Flansburg v. Kaiser, 12869.

• Decision Date: 25 October 1944
• Docket Number: No. 12869.,12869.
• Citation: 144 F.2d 917
• Parties: FLANSBURG v. KAISER, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

144 F.2d 917 (1944)

FLANSBURG v. KAISER, Warden.

No. 12869.

Circuit Court of Appeals, Eighth Circuit.

October 3, 1944.

Rehearing Denied October 25, 1944.

Abner Flansburg, appellant, pro se.

Robert J. Flanagan, Asst. Atty. Gen., for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

This appeal is from an order denying a petition for a writ of habeas corpus. The appellant is an inmate of the Missouri State Penitentiary under a life sentence imposed by the Circuit Court of Pike County, Missouri, on April 19, 1937, upon appellant's plea of guilty to an information charging him with first degree murder.

On or about February 3, 1944, a petition of the appellant for a writ of habeas corpus was presented to The Honorable Archibald K. Gardner, a judge of the United States Circuit Court of Appeals for the Eighth Circuit. The petition was filed in the United States District Court for the Western District of Missouri on February 4, 1944. In the petition the appellant asserted that his detention is unlawful because, in the proceedings in the Circuit Court of Pike County, Missouri, "he was not represented by counsel, the Court did not make an appointment of counsel, and the petitioner was incapable adequately of making his own defense." His petition contained the following statements: "The alleged crime occurred late on a Friday night, the petitioner was arrested early Saturday morning, and on the following Monday he was taken before the Circuit Court for sentence. At no time prior to his conviction and sentence was the petitioner allowed to consult with counsel." The appellant asserted that it was the duty of the state Circuit Court to appoint counsel for him "whether requested or not"; that its failure to do so was a denial of due process in violation of the Fourteenth Amendment to the Constitution of the United States; and that the failure to appoint counsel deprived the court of jurisdiction to impose sentence.

The petition also contained the following allegation:

"The petitioner states that no application for the relief sought has been made to or refused by any court, officer or officers superior to the one to whom this petition is presented, but that a similar application was made to the Supreme Court of the State of Missouri on or about November 24, 1943, and said application was denied, without a hearing, on December 6, 1943, the said court simply noting that `the petition fails to state a cause of action', therefore the petitioner has exhausted his remedy in the state courts and must rely upon the federal courts to grant the relief sought."

The appellee demurred to the petition, asserting that it failed to state facts sufficient to constitute a cause of action. The demurrer was sustained and the petition dismissed by Judge Gardner upon the grounds: (1) That it did not appear from the petition that the appellant had exhausted his State remedies, and (2) that the case was not one justifying intervention by a federal judge or a federal District Court to protect against the asserted violation of a federal right. D.C., 54 F.Supp. 433.

Thereafter, with leave, the appellant filed an amended petition, in which, in addition to what had been asserted in his original petition, he alleged that on November 24, 1943, he had applied to the Supreme Court of Missouri for a writ of habeas corpus upon the same grounds as those contained in his amended petition, and that that court, without a hearing, had denied his application upon the ground that it stated no cause of...