Bonner v. Wyrick, s. 76-1982
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
| Citation | 563 F.2d 1293 |
| Docket Number | 77-1075,Nos. 76-1982,76-2127,s. 76-1982 |
| Parties | Horace W. BONNER, Jr., Appellant, v. Donald WYRICK, Warden, Appellee. Kevin DEAN, Appellant, v. Donald WYRICK, Warden, Appellee. Charles A. BONNER, Appellant, v. Donald WYRICK, Warden, Appellee. |
| Decision Date | 25 October 1977 |
Robert D. Benjamin, Boardman, Bobinette & Benjamin, St. Louis, Mo., for appellants.
Horace W. Bonner, Jr., pro se.
Before GIBSON, Chief Judge, HEANEY, Circuit Judge, and ALSOP, District Judge. *
Horace W. Bonner, Jr., Charles A. Bonner, and Kevin Dean appeal the dismissal of their petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2254.
The appellants were each charged with two counts of first degree murder, one count of rape and one count of assault with intent to kill with malice. The multiple-count indictment alleged that the appellants beat to death two boys, ages four and six, and shot Stephanie Sims, the mother of one of the boys, after raping her.
On October 9, 1973, the appellants, with their counsel present, pled guilty to two counts of second degree murder, one count of assault with intent to kill with malice and one count of rape. Separate plea proceedings before the Circuit Court of the City of St. Louis were held for each appellant. The court accepted the guilty pleas. Each appellant was sentenced to thirty-five years imprisonment on each of the first three counts, the sentences to run concurrently; and five years imprisonment on the fourth count, the sentence to run consecutively.
Shortly thereafter, the appellants filed motions to set aside the convictions under Missouri Supreme Court Rule 27.26 in the Circuit Court. Extensive evidentiary hearings were held before a Circuit Court judge other than the judge who had accepted the guilty pleas. The Circuit Court denied the 27.26 motions and the Missouri Court of Appeals affirmed. Bonner v. State, 535 S.W.2d 289 (Mo.App.1976); Bonner v. State, 535 S.W.2d 297 (Mo.App.1976); Dean v. State, 535 S.W.2d 301 (Mo.App.1976). Motions for transfer to the Missouri Supreme Court were denied.
The appellants then sought writs of habeas corpus in the United States District Court for the Eastern District of Missouri. The District Court dismissed the petitions for the writ without an evidentiary hearing. The cases were consolidated on appeal.
We affirm.
We initially inquire whether the appellants have exhausted their state remedies as to each issue raised. See 28 U.S.C. § 2254(b) and (c); Eaton v. Wyrick, 528 F.2d 477 (8th Cir. 1975). After carefully examining the record, we find that they failed to do so with respect to two issues.
The first of these is a claim that the state court judge conducting the post-conviction evidentiary hearing should have disqualified himself because he was a defendant in a federal civil rights action brought by the appellants against all Circuit Court judges of the City of St. Louis. The federal complaint alleged that the judges discriminated against black criminal defendants, including the appellants, by transferring all serious criminal charges involving black defendants to the Circuit Court judge who conducted the appellants' post-conviction evidentiary hearing. It further alleged that the hearing judge then coerced guilty pleas by threatening defendants with a more severe punishment if they insisted on a jury trial. 1 The appellants called the federal suit to the attention of the hearing judge and requested the court to "stop the proceedings" because they did not feel that the hearing judge could be fair to them. Thereafter, conversations occurred between the appellants and the hearing judge which indicate that they may have waived the objection. 2 The hearing proceeded and all substantive issues raised by the appellants were decided adversely to them.
The record is not clear, but it appears that the appellants probably did not raise the issue of bias in their appeal to the Missouri Court of Appeals. The appellants proceeded pro se at the post-conviction hearing and in the Missouri Court of Appeals. In the light of all of the circumstances, this Court is reluctant to find that the appellants have, in fact, exhausted their state remedies on the issue of state court bias. Accordingly, the state court should have an opportunity to rule on the issue before it is ruled on by a federal court. 3
The second issue with respect to which the appellants have failed to exhaust their state remedies is a complex one. Each appellant was charged in one indictment which joined the separate counts, as permitted by Missouri Supreme Court Rule 24.04. If an individual is convicted of two or more offenses before sentence is pronounced for either offense, Mo.Ann.Stat. § 546.480 (Vernon) requires consecutive sentences. If separate trials were held on each count of the indictment, sentence would ordinarily be pronounced after each conviction and § 546.480 would be inapplicable. However, where all counts are tried together, the convictions on each count are rendered simultaneously. The trial judge has no opportunity to pronounce sentence after each conviction and § 546.480 applies. Thus, where the defendant is tried and convicted under a multiple-count indictment, he is denied the trial judge's discretion to grant concurrent sentences. If the defendant is charged in a multiple-count indictment, he may utilize the trial judge's discretion to grant concurrent sentences only if he pleads guilty. The appellants argue that this constitutes a penalty for exercising their right to trial by jury.
The Missouri Court of Appeals found that the appellants did not raise this issue in their Rule 27.26 motion. Thus, the issue was not properly reviewable by that Court. Bonner v. State, supra at 296; Bonner v. State,supra at 300; Dean v. State, supra at 304. The appellants do not contend that they would be unable to raise this issue in a new Rule 27.26 motion. Nor does the state claim that Rule 27.26 would prohibit this issue from being raised at this time in state court. Since the appellants have failed to exhaust their state remedies on this issue, it cannot be raised in this Court at this time. 4
The appellants raise five other issues on which they have exhausted their state court remedies. The first issue is that the District Court should have ordered an evidentiary hearing because only a federal court can properly weigh their subsequent testimony concerning their mental state at the time of the guilty pleas. There is no merit to this contention. The appellants do not suggest that they were precluded from introducing all relevant evidence in the state court hearing. Nor do they suggest that additional facts bearing on the question of their state of mind now exist that were unavailable at the state court hearing. See Toler v. Wyrick, 563 F.2d 372 (8th Cir. 1977).
The second issue is that the state court judge accepting the guilty pleas coerced them by intervening in the plea bargaining process. The record indicates that appellants' counsel and the prosecutor engaged in extensive plea bargaining. They initially struck a bargain that reduced the two first degree murder charges to second degree murder. Each appellant would then receive a thirty-five-year sentence on each murder charge, a thirty-five-year sentence on the assault charge, and a five-year sentence on the rape charge. The sentences were to run concurrently. After the plea was negotiated, the attorneys appeared before a judge of the Circuit Court of the City of St. Louis and presented the bargain to him. He rejected it. The judge indicated that the seriousness of the crimes required more substantial sentences. He stated that while the jury would assess the sentence for each count in which they rendered a guilty verdict, he "would feel inclined to run the sentences all consecutively." 5
Shortly thereafter, the attorneys reappeared before the judge stating that they had arrived at another bargain. Concurrent thirty-five-year sentences would be given on each murder charge and the assault charge. However, the five-year sentence on the rape charge would be consecutive to the thirty-five-year sentences. The judge stated that he would accept the new bargain.
There was nothing improper in the judge rejecting the initial plea bargain. Indeed, it was his responsibility to do so if he believed the sentences inadequate in light of the serious nature of the crimes. This is not a case where criminal defendants were threatened with the imposition of severe punishment if they refused to plead guilty. See Tyler v. Swenson, 427 F.2d 412, 414 n.1 (8th Cir. 1970); Euziere v. United States, 249 F.2d 293 (10th Cir. 1957).
The third issue is whether the appellants' guilty pleas were involuntary because they had ineffective assistance of counsel. After reviewing the record, we find this contention without merit. Both counsel for the Bonners and counsel for Dean had extensive experience in criminal law. There was no failure to exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances. See Bonner v. State, supra; Bonner v. State, supra; Dean v. State, supra. Accord, United States v. Easter, 539 F.2d 663 (8th Cir. 1976).
The Bonners claim their counsel advised them that they would serve only ten years before being paroled. The record clearly indicates that counsel stated this was a statistical average. The Bonners have not contended that the information is inaccurate. Thus, they cannot reasonably maintain they were misled by a false "promise."
The fourth issue is that the appellants' guilty pleas were involuntary because they were under the influence of alcohol...
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