Eaton v. Wyrick, No. 75--1033

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore BRIGHT, WEBSTER and HENLEY; WEBSTER
Citation528 F.2d 477
Decision Date31 December 1975
Docket NumberNo. 75--1033
PartiesEllis EATON, Jr., Appellant, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Appellee.

Page 477

528 F.2d 477
Ellis EATON, Jr., Appellant,
v.
Donald W. WYRICK, Warden, Missouri State Penitentiary,
Jefferson City, Missouri, Appellee.
No. 75--1033.
United States Court of Appeals,
Eighth Circuit.
Submitted Oct. 15, 1975.
Decided Dec. 31, 1975.

Page 479

Howard E. Bodney, Kansas City, Mo., for appellant.

Paul Otto, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before BRIGHT, WEBSTER and HENLEY, Circuit Judges.

WEBSTER, Circuit Judge.

Ellis Eaton, Jr., a prisoner in custody of the Missouri Department of Corrections, appeals from an order of the District Court 1 dismissing his petition for writ of habeas corpus. Eaton attacks the validity of convictions of burglary and stealing rendered upon a finding of guilt by jury in the Circuit Court of Platte County, Missouri, for which he was sentenced to two consecutive five-year terms of imprisonment. The judgment of conviction and sentence were affirmed by the Supreme Court of Missouri. State v. Eaton, 504 S.W.2d 12 (Mo.1973).

Between conviction and direct appeal, Eaton filed a petition for a writ of habeas corpus in the Missouri Supreme Court, which was denied on February 22, 1972, and a federal petition for a writ of habeas corpus in the Western District of Missouri, which was dismissed without prejudice on July 26, 1972. Eaton did not file any motions for post-conviction relief pursuant to Missouri Supreme Court Rule 27.26, which is the appropriate state remedy for claims of illegal or unconstitutional imprisonment.

In this proceeding, the District Court held upon the state court record that petitioner had failed to exhaust available state court remedies with respect to those issues raised on appeal, 2 and therefore dismissed the petition without prejudice as to those issues. In this appeal, we are asked to determine (1) whether as to each such issue petitioner had exhausted state remedies, (2) whether exhaustion was excused by futility of compliance, and (3) whether the action of the Missouri Supreme Court invalidating the statute under which petitioner was convicted, subsequent to the judgment of the District Court, compels habeas corpus relief. We answer each question in the negative and affirm the judgment of the District Court.

I

28 U.S.C. §§ 2254(b) and (c), as amended, require currently available and adequate state remedies to be exhausted prior to an invocation of federal habeas

Page 480

corpus jurisdiction. 3 This requirement is satisfied when 'the same evidence and issues already decided by direct review' in the state courts are presented in the petition for federal habeas corpus. Brown v. Allen, 344 U.S. 443, 447, 73 S.Ct. 397, 97 L.Ed. 469 (1953). See Tyler v. Swenson, 440 F.2d 621, 623 (8th Cir. 1971); Buffalo Chief v. South Dakota, 425 F.2d 271, 278 (8th Cir. 1970). The exhaustion requirement was not meant, however, to provide the state with more than one full and fair opportunity to decide a question which is properly presented to it for review. See Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Irby v. Missouri, 502 F.2d 1096, 1098 (8th Cir. 1974). State courts need not have definitively ruled on the merits of the issues raised by a petitioner seeking federal habeas corpus relief; rather, it is sufficient that the state courts have been properly presented with the opportunity to rule on the issues. See Picard v. Connor, 404 U.S. 270, 275--76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Losieau v. Sigler, 421 F.2d 825, 828 (8th Cir. 1970). An issue is properly presented on direct appeal if the factual matters necessary for its determination appear on the face of the trial record, without the necessity of developing the facts in a supplemental proceeding. Tyler v. Swenson, supra, 440 F.2d at 623; Thompson v. Peyton,406 F.2d 473, 474--75 (4th Cir. 1968); Ganger v. Peyton, 379 F.2d 709, 710 (4th Cir. 1967). Cf. Montez v. Eyman, 372 F.2d 100, 102--03 (9th Cir. 1967). Under such circumstances, the petitioner need not pursue collateral post-conviction remedies in the state courts as a precondition to federal relief. 4 Tyler v. Swenson, supra, 440 F.2d at 623; Edwards v. Swenson,429 F.2d 1291, 1292 (8th Cir. 1970); Kennedy v. Sigler, 397 F.2d 556, 559 (8th Cir. 1968). However, failure to present the state courts properly with the opportunity to consider and rule on the merits of an issue requires that the federal habeas court place the responsibility for determination on the state courts, and dismiss the petition for failure to exhaust state remedies. Picard v. Connor, supra, 404 U.S. at 275--78, 92 S.Ct. at 512--13; Tyler v. Swenson, supra, 440 F.2d at 623--24.

With these guidelines in mind, we turn now to a consideration of the specific constitutional claims raised by petitioner.

Juror Misconduct

A juror misconduct issue, identical to that presented to the District Court, was raised in petitioner's direct appeal to the Missouri Supreme Court. The dispute centers upon whether it was raised in a manner which effectively exhausted state remedies.

The record reveals that petitioner first raised the issue after the trial had been completed but before the jury had retired to deliberate. Defense counsel asserted to the court that the state's complaining witness had been seen in conversation with the foreman of the jury after the jurors had been selected but before they had been sworn. The trial court directed defense counsel to '(f)ile your motion properly in Court and it will be taken up at the proper time.' This claim of misconduct was not asserted again until the petitioner's motions

Page 481

for new trial. No evidentiary hearing was requested, however, and the trial court overruled the motions following oral argument.

On direct review, the Missouri Supreme Court concluded that there had been 'no showing that anything relating to the case on trial was discussed during the conversation or that any prejudice to appellant's rights resulted * * *.' State v. Eaton, supra, 504 S.W.2d at...

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48 practice notes
  • Allen v. County Court, Ulster County, No. 158
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 29, 1977
    ...appellees' constitutional claim and thereby force them to undertake another round of state court litigation. E. g., Eaton v. Wyrick, 528 F.2d 477, 480 (8th Cir. 1975) ("State courts need not have definitively ruled on the merits of the issues raised by a petitioner seeking federal habe......
  • Hall v. State of Iowa, No. 82-1391
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 15, 1983
    ...the state court. In addition, the facts necessary to resolve these issues were sufficiently developed in the record. See Eaton v. Wyrick, 528 F.2d 477, 480 (8th We thus find that the defendant has sufficiently exhausted his sixth amendment claims. We address them here. 2 II. Sixth Amendment......
  • Laws v. Armontrout, No. 87-1018
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 9, 1987
    ...L.Ed.2d 379 (1982). Our study of Missouri law leads us to conclude that such a state remedy is not available to Laws. In Eaton v. Wyrick, 528 F.2d 477, 482 (8th Cir.1975), this court stated that "[o]nly after some clear manifestation on the record that a state court will not entertain ......
  • Stumes v. Solem, No. CIV77-4049.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • April 10, 1981
    ...review of those issues. U. S. ex rel. Means v. Solem, 480 F.Supp. 128 (D.S.D.1979), aff'd 646 F.2d 322 (8th Cir. 1980), Eaton v. Wyrick, 528 F.2d 477 (8th Cir. 1975), United States ex rel. Russell Means v. Solem, 457 F.Supp. 1256 (D.S.D. 1978), Orricer v. State, 85 S.D. 293, 181 N.W.2d 461 ......
  • Request a trial to view additional results
48 cases
  • Allen v. County Court, Ulster County, No. 158
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 29, 1977
    ...appellees' constitutional claim and thereby force them to undertake another round of state court litigation. E. g., Eaton v. Wyrick, 528 F.2d 477, 480 (8th Cir. 1975) ("State courts need not have definitively ruled on the merits of the issues raised by a petitioner seeking federal habeas co......
  • Hall v. State of Iowa, No. 82-1391
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 15, 1983
    ...the state court. In addition, the facts necessary to resolve these issues were sufficiently developed in the record. See Eaton v. Wyrick, 528 F.2d 477, 480 (8th We thus find that the defendant has sufficiently exhausted his sixth amendment claims. We address them here. 2 II. Sixth Amendment......
  • Laws v. Armontrout, No. 87-1018
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 9, 1987
    ...L.Ed.2d 379 (1982). Our study of Missouri law leads us to conclude that such a state remedy is not available to Laws. In Eaton v. Wyrick, 528 F.2d 477, 482 (8th Cir.1975), this court stated that "[o]nly after some clear manifestation on the record that a state court will not entertain petit......
  • Stumes v. Solem, No. CIV77-4049.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • April 10, 1981
    ...review of those issues. U. S. ex rel. Means v. Solem, 480 F.Supp. 128 (D.S.D.1979), aff'd 646 F.2d 322 (8th Cir. 1980), Eaton v. Wyrick, 528 F.2d 477 (8th Cir. 1975), United States ex rel. Russell Means v. Solem, 457 F.Supp. 1256 (D.S.D. 1978), Orricer v. State, 85 S.D. 293, 181 N.W.2d 461 ......
  • Request a trial to view additional results

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