Brager v. State of Missouri

• Decision Date: 28 November 1973
• Docket Number: Civ. A. No. 73 CV 544-W-3.
• Citation: 367 F. Supp. 752
• Parties: Roger L. BRAGER, Petitioner, v. STATE OF MISSOURI, Respondent.
• Court: U.S. District Court — Western District of Missouri

367 F. Supp. 752

Roger L. BRAGER, Petitioner, v. STATE OF MISSOURI, Respondent.

Civ. A. No. 73 CV 544-W-3.

United States District Court, W. D. Missouri, W. D.

November 28, 1973.

Roger L. Brager, pro se.

D. Brook Bartlett, First Asst. Atty. Gen. of Mo., Jefferson City, Mo., for respondent.

ORDER GRANTING PETITIONER LEAVE TO PROCEED IN FORMA PAUPERIS, DENYING LETTER MOTION FOR APPOINTMENT OF COUNSEL WITHOUT PREJUDICE AND FINAL JUDGMENT DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS WITHOUT PREJUDICE

WILLIAM H. BECKER, District Judge.

This is a petition for a writ of habeas corpus by a federal¹ prisoner in custody at the United States Penitentiary, Terre Haute, Indiana. Petitioner seeks an adjudication that his Missouri State conviction and sentence were illegally imposed upon him in violation of his federal constitutional rights. Petitioner requests leave to proceed in forma pauperis. Leave to proceed in forma pauperis will be granted.

Petitioner states that he was convicted upon a verdict finding him guilty by a jury in the Circuit Court of Jackson County, Missouri, of assault with intent to kill with malice aforethought; that he was sentenced on that conviction on the 1st day of September, 1970, to a term of twenty-five years imprisonment; that he appealed from the judgment of conviction and imposition of sentence to the Missouri Supreme Court; that the judgment of conviction and imposition of sentence was affirmed in State v. Brager, 497 S.W.2d 181 (Mo. Sup.1973); that he has filed no prior motions, petitions or applications with respect to this state conviction in this or any other court; and that petitioner was represented by counsel at all stages of the state proceedings against him and on his direct appeal from the judgment of conviction and sentence to the Missouri Supreme Court.

Petitioner states the following grounds on which he bases his contention that he is being held in custody unlawfully:

"Unlawfully imposed consecutive sentence.

"Numerous State and Federal Constitutional Rights violated.

"Evidence adduced from trial was frivolous to support said conviction."

Petitioner states the following as facts in support of his contention that he is being held in custody unlawfully:

"ABA Standard 3.5 relating to sentencing alternatives and procedures provides for a rationale alternative when a court faces a `Multiple Offenses: Different States.'

"The appellant had received a similar amount of years from the federal court, thereby, receiving the same 25 years in state court, but, running wild.

"Said term of 25 years federal and 25 years state rejects any and all rationale for handling multiple problems thereby being: inconsistent, racist in application, depressive in nature; and without regards to rehabilitative penology.

"Constitutional violation: 4, 5, 6, 8, 9, 14.

"The evidence adduced at trial was insufficient to support a conviction as set in: State v. Griggs; State v. Webb; "State v. Sykes."

With respect to the above contentions, petitioner states that the same have not previously been presented to any court ". . . due to the lack of legal-aid, assistance of material for filing same." However, a reading of State v. Brager, supra, indicates that, on his direct appeal of his conviction in the Missouri Supreme Court, petitioner raised contentions similar to some, but not all, raised in this petition and that the contentions raised were decided adversely to him.

Petitioner's present contention respecting "ABA Standard 3.5 relating to sentencing alternatives and procedures" was raised by him in the Missouri Supreme Court. Petitioner's other contentions respecting various constitutional violations were apparently not raised in the Missouri Supreme Court and the merits of the other contentions have not been decided by any Missouri state court.

The case at bar presents a situation wherein a federal prisoner, who is physically confined outside the territorial jurisdiction of this district pursuant to a federal conviction, seeks to challenge the legality of a Missouri State conviction and sentence secured and imposed by a state trial court within this district. Although petitioner fails to state where his federal conviction was secured, the records of this Court reveal that petitioner was convicted of bank robbery in this Court and was sentenced on October 23, 1970, to a total of twenty-five years imprisonment. United States v. Brager, Criminal Action Nos. 23137-2 and 23218-2-D (W.D.Mo.1970). Judicial notice is taken of these facts.

Because of the absence of the petitioner and his federal custodian from this district and the named respondent, it is necessary initially to make a determination whether this Court has jurisdiction to hear and determine the petition herein. If jurisdiction exists, then a further determination must be made whether that jurisdiction should be exercised under the existing circumstances.

Under the provisions of subsections (a) and (c)(3) of Section 2241, Title 28, United States Code, the following jurisdictional limitations are provided:

"(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.

* * * * * *

"(c) The writ of habeas corpus shall not extend to a prisoner unless . . .

"(3) He is in custody in violation of the Constitution or laws or treatises of the United States . . ." (Emphasis added.)

In 1966, the following new subsection (d) on venue, jurisdiction and transfer was added to Section 2241:

"(d) Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal Judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination."

Although it is not obvious from a reading of the above subsections, the legislative history of the 1966 amendments to Section 2241 suggests that Congress may have intended to adopt and preserve, in part, the jurisdictional (territorial) limitations prescribed by the ruling in Ahrens v. Clark, 335 U. S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948).²See, S.Rep.No.1502, 89th Cong., 2d Sess., 2 U.S. Code Congressional and Administrative News p. 2968 (1966).

The 1966 amendments to Section 2241 were made prior to the decision of the United States Supreme Court in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), and Congress probably did not fully foresee the developing multistate and multidistrict problems.³ In the Peyton case, the Supreme Court abandoned the narrow concept of custody as established in McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934),⁴ and held that ". . . a prisoner serving consecutive sentences was `in custody' under any one of them for purposes of § 2241(c)(3)." Peyton v. Rowe, supra, 391 U.S. at 67, 88 S.Ct. at 1556, 20 L.Ed.2d at 435. In so ruling, the Supreme Court laid the basis for attacking future consecutive sentences (imposed by the same state) by means of a petition for a writ of habeas corpus by a prisoner in custody within the convicting state's prison system.

The gradual erosion of the traditional and narrow jurisdictional view of the writ of habeas corpus was accelerated by the decision in Word v. North Carolina, 406 F.2d 352 (4th Cir. 1969). In the Word case, Chief Judge Haynsworth, expressing the views of the majority of the United States Court of Appeals for the Fourth Circuit sitting en banc, concluded that Ahrens v. Clark, supra, was basically a venue decision and that the physical presence of a prisoner within the district wherein the challenged conviction was secured was not an invariable requirement to jurisdiction if absolute adherence to such a rule would result in leaving a prisoner in custody without an effective remedy.

The evolving liberal view of the term "in custody" and its relationship to habeas jurisdiction and venue was further expanded in the Supreme Court's decision in Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970). In that case, John George was initially convicted by a California state court and started to serve a state sentence of five years to life. He was then temporarily released to North Carolina authorities in order that he could be tried for robbery. A North Carolina state court convicted him and sentenced him to twelve to fifteen years' imprisonment. He was then returned to California to complete his California State sentence and North Carolina authorities lodged a detainer, requesting his arrest and return to North Carolina at the termination of his California sentence. The prisoner filed a petition for federal habeas corpus in the United States District Court for the Northern District of California, challenging the validity of his North Carolina conviction. The District Court denied the petition on the grounds that McNally v. Hill, supra,⁵ foreclosed habeas corpus postconviction relief from the North Carolina conviction while petitioner was still in custody under the prior California judgment and sentence. The petitioner then filed a petition for rehearing, contending that the North Carolina detainer operated as a form of "constructive custody" which affected his California custodial classification and probability of parole. The District Court denied a rehearing and the Court of...