Conley v. White, 78 0239 CV W 4.

Decision Date31 May 1979
Docket NumberNo. 78 0239 CV W 4.,78 0239 CV W 4.
Citation470 F. Supp. 1
PartiesEddie Joe CONLEY, Petitioner, v. Carl WHITE, Superintendent, Missouri Training Center for Men, Respondent.
CourtU.S. District Court — Western District of Missouri

Eddie Joe Conley, pro se.

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


ELMO B. HUNTER, District Judge.

One issue remains for consideration in this action under 28 U.S.C. § 2254: was petitioner denied a jury that fairly represented a cross-section of the community because women were automatically excluded from the jury on request?

Petitioner was charged by information with first degree robbery on January 20, 1975. Trial began on April 2, 1975, in the Circuit Court of Jackson County, Missouri, in Kansas City. A venire of forty-two persons, of whom eight or 19.04% were women, appeared for trial. Tr., 14-15. The Court impaneled a jury of twelve men. Tr., 44. During the selection process, the following proceedings occurred:

MR. MERRITT (Defense Counsel): I would like to address one more question to the panel or in the alternative, I'd like the Court to take judicial notice of the fact that the law, the present law in Missouri, allows the excusing of a woman on request simply because she is a woman.
MR. SCHRADER (Prosecutor): Say that again?
MR. MERRITT: I would like to ask the ladies present if they were allowed to be excused if they requested, or I'd like the Court to take judicial notice of the present law of Missouri which states that women may be excused from jury service for — because of the fact that they are women.
MR. SCHRADER: That's always been the law.
THE COURT: Well, we will take judicial notice that such is the law, that a female summoned for jury service may, upon her own request, be excused.
MR. MERRITT: In that event, I ask the Court to dismiss the jury — the jury panel and order a new panel that is selected from the community irrespective of sex. I believe that the defendant would be denied due process by the present method of selecting the panel.
THE COURT: The request is denied.
MR. MERRITT: Thank you, sir.

Tr., 41-42.

In his motion for new trial, petitioner made the following claim of error:

1. A panel of 34 qualified voters was available for consideration. The defendant objected to the panel on the basis that it did not represent a cross section of the citizenry. Because of the Missouri Law which allowed the female citizens to be excused from jury duty only because of their gender, deprived the Defendant of a representative venire from which the jurors were chosen.

Tr., 196-97. The motion was overruled.1

On appeal, petitioner presented his fair cross-section claim in the following form: "The court erred in not granting petitioner's motion to quash the venire because of the systematic exclusion of females from the panel. The operation of Article I, section 22(b) of the Missouri Constitution violates the petitioner's right to due process as guaranteed to him by the XIV Amendment to the United States Constitution." In support of this claim, petitioner cited Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), and Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961). He argued that the Missouri law giving women the right to be excused automatically from jury service upon request was an "automatic exemption based solely upon sex" and therefore facially unconstitutional under Taylor and Hoyt. The Missouri Court of Appeals summarily rejected the claim "for the reason that petitioner did not sustain his burden of proof in showing that a jury is not composed of a fair cross section of the community. . . Here, there was a mere oral assertion with no offer of proof; and that is a patently insufficient basis for his claim." State v. Conley, 541 S.W.2d 4, 6 (Mo.App.1976). Petitioner then filed motions under Missouri Rules 83.02 and 83.03, without success, but he did not file a postconviction attack under Rule 27.26. No Rule 27.26 motion has been filed since this action was filed.

On January 9, 1979, the United States Supreme Court decided Duren v. Missouri, ___ U.S. ___, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Duren squarely held that Missouri's "excuse on request" provision for women violated the fair cross-section clause of the Sixth Amendment of the United States Constitution. In a series of cases beginning with Lee v. Missouri, ___ U.S. ___, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979), the Supreme Court held that Duren was to be applied retroactively to juries sworn after the date of decision in Taylor v. Louisiana, supra. Taylor was decided on January 21, 1975, some four months before petitioner's jury was sworn. Lee also stated:

We note that in any case in which a jury was sworn subsequent to Taylor v. Louisiana and the fair-cross-section claimed based on exclusion of women was rejected on direct review or in state collateral proceedings because of the defendant's failure to assert the claim in timely fashion, relief is unavailable under 28 U.S.C. § 2254 unless the petitioner can show cause for having failed to raise his claim properly in the state courts. See Wainwright v. Sykes, 433 U.S. 72 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

Lee v. Missouri, ___ U.S. ___, ___, 99 S.Ct. 710, 711, 58 L.Ed.2d 736 (1979).

As the foregoing passage implies, the usual rules regarding exhaustion of state remedies in an action under 28 U.S.C. § 2254 apply when a Missouri prisoner raises a claim under Duren. Respondent argues that petitioner has not exhausted state remedies on his Duren claim and that it must therefore be dismissed. In response, petitioner argues that he has not waived his right to present this claim in a federal habeas corpus petition.

It is axiomatic that a state prisoner seeking federal habeas corpus relief must first exhaust state remedies by giving state appellate courts a fair opportunity to rule upon the claims presented in the federal petition. See, e. g., Pitchess v. Davis, 421 U.S. 482, 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1975); Tyler v. Swenson, 527 F.2d 877 (8th Cir. 1976). The exhaustion doctrine

reflects a policy of federal-state comity, . . . "an accommodation of our federal system designed to give the state the initial `opportunity to pass upon and correct' alleged violations of its prisoners' rights." Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971).

Picard v. Connor, supra, 404 U.S. at 275, 92 S.Ct. 509, 512. See also Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The doctrine reflects the practical necessity of preventing "unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution. . . ." Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886). See also Picard v. Connor, supra, 404 U.S. at 275, 92 S.Ct. 509. Tyler v. Swenson, 527 F.2d 877, 880 (8th Cir. 1976), states the general principle flowing from these concepts:

The federal courts should entrust the states with primary responsibility in their own criminal cases. . . . When a federal court is unable to determine unequivocally that an issue has been ruled upon by the state courts, comity requires that the initial determination of the issue be made by the state courts.

A second principle follows naturally from general concepts of comity: state appellate courts should not be bypassed in a situation where the Supreme Court decision relied upon by the petitioner was announced after the state appellate courts last considered his case. Daboul v. Craven, 429 F.2d 164 (9th Cir. 1970); Palmer v. Comstock, 394 F.2d 395 (9th Cir. 1968). The reasons for this rule are simple and clear. The states have the primary responsibility for ensuring that their criminal convictions conform to federal constitutional standards, and this responsibility does not end once the state has completed its initial review of a conviction. Thus, the states have the first responsibility to act upon controlling changes in the law occurring after the first appeal or post-conviction attack by a state prisoner. Missouri recognizes the importance of this principle by permitting changes in controlling law, state or federal, to be advanced in a second or successive petition under Rule 27.26. Meeks v. State, 512 S.W.2d 215 (Mo.App.1974).

In this case, petitioner's direct appeal presented only a cursory facial attack upon the constitutionality of Missouri's "excuse on request" provision. Petitioner presented no factual evidence in support of his claim, thereby distinguishing it from the attacks on the provision in State v. Duren, 556 S.W.2d 11 (Mo.1977), State v. Lee, 556 S.W.2d 25 (Mo.1977), State v. Minor, 556 S.W.2d 35 (Mo.1977), State v. Harlin, 556 S.W.2d 42 (Mo.1977), and State v. Davis, 556 S.W.2d 45 (Mo.1977). As noted by the United States Supreme Court in Duren, the statistical evidence presented in Duren and its companions, supra, was an essential part of the fair cross-section claim. Duren v. Missouri, ___ U.S. ___, ___, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

From the record before the Court, it is apparent that the Missouri appellate courts have not yet had an opportunity to examine petitioner's fair cross-section claim in light of the statistical evidence presented in Duren, Lee, Minor, Harlin and Davis, or the principles announced by the United States Supreme Court in Duren. Under these circumstances, the principles of comity discussed in this opinion compel the Court to hold that petitioner must pursue his fair cross-section claim in the Missouri courts before presenting it here. Petitioner may pursue state relief by filing a motion under Rule 27.26 in the state courts. Such a motion is an adequate and effective form of relief. Petitioner's fair cross-section claim will be dismissed without prejudice pending the outcome of his ...

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