Fletcher v. Armontrout

Decision Date13 November 1989
Docket NumberNo. 89-0435-CV-W-JWO.,89-0435-CV-W-JWO.
PartiesEd FLETCHER, Petitioner, v. William ARMONTROUT, Respondent.
CourtU.S. District Court — Western District of Missouri

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

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

ORDER CERTIFYING QUESTIONS TO THE SUPREME COURT OF MISSOURI

JOHN W. OLIVER, Senior District Judge.

This Court having encountered important questions of Missouri law that are relevant to the determination of the above-entitled cause and it appearing to this Court that there is no controlling precedent in this state, this Court hereby certifies the questions hereinafter stated to the Supreme Court of Missouri pursuant to § A (Section 2) of the new Missouri certification statute (S.B. 127 et al, 1989 Mo.Legis.Service 159 (Vernon) at page 1037) (hereinafter "the Act").

The statement of all facts relevant to the questions certified, as required by Section 2 of the Act, is set forth in this Court's memorandum opinion and the appendices attached thereto and filed this day, a copy of which is attached to this order, all of which is incorporated in this order by this reference. The nature of the controversy in which the questions arose is also stated in this Court's memorandum opinion and appendices attached thereto.

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).

Questions Certified

1. Whether Missouri Rule 29.15 may be construed in a manner that would not preclude either a circuit court of Missouri or an appellate court of Missouri from exercising the habeas corpus jurisdiction conferred on those courts by the Constitution of Missouri and thus moot the questions of Missouri constitutional law stated in questions 2 and 3 of this certification order? If this preliminary question is answered in the affirmative, state how Missouri Rule 29.15 may be so construed.

2. Whether the prohibition against the suspension of privilege of habeas corpus contained in Art. 1, § 12 of the Bill of Rights of the Constitution of Missouri required the Circuit Court of Cole County, Missouri to hear and determine the merits of the two Rule 91 petitions for habeas corpus filed in that court by exercising the jurisdiction conferred on a circuit court of this state by Art. 5, § 14 of the Missouri Constitution, to issue and determine original remedial writs?

3. Whether, in light of the Circuit Court of Cole County's summary dismissal of petitioner's two Rule 91 petitions for habeas corpus without a hearing and without a determination of the merits of the state and federal postconviction claims alleged in that petition, did the prohibition against the suspension of the privilege of the writ of habeas corpus contained in Art. 1, § 4 of the Bill of Rights of the Constitution of Missouri, provide the petitioner with an available state postconviction remedy within the meaning of 28 U.S.C. § 2254(b) and (c) at the time he filed his petition for federal habeas corpus in that he had the right at that time and he presently has the right to invoke the jurisdiction conferred on the Supreme Court of Missouri and the Missouri courts of appeal by Art. 5, § 4 of the Constitution of Missouri to issue and determine original remedial writs by filing a new Rule 91 petition for habeas corpus in either or both of those state appellate courts?

Certification of Judge

This certification order has been prepared and signed by a Judge of the United States District Court for the Western District of Missouri, the certifying court in which the above-captioned case is pending. An order has been entered directing the Clerk of this Court to forward seven (7) copies of this certification order together with this Court's memorandum opinion and the appendices attached thereto and made a part thereof by reference to the Supreme Court of Missouri under the official seal of this Court.

MEMORANDUM AND ORDERS CERTIFYING QUESTIONS OF MISSOURI LAW TO THE SUPREME COURT OF MISSOURI

This state prisoner habeas corpus case, filed pursuant to 28 U.S.C. § 2254(a), presents the important questions of Missouri law that relate to the construction that should be given Missouri Rule 29.15 and to whether the petitioner had any available postconviction state correction 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 exercises the jurisdiction conferred on it by 28 U.S.C. § 2254(a). The answer to the latter question turns on the additional questions of Missouri law as to (1) whether, in light of the prohibition against the suspension of the privilege of the writ of habeas corpus set forth in Art. 1, § 12 of the Bill of Rights of the Constitution of Missouri, a circuit court of Missouri is vested with power to hear and determine a Missouri Rule 91 petition for habeas corpus that seeks to invoke the habeas corpus jurisdiction conferred on such a court by Art. 5, § 14 of the Constitution of Missouri and, (2) whether in the event a petitioner's Missouri Rule 91 petition for habeas corpus is denied by a circuit court, the prohibition against the suspension of the privilege of the writ of habeas corpus set forth in Art. 1, § 12 of the Bill of Rights of the Constitution of Missouri requires a holding that the Supreme Court of Missouri and the Missouri courts of appeal would then be vested with power to hear and determine a Missouri Rule 91 petition for habeas corpus that seeks to invoke the habeas corpus jurisdiction conferred on the appellate courts of Missouri by Art. 5, § 4 of the Constitution of Missouri.1

Because it appears after appropriate consultation with the other judges of this Court2 that there is no controlling precedent in this state in regard to the questions of Missouri law that control the exhaustion question presented by petitioner's attempt to invoke the habeas corpus jurisdiction conferred on this Court by 28 U.S.C. § 2254(a), an order will be entered that will certify the relevant questions of Missouri law to the Supreme Court of Missouri for its answer pursuant to Missouri's new certification statute.3

In addition, a preliminary question suggested by Judge Sachs concerning how Rule 29.15 should be construed is also certified for answer by the Supreme Court of Missouri for the reasons stated in part II-E of this memorandum opinion. See page 1082 of this memorandum opinion.

I

In accordance with the statutory mandate of Missouri's new certification statute, this memorandum opinion will set forth all of the facts relevant to the questions that will be certified and will state the nature of the controversy in which those questions arose. We will also state why it appears to this Court that there is no controlling precedent in this state in regard to the certified questions.

II
A.

This Court's memorandum and orders directing further proceedings filed September 26, 1989 and the respondent's supplemental response filed October 11, 1989 pursuant to the orders entered on September 26, 1989 adequately show the nature of the controversy in which the certified questions arose.4 A copy of this Court's September 26, 1989 memorandum and orders directing further proceedings is therefore attached hereto as Appendix A. A copy of the respondent's supplemental response is attached as Appendix B.

Order (2) entered September 26, 1989 pursuant to Rule 7 of the Rules Governing Section 2254 cases, required the respondent to produce and file accurate copies of all relevant state court records that would reflect the filing and processing of the Rule 91 petitions for habeas corpus allegedly filed by the petitioner in the Circuit Court of McDonald County, Missouri and in the Circuit Court of Cole County, Missouri. Appendix A at 6. The record shows that respondent complied with Order (2) by filing Exhibit G, which reflects the Rule 91 habeas corpus proceedings in the Circuit Court of McDonald County and Exhibit H which reflects the habeas corpus proceedings in the Circuit Court of Cole County, Missouri.

It is necessary that we summarize the facts established by those two exhibits for the reason the respondent's supplemental response made no reference whatsoever to either exhibit.5

B.

Exhibit G establishes that the petitioner filed a pro se Rule 91 petition for writ of habeas corpus in the Circuit Court of McDonald County, Missouri on November 10, 1988. The petitioner alleged that he was presently serving a sentence of 90 years for one count of kidnapping and five counts of sodomy in violation of Section 565.110 and 566.060 R.S.Mo., imposed by the Circuit Court of McDonald County, Missouri on November 16, 1984 (case number CR184-11FX) by the Honorable George Henry, Judge; that he appealed his conviction and sentence; that his conviction and sentence was affirmed on April 28, 1986 (see State v. Fletcher, 709 S.W.2d 924 (Mo. App.1986)); and that he was presently confined in the Missouri State Penitentiary at Jefferson City, Missouri.

Petitioner's Rule 91 pro se petition for a writ of habeas corpus was 19 pages in length. In 17 of 48 paragraphs of that petition, lettered A through Q, inclusive, and set forth in a part of the petition labeled "Allegations," the petitioner alleged that he was unlawfully confined in the ...

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    • United States
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    ...Romano, supra, there is no time limitation for the filing of a state habeas petition under Missouri Supreme Court Rule 91, Fletcher v. Armontrout, 725 F. Supp. 1075, 1086 (Mo. Ct. App. 1989). No party argues that pursuing such a proceeding at this time would be futile. Therefore, Petitioner......
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