Cobb v. Wyrick

• Decision Date: 20 June 1974
• Docket Number: Civ. A. No. 73CV49-W-1-3.
• Citation: 379 F. Supp. 1287
• Parties: Terry COBB, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

379 F. Supp. 1287

Terry COBB, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 73CV49-W-1-3.

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

June 20, 1974.

Terry Cobb, pro se.

Gene E. Voights, First Asst. Atty. Gen., of Mo., Jefferson City, Mo., for respondent.

FINAL JUDGMENT DENYING PETITION FOR A WRIT OF HABEAS CORPUS WITH RESPECT TO PETITIONER'S CONTENTIONS THAT THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE FINDING OF GUILTY AND THAT THE COURT ERRED IN GIVING INSTRUCTION NO. 6, AND DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS WITH RESPECT TO THE REMAINING UNEXHAUSTED CONTENTIONS

WILLIAM H. BECKER, Chief Judge.

This is a petition for a writ of habeas corpus by a state prisoner in custody at the Missouri State Penitentiary at Jefferson City, Missouri. Petitioner seeks an adjudication that his state 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. By order of February 12, 1973, petitioner was granted leave to proceed in forma pauperis.

Petitioner states that he was found guilty by a jury in the Circuit Court of Barry County, Missouri, of murder in the first degree; that on the 9th day of October, 1969, he was adjudged guilty and sentenced to death, which sentence was later reduced to a term of life imprisonment; that he appealed from the judgment and imposition of sentence to the Missouri Supreme Court; that the judgment and sentence was affirmed in State of Missouri v. Cobb, 484 S.W.2d 196 (Mo.Sup. en banc 1972); that petitioner has filed no prior postconviction motions, applications or petitions in this or any other court with respect to the judgment and sentence under review herein; and that he was represented by counsel at his arraignment and plea, his trial, and on appeal from the judgment and sentence to the Missouri Supreme Court.

Petitioner seeks an adjudication that his conviction and sentence were secured and imposed upon him illegally in violation of his federal constitutional rights. In support thereof, petitioner states the following three basic grounds: (A) petitioner was denied due process of law because there was insufficient evidence to support the jury's finding of guilty; (B) petitioner's rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States were violated because (1) the trial court erred in giving Instruction No. 5, thereby authorizing a conviction for first degree murder if the jury found petitioner guilty of robbery, and (2) the trial court erred in giving Instruction No. 6, thereby authorizing the jury to find petitioner guilty as charged if the jury found a conspiracy, which he states was not charged in the information; and (C) over petitioner's objection, evidence was improperly admitted at trial, which evidence was the product of an unconstitutional and unlawful arrest, search and seizure and in violation of petitioner's rights under the Fourth and Fourteenth Amendments to the Constitution of the United States.

On February 12, 1973, Judge John W. Oliver of this Court, to whom this cause was originally assigned, entered an order granting petitioner leave to proceed in forma pauperis and directing the respondent to show cause why the petition herein for a writ of habeas corpus should not be granted.

On March 5, 1973, counsel for respondent filed herein a response to the order to show cause, including therewith the following documents: (1) a photocopy of the transcript of the record on appeal from the Circuit Court of Barry County, Missouri; and (2) a photocopy of the decision of the Missouri Supreme Court on petitioner's appeal from the judgment and sentence of the Circuit Court of Barry County, Missouri.

On March 13, 1973, petitioner filed herein his pro se "Traverse to Respondent's Answer to Order to Show Cause," therein contending that he had exhausted his available state remedies with respect to all the grounds raised herein. In his traverse, petitioner also reiterates the facts and legal contentions in support of the three basic grounds stated in his petition herein.

On May 17, 1973, an order was entered transferring this cause to the undersigned pursuant to Local Rule 13D of the United States District Court for the Western District of Missouri.¹

Under the provisions of Section 2254, Title 28, United States Code, a state prisoner, in the absence of exceptional circumstances not shown to be present in the case at bar, must fully exhaust his currently available and adequate state remedies before invoking federal habeas corpus jurisdiction. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L. Ed.2d 837 (1963); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Under subsection (c) of Section 2254, Title 28, United States Code, a state prisoner's state remedies are ordinarily not considered exhausted so long as he may present his contentions to the state courts by "any available procedure." In the case at bar, the petition herein and other records available to this Court, including a photocopy of petitioner's transcript on appeal to the Missouri Supreme Court and the official report of petitioner's appeal to the Missouri Supreme Court in State of Missouri v. Cobb, 484 S.W.2d 196 (Mo. Sup. en banc 1972), show that not all of the legal, factual and evidentiary contentions raised by petitioner in the case at bar were presented to the Missouri Supreme Court on petitioner's direct appeal.

From the record and pleadings, it is evident that ground B(1) was never presented to the Missouri Supreme Court. In ground B(1), petitioner contends that the trial court erred in giving Instruction No. 5, thereby authorizing a conviction for first degree murder if the jury found petitioner guilty of robbery. In his traverse, petitioner states that Lucky Vance Stancliff, who was also found guilty with respect to the same murder in question, raised this precise issue on his appeal to the Missouri Supreme Court. See, State of Missouri v. Stancliff, 467 S.W.2d 26 (Mo.Sup.1971). Petitioner contends that the same issue raised by Stancliff on appeal was effectively decided adversely to him and therefore "it would be `frivolous' for Petitioner to now raise that ground in the State Courts in view of the Supreme Courts (sic) decision in the companion case and, merely prolong and delay this litigation to no avail." By the above statement, petitioner apparently seeks permission to deliberately bypass currently available state remedies with respect to ground B(1). Such an attempt cannot be permitted by this Court because of the clearly established federal policy against such an attempted deliberate bypass of currently available state remedies. Murch v. Mottram, 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 194 (1972), reh. denied, 409 U.S. 1119, 93 S.Ct. 894, 34 L.Ed.2d 704 (1973); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Deckard v. Swenson, 335 F. Supp. 992 (W.D.Mo.1971); Taggert v. Swenson, 313 F.Supp. 146 (W.D.Mo. 1970); Vera v. Beto, 332 F.Supp. 1197 (S.D.Tex.1971); Wilwording v. Swenson, Civil Action No. 73CV55-W-3 (W. D.Mo. October 19, 1973), affirmed (8th Cir. No. 73-1837, May 21, 1974); cf. Sanders v. United States, 373 U.S. 1, 17-18, 83 S.Ct. 1068, 1078-1079, 10 L. Ed.2d 148, 163 (1963).

On May 17, 1974, an order was entered substituting Donald W. Wyrick, present Warden of the Missouri State Penitentiary at Jefferson City, Missouri, as the correct respondent in this action,² and petitioner was directed to state in writing whether he intended to seek a ruling from the state courts on his contention (ground B(1)) that the trial court erred in giving the felony murder instruction. In addition, in order to determine whether either party desired to offer any additional evidence not contained in the transcript on appeal to the Missouri Supreme Court in State of Missouri v. Cobb, 484 S.W.2d 196 (Mo. Sup. en banc 1972), on one or more of the issues stated in the petition herein, each party was directed to separately state in writing whether they desired to offer such additional evidence.

On May 25, 1974, the undersigned received a response to the above-noted order from the petitioner dated May 23, 1974. In his letter, petitioner states that he desires to offer additional evidence with respect to the "affidavit given by Shirley Stancliff" and that evidence is desired to be offered on the ". . . truth or impossibility of whether the car she was driving could have reached the high speeds necessary to go a half a mile down the road in the wrong direction, turn around, go that ½ mile back, slow down to enter the 4 lane, then accelerate to whatever speed necessary to catch the car that I was driving before 3½ miles had passed — with my speed considered just a conservative 65 to 70 MPH." Petitioner further states that he wishes "to produce for your scrutiny, Deputy Sheriff Dean Stockton of Lawrence County, and have you hear testimony concerning one Clayton Farr" in connection with their knowledge of the murder weapons in question.

On May 24, 1974, counsel for respondent filed herein a "Motion for Extension of Time to File Pleadings," requesting therein ". . . an extension until June 1, 1974, in which to comply with this Court's Order to file a statement regarding proposed evidence." In light of petitioner's response and the inadequacy of the evidentiary record, this final judgment was prepared, thereby mooting respondent's request for an extension of time.

From the record presented herein, it is apparent that all the evidence necessary for a final determination on the merits with respect to ground C was never fully developed in the state courts nor fully presented to the Missouri Supreme Court. Therefore the issue raised in ground C cannot presently be decided by this Court. In ground C, petitioner contends that over petitioner...