Chitwood v. Dowd

• Decision Date: 14 November 1989
• Docket Number: No. 89-2113,89-2113
• Citation: 889 F.2d 781
• Parties: David CHITWOOD, Appellee, v. Denis DOWD, Superintendent, Farmington Correctional Center and William Webster, Missouri Attorney General, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 781

889 F.2d 781

David CHITWOOD, Appellee, v. Denis DOWD, Superintendent, Farmington Correctional Center and William Webster, Missouri Attorney General, Appellants.

No. 89-2113.

United States Court of Appeals, Eighth Circuit.

Submitted Aug. 29, 1989.

Decided Nov. 14, 1989.

Rehearing and Rehearing En Banc Denied Dec. 29, 1989.

Stephen D. Hawke, Jefferson City, Mo., for appellants.

Jeanne Early Poe, St. Louis, Mo., for appellee.

Before JOHN R. GIBSON, BOWMAN, and WOLLMAN, Circuit Judges.

WOLLMAN, Circuit Judge.

Denis Dowd, Superintendent of the Farmington Correctional Center, and William Webster, Missouri Attorney General, (collectively "Dowd") appeal from the district court's ¹ judgment in favor of David Chitwood. The district court granted Chitwood's habeas corpus petition, ordering Chitwood transferred to Oklahoma and unconditionally releasing him from serving any remaining time on his Missouri sentences. Dowd asserts on appeal that the district court erred in granting Chitwood habeas corpus relief because Chitwood failed to exhaust state remedies or present a federal constitutional claim. Dowd also challenges the district court's remedy. We affirm the judgment in part and reverse and remand in part.

On August 2, 1982, Chitwood pleaded guilty to one count of second-degree forgery in the District Court for the Seventh Judicial Circuit of Oklahoma. The court sentenced him to five years' imprisonment. Chitwood escaped from the Oklahoma Department of Corrections' custody on July 4, 1983, and fled to Missouri. On January 10, 1984, Chitwood pleaded guilty in the circuit court of Barry County, Missouri, to one count of second-degree burglary. The court sentenced Chitwood to seven years' custody with the Missouri Department of Corrections, beginning January 10, 1984. The court ordered that the sentence run concurrently with the remainder of Chitwood's Oklahoma sentence. The Missouri Department of Corrections received Chitwood on January 13, 1984.

On January 14, 1984, Chitwood pleaded guilty in the circuit court of Boone County, Missouri, to two counts of forgery. That court sentenced him to two three-year concurrent terms of imprisonment, consecutive to the Barry County and Oklahoma sentences.

During his incarceration, Chitwood made several inquiries to determine whether his Barry County and Oklahoma sentences were running concurrently. Beginning in January 30, 1984, and continuing through March 20, 1986, Chitwood wrote to Missouri prison officials. Apparently Chitwood did not normally receive a reply. His first letter to Mr. Harry Lauf was returned to him with a note handwritten by Mr. Lauf at the bottom: "Find attached a copy of your judgment which only states [that your Barry County sentence] is to run concurrently with the remainer [sic] of your Oklahoma sentence." Letter from David Chitwood to Harry Lauf, Records Officer, Missouri State Penitentiary (January 30, 1984). A letter from the Missouri Department of Corrections dated October 20, 1986, referred Chitwood back to Mr. Lauf. Letter from Carol J. Wolkey, Interstate Compact Coordinator, Missouri Department of Corrections to David Chitwood (October 20, 1986).

On September 21, 1986, Chitwood wrote to the Oklahoma Department of Corrections, asking Oklahoma to contact Missouri, and make arrangements for Chitwood's transfer. In November 1986, the Oklahoma Department of Corrections let Missouri know of its willingness to receive Chitwood back into custody.

In May 1987, Chitwood wrote to the Missouri Board of Probation and Parole, the Governor of the State of Missouri, and the Boone County prosecutor's office. He also wrote to the director of the Missouri Department of Corrections, who responded that the Department of Corrections was authorized to hold Chitwood confined until the conditional release date of his Boone County sentence, set for May 13, 1990.

Chitwood filed a pro se state habeas corpus petition in the circuit court of Barry County, Missouri, on February 25, 1986. The circuit court dismissed the petition for improper venue. Chitwood then filed a pro se federal habeas corpus petition in the Western District of Missouri on January 23, 1987, alleging that the Barry County court did not have the authority to impose the sentence given him. The district court dismissed the petition for failure to exhaust state post-conviction remedies. On November 5, 1987, Chitwood filed a pro se state habeas corpus petition in the circuit court of St. Francois County, Missouri. The circuit court denied the petition on the ground that Chitwood's proper avenue of redress was a motion for post-conviction relief under Missouri Rule of Criminal Procedure 27.26 (since replaced by Rule 24.035).

On February 3, 1988, the Missouri Department of Corrections informed counsel then representing Chitwood that the Department had approved Chitwood for interstate placement in Oklahoma. Chitwood objected on the grounds that transfer so close to the May 13, 1988, conditional release date on his Barry County sentence would not prevent him from having to serve his Oklahoma sentence consecutively to his Barry County sentence. Chitwood wrote: "If this had been initiated when first I requested inter-state transfer in October 1986 I would have agreed to it at that time." Letter from David Chitwood to Vernon F. Heath, Central Transfer Authority (February 9, 1988). Chitwood stated his intention to seek a remedy through the courts to prevent him from having to serve a period of confinement beyond which the Barry County Circuit Court sentenced him. Id.

Chitwood wrote to the Missouri Public Defenders' Office in January 1988. He sought advice as to whether the conditional release date for his Barry County sentence, set for May 13, 1988, allowed enough time to pursue state remedies or whether he should file another federal habeas corpus petition. That office advised Chitwood to proceed with habeas corpus petitions in the Missouri appellate courts and federal district court, on the theory that the federal court could stay the habeas proceedings until the Missouri appellate courts ruled.

On February 10, 1988, Chitwood filed the instant pro se petition for writ of habeas corpus in the United States District Court for the Eastern District of Missouri. Chitwood and the Missouri Department of Corrections filed motions for summary judgment in April 1988. The court thereupon appointed counsel for Chitwood. In May 1988, the magistrate issued a Report and Recommendation finding petitioner entitled to habeas relief. After objections to the Report and Recommendation were filed by the parties, the district court, in a chambers conference on July 29, 1988, expressed its desire that counsel for both parties pursue all possible methods of informally resolving Chitwood's petition.

The court also directed Chitwood's counsel to meet with the Barry County sentencing judge. The judge confirmed his intent that the Missouri Department of Corrections transfer Chitwood to Oklahoma to serve his Barry County sentence. The prosecuting attorney involved in the Barry County sentencing also confirmed his understanding that Chitwood would serve the Oklahoma and Barry County sentences concurrently in Oklahoma.

Chitwood's counsel sought various solutions in Oklahoma. Counsel applied for inabsentia parole on Chitwood's Oklahoma sentence, which was denied. The Oklahoma Public Defenders' Office, which had represented Chitwood during the Oklahoma sentencing, was unable to assist him further. Counsel sought the assistance of the Oklahoma sentencing judge, who declined to modify the Oklahoma sentence. Counsel pursued the possibility of a Governor's commutation for Chitwood's Oklahoma sentence, but the Governor's office informed counsel that the Oklahoma Pardon and Parole Board had denied Chitwood's request for commutation for failure to meet the eligibility criteria.

On June 8, 1989, the district court granted Chitwood's motion for summary judgment and habeas corpus relief, ordering Chitwood transferred to the Oklahoma department of corrections within thirty days. The court unconditionally released Chitwood from serving any remaining time on either of his Missouri sentences. Dowd filed a notice of appeal and emergency motion for stay of execution of judgment. The district court denied the motion. We granted a temporary stay order and set the case for special hearing. On September 5, 1989, we lifted the stay order with respect to that portion of the district court's order which ordered Dowd to transfer Chitwood to the Oklahoma Department of Corrections.

I.

Dowd first challenges the district court's grant of habeas corpus relief to Chitwood on the ground that Chitwood failed to exhaust his available state remedies and that the magistrate's finding of special circumstances, adopted by the district court, was erroneous. Dowd first asserts that Chitwood is procedurally barred from bringing his claim because he deliberately bypassed other remedies. Specifically, Dowd contends that Chitwood's habeas corpus petition actually states a claim under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Under Santobello, prosecutors must fulfill promises or agreements made during the plea bargaining process when those promises are part of the inducement or consideration for the defendant to accept the plea bargain. Id. at 262, 92 S.Ct. at 499. Dowd evidently believes that Chitwood is actually asserting a breach of the plea agreement, in which the prosecution agreed to recommend that Chitwood serve his Barry County sentence and the remaining time on his Oklahoma sentence concurrently. Dowd asserts that Chitwood's claim properly falls under former Missouri Rule of Criminal Procedure 27.26 (now Rule 24.035), under which prisoners may challenge their sentence as imposed in violation of the constitution and laws of the state or the United States or as otherwise subject to collateral attack.

Chitwood's petition...