Fisher v. Trickey

• Decision Date: 09 April 1987
• Docket Number: No. 86-1312-CV-W-1.,86-1312-CV-W-1.
• Citation: 656 F. Supp. 797
• Parties: Paul E. FISHER, Petitioner, v. Myrna TRICKEY, Respondent.
• Court: U.S. District Court — Western District of Missouri

656 F. Supp. 797

Paul E. FISHER, Petitioner, v. Myrna TRICKEY, Respondent.

No. 86-1312-CV-W-1.

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

February 18, 1987.

Supplemental Memorandum Opinion and Orders April 9, 1987.

M.E.C.C., Pacific, Mo., for petitioner.

William Webster, Atty. Gen., State of Mo., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDERS DIRECTING RESPONDENT TO FILE A SUPPLEMENTAL RESPONSE

JOHN W. OLIVER, Senior District Judge.

I.

The response filed by the Attorney General to this Court's order to show cause fails to attach the necessary documentary evidence upon which the merits of petitioner's section 2254 habeas corpus application may be ruled. Rather, that response argues and prays that this case should be dismissed without further judicial proceedings on the alleged ground that the petitioner has failed to exhaust his available State court post-conviction remedies.

The prayer of the response will be denied and an order will be entered directing the respondent to file a supplemental response to which the documentary evidence necessary for the determination of the merits of this case shall be attached.

We are satisfied that the exhaustion argument presented is untenable under the controlling Eighth Circuit cases, only one of which is cited in the response. We are advised, however, that the Attorney General has raised that exhaustion question in a number of other cases that pend in this district. It is therefore appropriate that we discuss that question in more detail than would otherwise be necessary.

It is also appropriate that we enter a further order that will afford the Attorney General an opportunity to present more relevant factual data in support of his exhaustion argument than that submitted in Exhibit B attached to the response. For the exhaustion argument presented in this case and in other cases that pend in this district establishes that the Attorney General is attempting to have this Court apply an exhaustion rule that has been expressly rejected by the Eighth Circuit.

This Court is under duty to follow and apply the decisions of its controlling Court of Appeals. If the Attorney General wishes to have the Court of Appeals overrule the cases that are presently controlling, the record on appeal should include more relevant factual data than that presented to this Court in Exhibit B attached to the response filed in this case.

II.

Exhibit A attached to the response establishes that the petitioner has fully exhausted all his available State post-conviction remedies in accordance with applicable federal standards. That exhibit shows that the judgment of the Circuit Court of Cass County, Missouri denying petitioner's Rule 27.26 motion was affirmed by the Missouri Court of Appeals, Western District, pursuant to Missouri Supreme Court Rule 84.16(b) and that the same court denied a motion to transfer to the Supreme Court of Missouri on September 25, 1986. See Fisher v. State, 716 S.W.2d 819 (Mo.Ct.App. 1986). A Memorandum of Reasons for the Missouri Court of Appeals' affirmance of the State trial court's denial of Rule 27.26 relief is included as a part of Exhibit A.¹

That memorandum shows that the Missouri Court of Appeals considered the transcripts of the record made at the time petitioner's guilty plea was tendered and accepted and at the time he was sentenced. It further shows that petitioner was granted an evidentiary hearing on his Rule 27.26 motion, that the transcript of that hearing was before the Missouri Court of Appeals, and that the State trial court had entered findings of fact and stated conclusions of law in accordance with Rule 27.26. None of that essential documentary evidence, however, is attached to the response. An order will be entered directing the Attorney General to file a supplemental response to which he shall attach that documentary evidence.²

We turn now to the Attorney General's exhaustion argument.

III.

A.

The Attorney General's response contends that Missouri Supreme Court Rule 84.08 is an available State court post-conviction remedy that must be exhausted before this Court may exercise habeas corpus jurisdiction pursuant to 28 U.S.C. § 2254. The response argues that "under that rule, an aggrieved party may file a motion for leave to file an application to transfer out of time", Response at 3, and that petitioner's failure to do so in this case after a Rule 83.02 motion to transfer had been denied by the Missouri Court of Appeals, Kansas City District, requires the dismissal of this case on failure of exhaustion grounds.

Specifically, the Attorney General seeks to have this Court disregard a controlling decision of the Court of Appeals for the Eighth Circuit, namely, Powell v. Wyrick, 657 F.2d 222 (8th Cir.1981). Respondent explicitly states on page 3 of the response that "the rationale behind the Powell v. Wyrick decision is no longer valid" and that the Court of Appeals' decision in that case is "no longer accurate."

Respondent's argument is made in the face of the Attorney General's recognition that in Powell the Court of Appeals expressly "ruled that the filing of a Missouri Supreme Court Rule 84.08 motion was futile and would not be required under the exhaustion statutes." Response at 3.

Powell v. Wyrick was decided on a State prisoner's appeal from an order entered by this Court which dismissed a habeas corpus petition for failure to exhaust Rule 84.08.³ Our unpublished opinion in Powell, No. 79-0632-CV-W-1 (W.D.Mo. Nov. 5, 1980), shows that our dismissal of that case on exhaustion grounds was based on our view of Rule 84.08 as stated in three earlier published opinions of this Court, Lee v. Wyrick, 383 F.Supp. 623 (W.D.Mo.1974); Martin v. Wyrick, 411 F.Supp. 1069 (W.D. Mo.1975); and Drake v. Wyrick, 415 F.Supp. 814 (W.D.Mo.1976). All four of these opinions were decided after the 1972 reorganization of Missouri's judicial system which made substantial changes in the jurisdiction of Missouri's appellate courts and in the transfer of cases from one appellate court to another.

In Lee v. Wyrick, supra, 383 F.Supp. 623, our seminal decision, the petitioner failed to file a motion to transfer from a Missouri Court of Appeals to the Supreme Court of Missouri under either Missouri Supreme Court Rule 83.02 or 83.03. We stated that "this Court made appropriate inquiry of the Supreme Court of Missouri and ascertained that it was probable that a substantial number of transfers would be granted, under either Rule 83.02 or 83.03 and that the situation differed materially from that which formerly existed in regard to motions to transfer from a Division of the Supreme Court of Missouri to the Missouri Supreme Court, as those courts were constituted under the old constitution." 383 F.Supp. at 624.

We concluded in Lee that:

In light of the substantial changes in the judicial system of Missouri, and in light of the indication from the Missouri Supreme Court that a substantial number of transfers would be made by the various new Courts of Appeal and by the Supreme Court itself, we believe it clear that principles of comity require this Court's determination that unless and until a particular state prisoner has unsuccessfully sought transfer under the applicable new rules, he may not properly be said to have exhausted his available state court remedies.⁴

Id. at 624.

This Court applied the exhaustion rule we stated in Lee in Martin v. Wyrick, supra, 411 F.Supp. 1069, and in Drake v. Wyrick, supra, 415 F.Supp. 814.⁵ Our decision in Martin shows, 411 F.Supp. at 1075, that the Missouri Court of Appeals, in fact, granted a Rule 84.08 motion in that case.

It is thus clear that when the Court of Appeals considered the petitioner's appeal in Powell from this Court's order dismissing Powell's habeas corpus petition on exhaustion grounds, the Court of Appeals was required to consider this Court's view of Missouri Supreme Court Rule 84.08 as stated in its unpublished opinion in Powell and in its published opinions in Lee, Martin, and Drake, all of which had been expressly incorporated by reference in our unpublished opinion in Powell.

The Court of Appeals expressly rejected this Court's view that Rule 84.08 was an available State remedy that a petitioner must exhaust and reversed this Court's dismissal of Powell's petition based on that ground. Powell v. Wyrick noted that the "district court dismissed Powell's petition without prejudice for failure to exhaust an available state remedy — rule 84.08" and stated that "we must determine whether a rule 84.08 motion must be exhausted before federal relief under § 2254 may be pursued." 657 F.2d at 223.

The Court of Appeals concluded in Powell that "the doctrine of exhaustion does not require that the petitioner make application for such a transfer under rule 84.08, due to the discretionary nature of that rule."⁶ Id. at 223. (Emphasis added.)

In its explanation of why the filing of a Missouri Supreme Court Rule 84.08 motion for leave to file a Rule 83.03 application to transfer must be considered to be futile, the Powell court observed that the "State of Missouri has not referred us to a single instance where the Missouri courts have granted an out-of-time motion under these circumstances" and added that "our independent research has revealed that the Missouri Supreme Court has, in fact, denied such a motion in practically all cases."⁷ Id. at 224.

B.

Powell v. Wyrick is not the only Court of Appeals opinion which forecloses this Court's adoption of the respondent's Missouri Supreme Court Rule 84.08 argument. Adail v. Wyrick, 671 F.2d 1218 (8th Cir. 1982) (per curiam), reversed a dismissal order of the Eastern District of Missouri based on "the fact that Adail had not sought transfer to the Missouri Supreme Court under Mo.R.Civ.P. 83.02 or 83.03 and had not sought to file an out-of-time motion under 84.08." Id. at 1219. The Adail court concluded that the notion that Adail had not exhausted...