Caffey v. Wyrick, Civ. A. No. 18232-3.

• Decision Date: 29 May 1974
• Docket Number: Civ. A. No. 18232-3.
• Citation: 377 F. Supp. 160
• Parties: Jack Virgil CAFFEY, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

377 F. Supp. 160

Jack Virgil CAFFEY, Petitioner, v. Donald W. WYRICK, Warden,¹ Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 18232-3.

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

May 29, 1974.

James P. Dalton, Jefferson City, Mo., for petitioner.

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

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT DENYING PETITION FOR A WRIT OF HABEAS CORPUS

WILLIAM H. BECKER, Chief Judge.

This is a petition for a writ of federal habeas corpus by a state convict formerly in custody at the Missouri State Penitentiary at Jefferson City, Missouri. Petitioner seeks an adjudication that his conviction and sentence were illegally imposed upon him in violation of his federal constitutional rights. Petitioner has requested leave to proceed in forma pauperis. By prior order of this Court on April 8, 1970, petitioner was granted leave to proceed in forma pauperis.

Petitioner states that he was convicted upon a finding of guilty by a jury in the Circuit Court of Randolph County, State of Missouri, of "stealing under $50.00"; that he was sentenced on that conviction on September 13, 1967, to a term of one year imprisonment and a fine of one thousand dollars; that he appealed from the judgment of conviction and imposition of sentence to the Missouri Supreme Court, which affirmed the decision of the Circuit Court of Randolph County in State of Missouri v. Caffey, 445 S.W.2d 642 (Mo.Sup. 1969); that petitioner subsequently filed a petition for a writ of certiorari in the United States Supreme Court, which was denied on March 23, 1970; and that petitioner was not represented by counsel at his arraignment and plea, but was so represented at his trial, at sentencing and on direct appeal to the Supreme Court of Missouri from the decision of the trial court.

Petitioner seeks an adjudication that the conviction and sentence of the Circuit Court of Randolph County were imposed upon him illegally in violation of his federal constitutional rights for the single reason that he was denied his right to a speedy trial in violation of the Sixth Amendment to the United States Constitution. In legal support of that contention, petitioner cites Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

Petitioner states the following as facts in support of his contention that he was denied his constitutional right to a speedy trial:

"On July 18, 1966, petitioner was taken before the magistrate court of Randolph County, Missouri to plead to a misdemeanor information which charged the offense of stealing under $50.

"Petitioner requested an immediate trial and the assistance of counsel. Petitioner was then remanded to the custody of the Sheriff of Randolph County, to await the appointment of counsel and trial. From the date of July 18, 1966 to July 6, 1967, petitioner was confined in the Randolph County jail.

"Without notice to or consent of petitioner, the cause was continued from July 19, 1966 to May 23, 1967, during which time, petitioner was without the assistance of counsel. Between the date of May 23, 1967 and June 14, 1967, counsel was appointed but the cause was continued several times over the objection of the defendant.

"Trial in magistrate court on the charge of stealing under $50 was not held until the date of June 14, 1967. Petitioner was convicted at that time; and again upon trial de novo, in the circuit court. The judgment of conviction in circuit court was affirmed by the Missouri Supreme Court on October 13, 1969."

On April 8, 1970, an order of this Court was entered granting petitioner leave to proceed in forma pauperis and directing the respondent to show cause why the petition for a writ of habeas corpus should not be granted.

On April 29, 1970, counsel for respondent filed herein a response to the show cause order, therein conceding that petitioner had exhausted his currently available state remedies with respect to the speedy trial claim, and additionally contending that petitioner had failed to establish sufficient prejudice to warrant the granting of habeas corpus relief on the speedy trial claim, citing in support thereof United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). As part of the response, counsel for respondent attached and submitted the following documents: (1) a photocopy of the transcript of the record on appeal in State of Missouri v. Caffey, supra; (2) a photocopy of petitioner's brief filed in the Missouri Supreme Court in State of Missouri v. Caffey, supra; (3) a photocopy of the respondent's brief filed in the Missouri Supreme Court in State of Missouri v. Caffey, supra; and (4) a photocopy of the opinion of the Missouri Supreme Court in State of Missouri v. Caffey, supra.

On May 5, 1970, petitioner filed herein his "Traverse of Response to Order to Show Cause," therein reiterating and expanding upon his basic contention and the facts in support thereof. In that traverse, petitioner also intimated that he had also been denied effective assistance of counsel.

On May 13, 1970, a final judgment was entered dismissing the petition herein for a writ of habeas corpus on the ground that petitioner had failed to exhaust his currently available state remedies with respect to the purported claim that he had been denied effective assistance of counsel.

Petitioner appealed that dismissal of his petition to the United States Court of Appeals for the Eighth Circuit. On January 25, 1971, that Appeals Court vacated the judgment of this Court entered on May 13, 1970, and directed that this action be ". . . remanded to that court with directions to consider on the merits only the allegation that appellant was denied a speedy trial." Caffey v. Swenson, 437 F.2d 70, 71 (8th Cir. 1971). The Court of Appeals specifically held that petitioner ". . . did not intend to, and in fact did not, present to that court the allegation of denial of effective assistance of counsel as a ground for vacation of his judgment of conviction." Caffey v. Swenson, supra.

On February 2, 1971, petitioner filed herein a "Motion for Continuance" of this action. Thereafter, on March 30, 1971, an order was entered denying petitioner's motion for a continuance as moot and directing petitioner to state whether he desired to offer additional evidence on the speedy trial claim.

In a response to the order of March 30, 1971, petitioner filed herein on April 6, 1970, his "Offer of Proof," therein listing the witnesses and exhibits which he desired to offer as evidence in the case at bar. Thereafter on May 6, 1971, an order was entered appointing counsel to assist petitioner and directing counsel to follow the procedure in preparing for the hearing as outlined by Senior United States Circuit Judge and former District Judge James M. Carter in Cortez v. United States, 32 F.R.D. 391 (S.D.Cal. 1963).

On June 2, 1971, petitioner filed herein a "Motion," therein requesting that the Court ". . . hear and consider evidence regarding `oppressive incarceration', `anxiety and concern', `public scorn and curtailment of speech and associations', and `ineffective assistance of counsel', when the hearing on the merits of the Sixth Amendment speedy trial claim is held in this cause." On June 12, 1971, an order was entered denying petitioner's motion that the Court take evidence immaterial to petitioner's contention of denial of his right to a speedy trial as presented in the state courts.

Counsel for the respondent filed herein a "Supplemental Response to Show Cause" on July 14, 1971, therein contending that because the evidentiary facts which petitioner wishes to present to this Court have not been presented to the state courts by way of direct appeal or collateral attack under Missouri Criminal Rule 27.26, V.A.M.R., the petition herein should be dismissed.

Following the entering of an order granting the parties an extension of time in which to file the Cortez procedure pretrial order, counsel for petitioner filed herein on July 26, 1971, his offer of proof. On that same day, the parties filed herein their joint stipulation.

On February 23, 1972, petitioner filed herein a pro se "Affidavit to Disqualify Judge for Bias and Prejudice" pursuant to Section 144, Title 28, United States Code. That motion to disqualify the undersigned was denied by order of February 28, 1972.

The evidentiary hearing in the case at bar was held on March 9, 1972, pursuant to the requirements for holding hearings in habeas corpus cases as set forth in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). During that hearing, petitioner testified under oath.

On May 26, 1972, counsel for the parties submitted their "Pre-Trial Stipulation and Order." Thereafter on June 19, 1972, counsel for respondent filed herein a "Supplemental Response," therein suggesting that the petition herein for a writ of habeas corpus should be dismissed as moot. In support thereof, respondent states as follows:

"On June 1, 1972, the petitioner herein received a commutation of his sentence and was released from the State Penitentiary for Men at Jefferson City, Missouri (see attached Certified Transcript of Serial Record). Respondent would further state that petitioner's release was not subject to parole supervision. Petitioner's present whereabouts are unknown to both respondent and counsel for petitioner."

Although petitioner has been discharged from custody, this petition for a writ of federal habeas corpus is not moot. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). As a consequence of his conviction, petitioner may not be able to secure employment or engage in certain business, civic and social functions. Because these disabilities may flow from petitioner's conviction, he has ". . . a substantial stake in the judgment of conviction...