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2756, 37 L.Ed.2d 156 (1973); and Tyler v. Swenson, 427 F.2d 412, 415 (8th Cir. 1970).
The district court was of the opinion that the findings of the Minnesota...
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