Caffey v. Swenson

• Decision Date: 31 July 1970
• Docket Number: Civ. A. No. 18437-3.
• Citation: 318 F. Supp. 704
• Parties: Jack Virgil CAFFEY, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

318 F. Supp. 704

Jack Virgil CAFFEY, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 18437-3.

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

July 31, 1970.

Jack Virgil Caffey, pro se.

Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

ORDER DENYING PETITION FOR HABEAS CORPUS

BECKER, Chief Judge.

Petitioner, a state convict confined in the Missouri State Penitentiary, petitions this Court for a writ of federal habeas corpus adjudicating as invalid his state conviction for possession of burglary tools. Petitioner also requests leave to proceed in forma pauperis. Leave to proceed in forma pauperis has been previously granted.

Petitioner states that he was convicted by a jury in the Circuit Court of Greene County of possession of burglary tools; that he was sentenced on that conviction on July 7, 1967, to a term of three years' imprisonment; that he appealed from the judgment of conviction and imposition of sentence; that the conviction and sentence were affirmed on appeal (See State v. Caffey, Mo., 436 S.W.2d 1); that he subsequently filed a motion to vacate sentence in the Circuit Court of Greene County under Missouri Criminal Rule 27.26, V.A.M.R., which was denied; that petitioner appealed the denial of that motion to the Missouri Supreme Court, which affirmed the judgment of the trial court on June 8, 1970 (Caffey v. State, Mo., 454 S.W.2d 518); and that he was represented by counsel at his arraignment and plea, his trial and sentencing, on appeal and also upon his postconviction motions mentioned herein.

Petitioner states the following as grounds for his contention that his state conviction for possession of burglary tools was secured in violation of his federally protected rights:

"Petitioner's conviction and sentence of imprisonment was (sic) obtained by the State of Missouri in violation of his constitutional rights under the Fourth and Fourteenth Amendments to the U. S. Constitution in that the fruits of an illegal arrest, search and seizure, were admitted into evidence against him at his trial."

Petitioner states the following as facts in support of the above allegations:

"On the morning of October 27, 1965, the defendant was arrested by two officers of the Springfield, Missouri, city police department. At the time of the petitioner's arrest, the officers did not have a warrant for the petitioner's arrest; they did not have any information that any felony had been committed and no misdemeanor was committed in their presence.

"The officers proceeded to search the petitioner and did discover alleged burglar tools which were admitted into evidence, over objection, at the ensuing trial.

"Petitioner was tried for and convicted of possession of burglary tools, (the fruit of the illegal arrest and incidental search).

"Subsequently the judgment of the trial court was affirmed by Division No. 1 of the Missouri Supreme Court. Thereafter, on appeal from an order denying relief under Rule 27.26, the Missouri Supreme Court again affirmed the judgment of the trial court."

Since, from the foregoing, it appeared that petitioner might have stated a claim in habeas corpus if the allegations of the petition were construed most liberally in his favor under the rule of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, and that petitioner might have exhausted his currently available state remedies, the show cause order was issued herein on June 17, 1970. Respondent's response was filed on July 9, 1970. Therein, respondent averred that petitioner had exhausted his state remedies with respect to his contention that "the fruits of an illegal arrest, search and seizure were admitted into evidence against him at his trial" but had not exhausted his state remedies with respect to any other factual allegations; that, as the Missouri Supreme Court held "on appeal of petitioner's case," the arresting officers did in fact have probable cause to arrest petitioner because they noted that a vending machine in a laundromat had been broken into after they had seen three persons in the laundromat and one in a car outside, in the vicinity of the machine, and saw the car in which petitioner was riding moving away from the laundromat after observing that the machine had been broken into; and that under the rule of Keener v. Tennessee (E.D.Tenn.) 281 F.Supp. 964 and United States ex rel. Santiago v. Follette (S.D. N.Y). 298 F.Supp. 973, trial errors, e. g., involving the admission of evidence at the trial, are not subject to review in habeas corpus. Respondent also submitted with his response the transcript on appeal, the brief of appellant (petitioner herein) on direct appeal, the brief of appellant (petitioner herein) on appeal from the denial of his 27.26 motion and the opinion of the Missouri Supreme Court in the latter instance and other relevant materials.

At the express invitation of the Court, petitioner filed his traverse to the response on July 20, 1970. Therein, he admitted the "genuineness and accuracy of the documents attached to respondent's response" and reasserted his general claim that the search incident to arrest was unlawful because probable cause for his arrest was lacking and that, therefore, under the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, the fruits of the allegedly unlawful search should not have been admitted in evidence against him.

It appears that petitioner has exhausted his currently available state remedies. On his direct appeal from his conviction, petitioner assigned as error in the Missouri Supreme Court "the action of the trial court in overruling his motion to suppress evidence obtained as the result of an illegal search * * *." 436 S.W.2d at 2. On that appeal, the Missouri Supreme Court considered the facts which had been reliably found by the state trial court in the hearing therein on the motion to suppress. Subsequently, his motion to vacate under Missouri Criminal Rule 27.26 was overruled without a hearing, and, on appeal of the decision to the Missouri Supreme Court, that court noted that:

"Appellant's contentions of unlawful arrest, probable cause, and illegal search and seizure were heard by the trial court on the motion to suppress, and appellant was given the opportunity at that time to produce all the witnesses and evidence that he, advised by competent counsel, cared to produce. Appealing the jury conviction on those grounds, and again represented by competent counsel, this court sustained the ruling of the trial court and specifically found against appellant on the issues of probable cause, unlawful arrest, and illegal search and seizure. Thus, the very issues decided in State v. Caffey, 436 S.W.2d 1, have been restated in appellant's motion under Criminal Rule 27.26, V.A.M.R." 454 S.W.2d at 519.

In White v. Swenson (W.D.Mo. en banc) 261 F.Supp. 42, 63, it was pertinently stated as follows:

"When a State convict has litigated in the trial court and presented on direct appeal the precise claim of violation of Federal rights presented in Federal Habeas Corpus and the Supreme Court of Missouri on direct appeal has denied relief on the precise point, the State remedy is exhausted, provided the point is precisely the same and all relevant evidence is in the State court record."

That standard is met in the case at bar. Petitioner was given a full opportunity to present his witnesses in the hearing on the motion to suppress in the state trial court and he availed himself of the opportunity.¹ He failed to state or show on his subsequent 27.26 motion that other evidence was material. The hearing was fairly conducted and the facts reliably found by the transcript of the hearing in the state trial court. Current federal standards were enunciated and applied by the Missouri Supreme Court in accordance with the rules of the trilogy of Sanders v. United States, supra; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. Since this Court may rely on the record of a full and fair hearing in the state trial court and may rely on facts reliably found after such a hearing, while the power exists to find proven facts not found by the state courts, it is not necessary for this Court to grant a new hearing. Meller v. Swenson (W.D.Mo.) 309 F.Supp. 519. Although petitioner requested to offer additional witnesses in his behalf on his motion to vacate under Missouri Criminal Rule 27.26, these witnesses were not heard by the state trial court because they were allegedly available to petitioner at the time of his trial and thus did not constitute "newly discovered evidence" within the meaning of the trilogy and White v. Swenson, supra. In the case at bar, petitioner does not request to offer any additional evidence, which in any case should initially be heard by the state trial court (White v. Swenson, supra) and relies wholly upon the state court records. As required by Townsend v. Sain, supra, petitioner has thus obtained in the state courts a full and fair evidentiary hearing wherein the facts were reliably found and federal constitutional principles enunciated and applied.

The facts as found by the Missouri Supreme Court are accurately reported in the official report of petitioner's direct appeal, State v. Caffey, Mo., 436 S.W.2d at 2, as follows:

"At approximately 12:30 a. m. on the morning of October 27, 1965, Officers Donald Eskew and Douglas Rookstool, while on a routine patrol observed three persons, two women and one man, in a laundromat at the intersection of Grant and High Streets in Springfield, Missouri, and a car containing one man parked in front of the laundromat. They circled the block and as they passed the laundromat the second time, Officer Rookstool saw that the front of a cigarette vending machine in the laundromat had been removed. The car which had been

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