Deckard v. Swenson, Civ. A. No. 19114-3.

• Decision Date: 22 March 1971
• Docket Number: Civ. A. No. 19114-3.
• Citation: 335 F. Supp. 992
• Parties: John Vernon DECKARD, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

335 F. Supp. 992

John Vernon DECKARD, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 19114-3.

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

March 22, 1971.

John Vernon Deckard, pro se.

No appearance for respondent.

ORDER GRANTING PETITIONER LEAVE TO PROCEED IN FORMA PAUPERIS AND JUDGMENT DISMISSING PETITION FOR HABEAS CORPUS WITHOUT PREJUDICE

WILLIAM H. BECKER, Chief Judge.

Petitioner, a state convict confined in the Missouri State Penitentiary, petitions this Court for a writ of federal habeas corpus adjudicating as invalid his state conviction of the offense of forcible rape. Petitioner also requests leave to proceed in forma pauperis. Leave to proceed in forma pauperis will be granted.

Petitioner states that he was convicted by a jury in the Circuit Court of Taney County of the offense of forcible rape; that he was sentenced on that conviction on December 16, 1960, to a term of 99 years' imprisonment; that he appealed the judgment of conviction and imposition of sentence; that "petitioner was forced to prepare his own appeal without counsel"; that the Missouri Supreme Court affirmed the judgment of conviction and imposition of sentence on the original appeal (State v. Deckard, Mo., 354 S.W.2d 886); that, after the decisions of the United States Supreme Court in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, reh. denied 373 U.S. 905, 83 S.Ct. 1228, 10 L.Ed.2d 200, and of the United States Court of Appeals for the Eighth Circuit in Bosler v. Swenson (C.A.8) 363 F.2d 154, and Donnell v. Swenson (C.A.8) 382 F.2d 248, the Missouri Supreme Court entered an order setting aside his original conviction and reinstating his direct appeal on the docket of the Missouri Supreme Court; that on his second direct appeal, petitioner's conviction and sentence were again affirmed (State v. Deckard, Mo., 426 S.W.2d 88); that subsequently petitioner moved to vacate his conviction and sentence in the state trial court under the provisions of Missouri Criminal Rule 27.26, V.A.M.R.; that the state trial court denied the motion after an evidentiary hearing and the denial was subsequently affirmed on July 13, 1970, by the Missouri Supreme Court (Deckard v. State, Mo., 456 S.W.2d 35); and that petitioner was represented by counsel at his trial and sentencing, on his second appeal, but not on preparation, presentation or consideration of his petition herein.

In his petition at bar, petitioner states the following as the grounds upon which he bases his allegation that he is being held in custody unlawfully:

"(a) Evidence was obtained as a result of an Illegal Search and Seizure and in violation of Petitioners rights under the 4th and Fourteenth Amendments of the United States Constitution.

"(b) Ineffective service of legal counsel.

"(c) That information filed in the case was insufficient to invoke the provision of the Habitual Criminal Act, Sec. 556.280 R.S. Mo.1959."

In his prior petition for habeas corpus in this Court, in which petitioner sought to challenge the same state conviction, Deckard v. Swenson (W.D.Mo.) Civil Action No. 18569-3, petitioner stated the following as the grounds upon which he based his allegation in that case that he was being held in custody unlawfully:

"The Court committed prejudicial error when the Court admitted into evidence state's exhibit F, a pair of blue jean trousers, the admission of such evidence was obtained as a result of an illegal search and seizure and in violation of movant's rights under the Fourth and Fourteenth Amendments to the United States Constitution.

"The Court committed prejudicial error when the Court denied movant an opportunity to subpoena witnesses, and is clearly erroneous.

"The finding of the Court that movant was adequately represented by counsel is clearly erroneous because of the failure of counsel to file motion to suppress evidence failure to file motion for new trial, failure to file motion and notice of appeal further failure to file an appeal although requested by movant to do so.

"The trial court erred in finding that the information filed in the case was sufficient to invoke the provisions of the Habitual Criminal Act, Section 556.280 R.S.Mo.1959."

The petition in that case was dismissed without prejudice to petitioner's currently available state remedies by the judgment entered on August 17, 1970. Therein, this Court stated as follows:

"Whatever the merits of these contentions, it is readily apparent that the petition herein should be dismissed without prejudice for failure of petitioner to have raised the contention of being denied the opportunity to subpoena witnesses in his own behalf in the courts of the State of Missouri. It is conceivable that such an allegation may state a denial of petitioner's Sixth Amendment right `to have compulsory process for obtaining witnesses in his favor' and may therefore constitute a ground for invalidating his state conviction. The official reports and files and records of petitioner's trial and direct appeals and his postconviction motion and the appeal therefrom show that the ground has hitherto not been entertained in the courts of Missouri. The official report of petitioner's original appeal shows that the Missouri Supreme Court noted that `matters required to be presented to the trial court in a motion for new trial are not preserved for review under this record' and that the Missouri Supreme Court considered only the sufficiency of the indictment and of the evidence and found against petitioner on both grounds. State v. Deckard, Mo., 354 S.W.2d 886, 888. On his second direct appeal, petitioner raised the points of (1) erroneous instruction in that it did not hypothesize the facts stated in the information and (2) exorbitant and grossly excessive punishment. Thereafter, in November of 1968, petitioner filed his motion to vacate under Missouri Criminal Rule 27.26. Petitioner has attached a true copy of the motion to the petition in this case. It shows that the following grounds were raised on that motion in the state trial court:

`The information is fatally defective because said information fails to allege that the movant had been "subsequently placed on probation, parole, fined or imprisoned" as a result of the convictions for the prior offenses alleged; that the information only charges that the movant was "received" at the Missouri State Penitentiary and not that he was "imprisoned" as required by the statute; And the allegations of the information with reference to the prior convictions were not sufficient to invoke the provisions of the Habitual Criminal Act, Section 556.280 R.S.Mo. (1959) and as a consequence the movant was denied due process of law contrary to the 14th Amendment to the United States Constitution, and Article 1 Section 10 of the Missouri Constitution (1945).

* * * * * *

`That state's Exhibit (F), a pair of Blue Jean trousers were inadmissable (sic) as evidence and should have been excluded as evidence because said evidence was the fruits of an unlawful, unconstitutional, and unreasonable search and seizure, and as a consequence the movant was denied due process of law contrary to the 4th and 14th Amendments to the United States Constitution, and Article 1 Section 15, Article 1 Section 10 of the Missouri Constitution (1945).

* * * * * *

`The movant did not have competent and effective assistance by trial counsel and as a consequence he was denied due process of law contrary to the 6th and 14th Amendments to the United States Constitution and Article 1 Section 18(a), Article 1, Section 10 of the Missouri Constitution (1945).'

"Further, from the transcript of the Rule 27.26 hearing, it is readily apparent that the state trial court did not independently make any findings or conclusions with respect to whether petitioner was prevented the exercise of his right to have compulsory process for obtaining witnesses in his favor. And the opinion of the Missouri Supreme Court on appeal from the denial of the Rule 27.26 motion by the state trial court recites that petitioner raised only three points on that appeal as follows:

`I. The trial court erred in finding that the information filed in the case was sufficient to invoke the provisions of the Habitual Criminal Act, Section 556.280, R.S.Mo.1959; II. The trial court erred in finding that appellant had effective assistance of counsel and was not denied due process of law; III. The trial court erred in finding that State's Exhibit F, a pair of blue jean trousers, was properly admitted into evidence because the admission of such evidence was prejudicial and such evidence was obtained as a result of an illegal search and seizure and violated appellant's rights under the Fourth and Fourteenth Amendments to the United States Constitution.' Deckard v. State, Mo., 456 S.W.2d 35 (No. 54,974, p. 2 37)

"It is well settled that the requirement of § 2254, Title 28, United States Code, that a state prisoner exhaust his available state remedies (in the absence of exceptional circumstances not stated to be present in this case) before invoking federal habeas jurisdiction includes the requirement that state remedies be exhausted with respect to all of a state prisoner's contentions of the invalidity of his conviction. White v. Swenson (W.D. Mo. en banc) 261 F.Supp. 42; Richardson v. Swenson (W.D.Mo.) 293 F. Supp. 275; Dixon v. Missouri (W.D. Mo.) 295 F.Supp. 170. The well established and well recognized purpose of this rule is to avoid piecemeal adjudications of a state prisoner's several claims for the illegality of his conviction and sentence. Cf. Taggert v. Swenson (W.D.Mo.) 313 F.Supp. 146. It must therefore be deemed that petitioner has not exhausted his currently available state remedies, in the absence of exceptional circumstances not stated or shown to be present in this case. Petitioner should therefore file another motion to vacate his state conviction

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