Cody v. Missouri Bd. of Probation & Parole

• Decision Date: 10 April 1979
• Docket Number: No. 78-0405-CV-W-3.,78-0405-CV-W-3.
• Citation: 468 F. Supp. 431
• Parties: Robert R. CODY a/k/a James Henry Rollins, Petitioner, v. MISSOURI BOARD OF PROBATION AND PAROLE et al., Respondents.
• Court: U.S. District Court — Western District of Missouri

468 F. Supp. 431

Robert R. CODY a/k/a James Henry Rollins, Petitioner, v. MISSOURI BOARD OF PROBATION AND PAROLE et al., Respondents.

No. 78-0405-CV-W-3.

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

April 10, 1979.

COPYRIGHT MATERIAL OMITTED

Robert R. Cody, pro se.

Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

RUSSELL G. CLARK, District Judge.

This action, a habeas corpus petition under 28 U.S.C. § 2254, currently pends on petitioner's response to the Court's order of March 14, 1979. In that order, the Court noted that petitioner had filed numerous other actions in this Court, that at least one, Rollins v. Wyrick, No. 76-CV-0358-W-2, had been denied on its merits after a full evidentiary hearing in which petitioner was represented by counsel and affirmed on appeal, Rollins v. Wyrick, 574 F.2d 420 (8th Cir. 1978), that the claims presented in the motion to amend filed in this case accrued at the time of his original trial, that petitioner had actively pursued his rights through pro se litigation, and that petitioner had more than the usual layman's knowledge of law in that he had completed two years of law school at the time of his conviction. On this basis, the Court directed petitioner to show cause within fifteen days why this action should not be dismissed as an abuse of the writ.

In response, petitioner has filed a thoughtful statement. Summarizing briefly, it states that the claims presented in this action had not yet been presented in the Missouri appellate courts at the time 76-CV-0358-W-2 went to trial and that he endeavored to present them as soon as he had exhausted state remedies. He also asserts that his jail-time credit claim, discussed more fully below, was not trial-related and did not accrue until well after 76-CV-0358-W-2 began. On this basis, he argues that he has not abused the writ of habeas corpus.

To understand the issues involved in this action at this time, it is necessary to recap the past progress of this action. As originally filed, the petition raised one claim: that Missouri prison officials refused to credit time spent by petitioner in federal custody against his state sentence. The state submitted a pleading in opposition to this claim, and petitioner filed a traverse. On October 30, 1978, petitioner filed a motion to amend his petition so as to add four other claims:

1. that he was denied the effective assistance of counsel;

2. that RSMo § 195.020 was unconstitutional as applied to petitioner because it did not require the state to prove that he knowingly dispensed marijuana;

3. that RSMo § 195.080, a related statute, was also unconstitutional; and

4. that there was insufficient evidence to support the jury's verdict.

The Court granted leave to amend, noting the general policy that all habeas corpus claims should be raised in a single petition rather than piecemeal, and directed the state to submit a second response. The state did so, alleging that the four new claims were exhausted but without merit, and petitioner filed a second traverse.

Prior to a full discussion of the merits of petitioner's claims, it is necessary to discuss the abuse issue because this action may be dismissed wholly or partially if part or all of it is an abuse of the writ. Green v. Wyrick, 462 F.Supp. 357 (W.D.Mo.1978).

The abuse doctrine is based upon a single, well-established principle of federal law: "Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). As the Court noted in a past order, this policy reflects the overwhelming interest that criminal matters are, as far as possible, finally litigated promptly and expeditiously. Sunal v. Large, 332 U.S. 174, 182, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947); Comment, Restricting the Indigent's Right to a Transcript, 1976 Wash.U.L.Q. 318, 332-33 n. 68 (1977).

Abuse of the writ is codified in 28 U.S.C. § 2244, which provides:

When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States . . . release from custody or other remedy on an application for writ of habeas corpus, a subsequent application for writ of habeas corpus need not be entertained by a Court of the United States . . . unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court . . . is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.

Emphasis added. A similar provision has been adopted as part of the federal rules governing habeas corpus petitions. Rule 9(b), Rules Governing Section 2254 Cases in the United States District Courts.

Certain practices that have long been considered abuse of the writ are described in Green v. Wyrick, 462 F.Supp. 357, 360 (W.D.Mo.1978):

Past discussions of abuse have focused on several practices, including the deliberate withholding of known grounds in the hope of obtaining two or more hearings, deliberate delay in the presentation of claims, or presentation of claims that were abandoned in prior actions.

But, as Green notes, new forms of abuse have emerged with the relaxation of standards governing the filing and processing of pro se litigation. Under present standards, it is possible for a litigant to present a colorably cognizable action that is in fact an attempt to circumvent the orderly processes erected by the state and federal governments for review of criminal convictions. Id. at 360-61. These cases, though facially serious attacks upon a prior criminal conviction, are, in fact, attempts to avoid state procedural rules or past decisions adverse to the claims raised. It is these newer forms of abuse that pose the most serious difficulties for the Courts.

In this action, petitioner argues that his failure to present the four claims in his motion to amend was due to the fact that he did not exhaust state remedies on them until mid-1978. Petitioner does not state and the record does not reveal why he failed to exhaust state remedies on these claims at the same time he pursued state relief on the prejudicial pretrial publicity claim presented in 76-CV-0358. As a person with substantial training in the law, petitioner cannot seriously argue that he was unaware at the time of his direct appeal that the statutes under which he was indicted could be held unconstitutional; these principles are familiar to all first-year law students and to many laymen. Petitioner's claims concerning the sufficiency of the evidence against him and the alleged failure of his trial attorney to secure the testimony of an alibi witness were apparent during trial. Despite the obviousness of these claims, they were not raised in petitioner's direct state appeal, State v. Rollins, 449 S.W.2d 585 (Mo.1970), or in any postconviction proceeding until 1976, some eight years after petitioner's trial and six years after the direct appeal. Petitioner offers no explanation for this failure.

Petitioner does assert, however, that the problems inherent in exhaustion and abuse leave him in a "Catch-22 situation":

On the one hand, this court is implying that petitioner has abused the great writ because he didn't raise all of his issues, including those five presented in this petition, in case No. 76-358-CV-W-2, and on the other hand this court has made it clear that it will not entertain those claims unless petitioner has first exhausted all available state remedies . . . This is what is known as a Catch-22 situation for the petitioner. The two alternatives effectively cancel each other out. This would leave petitioner without recourse to the Courts.

Petitioner's Answer to Show Cause Order, at 1. This assertion is erroneous. There is no "Catch-22" embodied in the exhaustion and abuse doctrines. As a practical matter, the problem of abuse may be avoided in all but the most exceptional cases if the petitioner simply refrains from filing any federal habeas corpus petition until he exhausts state remedies on all of the claims he may wish to present in his federal petition and, in the first federal petition, presents all available claims. Where the petitioner presents one exhausted claim in his first federal petition but waits to exhaust state remedies and present other claims to the federal court until after the first petition has been determined, he has, by definition, abused the writ of habeas corpus by attempting to litigate in piecemeal fashion claims that could have been presented earlier. See Sanders v. United States, supra, at 18, 83 S.Ct. 1068.

In this case, all of the evidence shows that, with respect to the four claims in the motion to amend, petitioner withheld them from consideration by any state or federal court until after his first federal habeas corpus petition engaged in abuse of the writ of habeas corpus, and his four claims in the motion to amend may be dismissed on that basis.

The fifth claim in this action — jail-time credit — stands on a different footing, however. As petitioner properly notes, the credit claim did not first accrue until approximately the same time as his first federal habeas corpus petition, long after he had pursued his direct state appeal. While the preferable procedure would have been dismissal of No. 76-CV-0358 without prejudice pending exhaustion of the jail-time credit claim, the fact remains that petitioner did begin to pursue state relief on the claim as quickly as may have been possible. Under these circumstances, the Court holds that petitioner has not abused the writ with...