Stamps v. Rees

• Decision Date: 08 January 1988
• Docket Number: No. 86-5792,86-5792
• Citation: 834 F.2d 1269
• Parties: Melvin Duwayne STAMPS, Petitioner-Appellant, v. John REES, Warden, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1269

834 F.2d 1269

Melvin Duwayne STAMPS, Petitioner-Appellant, v. John REES, Warden, et al., Respondents-Appellees.

No. 86-5792.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 29, 1987.

Decided Dec. 7, 1987.

Rehearing Denied Jan. 8, 1988.

David L. Armstrong, Atty. Gen. of Kentucky, Frankfort, Ky., Gerald Henry (argued), for respondents-appellees.

John E. Donnelly, Jr. (argued), Bowling Green, Ky.Ct.Appt., for petitioner-appellant.

Before KEITH, MILBURN and NORRIS, Circuit Judges.

MILBURN, Circuit Judge.

Petitioner Melvin Stamps appeals the district court's dismissal of his third habeas corpus petition. The district court found that Stamps was not denied effective assistance of counsel, that the stipulations and admissions made by Stamps' attorney regarding Stamps' guilt did not require an on-the-record inquiry into the voluntariness of any de facto guilty plea, and that Stamps' conviction as a persistent felony offender was supported by sufficient evidence. For the reasons that follow, we affirm.

I.

Stamps was indicted in April 1980 by the Christian County, Kentucky, grand jury for first-degree burglary by unlawful entering the dwelling house of another, and for being a persistent felony offender ("PFO"). The PFO charge was based upon two prior convictions. In July of 1977, Stamps pleaded guilty to knowingly receiving stolen property over $100 and was sentenced to one year probated for five years. In March of 1979, Stamps pleaded guilty to theft by unlawful taking over $100 and was sentenced to one year and released on unsupervised probation. A jury trial was held in Christian County, Kentucky, Circuit Court on July 22, 1980. The facts adduced at trial indicate the following series of events.

Officer Kermit Yeager of the Hopkinsville, Kentucky, Police Department received a call about a burglary in progress. As he approached the house, Officer Yeager heard what sounded like glass breaking. He ran to the corner of the building where he heard the noise and saw a hammer come through a window and land in the driveway. Immediately thereafter, he saw two males jump from the window on a "dead run." He chased both men until they separated. Officer Yeager recognized one of the two men who jumped from the window as petitioner Stamps, and continued to chase Stamps until other police assistance arrived. Sergeant Fred Shelton of the Hopkinsville Police Department joined the chase when Officer Yeager became winded. After chasing Stamps for a short distance, Shelton lost sight of Stamps.

Stamps was later located by Shelton as a result of a telephone call from a homeowner regarding a person hiding beside an air conditioner in his back yard. When Shelton apprehended Stamps, he discovered he was bleeding. Upon searching Stamps, Shelton found what appeared to be a plastic bottle cap in Stamps' rear pocket. Thinking that the cap was nothing of apparent importance, it was returned to Stamps' pocket.

After Stamps was arrested, Officer Yeager and Sergeant Shelton returned to the house that had been burglarized to look for physical evidence. Yeager happened to place his hand upon the water bed, and when he did, some six or seven gallons of water shot out of its spout. At that point, Shelton told Yeager that Stamps had the cap from the water bed in his pocket. The water bed cap was recovered from Stamps, and when tried on the water bed spout, it fit. The owner of the house identified the cap and testified that he had recently purchased it.

Stamps testified in his own behalf, claiming that he had parked his car in the area earlier and was on his way back, cutting through backyards, when suddenly three or four police cars appeared. He further testified that he hid because he had been questioned by the police in the past. As the police search moved toward him, he thought the best thing he could do was to run. He insisted he had never been in or near the burglarized house, and attempted to explain the blood on his hands by claiming that they were injured as a result of his jumping fences to get away from the police.

Stamps claimed that the plastic cap found in his pocket was the cap to a plastic bottle in which he carried whiskey. However, he admitted that he did not have the bottle with him the day of his arrest. Stamps further testified that the only reason he was in the area was to get a "piece" for his car. In giving an explanation, Stamps indicated that he was looking for a tape player to steal, and he also admitted that he knew Officer Yeager very well.

The jury found Stamps guilty of first-degree burglary and fixed punishment at fifteen years imprisonment, five years less than the maximum. In the separate PFO phase of the bifurcated trial, the Christian County, Kentucky, Circuit Court Clerk testified from his records regarding Stamps. Those records showed convictions for knowingly receiving stolen property on a plea of guilty for which Stamps received a sentence of one year in the penitentiary and for theft by unlawful taking over $100 on a plea of guilty for which he received a sentence of one year in the penitentiary. The court clerk was not questioned concerning the accuracy of his records. No other evidence was put on by either party. The jury found petitioner Stamps guilty as a first-degree persistent felony offender and fixed enhanced punishment in the penitentiary at twenty years, the minimum possible penalty. It is from this conviction that Stamps seeks habeas relief.

Stamps raises three issues in this appeal: (1) that the persistent felony offender conviction was not supported by sufficient evidence, (2) that the trial court erred by failing to conduct an on-the-record inquiry into whether the admission of Stamps' guilt made by counsel in the PFO phase of the trial was with Stamps' intelligent and knowing consent, and (3) that he was denied effective assistance of counsel in violation of the Sixth Amendment.

II.

A. Exhaustion of Available State Remedies

Respondent argues that Stamps has failed to exhaust available state remedies on both his ineffective assistance of counsel claim and the insufficiency of evidence on the PFO claim. Thus, respondent argues that Stamps' petition should be dismissed without any adjudication of the merits of his claim. After examining the extensive procedural history preceding this appeal, we find that Stamps has adequately exhausted his available state court remedies.

After his conviction in 1980, Stamps brought a direct appeal to the Supreme Court of Kentucky alleging ineffective assistance of counsel during both phases of his bifurcated trial, and that the trial court erred in failing to conduct an on-the-record inquiry into whether the admission of petitioner's guilt made by his counsel during the PFO phase of the trial was with Stamps' intelligent and voluntary consent. The Supreme Court of Kentucky held that Stamps' ineffective assistance of counsel claim was procedurally defective, relying upon the rule of Wilson v. Commonwealth, 601 S.W.2d 280, 284 (Ky.1980), that such a claim will not be heard for the first time in an appellate court.

On the second issue, the court rejected the claim, holding that the stipulation of the two prior convictions was not a de facto guilty plea and noting that it was quite obvious that the trial strategy of Stamps' attorney was aimed at obtaining the lightest sentence possible in face of overwhelming evidence. The Kentucky Supreme Court noted that Stamps received the minimum sentence possible on the PFO charge, and that his attorney's tactics, be they planned or mistaken, worked no prejudice on Stamps' right to a fair trial. The court made it quite clear that Stamps did not seek review of the sufficiency of the evidence supporting his conviction.

Stamps then filed a RCr 11.42 motion in the Christian County, Kentucky, Circuit Court to collaterally attack his conviction. Stamps argued in support of his motion that there was insufficient evidence for a first-degree burglary conviction, that the trial court erred in failing to give instructions on lesser included offenses, and that the state failed to prove an essential element of a PFO conviction, none of which allegations had been previously raised on appeal. Stamps did not allege ineffective assistance of counsel. The trial court denied the motion, the Kentucky Court of Appeals affirmed, ¹ and the Kentucky Supreme Court refused to exercise discretionary review.

Stamps then filed his first habeas corpus petition in district court. The petition was referred to a magistrate who determined that state remedies had been exhausted, but that Stamps failed to state any cognizable claim which would support the issuance of the requested writ. The district court subsequently adopted the magistrate's report and recommendation and dismissed the petition.

Stamps timely appealed to this court, raising the same claims presented to the district court. Upon our finding that the petition contained unexhausted claims, the petition was dismissed for want of jurisdiction pursuant to our holding in Bowen v. Tennessee, 698 F.2d 241 (6th Cir.1983) (en banc ). Specifically, we found that Stamps had not exhausted his state remedies as to the ineffective assistance of counsel claim, the sufficiency of evidence on the burglary conviction claim, and the insufficiency of evidence for a PFO conviction claim. Stamps petitioned this court for a rehearing and presented an opinion of the Kentucky Court of Appeals regarding the sufficiency of evidence for a persistent felony offender conviction wherein his conviction was affirmed. We denied the request for a rehearing, concluding that the petition must still be denied for lack of exhaustion of all claims. However, we did find that Stamps had exhausted his state court remedies insofar as the insufficiency of evidence for a persistent felony offender claim was concerned.

After we dismissed Stamps' first petition, he began an all-out collateral attack ...