Fletcher v. Armontrout, 89-0435-CV-W-JWO.

• Decision Date: 07 March 1990
• Docket Number: No. 89-0435-CV-W-JWO.,89-0435-CV-W-JWO.
• Citation: 733 F. Supp. 1348
• Parties: Ed FLETCHER, Petitioner, v. William ARMONTROUT, Respondent.
• Court: U.S. District Court — Western District of Missouri

733 F. Supp. 1348

Ed FLETCHER, Petitioner, v. William ARMONTROUT, Respondent.

No. 89-0435-CV-W-JWO.

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

March 7, 1990.

Ed Fletcher, Jefferson City, Mo., pro se.

William Webster, Atty. Gen., and Jared R. Cone, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDERS DIRECTING FURTHER PROCEEDINGS

JOHN W. OLIVER, Senior District Judge.

I

A.

This Court's order certifying three questions to the Supreme Court of Missouri, published as Fletcher v. Armontrout, 725 F.Supp. 1075, 1076 (W.D.Mo.1989), stated that the "questions certified are questions that relate directly to the construction that should be given to Missouri Rule 29.15 and to this Court's exercise of the habeas corpus jurisdiction conferred on it by 28 U.S.C. § 2254(a) which turns on the question of whether, under Missouri law, the petitioner may have an available state post-conviction corrective process or procedure within the meaning of 28 U.S.C. § 2254(b) and (c) at the time he filed his petition for federal habeas corpus that the petitioner should be required to exhaust before this Court should exercise the habeas corpus jurisdiction conferred by the Congress pursuant to 28 U.S.C. § 2254(a)."¹ The Supreme Court of Missouri entered an order which simply stated "certification declined."

The Supreme Court of Missouri's declination of this Court's certification of that question requires that this Court seek an answer to that question of Missouri law without the benefit of answers to the certified questions. Under the circumstances, it is necessary that orders be entered directing further proceedings for the reasons that will be stated.

B.

The record before the Court establishes that petitioner did not file a Rule 91 petition for state habeas corpus in either the Missouri Court of Appeals, Western District, or in the Supreme Court of Missouri after his Rule 91 petitions for state habeas corpus were denied by the Circuit Court of Cole County. Consideration of comity and federalism requires that an order be entered that will require the petitioner in the first instance to prepare, serve, and file a Missouri Rule 91 petition for habeas corpus in the Missouri Court of Appeals, Western District.

If that court exercises the habeas corpus jurisdiction conferred on it by Art. 5, § 4 of the Constitution of Missouri and if that court affords the petitioner whatever hearing may be required by applicable federal law and thereafter determines the merits of the federal claims that may be alleged in the petitioner's Rule 91 petition for state habeas corpus, it will be clear that Missouri Rule 91 does indeed provide the petitioner with an available state post-conviction remedy within the meaning of 28 U.S.C. § 2254(b) and (c) at the time he filed his petition for federal habeas corpus and that must be exhausted before this Court exercises the jurisdiction conferred on it under 28 U.S.C. § 2254(a).²

C.

The fact that the Missouri Court of Appeals, Western District, may refuse to exercise the jurisdiction conferred on it by Art. 5, § 4 of the Constitution may not be a complete answer to the exhaustion question posed in the third question stated in our earlier order certifying questions to the Supreme Court of Missouri. We recognized in footnote 17 in Fletcher, 725 F.Supp. at 1086, that the Eighth Circuit stated in Romano v. Wyrick, 681 F.2d 555, 557 (8th Cir.1982), a probation revocation case where state habeas corpus was clearly an available state court postconviction remedy, that "`Romano should file a habeas petition either with the Court of Appeals of Missouri or the Supreme Court. (We think he should not be required to do both.) If this petition is rejected, he may then return to the federal district court and challenge his probation revocation in a new habeas petition.'"

We are satisfied, however, that consideration of comity and federalism mandates that a second order be entered that will require the petitioner to file a Rule 91 petition for state habeas corpus in the Supreme Court of Missouri in the event the Missouri Court of Appeals, Western District, refuses to exercise the jurisdiction conferred on it by Art. 5, § 4 of the Constitution of Missouri.

It should be added that if both the Missouri Court of Appeals, Western District, and the Supreme Court of Missouri summarily dispose of petitioner's Rule 91 petitions in a manner substantially the same as the pattern of disposition reflected in Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398 (1945), and Tomkins v. Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407 (1945), this Court may be required to reach and decide the question left open by the Court's opinion in Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965). That Fourteenth Amendment question is discussed in detail in part IV of Richardson v. Miller, 716 F.Supp. at 1251 et ff., and is incorporated herein by this reference.

II

A.

White v. State, 779 S.W.2d 571 (Mo. banc 1989), was decided after this Court entered its certification order in Fletcher. If this Court had had the benefit of White before it decided Richardson and Fletcher, it is not unlikely that both those cases would have been dismissed without prejudice on exhaustion grounds. For what was said in White clearly indicates that the Supreme Court of Missouri has recognized that under the Constitution of Missouri state habeas corpus is still available as a state court postconviction remedy.

B.

The impact of White may be understood by a brief review of proceedings directed by Judge Bartlett in Beverly v. Armontrout, No. 89-0014-CV-W-9, after White had been handed down by the Supreme Court of Missouri. The respondents in Beverly contended that the failure of the petitioner to file either a Rule 27.26 motion or a Rule 29.15 motion before the June 30, 1988 deadline constituted a complete waiver of any right to State postconviction relief. Judge Bartlett tentatively rejected that contention and entered an order in Beverly that required the respondents to clarify the State's position on exhaustion for the reason that "if petitioner's allegations are correct, he could not have complied with the time limits in Rule 29.15(m) because he did not know prior to June 30, 1988, the deadline in Rule 29.15(m), the factual basis for his claim." Order at 4. That order stated:

The respondents will be ordered to specifically address the question of availability of a state postconviction remedy under these circumstances. Specifically, respondents should furnish any authority that the courts of the State of Missouri would hold under these circumstances that petitioner had waived any right to post-conviction relief by not asserting this claim prior to June 30, 1988. Furthermore, respondents should comment on the availability of habeas corpus relief under Art. I, § 12 of the Missouri Constitution ("that the privilege of the writ of habeas corpus will never be suspended").

Id. at 4-5.

The order entered in Beverly specifically focused on the Supreme Court of Missouri's decision in White by adding that:

In particular, respondents shall comment on how I should consider White v. State, 779 S.W.2d 571 (Mo. banc 1989). In White, the Supreme Court of Missouri unanimously stated that: "Inasmuch as habeas corpus jurisdiction springs from the constitution, it may not be eliminated by statute or rule. State ex rel. Whitson v. Busch, 776 S.W.2d 374 (Mo. banc 1989) (Blackmar, C.J. concurring)." 779 S.W.2d at 573. (In Busch, 776 S.W.2d at 379-80, Chief Justice Blackmar said, "the great writ is a part of our constitutional jurisdiction, which cannot be limited by statute or rule. Mo. Const. Art. V, § 4.1.")³

Id. at 5.

The response filed on behalf of the respondents in Beverly reflects the consistent effort of the Attorney General of Missouri to foreclose the consideration of the merits of a state prisoner's federal postconviction claims in either the courts of Missouri or in the federal courts that sit in this State.⁴ That response suggested that the question of "whether the petitioner has an avenue of relief in state court under Missouri Supreme Court Rule 91" is a "difficult question" and that the respondents "are not certain how to construe White v. State, 779 S.W.2d 571 (Mo. banc 1989)." Resp's Response in Beverly at 1. Although the Attorney General directed specific attention to White's unequivocal statement at page 572 of that opinion which stated that a "confined person may always petition for habeas corpus," the Attorney General was willing only to concede that "White appears to suggest that state habeas is available." (Emphasis added.)

It is indeed difficult to understand why the Attorney General states in respondents' response in Beverly that White only "appears to suggest" that state habeas is an available state court postconviction remedy. For the White court expressly concluded that "inasmuch as habeas corpus jurisdiction springs from the constitution, it may not be eliminated by statute or rule. State ex rel. Whitson v. Busch, 776 S.W.2d 374 (Mo. banc 1989) (Blackmar, C.J. concurring)." 779 S.W.2d at 573.⁵

C.

As a last resort to avoid the impact of White's conclusion that the habeas corpus jurisdiction conferred on the trial and appellate courts of Missouri by the Constitution of Missouri "may not be eliminated by statute or rule" (779 S.W.2d at 573) the Attorney General stated in his Beverly response that the "respondents submit that most of the White opinion is dicta" and argues that "until the Supreme Court of Missouri expressly holds that prisoners who have failed to seek post-conviction relief via Rules 24.035 or 29.15 may have `another bite of the apple' under Rule 91, the respondents believe that no such remedy is available." Beverly Resp. at 2.

Although White made clear that it did not need to reach the State and federal constitutional questions apparently briefed in that case,⁶ it is not...