Drake v. Wyrick

• Decision Date: 25 June 1976
• Docket Number: No. 75 CV 702-W-1.,75 CV 702-W-1.
• Citation: 415 F. Supp. 814
• Parties: Ronald DRAKE, Petitioner, v. Donald WYRICK, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

415 F. Supp. 814

Ronald DRAKE, Petitioner, v. Donald WYRICK, Warden, Respondent.

No. 75 CV 702-W-1.

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

June 25, 1976.

Ronald Drake, pro se.

John Danforth, Atty. Gen., State of Mo., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT ORDER DISMISSING WITHOUT PREJUDICE

JOHN W. OLIVER, District Judge.

On May 17, 1976, the Court directed that respondent reply to petitioner's motion to vacate, set aside or correct the order denying the petition for writ of habeas corpus without prejudice for failure to exhaust available state court remedies. Respondent has now filed its reply which clearly establishes that petitioner still has an available state court remedy. Petitioner has also filed a "Traverse" to the state's reply which we have considered. For the reasons which we shall state, we find and conclude that petitioner's motion should be denied.

In his motion petitioner contends that "this court is requiring petitioner to do a futile act by forcing him back to state court." Respondent clearly refutes this notion:

"In the first place, it would appear that the petitioner does, in fact, still have an available state court remedy under the transfer provisions of Rule 83.02 V.A. M.R. and 83.03 V.A.M.R. Admittedly, Rule 83.02 requires that a motion for transfer from the Court of Appeals to the Missouri Supreme Court `shall be filed within 15 days of the date upon which the opinion is filed.' However, Rule 84.08 V.A.M.R. expressly states that an appellate court `may suspend or modify its rules in a particular case upon a showing that justice so requires.' Utilizing this provision, the appellate courts of Missouri have on occasion allowed the untimely filing of motions for transfer or rehearing where such motions were accompanied by a motion for leave to file the motion for transfer or rehearing out of time. As this court correctly observed in its order of May 17, 1976, the Missouri Court of Appeals, Kansas City District, agreed to permit the petitioner in Martin v. Wyrick, 411 F.Supp. 1069 to file his motion for transfer well beyond the fifteen-day limit."

Petitioner also contends that he has adequately exhausted his state court remedies by means of a motion to transfer filed with the Supreme Court of Missouri. It appears that this motion was returned to petitioner because it was not timely. Respondent points out, however, that petitioner's motion was not properly presented under Missouri Rules of Courts:

"The fact that this motion to transfer was rejected by the Supreme Court Clerk because it was not timely filed does not in any way tend to prove that a proper motion would not be considered by the court. In the first place, it does not appear that the petitioner attempted to invoke the provisions of Rule 84.08 when he filed his untimely motion, and failed to file a motion pursuant to that rule in an effort to convince the court to allow his application for transfer to be filed out of time. Had he done so, the clerk of the Supreme Court most certainly would not have returned his application to him. In the second place, his application pursuant to Rule 83.03 was premature, since the appellant had filed no motion for rehearing or transfer in the Missouri Court of Appeals, St. Louis District, pursuant to Rule 83.02. Such a motion is a prerequisite to the filing of an application for transfer pursuant to Rule 83.03."

The Missouri Courts have apparently never had an appropriate opportunity to pass upon the merits of petitioner's application for transfer because of his failure to request leave to file his motion out of time. Respondent observes that Missouri appellate courts do not consider an untimely motion to transfer unaccompanied by a request for leave to file it out of time:

"It appears that the appellate courts of this state routinely reject motions for rehearing or transfer when the motion is filed out of time with no explanation, and no accompanying motion for leave to file the

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