Cyronne-DeVirgin v. State of Missouri
Citation | 341 F.2d 568 |
Decision Date | 11 June 1965 |
Docket Number | No. 17629.,17629. |
Parties | Achillies G. CYRONNE-DeVIRGIN, Appellant, v. STATE OF MISSOURI and Dr. Donald B. Peterson, Superintendent of State Hospital No. 1, Fulton, Missouri, Appellees. |
Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Wayne F. Caskey, Jr., Kansas City, Mo., for appellant.
Thomas F. Eagleton, Atty. Gen., and Howard L. McFadden, Asst. Atty. Gen., State of Missouri, Jefferson City, Mo., for appellee.
Before JOHNSEN, Chief Judge, and VOGEL and MEHAFFY, Circuit Judges.
Achillies G. Cyronne-DeVirgin has appealed an order of the District Court denying summarily his pro se petition for a writ of habeas corpus for failure to exhaust state remedies before seeking federal relief. The District Court found on the record of the state proceedings that petitioner had never appealed an order of the state trial court overruling his motion to vacate sentence under Rule 27.26 of the Missouri Rules of Criminal Procedure, V.A.M.R.
The District Court permitted petitioner to file a notice of appeal in forma pauperis but denied his request for a certificate of probable cause. In our order dated March 27, 1964, we granted the certificate and appointed counsel to represent petitioner in this appeal.
In that same order, we reviewed the posture of petitioner's case:
We instructed the State of Missouri, as respondent, to indicate in its brief what remedies, if any, remain available to petitioner in the Missouri courts to test his sanity and determine the validity of his detention.
The State concedes for purposes of this appeal that petitioner's several unsuccessful applications to the Missouri Supreme Court for a writ of habeas corpus exhausted under the state system whatever means available to him at that time for challenging the efficacy of the proceedings whereby he was originally committed.
During this same period, apparently the State of Missouri had no statutory means by which petitioner could question the existing legality of his detention for insanity. However, by filing a writ of habeas corpus with the State Supreme Court, the institution wherein petitioner was confined could have been directed to exercise its power to discharge him if satisfied that he had regained his sanity. Richey v. Baur, Mo., 298 S.W.2d 445 (1957). The record does not show that petitioner sought this type of relief in his varied pleas to the Missouri Supreme Court which contested only the legality of his original commitment for failure to accord him due process of law.
Further, the State admits that petitioner's failure to appeal his collateral attack of the state sentence did not prejudice his standing in federal court. The Attorney General of Missouri is of the...
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