Crider v. Swenson, 18430-1.
| Decision Date | 29 September 1970 |
| Docket Number | No. 18430-1.,18430-1. |
| Citation | 316 F. Supp. 985 |
| Parties | Fred L. CRIDER, Petitioner, v. Harold R. SWENSON, Warden, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Fred L. Crider, pro se.
Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., for respondent.
This case involves petitioner's second federal habeas corpus attack on his 30 year sentence imposed June 20, 1966 after jury trial in the Circuit Court of Phelps County, Missouri. Petitioner's conviction was affirmed on direct appeal in State v. Crider, (Mo.Sup.Ct., Div. 1, 1967) 419 S.W.2d 13. Relief will be denied for the reasons stated.
On December 6, 1967 petitioner, in his first petition filed in this Court, sought to invoke the habeas corpus jurisdiction of this Court. On December 20, 1967, in Crider v. Swenson, No. 1262 (unreported), we denied petitioner's first habeas petition in regard to all questions presented except petitioner's alleged claim of ineffectiveness of assistance of trial counsel. In his first habeas petition, petitioner, among other things, alleged his ineffective assistance claim in the language set out in the footnote below.1 We dismissed that portion of petitioner's claim without prejudice because of petitioner's failure to exhaust available State court remedies.
On March 19, 1968 petitioner filed a pro se Rule 27.26, V.A.M.R. motion in the State trial court. The ineffective assistance of counsel question which petitioner prematurely attempted to present to this Court in his original federal habeas corpus petition was not included in that pro se 27.26 motion. As will be noted presently, petitioner based his 27.26 ineffective assistance of counsel claim on an entirely new and different ground than that alleged in his first federal habeas corpus petition.
The State trial court's denial of petitioner's pro se 27.26 motion was affirmed in State v. Crider, (Mo.Sup.Ct., Div. 1, 1970) 451 S.W.2d 825. Because of the manner in which the Supreme Court of Missouri permitted the State trial court to apply Rule 27.26, the only federal question presented to and ruled on the merits by the State courts was the extremely narrow question presented in petitioner's pro se 27.26 motion. That narrow question, under familiar principles of exhaustion, is the only question which may properly be decided in this proceeding.
The sole ground for relief alleged in petitioner's pro se Rule 27.26 motion was as follows:
The court erred in denying the motion to vacate and set aside judgment of conviction and sentence because the sentence imposed upon appellant was in violation of Article I, Sections 14 and 18(a) of the Constitution of Missouri, 1945, V.A.M.S. and in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States because: A. Counsel chosen by appellant was not given adequate time to prepare for trial and the oral request for a continuance by such counsel was denied by the court. B. Appellant was deprived and denied of competent service of counsel of his own choosing at the trial and in preparation for the trial and the judgment and sentence is void because the court had no jurisdiction over him at the time. 451 S.W.2d at 826
The Supreme Court of Missouri accurately stated that the State trial court's denial of petitioner's pro se motion on the ground stated was "the sole point raised on this appeal" 451 S.W.2d at 826. We reiterate that this is the sole question which may properly be considered by this Court. For petitioner, using but slightly different language, presented exactly the same narrow question to this Court in his second federal habeas corpus petition.2
The Supreme Court of Missouri properly decided that question in accordance with applicable federal standards for the reasons stated in Part III of this opinion.
The State trial court made the following finding at the close of petitioner's Rule 27.26 hearing:
There is no evidence in the record of this hearing that a delay or continuance of the trial was timely sought or presented to the trial court and by the court denied, to movant's then defendant's prejudice, on the claimed ground that movant's then defendant's counsel required more time to prepare for trial. 27.26 TR. p. 55
The Supreme Court of Missouri sustained only the second portion of that finding, stating: "We sustain the trial court's finding that there is no record evidence that a continuance was denied to appellant's prejudice on the ground that more time was required by appellant's counsel to prepare for trial" 451 S.W.2d at 827
In regard to the first portion of the State trial court's finding, the Supreme Court of Missouri, after stating that petitioner's wife had "employed Hon. Jay White to defend her husband * * *" late in the evening of June 6, stated:
Mr. Turley testified that on the morning of June 7 there was "some discussion" between court and counsel about a continuance on the ground that Mr. White had just been brought into the case in the course of which the judge asked Mr. Turley if he had had time to prepare for trial. Mr. Turley answered, "Yes." The judge then asked Mr. Turley if he felt that he was ready for trial personally. Mr. Turley answered in the affirmative. No written request for a continuance was made. The court denied the oral request for a continuance. The case went to trial and the trial was concluded on June 7, 1966. 451 S.W.2d at 826
In another portion of its opinion, the Supreme Court of Missouri made the following additional findings:
When the request for a continuance was made on the morning of trial the circuit judge had two lawyers before him. One of them, employed the previous evening, was asking for time. The other, in whom the court had sufficient confidence to appoint as sole counsel for the defense, had been in the case for more than two months, had prepared for trial, and announced that he was ready to go to trial. The court, evidently entertaining the view that the rights of the accused would be protected in the hands of court-appointed counsel, together with whatever assistance might be afforded by the recently employed Mr. White, denied the request for additional time. Id. at 827
In still another place in its opinion, the Supreme Court of Missouri found that at the time the oral request for a continuance was made, "the defense was then prepared and appellant's court-appointed lawyer was ready for trial" Id. at 828 Under the established practice of this Court, see Noble v. Swenson, (W.D. Mo., 1968) 285 F.Supp. 385 at 386-387, when the Supreme Court of Missouri exercises its de novo power to make reliable findings of fact, we defer to such findings. We must accordingly ignore any findings to the contrary which may have been made by the State trial court.
When the facts reliably found by the Supreme Court of Missouri are viewed in light of that court's further reliable finding that "both Mr. Turley and Mr. White actively collaborated in the defense of Crider" 451 S.W.2d at 826-827, it is immediately apparent that the Supreme Court of Missouri properly articulated and applied controlling federal standards to the only federal question presented.
The narrow federal question presented by petitioner's pro se Rule 27.26 motion was simply whether the denial of a request for a continuance, based solely on the ground that one of his two lawyers had but recently accepted employment in the case, without more, could be said to have deprived petitioner of any federally protected constitutional right.
The Supreme Court of Missouri noted its familiarity with a wealth of Supreme Court of the United States and other cases in footnote 1 on page 826 of 451 S.W.2d. It properly stated that "None of these cases, examined, is a case in which a competent court-appointed attorney who had prepared for trial and who was ready to try the case was present when a continuance was requested by newly employed private counsel on the day of the trial." Id. at 828
The Supreme Court of Missouri correctly applied applicable federal standards when it concluded that:
So far as the present record shows, petitioner had no objection whatever to being represented at trial by both Mr. Turley and Mr. White. The circumstances under which the continuance was sought and refused did not appear at all in the transcript of petitioner's trial. Nor were those circumstances appropriately developed at the 27.26 evidentiary hearing. The petitioner and others who apparently had personal knowledge of those circumstances were not called as witnesses at the 27.26 hearing.
Whether petitioner was in fact agreeable to being represented at trial by both Mr. Turley and Mr. White (as the trial transcript would tend to indicate), or whether petitioner in fact wanted to be represented by Mr. White alone (and did not in fact wish to have Mr. Turley, his appointed counsel, to continue to represent him), were factual questions which have not yet received the attention of the State courts.
United States v. Denno, (2 Cir., 1965) 348 F.2d 12, collects the cases which establish the principle that a defendant has the right to reject appointed counsel for the purpose of representing himself, provided he makes an unequivocal request to act...
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