Frankum v. Swenson

• Decision Date: 06 August 1968
• Docket Number: No. 1326.,1326.
• Citation: 288 F. Supp. 100
• Parties: LeRoy FRANKUM, Petitioner, v. Harold R. SWENSON, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

288 F. Supp. 100

LeRoy FRANKUM, Petitioner, v. Harold R. SWENSON, Warden, Respondent.

No. 1326.

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

August 6, 1968.

Robert G. Duncan, Kansas City, Mo., for petitioner.

Norman H. Anderson, Atty. Gen. of Missouri, B. J. Jones, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM OPINION AND ORDER

OLIVER, District Judge.

Petitioner, a prisoner in the Missouri Penitentiary, petitions for federal habeas corpus and for leave to proceed in forma pauperis. Leave to proceed in forma pauperis will be granted. We state the reasons for our dismissal without prejudice more fully than usual because of the notice we take of the recent decision of the Supreme Court of Missouri in State of Missouri v. Fritz, Mo. Sup. Ct. Div. 1, 1968, 429 S.W.2d 699.

The petition for federal habeas corpus alleges that an eight year sentence for statutory rape was imposed by the Circuit Court of Scott County, Missouri on September 17, 1964. In paragraph 9a of that petition, petitioner alleged that he was "persuaded to plead guilty." In paragraph 10a he alleged that "I entered a plea of guilty to what I believed was a charge of incest but was sentenced and a judgment of conviction was entered on a charge of rape." And in paragraph 11a, he alleged that at the time of his plea of guilty no inquiry was made "as to whether or not I understood the nature and cause of the charges against me and no effort was made to ascertain that my plea was voluntary to the charge of statutory rape." Those allegations present an obvious federal question.

The papers filed pursuant to our show cause order show that on October 27, 1965, petitioner filed a motion to vacate judgment and sentence in the Circuit Court of Scott County, Missouri, pursuant to Missouri Supreme Court Rule 27.26, V.A.M.R., as it then existed. In that state postconviction motion, petitioner alleged, among other things, that he had been "subjected to threats and coercion, made by Charles Matthews and Eddie Micheals, respectively, assistant prosecuting attorney and deputy sheriff of Scott County, Missouri," and that "said threats were first uttered by Charles Matthews stating that if Movant did not enter a plea of guilty he would get the gas chamber, of which statement was confirmed by the said Eddie Micheals." Petitioner specifically alleged that "such threats induced fear and amounted to coercion, thus, compelled your Movant to enter a plea of guilty to the offense alleged." The same federal question subsequently alleged in the federal habeas corpus petition was thus presented in petitioner's state postconviction motion.

In another portion of his 27.26 motion, petitioner alleged that "one may strongly suspicion that Movant's court appointed attorney was an incompetent lawyer, a lawyer who failed to investigate the records and facts of the case, a lawyer who advised his client to plead guilty to a crime not charged in the information." It is thus apparent that at least one additional federal question might be presented in a subsequent postconviction proceeding unless appropriate attention is given that possible question in the same evidentiary hearing in which the coerced plea question is litigated. See Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). Eventual litigation of the potential federal question concerning ineffective assistance of counsel can not be avoided, at least so far as the federal forum is concerned, by a state determination that petitioner "waived" his right to raise such a question under the circumstances presented by this case. The determination of a question of waiver is a federal question and is controlled by the principles established in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).¹

The papers also show that on November 29, 1965, the state committing court appointed the same counsel to represent petitioner in connection with his motion to vacate as had been appointed to represent petitioner in the trial of the original criminal case. On December 2, 1965 that counsel was relieved and new counsel appointed to represent petitioner in connection with his 27.26 motion. Neither of petitioner's 27.26 counsel prepared any amendments to the pro se motion filed by the petitioner.

On May 13, 1966, a hearing was held in the state committing court. The transcript of that hearing shows that petitioner had been brought from the penitentiary the morning of the hearing. The time within which petitioner's counsel could have investigated and thereafter filed any appropriate amendment was therefore limited. Petitioner testified briefly at the hearing. His testimony that tended to support his claim that his plea of guilty had been induced by fear was stricken by the trial court pursuant to an objection that inquiry could not be made as to the "guilt of the man" in a postconviction proceeding. While counsel who had represented petitioner briefly in the magistrate court but not at the time of the guilty plea testified briefly, neither petitioner's trial counsel, the assistant prosecuting attorney nor the deputy sheriff specifically identified in petitioner's 27.26 motion were called as witnesses. The evidentiary hearing conducted under old Rule 27.26 did not comply with the command of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L. Ed.2d 837 (1963) and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L. Ed.2d 148 (1963).

The trial court entered an order on July 28, 1966 in which only general findings and general conclusions of law were stated. Petitioner's Rule 27.26 motion was denied. The Supreme Court of Missouri affirmed that denial in State v. Frankum, Mo.Sup.Ct. Div. 1, 425 S.W. 2d 183.

Neither the state trial court nor the Supreme Court of Missouri made adequate findings of fact to which a federal court may defer under the teaching of the trilogy. See and compare Noble v. Swenson (W.D.Mo.1968), 285 F.Supp. 385, decided June 17, 1968.²

The question of whether this Court is legally required to exercise its habeas corpus jurisdiction to the end that it immediately set this case for evidentiary hearing is presented. We now state the reasons why we believe we should not do so.

The brief filed on behalf of petitioner in the Supreme Court of Missouri on the appeal from the denial of petitioner's Rule 27.26 motion relied on points that only peripherally put in focus the federal constitutional question of the voluntariness of petitioner's plea. Except for the citation of the Fourteenth Amendment of the Constitution of the United States, petitioner's counsel relied solely upon state statutes and state cases.

Although petitioner's federal claim concerning the voluntariness of his guilty plea was clearly apparent on the face of his pro se 27.26 motion, and although the trial court generally stated in its order that "the defendant was not threatened or intimidated," the attention of the Supreme Court of Missouri was not fairly focused on the federal question presented by petitioner's claim of coerced plea. In light of almost routine handling of other cases with which we are familiar, we are confident that had petitioner's counsel put petitioner's federal claim in proper focus, the Supreme Court of Missouri would have promptly remanded the case to the trial court for more adequate action by petitioner's 27.26 counsel and for a more extensive evidentiary hearing in accordance with the teaching in Stidham, Crosswhite, and Fritz.

Piecemeal postconviction litigation cannot be avoided in this particular case unless full investigation of the facts concerning the potential question of effective assistance of counsel is made prior to the holding of a more adequate evidentiary hearing. If investigation of those facts makes the filing of an amended motion appropriate, all evidence concerning that separate question may be adduced at the same hearing that evidence is adduced in connection with petitioner's coerced plea claim and any and all other claims he may wish to make.

Only by following the procedure required by amended Rule 27.26(h) as implemented by Fritz may reliable findings of fact and appropriate conclusions of law be made and articulated in the state court concerning all possible questions in a single hearing.

If the effective assistance of counsel question, for example, that may be presented in this case is not fully investigated, evidence concerning the same adduced, and adjudication made at the same evidentiary hearing in which the question of the voluntariness of petitioner's plea of guilty is litigated, it is obvious that petitioner has the right to litigate the former question in a second state postconviction proceeding. Sanders v. United States, supra. Avoidance of such piecemeal postconviction litigation is the explicit objective of the amendment made by the Supreme Court of Missouri to its Rule 27.26 in accordance with the teaching of the trilogy.

Consistent with this Court's en banc decision in White v. Swenson (W.D.Mo. en banc 1966) 261 F.Supp. 42, the Court of Appeals for the Eighth Circuit in Baines v. Swenson (8th Cir. 1967) 384...