Adail v. Wyrick, 81-1696

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before GIBSON, Senior Circuit Judge, and ROSS and STEPHENSON; PER CURIAM
• Citation: Adail v. Wyrick, 671 F.2d 1218 (8th Cir. 1982)
• Decision Date: 11 March 1982
• Docket Number: No. 81-1696,81-1696
• Parties: Aaron ADAIL, Appellant, v. Donald WYRICK, Warden, Missouri Penitentiary, Appellee.

Page 1218

671 F.2d 1218

Aaron ADAIL, Appellant, v. Donald WYRICK, Warden, Missouri Penitentiary, Appellee.

No. 81-1696.

United States Court of Appeals Eighth Circuit.

Submitted March 5, 1982.

Decided March 11, 1982.

Gail N. Gaus, Clayton, Mo., for appellant.

John Ashcroft, Atty. Gen., Lew A. Kollias, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before GIBSON, Senior Circuit Judge, and ROSS and STEPHENSON, Circuit Judges.

PER CURIAM.

Aaron Adail was convicted in St. Louis County Circuit Court in 1977 of four counts of first degree robbery. He appealed alleging that: 1) the trial court erred in admitting witness testimony regarding line-up identification; 2) the trial court erred in denying a motion to suppress the identification on the ground that the line-up was tainted; and 3) the court erred in allowing testimony regarding another crime. The Missouri Court of Appeals affirmed his conviction. State v. Adail, 555 S.W.2d 672 (Mo.App.1977). Adail then filed a motion to vacate sentence pursuant to Mo.S.Ct.R. 27.26. In that petition Adail raised allegations of improper jury selection and ineffective assistance of counsel. Following a hearing the 27.26 motion was denied and Adail appealed that decision to the Missouri Court of Appeals. That appeal was also denied. Adail did not, in the case of either the direct appeal or the rule 27.26 appeal, seek transfer to the Missouri Supreme Court under either Mo.R.Civ.P. 83.02 or 83.03. Instead, he sought federal habeas relief pursuant to 28 U.S.C. § 2254, including in his allegations the issues raised both in the direct appeal and in the rule 27.26 motion, in addition to an allegation that his rule 27.26 counsel abandoned certain claims on appeal.

The section 2254 petition was referred to a United States magistrate who found that Adail had not exhausted his state remedies on the direct appeal or the collateral attack. The magistrate based his decision on the fact that Adail had not sought transfer to the Missouri Supreme Court under Mo.R.Civ.P. 83.02 or 83.03 and had not sought to file an out-of-time motion under 84.08. He rejected the abandoned claims issue on the ground that Adail was not entitled to effective assistance of counsel in a habeas proceeding.

Adail filed exceptions to the magistrate's recommendations and the magistrate filed a second recommendation specifically addressing a number of issues, some of which related to Adail's ineffective assistance of counsel and improper jury selection claims and some to the alleged abandoned claims. ¹

The district court adopted the first recommendation in part, omitting the portion regarding ineffective assistance of counsel, and the entire second recommendation. The court dismissed without prejudice those claims arising from the direct appeal pending exhaustion of state remedies and dismissed with prejudice the jury selection and ineffective assistance of counsel issues.

This court appointed Adail counsel on appeal. Adail raises the following issues on appeal:

1) whether his constitutional rights were violated by the prosecutor's comment at trial that "all the state's evidence is uncontradicted, there is no evidence to the contrary";

2) whether he was denied effective assistance of counsel in that trial counsel failed to object to that statement and failed to cross-examine Arlee Hayes, a prosecution witness, regarding his identification of Adail during a police line-up;

3) whether his right to trial by jury was violated by the state court's failure to provide him the opportunity to obtain discovery regarding his claim that the petit and grand jury selection process in St. Louis County systematically excluded blacks.

Exhaustion

The magistrate held in his first recommendation that Adail had not exhausted his state remedies on either the direct appeal issues or the rule 27.26 issues. He reasoned that since, in either case, Adail had not filed a motion to transfer under Mo.R.Civ.P. 83.02 or 83.03 within the statutory time limit, Adail could still file an out-of-time motion under 84.08. That finding is contrary to this court's holding in Powell v. Wyrick, 657 F.2d 222 (8th Cir. 1981). The court in Powell held that because of the discretionary nature of 84.08 and the Missouri court's past record of seldom granting such motions, the exhaustion doctrine does not require the filing of an untimely motion for transfer under 84.08. Under Powell, Adail can be considered to have exhausted his remedies with regard to both the direct appeal and the rule 27.26 issues. The district court erred in dismissing the direct appeal issues without prejudice pending exhaustion of state remedies.

Rule 27.26 Issues

The district court dismissed the rule 27.26 issues with prejudice, apparently...