Dixon v. State of Missouri

• Decision Date: 15 January 1969
• Docket Number: Civ. A. No. 1366.
• Parties: Ollie DIXON, Petitioner, v. STATE OF MISSOURI, Respondent.
• Court: U.S. District Court — Western District of Missouri

295 F. Supp. 170

Ollie DIXON, Petitioner, v. STATE OF MISSOURI, Respondent.

Civ. A. No. 1366.

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

January 15, 1969.

Ollie Dixon, pro se.

Norman H. Anderson, Atty. Gen., Jefferson City, Mo., for respondent.

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

BECKER, Chief Judge.

Petitioner, a state convict confined in the Missouri State Penitentiary, seeks leave to proceed in forma pauperis and petitions for a writ of federal habeas corpus to invalidate his state conviction for burglary and stealing. Leave to proceed in forma pauperis will be granted.

Petitioner states that after a plea of not guilty, he was convicted by a jury of charges of burglary and stealing in the Circuit Court of Bates County; that on December 11, 1965, he was sentenced therefor to terms of 10 years' imprisonment and 5 years' imprisonment; that the terms were to run consecutively; that he appealed from the judgment of conviction and the imposition of sentence; that the Missouri Supreme Court affirmed the conviction and sentence on appeal (State v. Dixon (Mo.Sup.1967) 411 S.W. 2d 185); that he has filed, with respect to this conviction, a motion to vacate in the state trial court under Missouri Criminal Rule 27.26, V.A.M.R.; that said motion was denied on July 24, 1967; that he subsequently applied for habeas corpus in the trial court, which application was denied on February 26, 1968; that thereafter he again filed a motion to vacate in the trial court, and the motion was again denied on July 24, 1968; that he then applied for habeas corpus in the Missouri Supreme Court, as a result of which he was on May 13, 1968 "granted the right to file a new motion under Supreme Court rule sic 27.26"; that on May 13, 1968, his "motion for appeal under Rule 28.07" was granted by the Missouri Supreme Court; that on March 25, 1968, his application for habeas corpus was denied by the Missouri Supreme Court; that on July 17, 1968, his motion to obtain transcript in cases numbered 33897 and 33897-A was denied by the trial court; and that he was represented by counsel at his arraignment and plea, at his trial, at his sentencing, on appeal and upon his postconviction motions.

Petitioner states as grounds for the contention that his present confinement is unlawful that he was deprived of due process of law under the fourteenth amendment because the clerk of the state trial court deprived petitioner of the right to appeal from the overruling of his first 27.26 motion by failing to comply with the court's order to file a notice of appeal and a transcript in the Missouri Supreme Court; that inadmissible statements which were "illegally and unconstitutionally obtained" were admitted against him at his trial in that one Mike Schwanders was permitted to testify over objection that he heard petitioner tell the prosecuting attorney his name was Ollie Dixon, "thereby implying and conveying to the jury that the petitioner had a prior criminal record;" that witness Harvey Williamson was permitted to testify over objection that petitioner admitted to him that he broke into the Kisner Store because he was hungry; and that petitioner was not afforded effective assistance of counsel because his attorneys did not "pursue any conclusion from the court on the charge of prior offense allegations" which is evidenced, petitioner contends, by the fact that, while petitioner had a hearing on his 27.26 motion on July 22, 1967, petitioner did not obtain evidence to raise this ground until February 5, 1968, when he was allowed to read the transcript while he was in the trial court for his habeas corpus application. Petitioner's previous petition for habeas corpus in this Court was dismissed on April 26, 1967, for failure to exhaust state remedies under Missouri Rule 27.26.

The official report of the opinion affirming the trial court on petitioner's appeal to the Missouri Supreme Court, State v. Dixon, supra, reveals that petitioner there raised only one of the grounds presented here—inadmissibility of the two statements of the arresting officers. Petitioner further states that on May 13, 1968, the Missouri Supreme Court granted him "the right to file a new motion under Supreme Court rule (sic) 27.26." He does not allege to have yet filed that motion. He also states that his motion for a late appeal¹ under Missouri Rule 28.07 was granted on May 13, 1968.

It is apparent from the foregoing allegations of petitioner that he has not exhausted his currently available state remedies to entitle him to habeas corpus relief in this Court. Section 2254, Title 28, U.S.C., provides that persons in custody pursuant to a state court judgment shall not be granted relief in federal habeas corpus:

"* * * unless it appears that the applicant has exhausted the remedies available in the courts of the state, or that there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner."

Paragraph (c) of the same section provides:

"An applicant shall not be deemed to have exhausted the remedies available in the courts of the state, within the meaning of this section, if he has the right under the law of the state to raise, by any available procedure, the question presented."

With regard to the grounds of petitioner's...