Brown v. Haynes

• Decision Date: 08 November 1974
• Docket Number: Civ. A. No. 73CV404-W-3.
• Citation: 385 F. Supp. 285
• Parties: Larry Ray BROWN, Petitioner, v. Edward E. HAYNES, Superintendent, Missouri Training Center for Men, Moberly, Missouri, and George M. Camp, Director, Missouri State Department of Corrections, Jefferson City, Missouri, Respondents.
• Court: U.S. District Court — Western District of Missouri

385 F. Supp. 285

Larry Ray BROWN, Petitioner, v. Edward E. HAYNES, Superintendent, Missouri Training Center for Men, Moberly, Missouri, and George M. Camp, Director,¹ Missouri State Department of Corrections, Jefferson City, Missouri, Respondents.

Civ. A. No. 73CV404-W-3.

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

November 8, 1974.

COPYRIGHT MATERIAL OMITTED

Larry Ray Brown, pro se.

Karen I. Harper, Asst. Atty. Gen. of Mo., Jefferson City, Mo., for respondents.

FINAL JUDGMENT DENYING PETITION FOR A WRIT OF HABEAS CORPUS

WILLIAM H. BECKER, Chief Judge.

This is a petition for a writ of habeas corpus by a state prisoner in custody at the Missouri Training Center for Men located at Moberly, Missouri. Petitioner seeks an adjudication that his conviction and sentence were illegally secured and imposed upon him in violation of his federal constitutional rights. Petitioner has requested leave to proceed in forma pauperis. Petitioner has been granted leave to proceed in forma pauperis by prior order of this Court dated October 31, 1973.

Petitioner states that he was convicted upon a finding of guilt by a jury in the Circuit Court of Jackson County, Missouri, of robbery in the first degree; that he was sentenced on that conviction on June 10, 1971, to a term of ten years imprisonment; that he did not appeal from the judgment of conviction and imposition of sentence because he "was coerced under the apprehension of the Judge and his attorney"; that he filed a motion to vacate his conviction and sentence under Missouri Criminal Rule 27.26, V.A.M.R., in the Circuit Court of Jackson County, which was denied in November, 1971; that he appealed the denial of his 27.26 motion to the Missouri Court of Appeals, Kansas City District, which affirmed the ruling of the Circuit Court in March 1973; and that he was represented by counsel at all critical stages of the proceedings against him, in the preparation and filing of his 27.26 motion, and on appeal from a denial thereof.

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

"I was coerce (sic) to believe I could receive more time if I successfully (sic) appealed and came up for retrial.

"There was no instruction regarding my character witness provided for the Jury. Although this witness testified.

"I was coerce (sic) not to appeal by the intentional or incidental threat of being prosecuted on pending appeal if I did appeal."

In support of the above contentions, petitioner states the following facts:

"My lawyer and Judge Smith both stated during my sentencing proceeding that I would receive the same, less, or more time if I successfully appealed my conviction and came up for retrial."

On October 31, 1973, an order was entered granting the petitioner leave to proceed in forma pauperis and the respondents were directed to show cause why the petition herein for a writ of habeas corpus should not be granted.

On November 15, 1973, counsel for the respondents filed herein a response to the order to show cause, therein acknowledging that petitioner had exhausted the remedies available to him in the Missouri state courts. As part of the response, counsel for the respondents attached and submitted photocopies of the following documents: (1) the transcript and record on appeal in the Missouri Supreme Court in Brown v. Missouri, 492 S.W.2d 762 (Mo.Sup.1973); (2) petitioner's brief filed in the Missouri Supreme Court in the above-noted appeal; (3) respondent's brief filed in the Missouri Supreme Court in the above-noted appeal; and (4) the opinion of the Missouri Supreme Court in Brown v. Missouri, 492 S.W.2d 762 (Mo.Sup. 1973), affirming the Circuit Court's denial of petitioner's 27.26 motion.

The record establishes and the parties agree that the contentions raised in the petition herein have been adequately exhausted by presentation to the Missouri state courts. Thus, petitioner's contentions will be reviewed and determined herein on the merits.

From a review of the files and records in the case at bar, including the transcript and record on appeal to the Missouri Supreme Court, it is concluded that petitioner was afforded a full and fair evidentiary hearing by the Circuit Court with respect to his 27.26 motion, resulting in reliable findings of fact under applicable federal procedural and substantive standards. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Brodkowicz v. Swenson, 357 F. Supp. 178, 185 (W.D.Mo.1973); Noble v. Swenson, 285 F.Supp. 385 (W.D.Mo. 1968); Johnson v. Wyrick, 381 F.Supp. 747 (W.D.Mo.1974). In these circumstances, this Court may rely on the state records, or in the alternative, independently find the facts from all the evidence in the habeas corpus record if the record is adequate for this purpose, without holding a new evidentiary hearing. Townsend v. Sain, supra; Brown v. Swenson, 487 F.2d 1236, 1240 (8th Cir. 1973); In re Parker, 423 F.2d 1021 (8th Cir. 1970); Meller v. Swenson, 309 F. Supp. 519 (W.D.Mo.1969), affirmed, 431 F.2d 120 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971); Mountjoy v. Swenson, 306 F.Supp. 379 (W.D.Mo.1969); Brodkowicz v. Swenson, supra; Redus v. Swenson, 468 F.2d 606 (8th Cir. 1972). To the extent that the decision to hold a new evidentiary hearing in the case at bar is discretionary, it is concluded that such a hearing has not been requested, and that it need not and should not be held. Crosswhite v. Swenson, 444 F.2d 648 (8th Cir. 1971); Wilwording v. Swenson (W.D.Mo. October 19, 1973), affirmed, 505 F.2d 735 (8th Cir. 1974); Johnson v. Wyrick, supra.

Findings of Fact

Petitioner's trial in the Circuit Court of Jackson County, Missouri, commenced on March 27, 1971. During the trial, petitioner attempted to establish good character by relying on the testimony of his Mother, Mrs. Dorkes Brown. After testifying to her relationship and the fact that petitioner had always lived with her, defendant's Mother was asked the following question: "Are you familiar with his general reputation in the community out there for truth and honesty?" She responded by stating that she was familiar with the petitioner's general reputation in the community for truth and honesty, and that it was "very good."

On March 24, 1971, the jury found the petitioner guilty of the offense of first degree robbery. However, the jury was unable to agree upon and to assess punishment. The sentence was imposed by the Circuit Judge under Missouri law.

Petitioner's counsel thereafter filed a motion for a new trial, therein alleging error in the trial court's refusal to submit to the jury an instruction on petitioner's good character. The trial court overruled petitioner's motion for a new trial, concluding that the requested jury instruction on good character ". . . should not be required in a case such as this where the charge is not related to honesty and where the question is so limited." The trial court further found as follows:

"Character refers to all phases of a person's conduct. No question was asked as to defendant's good character generally or as to his reputation as a peaceful or law-abiding citizen or even as an upright citizen.

"Defendant here is charged with robbery in the first degree. There is credible evidence he was holding a gun in the robbery of the Safeway Store. The testimony as to defendant's reputation for being honest is not substantial evidence upon the trait of character involved in this charge of robbery.

"The testimony given does not show the improbability of defendant committing the crime charged. In this connection attention is called to State v. Baird, B-a-i-r-d, Mo. 288 Mo. 62, 231 S.W. 625. Accordingly, it is the Court's view it is not error for the Court not to instruct on the defendant's good character."

Following the trial, petitioner was brought before the trial court and was informed by the sentencing Judge that he was subject to sentence to a term of imprisonment ranging from five years to life. The prosecuting attorney offered no recommendation with respect to the sentence to be imposed, other than to suggest that probation should not be granted. Petitioner's counsel declined any comment on the imposition of sentence. The sentencing Judge assessed petitioner's punishment at ten years imprisonment.

Immediately thereafter, counsel for petitioner conducted on the record a most thorough and exhaustive inquiry of the petitioner with respect to the question of appeal. During this detailed inquiry, counsel for petitioner questioned the petitioner whether he understood that (1) he could file an appeal from his conviction; (2) that such an appeal could result in outright reversal or retrial of the petitioner; (3) that upon a retrial, petitioner could receive the same sentence or possibly an enhanced sentence; (4) that petitioner and defense counsel had discussed the question of appealing his conviction; (5) that petitioner had advised counsel that he had chosen not to perfect an appeal; (6) that the failure to file a timely notice of appeal would preclude a later appeal; and (7) that the acceptance of the judgment of conviction was freely made upon full disclosure of his right to appeal. The petitioner expressly stated that he understood all the above alternatives, and that he did not desire to perfect an appeal.

The Circuit Court Judge then clarified one of defense counsel's statements by advising the petitioner that upon retrial, he could receive a lesser sentence, the same sentence, or a greater sentence than the ten year sentence imposed. Petitioner expressly acknowledged his understanding of this range of possibilities. Again, petitioner stated that he did not wish to have his conviction appealed. Thereafter, petitioner was asked whether he was satisfied with the representation of his defense counsel. To this inquiry, petitioner stated that the representation provided to him by his defense cou...