Donnell v. Swenson

• Citation: 258 F. Supp. 317
• Decision Date: 04 October 1966
• Docket Number: No. 997.,997.
• Parties: William B. DONNELL, Petitioner, v. Harold R. SWENSON, Warden, Respondent.
• Court: United States District Courts. 8th Circuit. Western District of Missouri

258 F. Supp. 317

William B. DONNELL, Petitioner, v. Harold R. SWENSON, Warden, Respondent.

No. 997.

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

August 23, 1966.

Addendum October 4, 1966.

P. Pierre Dominique, Jefferson City, Mo., for petitioner.

Norman H. Anderson, Atty. Gen., State of Missouri, Howard L. McFadden, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM OPINION

JOHN W. OLIVER, District Judge.

We are required to determine in this habeas corpus proceeding involving an inmate in the Missouri Penitentiary the important question of whether the principles of Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), as read by our controlling court in Bosler v. Swenson, Warden (8th Cir.1966), 363 F.2d 154 (decided July 14, 1966 and not yet reported), are to be applied retroactively. Bosler definitely determined that Missouri's former criminal appellate procedure did not satisfy the teachings of Douglas. We are under duty to follow Bosler.¹

The single federal question that will be determined is whether petitioner's rights under the fourteenth amendment to the Constitution of the United States were violated because the State of Missouri failed to appoint appellate counsel to represent him on his direct appeal of his 1960 conviction.

Determination of that question requires that we answer a second question left open by the Court of Appeals in Bosler namely, whether Douglas, decided by the Supreme Court in 1963, is to be applied retrospectively in regard to petitioner's 1960 conviction. See State v. Donnell, (Mo., 1961) 351 S.W.2d 775.

No question of exhaustion of remedies is presented because the questions here presented were decided by the Supreme Court of Missouri when it affirmed the State trial court's denial of petitioner's Rule 27.26, V.A.M.R. motion. See State v. Donnell (Mo., 1965), 387 S. W.2d 508.² Douglas v. People of State of California was first cited on page 511 of 387 S.W.2d, and was specifically discussed on page 513. On the latter page, the Supreme Court of Missouri stated:

Defendant asserts a violation of his constitutional rights in that he was not furnished with counsel on his appeal, as shown in 351 S.W.2d 775, citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R. 2d 733. We note, also, Douglas et al. v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. (387 S.W.2d at 513).

The Supreme Court of Missouri then stated:

The Gideon case, which established the right to counsel in the trial of a felony case, was decided on March 18, 1963. The Douglas case was decided on March 18, 1963. * * * The judgment and sentence involved here was rendered on September 7, 1960, two and one-half years prior to the ruling in Douglas supra, that counsel was there required on appeal. (387 S.W. 2d at 513-514).

The appellate criminal procedures of Missouri held to be constitutionally void by the Eighth Circuit Court of Appeals in Bosler were then described in detail, the Supreme Court of Missouri concluding that under those procedures "it is probable that as large a percentage of criminal judgments have been reversed in this Court without counsel, as have been reversed with counsel." It then held:

Under these circumstances, we decline to hold, ex post facto, that this defendant was deprived of any constitutional right because his trial counsel did not brief and argue the case on appeal or because other counsel was not appointed to do so. (387 S.W.2d at 514.)

Petitioner thus exhausted his State court remedies. Familiar law requires that we determine the validity of petitioner's claims under the federal Constitution in this habeas corpus proceeding. Decision of this case should not be delayed. The question presented is involved in numerous other cases that pend in this Court. We suspect that still other cases pend in the Supreme Court of Missouri and various State trial courts because we have seen the question presented in many applications for federal habeas corpus which we have routinely denied without prejudice in order that all State remedies be exhausted. We assume those petitioners have turned to the State courts.

Prompt review and final binding determination of the question involved can not help but be of benefit to courts, both State and federal, and to all other persons required to struggle with well known current problems of administration of criminal justice. Counsel are assured that we will make all requested appropriate orders to expedite appellate review.

I.

In Bosler, the Court of Appeals was not required to reach the question of whether Douglas was to be applied retroactively. The factual situation presented in that case was that "Bosler's direct appeal from the conviction had not been decided and was still pending when the Douglas decision was announced." "This being the situation," a question of absolute retrospective application of Douglas was not presented and the Court of Appeals therefore concluded, per curiam, that "the Supreme Court of Missouri was required to heed and give effect to the teachings of that Douglas case."

The Court of Appeals determined that the Supreme Court of Missouri, "having failed so to do give heed and effect to the teachings of Douglas, we are compelled to intervene." The Court of Appeals reversed the District Court's refusal to grant the writ, and ordered the writ to issue unless the State of Missouri take appropriate action within a ninety day period.

This case, unlike Bosler, presents a factual situation in which the petitioner's direct appeal was in fact decided before Douglas. The affirmance of petitioner's direct appeal was handed down by the Supreme Court of Missouri on November 13, 1961. Douglas was not decided by the Supreme Court until March 18, 1963, the same day that court decided the other landmark cases of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L. R.2d 733 (1963); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); and Draper v. State of Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963).

The refusal of the Supreme Court of Missouri to heed the teachings of Townsend v. Sain required this Court to hold the constitutionally required evidentiary hearing. On August 30, 1965, the Honorable Floyd R. Gibson, now Circuit Judge, but then the District Judge exercising jurisdiction over this case, stated in an order entered that day that:

* * * Petitioner contends that he was denied the right of counsel. The Missouri Supreme Court found that from arraignment through the preliminary steps of appeal petitioner was represented by counsel. State v. Donnell, 387 S.W.2d 508 (Mo.1965). This finding, however, was not based upon findings at an evidentiary hearing, rather it was merely taken from the record of the case. Therefore, there is a substantial factual dispute as to whether or not petitioner was in fact represented by counsel in all critical stages of the litigation. This dispute has not been given a full hearing by the Missouri courts. Therefore, the duty falls upon this Court to resolve this factual dispute by resort to a hearing. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Judge Gibson stated in that order that counsel would be appointed to represent the petitioner. Judge Gibson was elevated to the Court of Appeals before the appointment was made. On November 12, 1965, shortly after jurisdiction of this case was assigned to us, we appointed P. Pierre Dominique, Esq., a distinguished member of the Jefferson City Bar, to represent the petitioner. He has represented the petitioner in the highest tradition of the Bar.

In accordance with our customary procedure, we instructed Mr. Dominique to interview the petitioner and to recast the voluminous pro se pleadings in order that all possible questions be raised and presented in an orderly manner in a single evidentiary proceeding. Cf. Sanders v. United States, 373 U.S. 1 at 22, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). See also Swisher v. United States, W.D.Mo. 1965, 237 F.Supp. 921, at 924.

Petitioner, acting for the first time through competent counsel, alleged that he "was denied the benefit of counsel on his direct appeal from his ninety-nine year conviction for first degree robbery under the Habitual Criminal Act in the Supreme Court of Missouri, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States."

Other serious federal constitutional questions are presented by petitioner's amended application. We need not reach those questions because of the disposition we make of this case under the command of our controlling court in Bosler. We shall, however, point out later that subsequent treatment of one of those questions by the Supreme Court of Missouri must be consistent with the findings of fact made as a result of the evidentiary hearing held in this Court. We, of course, do not intimate that the Supreme Court of Missouri may not order a further hearing at which additional evidence may be adduced that would require a different finding than that which we make in section VI of this opinion.

II.

It is obvious that we are required to follow the determination of our Court of Appeals in Bosler that Missouri's appellate criminal procedure does not satisfy the teachings of Douglas. After describing Missouri's appellate criminal procedure in its most favorable light, the Court of Appeals held that: "all of this, however, does not in our judgment satisfy the dictates of the Supreme Court of the United States." And later in its opinion, the Court of Appeals held that Missouri's "practice, admirable though it may be, does not eliminate the element of discrimination condemned in Douglas: `the indigent, where the record is unclear or the errors are...