Caffey v. Swenson

• Decision Date: 13 April 1971
• Docket Number: Civ. A. No. 18722-3.
• Parties: James Robert CAFFEY, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

332 F. Supp. 624

James Robert CAFFEY, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 18722-3.

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

April 13, 1971.

COPYRIGHT MATERIAL OMITTED

O. J. Taylor, for Neale, Newman, Bradshaw & Freeman, Springfield, Mo., for petitioner.

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

ORDER GRANTING PETITIONER'S MOTION TO VACATE JUDGMENT OF DECEMBER 31, 1970, AND JUDGMENT DENYING PETITION FOR HABEAS CORPUS

WILLIAM H. 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 of "control of a narcotic drug." 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 the offense of "control of a narcotic drug"; that he was sentenced on that conviction on February 9, 1962, to a term of twenty years' imprisonment; that he appealed from the judgment of conviction and imposition of sentence; that his conviction and sentence were affirmed by the Missouri Supreme Court on appeal (State v. Caffey, Mo., 365 S.W.2d 607); that thereafter petitioner filed in the Missouri Supreme Court a "motion to recall mandate" of affirmance on appeal under Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, and Bosler v. Swenson (C.A. 8) 363 F.2d 154, asserting denial of his right to counsel on appeal; that the motion to recall mandate of affirmance on appeal was denied on November 14, 1966; that petitioner subsequently filed a petition for habeas corpus in this Court which was dismissed without prejudice on April 11, 1969, (see Caffey v. Swenson (W.D.Mo.) 298 F.Supp. 994, in which this Court noted that the United States Court of Appeals for the Eighth Circuit had not determined Bosler v. Swenson, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33, affirming Bosler v. Swenson, supra, to be retroactive until the decision in Swenson v. Donnell (C.A. 8) 382 F.2d 248, on August 8, 1967; and that petitioner had opposed being granted a new appeal with counsel, requesting that he be released outright from the penitentiary; accordingly, this Court advised petitioner to file a successive motion to recall mandate of affirmance on appeal requesting the redocketing of his appeal and assignment of counsel); that petitioner subsequently again petitioned this Court in habeas corpus complaining of the Missouri Supreme Court's alleged failure to file his subsequent motion to recall mandate of affirmance on appeal, but that petition was dismissed without prejudice on December 2, 1969 (see Caffey v. Swenson (W.D.Mo.) Civil Action No. 17876-3, in which this Court noted that petitioner should make it clear to the Clerk of the Missouri Supreme Court that his motion was in case no. 49364 in that court rather than in case no. 55151, in which the Clerk had thought the motion was sought to be filed and consequently did not file the motion because the decision on appeal in case no. 55151 had not yet been made); that petitioner also filed a motion to vacate his sentence under Missouri Criminal Rule 27.26, V.A.M.R., in the state trial court which was overruled on October 20, 1969; that thereafter petitioner appropriately filed a motion to recall mandate in case no. 49364 in the Missouri Supreme Court; that the motion was sustained on January 12, 1970, and petitioner was granted a new appeal with the assistance of counsel; that petitioner's appeal from the overruling of his Rule 27.26 motion by the state trial court was then consolidated with his new appeal; and that the Missouri Supreme Court again affirmed the conviction and sentence on September 14, 1970. State v. Caffey, Mo., 457 S.W.2d 657.

As grounds for his contention that his state conviction was secured in violation of his federal rights, petitioner states the following:

"(a) The search warrant which was the basis for the search of petitioner's safe deposit box was invalid because of the lapse of time between the occurrance (sic) of the events relied upon and the time of the issuance of the warrant.

"(b) Petitioner did not receive the effective assistance of counsel at his trial."

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

"On November 28, 1961, Mr. Donald E. Bonacker, then an assistant prosecuting attorney, filed in the Magistrate Court of Greene County an `affidavit for Search Warrant' and on that same date the Magistrate Court issued a search warrant to the Sheriff of Greene County, authorizing the search of a safe deposit box theretofore rented to the defendant. On the authority of this search warrant, the sheriff went to the bank and with the aid of a locksmith, caused the lock of the safe deposit box to be drilled and the box opened. The only contents of that box was State's Exhibit `D' the narcotic drug seized.

"The affidavit for search warrant signed by Mr. Bonacker did not purport to reflect that Mr. Bonacker had such personal knowledge as would have justified the issuance of a search warrant. To the contrary, the Bonacker affidavit made it clear on its face that it depended on an accompanying affidavit executed by one Doyle Mace, the full text of which was:

`I, Doyle Mace, on this 28th day of November, 1961, being duly sworn state that the following facts are true: During August, 1961, James R. Caffey told me that he had a bottle of a narcotic commonly known as "coke" in his lockbox at the Union National Bank. He also said the "coke" was extremely valuable on the illicit market.' "Since the alleged statement by petitioner to Mace occurred `during August, 1961' the lapse of time between the alleged admission and the making of the affidavit was at least 90 days, and possibly as much as 120 days.

"The substance of the information under which petitioner was tried and convicted was the allegation that the defendant:

`* * * on the 28th day of November, A.D., 1961, at the County of Greene and State of Missouri, did then and there wilfully, unlawfully and feloniously, without legal authority, have under his control a narcotic drug, to wit: cocaine hydrochloride. * * *'

"The principal evidence upon which petitioner's trial and conviction depended was a one ounce bottle of cocaine hydrochloride introduced into evidence as state's Exhibit `D'.

"It is petitioner's contention that the search warrant was issued without a sufficient showing of probable cause due to the lapse of time between the alleged admission and the making of the affidavit.

"Petitioner was represented at trial by appointed counsel. No motion to suppress was filed by counsel prior to or during the course of the trial. At the Rule 27.26 hearing held on September 4, 1969, petitioner's former attorney testified as follows:

`Q. Did you yourself explore the validity of the process whereby the cocaine had been seized from the lockbox?

`A. Mr. Crow, the answer to that, and again according to my best recollection, I did obtain a copy of the search warrant, examined the affidavit made by one Doyle Mace, I believe it was. I then contacted Mr. Frank Knox down at the Union National Bank. I then contacted a Miss McCorkle who was the custodian of the safe deposit vault at the Union National Bank, and examined the ledger card that the bank keeps showing entry to a specified safe deposit vault. After I had followed that procedure, in my opinion, the affidavit and warrant being in proper form and the information disclosed on the entry card for the safety deposit box, I made no suggestion that a motion to suppress be filed. I didn't even discuss it, I might add, with Mr. Caffey.'

"In connection with this same matter, the attorney testified on cross-examination:

`Q. I take it when you examined the court file, the affidavit of Doyle Mace and so forth, you were looking at these with a view of determining whether there was any basis for a motion to suppress?

`A. I'll be frank to admit, at that time, Mr. Taylor, a motion to suppress was not thought of or contemplated by me. I was looking at them to see if the affidavit was in proper form, if it disclosed probable cause for issuance of a search warrant and if those facts were substantiated by the records of the Union National Bank.'

"The attorney was then referred to an annotation contained in 100 A.L.R.2d, cited in support of this position, and was asked whether such a line of authorities entered into his thinking at that time. The attorney answered:

`A. Not from your A.L.R. I don't recall any cases — well to answer your question, no, it did not, Mr. Taylor. The motion to suppress in 1961 was not quite the lady of the courtroom that it is today.'

"The defendant testified in his 27.26 hearing that he asked his appointed counsel to check into the validity of the search warrant and inquired whether the attorney could make a motion to suppress the evidence. He testified that the attorney came back at a later date and said that a motion to suppress would have been frivolous because all of the court papers were in order.

"It is petitioner's contention that he was denied the effective assistance of counsel by reason of counsel's ignorance of Fourth Amendment requirements of probable cause and his failure to file a timely motion to suppress the evidence seized upon a search warrant which was obtained without a sufficient showing of probable cause."

The official report of the Missouri Supreme Court's decision of September 14, 1970, shows that petitioner raised the following contentions which were considered by the Missouri Supreme Court in petitioner's consolidated appeals from the overruling of his Rule 27.26 motion and from his conviction and sentence:

(1) the search and seizure which resulted in the discovery of the

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