Brizendine v. Swenson, 1053.

• Decision Date: 02 November 1966
• Docket Number: No. 1053.,1053.
• Citation: Brizendine v. Swenson, 261 F.Supp. 68 (W.D. Mo. 1966)
• Parties: William Prell BRIZENDINE, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

261 F. Supp. 68

William Prell BRIZENDINE, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary Jefferson City, Missouri, Respondent.

No. 1053.

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

November 2, 1966.

Granville Collins, Edward H. Hunvald, Jr., Columbia, Mo., for petitioner.

Norman Anderson, Atty. Gen., State of Missouri, Donald L. Randolph, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

The petition for habeas corpus here involved, filed by a convict in the Missouri Penitentiary, showed on its face that petitioner did not file a motion to vacate pursuant to Missouri Rule 27.26, V.A.M.R. in the Circuit Court of Jackson County, Missouri, at Kansas City, his committing court, before attempting to invoke federal habeas corpus jurisdiction. We shall state in some detail the reasons why petitioner's application must be denied without prejudice in order to allow the petitioner, if he elects to do so, to exhaust his available State court remedies. We do so because this case illustrates why state prisoner habeas applications filed in this Court in which multiple federal questions are involved, only some of which have been presented to the Missouri courts, must, under particular factual circumstances, be denied without prejudice for further possible proceedings in the State courts.

I.

The opinion of the Supreme Court of Missouri affirming petitioner's conviction and life sentence, reported in State v. Brizendine, (Mo.Sup.Ct., Div. 2, 1965) 391 S.W.2d 898, stated that the "sole issue" on the original appeal from petitioner's conviction was "whether defendant was entitled to have the jury instructed upon a defense of insanity at the time of the commission of the crime." That opinion, however, determined that: "It is apparent from the transcript that neither appellant, the State, nor the Court, was aware of, or at least proceeded under Chapter 552 a chapter of the Missouri statutes enacted in 1963 entitled Mentally Ill Persons in Criminal Cases in effect at the time of defendant's 1964 arraignment and trial" (391 S.W. 2d at 901).

Because petitioner's habeas corpus proceedings in this Court involve other federal questions, we issued an order to determine whether petitioner had exhausted the state remedies available to him in regard to questions not determined by the Supreme Court of Missouri on petitioner's original appeal. That order directed attention to Russell v. Swenson (W.D.Mo.1966), 251 F.Supp. 196, and required that petitioner allege with particularity any circumstance as to why his petition should not be dismissed without prejudice pursuant to Section 2254, Title 28, United States Code.

Pursuant to that order the petitioner, without yet the benefit of appointed counsel, filed an amendment to his petition for habeas corpus in which he contended in substance that all his alleged deprivations of federal rights had been presented to the state trial court, preserved for appeal, presented to the Supreme Court of Missouri, and there determined adversely to him. If those allegations proved to be true, this Court, under familiar principles applicable to Section 2254, would be required to exercise its power and jurisdiction without requiring that petitioner to file a motion to vacate under Missouri Rule 27.26. If not true, a different result would obviously follow.

In order to ascertain the truth of the allegations contained in petitioner's amendment, and in order that all possible federal claims be ascertained so that piecemeal processing of this case would be avoided, we issued a further order in which we appointed Granville Collins, Esq. and Professor Edward H. Hunvald, Jr., as counsel for the petitioner; directed that respondent respond to petitioner's amended application for habeas corpus; and directed that appropriate briefs be filed on the question of whether petitioner had exhausted his available state post-conviction remedies in regard to all possible federal claims.

In the response filed pursuant to that order, respondent suggested that only two federal questions are involved in this case, namely (1) an alleged failure to afford petitioner counsel on arraignment, and (2) the trial court's failure to submit to the jury petitioner's defense of mental incompetency at the time of the offense. Respondent also suggested that both those contentions were presented to and ruled adversely to the petitioner by the Supreme Court of Missouri. Respondent therefore contended that petitioner has exhausted his state remedies in regard to those federal questions presented and suggested that we should proceed with the case.

Respondent further suggested in his response that in the exercise of our habeas corpus jurisdiction on the merits, the procedures to be followed "should consist of a study of the state court records by petitioner's counsel and a presentation to this Court of whatever may be deemed by them or their client to be constitutional defects therein bearing upon the question of admissibility of the issue of competency of petitioner."

Counsel for petitioner, after full study of the various state court transcripts and briefs, correctly stated that petitioner's application for habeas corpus filed in this Court raised only two of at least four and possibly five federal questions that are obviously involved in this case.

Petitioner's counsel states:

In his application for habeas corpus, petitioner raises basically two contentions:

1. The failure of the trial court to instruct on insanity, and

2. The lack of counsel at the arraignment.

An examination of the records in this case indicates the presence of two additional questions:

3. The competency of petitioner to stand trial, and

4. The adequacy of representation by counsel.

A fifth possible point was mentioned in connection with counsels' discussion of the fourth point and will be discussed in connection with that point.

II.

Counsel for petitioner concede that there has been exhaustion in regard to point one, the alleged failure to instruct. Detailed discussion of that point is not necessary because of the problems presented by unquestionable federal questions that have not yet been presented to or ruled by the courts of Missouri.

III.

The factual situation in regard to the second point relating to the lack of counsel at arraignment raised in the habeas corpus petition filed in this Court is more complicated. Counsel for the petitioner correctly state in regard to that point:

Petitioner contends that he was without counsel at the time of his arraignment, and that this was a violation of his constitutional rights. It is doubtful that this issue was considered by the Missouri Supreme Court in passing on petitioner's appeal. The court's opinion states in the opening sentence, "* * * the sole issue is whether defendant was entitled to have the jury instructed upon a defense of insanity at the time of the commission of the crime." State v. Brizendine, supra, at 899. The court did not consider whether the lack of counsel at the arraignment was, of itself, a violation of any right of petitioner. In addition, it appears from the records, that petitioner did not raise this issue before the Missouri Supreme Court. It was not included in petitioner's motion for a new trial, nor argued in either petitioner's or the state's briefs on appeal.

Petitioner's brief on appeal in the Supreme Court of Missouri makes one mention of the absence of counsel at the arraignment (at page 9):

At appellant's arraignment, he was not represented by counsel or advised of the right to plead not guilty by reason of mental disease or defect excluding responsibility. On January 30, 1964, the motion for mental examination above mentioned was filed and the examination was ordered. This motion was certainly sufficient as written notice of appellant's intention to rely on this defense.

This was not in reference to any claim that the failure to have counsel at the arraignment was error of itself, but in support of the argument that petitioner's pretrial motion for mental examination was sufficient written notice to comply with the pleading requirements of § 552.030 RSMo 1965 Supp. As indicated in the first section of this brief, the Missouri Supreme Court rejected this argument. The court did state, State v. Brizendine, supra, at 901:

On November 12, 1963 defendant was arraigned during which he was advised of his right to counsel. The court then offered to appoint counsel for defendant, but he waived the right of counsel and the court found that he was mentally able and sufficiently informed to decide his need for counsel. Defendant then personally entered his plea of not guilty to the charge of first degree murder.

This recital was apparently included solely in reference to the question of whether petitioner's pleading met the requirements of § 552.030 RSMo 1965 Supp., and not in reference to any contention that petitioner's rights were denied by the lack of counsel at arraignment.

Even more important is the fact that the Missouri Supreme Court's recital of what occurred at the arraignment differs markedly from what occurred according to the transcript of the arraignment. The transcript reads as follows:

BE IT REMEMBERED that heretofore, on the 12th day of November, 1963, the defendant, William Prell Brizendine, appeared before the Honorable Harry A. Hall, Judge of Division Ten of the Circuit Court of Jackson County, Missouri, designated Criminal Division A. The State was represented by Mr. Sam Modica, Assistant Prosecuting Attorney. The following proceedings were had:

THE COURT: Are you William Prell Brizendine?

THE DEFENDANT: Yes, sir.

THE COURT: Do you have an attorney?

THE DEFENDANT: Mike Konomos.

MR. MODICA: This is Murder, First Degree * * * Mr. Modica then read the charge * * *

THE COURT: Let the record show that Mr. Brizendine enters a plea of not guilty. The case will be set January

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