Davis v. Swenson

• Decision Date: 03 February 1970
• Docket Number: No. 17468-1.,17468-1.
• Citation: 308 F. Supp. 635
• Parties: Alphonso Denny DAVIS, Petitioner, v. Harold R. SWENSON, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

308 F. Supp. 635

Alphonso Denny DAVIS, Petitioner, v. Harold R. SWENSON, Warden, Respondent.

No. 17468-1.

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

February 3, 1970.

James F. Duncan, Watson, Ess, Marshall & Enggas, Kansas City, Mo., for plaintiff.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, Mo., for defendant.

MEMORANDUM AND ORDER DENYING HABEAS CORPUS

JOHN W. OLIVER, District Judge.

I.

Petitioner, an inmate of the Missouri State Penitentiary, attacks the validity of a ninety-nine year sentence imposed on June 4, 1956 by the Circuit Court of Cooper County, Missouri. The charge was forcible rape. Petitioner's conviction was based upon a plea of guilty. Petitioner has exhausted his available State postconviction remedies. See State v. Davis, (Sup.Ct.Mo., Div. 1, 1969) 438 S.W.2d 232, in which the Supreme Court of Missouri affirmed the State Trial Court's denial of postconviction relief.

Petitioner alleges in his federal habeas corpus petition that federally protected constitutional rights were violated in that (1) his plea of guilty was involuntary and accepted under circumstances which did not comply with applicable federal standards; (2) that he was denied the assistance of counsel at preliminary hearing; and (3) that his appointed counsel did not render the effective assistance required by the Constitution of the United States.¹

We have carefully studied all the State court proceedings and conclude that the Supreme Court of Missouri properly approved the findings of fact made by Judge Frank W. Hayes, the postconviction trial judge, as being abundantly supported by the record. As authorized by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), we determine that the State court findings were reliably found and that such findings should, in accordance with familiar principles based on State and federal court relations, be accepted by this Court. Because of our acceptance of the State court findings of fact, the opinion of the Supreme Court of Missouri, reported in 438 S.W.2d 232, should be referred to for the background factual situation of this case.

In affirming the trial court's denial of postconviction relief, the Supreme Court of Missouri stated:

The trial court made an extensive review of the evidence and, inter alia, found as a matter of fact that the defendant voluntarily and without any coercion made and signed the written confession on February 7, 1956; that the nature of the charges against the defendant were adequately explained to him by his attorney before the hearing and by Judge Hoffman at the hearing and that the defendant understood the explanations and that he knew what he was doing and voluntarily and without fear or coercion entered his plea of guilty on June 4, 1956; and that the defendant had the effective assistance of legal counsel.

We determine that the conclusions of law implicit in that statement is consistent with applicable and controlling federal standards and that petitioner's application for federal habeas corpus should be denied.

II.

The answer to the question of whether or not petitioner's written confession was voluntary does not determine petitioner's right to postconviction relief. The State trial judge and counsel for both parties properly recognized that the question of whether petitioner was innocent or guilty was not a relevant issue in the postconviction hearing (Tr. 82, 120, 173, 232). Testimony concerning that question was, however, properly received in evidence because the circumstances in regard to petitioner's confession were relevant in regard to petitioner's other claims, particularly those which related to the voluntariness of his plea of guilty and his claim of ineffective assistance of counsel. Indeed, the procedures following the State trial court, which included the reception of all available evidence and which permitted an express finding and conclusion on the issue of the voluntariness of the confession, effectively avoided the troublesome question presented in United States ex rel. Ross v. McMann, (2nd Cir. 1969 en banc) 409 F.2d 1016, cert. pending, 396 U.S. 813, 90 S.Ct. 65, 24 L.Ed.2d 67.² Our acceptance of the State court finding that the petitioner voluntarily and without any coercion made and signed the confession, when considered in light of other undisputed facts established in the record, enables this Court to rule petitioner's claims on the basis of a factual situation appropriately developed on plenary evidentiary hearing. Resort to rules of presumption which raise the questions of substance presented in the Second Circuit cases which presently pend in the Supreme Court are therefore not presented in this case.

III.

The Supreme Court of Missouri did not articulate the federal constitutional standards it applied in regard to the manner in which it determined the voluntariness of petitioner's plea of guilty. However, we may and do, pursuant to the teaching of Townsend v. Sain, supra, 372 U.S. at 315, 83 S.Ct. at 758, "properly assume that the state trier of fact applied correct standards of federal law to the facts" which we have determined were reliably found. Although no federal cases were cited by either of the parties in their briefs filed in the Supreme Court of Missouri, and although the Supreme Court of Missouri did not cite any federal cases, there is no evidence or reason to believe that an incorrect standard was in fact applied by that court in ruling the federal question presented. Under those circumstances the assumption we have made is permissible under Townsend v. Sain.

The question of whether or not it may be said that petitioner's plea of guilty was voluntary is complicated by the fact that the transcript of the proceedings at the time the plea of guilty was tendered and accepted is not, nor can it be, made available. It is established that the sentencing judge, the Honorable Dimmitt Hoffman, and the court reporter are both dead. An unsuccessful effort was made to find the court reporter's notes so that they could now be transcribed (Tr. 85).

In light of those circumstances, all available evidence in regard to petitioner's plea of guilty was developed at the postconviction hearing. On the basis of that evidence, the State trial judge found and concluded that petitioner's plea was voluntary.

In support of its acceptance of the finding that petitioner understood the nature of the charges and voluntarily entered his plea of guilty, the Supreme Court of Missouri accurately stated that:

Judge Riley who was Prosecuting Attorney at the time of the plea * * * testified that he was sure that Davis understood the charges against him; that he recalled that Judge Hoffman `went to some detail explaining the charges' to Davis; that Davis pleaded guilty separately to all four charges and was sentenced after each plea before the next plea was taken because that was necessary to prevent the sentences running consecutively under the statute. * * *

Mr. Egan petitioner's appointed counsel had read the charges to his client, explained them and the range of punishment and the fact that the sentences could be made to run consecutively. * * * Mr. Egan further testified that the circuit judge of Cooper County explained the charges, treated them separately and made them run concurrently as agreed and as recommended by the prosecuting attorney. 438 S.W.2d 236, 237.

Judge Riley remembered that Judge Hoffman went into greater detail than he, as prosecutor of Cole County, was accustomed and recalled a circumstance which corroborates that recollection. Judge Riley testified:

I thought it took longer than we would have taken in Cole County. I remember. I recall that I insisted that one charge be disposed of before a second one was taken up. I don't know whether you do or not, but very few people know about the statute that says if you plead guilty to two of them at one time, they are consecutive sentences. I knew that and I wasn't about to take advantage of this boy by giving his consecutive sentences, when he and his attorney knew that I was recommending concurrent sentences. Tr. 127

Judge Riley was, of course, referring to Section 546.480, V.A.M.S., a section of the Missouri statute with which many Missouri lawyers are not familiar as is evidenced by the numerous cases annotated under that section in Vernon's Annotated Missouri Statutes.

In addition to what has been stated, the transcript of the postconviction proceeding also shows that petitioner testified that his counsel's testimony concerning his advice to petitioner "about the range of punishment" and the fact that counsel had "read the informations to you * * * and discussed them with you" was true Tr. 178. The Supreme Court of Missouri supported its acceptance of the trial court's finding by noting that petitioner's counsel "was able to get the State to waive the death penalty" 438 S.W.2d at 237. We find and conclude that the State courts were clearly justified in taking that circumstance into consideration in its evaluation of petitioner's knowledge at the time of his plea of guilty. The record shows that petitioner's counsel was familiar with and had discussed with petitioner the fact the regular judge of the Circuit Court of Cole County, before whom petitioner's case pended before petitioner's counsel was successful in having a motion for change of venue granted, had, in the relatively recent past, imposed a death sentence on a plea of guilty of another escapee from the penitentiary who had been charged with rape committed immediately after his escape from custody.³ Under the circumstances, it is most reasonable that petitioner was "well pleased" to learn that he would not be required to run any risk in regard to the death penalty and that he told his counsel that "it was the best news that he had ever had" Tr. 110. It is apparent that the State court finding was appropriately supported by the record.

IV....