Garton v. Swenson, 1058.

• Decision Date: 18 April 1967
• Docket Number: No. 1058.,1058.
• Citation: 266 F. Supp. 726
• Parties: Charles W. GARTON, Petitioner, v. Harold SWENSON, Respondent.
• Court: U.S. District Court — Western District of Missouri

266 F. Supp. 726

Charles W. GARTON, Petitioner, v. Harold SWENSON, Respondent.

No. 1058.

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

April 18, 1967.

Granville Collins, Edward H. Hunvald, Jr., Columbia, Mo., for petitioner.

Norman H. Anderson, Atty. Gen. of Missouri, Donald L. Randolph, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM OPINION AND ORDER

JOHN W. OLIVER, District Judge.

This is another State prisoner habeas corpus case filed by an inmate of the Missouri Penitentiary. Petitioner was convicted of first degree robbery in the Circuit Court of Andrew County, Missouri. That conviction was affirmed on direct appeal on September 9, 1963, in State v. Garton, Mo.1963, 371 S.W.2d 283. Petitioner, an indigent, was not represented by counsel in that appeal. Petitioner is entitled to relief in this Court unless the State of Missouri affords him a new appeal with appointed counsel. See Bosler v. Swenson, 8 Cir. 1966, 363 F.2d 154, affirmed per curiam, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 on March 13, 1967. Disposition of this case was withheld during the time Bosler pended on certiorari.

This case is complicated by the fact that petitioner, after denial of his right to appellate counsel on direct appeal, was later denied his constitutional right to an evidentiary hearing on the federal claims alleged in a state postconviction motion filed pursuant to available state procedures. Petitioner's motion to vacate his sentence was filed in the state trial court pursuant to Missouri Supreme Court Rule 27.26, V.A.M.R. on July 11, 1963. That motion was denied without an evidentiary hearing; the denial of that motion was affirmed by the Supreme Court of Missouri in State v. Garton, Mo.1965, 396 S.W.2d 581. Such denial, because of the allegations of his postconviction motion, was a second violation of petitioner's federal constitutional rights. See the full discussion of the applicable Supreme Court of the United States cases in White v. Swenson, W.D.Mo. en banc, 1966, 261 F.Supp. 42.

It is clear that under Bosler petitioner is entitled to the issuance of our writ conditioned upon the granting of a new appeal with appointed counsel. Whether we should also immediately grant petitioner the evidentiary hearing denied him by the state courts involves other considerations. In the first place, should the Attorney General of Missouri refuse to act in regard to petitioner's direct appeal, there would be no occasion for any evidentiary hearing because the writ of this Court would issue unconditionally. But if it be assumed that the Attorney General of Missouri does act and that a new appeal is granted, the determination of whether this Court should immediately proceed with the denied evidentiary hearing must take into account the fact that the Supreme Court of Missouri has not yet passed on the merits of the federal constitutional claims originally raised in petitioner's 27.26 motion.

In spite of the fact that the Missouri courts have denied petitioner two separate rights guaranteed him by the Constitution of the United States, considerations of comity based upon the respective responsibilities of state and federal courts in the administration of the state's criminal laws require, under the particular facts here presented and for reasons we shall state, that we not immediately exercise federal power and jurisdiction.

Our examination of the trial transcript and the briefs filed in connection with petitioner's direct appeal establishes that petitioner did not attempt to present any substantial federal claims in connection with his direct appeal reported in 371 S.W.2d 283. Issuance of federal habeas conditioned solely on the granting of a new appeal in the Supreme Court of Missouri would not give the Supreme Court of Missouri a chance to pass on the federal questions alleged both in petitioner's original Rule 27.26 motion and in his petition for federal habeas corpus.

We must, however, recognize that the granting of a new direct appeal with appellate counsel could produce one of two results. A new direct appeal with appellate counsel could result in the reversal of petitioner's conviction on the state grounds presented on direct appeal and therefore end the litigation. On the other hand, petitioner's conviction could again be affirmed by the Supreme Court of Missouri after it had considered appropriate argument from appellate counsel to be appointed. Elemental principles of comity require that this Court stay the issuance of its writ until the Attorney General of Missouri is given an opportunity to take appropriate action in regard to petitioner's direct appeal and, if a new direct appeal is granted with appellate counsel, until the Supreme Court of Missouri shall have decided such new appeal. Compare Barry v. Sigler, Warden, 8 Cir. 1967, 373 F.2d 835, decided March 16, 1967.

It would not be proper for this Court to grant petitioner an immediate evidentiary hearing because it can not be said with legal certainty that a new direct appeal with the benefit of appointed appellate counsel would be useless. Indeed, indulgence in such an assumption would fly in the face of the Supreme Court of the United States express holding in Bosler. It was there held:

The assistance of appellate counsel in preparing and submitting a brief to the appellate court which defines the legal principles upon which the claims of error are based and which designates and interprets the relevant portions of the trial transcript may well be of substantial benefit to the defendant. 87 S.Ct. 997

The order affirmed in Bosler provided that the issuance of the writ be stayed a reasonable time in order to give Missouri an opportunity to afford petitioner a new direct appeal with appellate counsel. The direction commanded by Bosler must, of course, be included in our order in this case. The real question presented is whether additional conditions of stay should be added to the order to be made in this case.

Recent developments in Missouri post-conviction jurisprudence would indicate that if afforded a new opportunity, the courts of Missouri would not again deprive petitioner of his federal right to an evidentiary hearing. Indeed, those developments would indicate that it is entirely possible, if not probable, that the Supreme Court of Missouri, if afforded the opportunity, would direct the state trial court to grant petitioner leave to file a new Rule 27.26 motion, to appoint counsel for him, and to conduct a full evidentiary hearing consistent with the familiar Supreme Court of the United States cases discussed in White v. Swenson.

On January 9, 1967 the Supreme Court of Missouri amended its Rule 27.26 and several of its other related rules. See 23 Journal of the Missouri Bar, No. 2, page 48 (February, 1967). That amendment has since been described by the Supreme Court of Missouri as a "radical" amendment of its old rule. See State v. Maxwell, Mo.1967, 411 S.W.2d 237 at 241.

Missouri Rule 27.26, as amended on January 9, 1967, now provides for the mandatory appointment of counsel for an indigent defendant in the trial court if a Rule 27.26 motion presents "questions of law or issues of fact." It also makes mandatory provision for the appointment of "competent counsel to conduct an appeal" from any denial of a Rule 27.26 motion. See paragraphs (h) and (l) of amended Rule 27.26. Paragraph (e) of that amended rule requires that the required hearing "shall be an evidentiary hearing if issues of fact are raised in the motion, and if the allegations thereof directly contradict the verity of records of the court, that issue shall be determined in the evidentiary hearing." Had Amended Rule 27.26 been properly applied in this case petitioner would not have been denied an evidentiary hearing by the courts of Missouri.

Many other improvements and refinements are included in the Amended Rule 27.26 that need not be here detailed. The Supreme Court of Missouri is entitled to the highest commendation for again demonstrating its traditional position of leadership in the field of judicial administration. It is the considered judgment of all the judges of this Court that Missouri's Amended Rule 27.26 represents the most enlightened postconviction procedure of any state with which we are familiar.

At the last pretrial conference recently held in this case counsel agreed that it would be appropriate for this Court to contact the Honorable John M. Yeaman, Judge of the Circuit Court for the Sixth Judicial Circuit in Missouri, in which Andrew County is located. Judge Yeaman stated that if directed by the Supreme Court, he would grant petitioner leave to file a new Rule 27.26 motion, would appoint counsel for him, and would conduct a prompt evidentiary hearing in accordance with the procedures defined in Amended Rule 27.26. Judge Yeaman further advised this Court that he recently appointed counsel and held an evidentiary hearing in connection with a new Missouri Rule 27.26 motion filed by one William Powell, whose federal habeas petition was recently dismissed without prejudice because of that petitioner's failure to exhaust available state court remedies. For the history of Powell's case, see State v. Powell, Mo.1966, 400 S.W.2d 183, and our unreported opinion in Powell v. Swenson, Warden, W.D.Mo., Civil No. 1144, decided November 30, 1966.

We believe it appropriate to add that the exemplary action in holding postconviction evidentiary hearings in cases with which we are officially familiar by reason of earlier federal court habeas petitions reflects the rule rather than the exception within our experience with the other trial judges of Missouri in any number of other state prisoner habeas corpus cases. In none of the cases in which we have abstained from exercising federal power in order to give the state courts the opportunity in the first instance to proceed in accordance with the principles discussed in White v. Swenson, supr...