Garton v. Swenson

• Decision Date: 18 December 1973
• Docket Number: No. 18547-1.,18547-1.
• Citation: 367 F. Supp. 1355
• Parties: Charles W. GARTON, Petitioner, v. Harold R. SWENSON, Respondent.
• Court: U.S. District Court — Western District of Missouri

367 F. Supp. 1355

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

No. 18547-1.

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

December 18, 1973.

David R. Freeman, Federal Public Defender, Thomas M. Larson, Asst. Federal Public Defender, Kansas City, Mo., for petitioner.

Stephen D. Hoyne, Asst. Atty. Gen., State of Mo., Jefferson City, Mo., for repondent.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

Petitioner, currently serving a life sentence imposed under the Missouri Habitual Criminal Act, was granted conditional federal habeas corpus relief in Garton v. Swenson 266 F.Supp. 726 (W. D.Mo.1967). Further proceedings were held and petitioner returns to this Court seeking additional relief.

I.

On September 1, 1961, two men robbed the Farley State Bank in Farley, Missouri. Petitioner was arrested for that crime on October 28, 1961, in Hobbs, New Mexico, and was held for extradition to Missouri. At an extradition hearing held November 22, 1961, the District Court of Lea County, New Mexico, after hearing four witnesses testify as to petitioner's presence in Hobbs on the date of the robbery, released him and refused extradition. Later, on January 5, 1962, a second extradition hearing was held at which the State presented three eye-witnesses to the robbery who identified petitioner as one of the participants. The same four alibi witnesses again testified for the petitioner, but extradition was granted.

The evidence produced by the prosecution at trial is summarized in State v. Garton, 371 S.W.2d 283 (Mo.1963). The petitioner's evidence in defense was the testimony of Mrs. Owen that on the evening of September 1, 1961, the petitioner helped celebrate her birthday in a lounge in Hobbs, New Mexico. The other witnesses who testified for the defendant at the extradition hearings were not called at the trial. After deliberating for thirty-one minutes, the jury returned a verdict of guilty. Petitioner's conviction was affirmed by the Supreme Court of Missouri. State v. Garton, supra. Petitioner's subsequent motion pursuant to Missouri Supreme Court Rule 27.26, V.A.M.R., was denied without a hearing. That denial was affirmed on appeal. See State v. Garton, 396 S.W.2d 581 (Mo.1965).

In petitioner's initial federal habeas proceeding, we found that petitioner was entitled to an evidentiary hearing in regard to the federal claims asserted in his state postconviction proceedings. We accordingly granted his petition, but stayed the issuance of the writ for ninety days to allow the state to provide petitioner with a proper Rule 27.26 hearing. Garton v. Swenson, 266 F.Supp. 726 (W.D.Mo.1967). A Rule 27.26 hearing was held, relief was denied, and that denial was affirmed. Garton v. State, 454 S.W.2d 522 (Mo.1970). Petitioner then filed a second federal habeas petition, giving rise to the current action.

II.

The grounds alleged in petitioner's current federal habeas corpus petition were prepared without the assistance of his present appointed counsel and, as is not unusual, accurately paraphrased "the points relied on" in the brief filed in connection with petitioner's most recent appeal in the Supreme Court of Missouri. The opinion of that court in Garton v. State, 454 S.W.2d 522 (Mo.1970), accurately stated that petitioner complained about "one, the alleged use of perjured testimony and the known suppression of evidence beneficial to Garton; two, alleged bias and prejudice and therefore the disqualification of the trial judge and the prosecuting attorney; three, the eight-pronged attack on his hired counsel to whom he now attributes `incompetent defense' and ineffectiveness, and, fourth, the unconstitutionality of the statute governing the number of challenges of jurors in jurisdictions other than in cities of over 100,000 population."

The Supreme Court of Missouri, in accordance with principles articulated in Hayes v. Missouri 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578 (1887), and its progeny, properly concluded that the petitioner's attack upon the constitutionality of the juror challenge statute was untenable. The due process argument in regard to the alleged prejudice of the trial judge and the interest of the prosecuting attorney was found to be "without substantial foundation or factual basis." The trial judge's findings in that regard were expressly adopted by the Supreme Court of Missouri. 454 S.W.2d at 526. We find and conclude that those facts were reliably found.

The Supreme Court of Missouri further found and concluded that "there is no substantial factual support" for the claims that the state "knowingly and purposefully withheld evidence material to the defendant" and that "state's counsel knowingly used the perjured testimony of one of Garton's accomplices, Jack Streater." 454 S.W.2d at 526-527. The Supreme Court of Missouri also found that the statement given by Streater was not inconsistent with his testimony at trial and that "thus there is no demonstration of error in denying appellant the use of the written statement." We have carefully studied the various transcripts and find and conclude that the courts of Missouri properly found the relevant facts and properly applied applicable federal standards in denying petitioner relief in regard to these claims.

We recognize that petitioner's counsel makes a strong argument based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), particularly in regard to the failure to produce Streater's written statement. Petitioner argues that the Supreme Court of Missouri's finding that there were "not even minor discrepancies" between Streater's trial testimony and his statement may not be fully supported by the record. Testimony at the Rule 27.26 hearing suggested that, in light of Streater's receipt of a bench parole following his trial testimony, a fully developed factual situation might present a question under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). A substantial amount of hearsay testimony in that regard was presented and excluded at the Rule 27.26 hearing. Efforts made by both sides to locate Streater for that hearing were unsuccessful. Indeed, the delay in processing this case resulted from a mutual recognition that Streater's testimony and that of his wife was desirable.

Subsequent investigation, during the time the case pended in this Court, however, has established that Streater is now deceased and that his wife's testimony would not be of any material benefit under the circumstances. The lurking Napue question, therefore, does not come into focus because of an insufficiency of evidence.

In regard to the Brady v. Maryland question, it may be assumed that some inconsistencies do exist between Streater's written statement and his trial testimony; nevertheless, we are convinced that an application of Brady, consistent with the gloss placed on that case in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), requires that we find and conclude that petitioner's claims are not tenable.

III.

The situation in regard to petitioner's Sixth Amendment claim of ineffective assistance of counsel is much more complicated. Petitioner's original pro se Rule 27.26 motion tracked very closely to the allegations of the motion for new trial which was filed before his employed counsel withdrew from the case. The alleged ground of ineffective assistance of counsel, of course, did not appear in the case until after new counsel had been appointed to represent him in the second Rule 27.26 proceeding.

Petitioner's first amended Rule 27.26 motion, which was prepared with the assistance of appointed counsel, alleged that the petitioner was "denied the effective assistance of counsel in his original trial because of incompetency of his attorney, thereby depriving him of constitutional rights guaranteed by the Sixth Amendment." In denying that motion, the trial judge did not state any conclusions of law in regard to the ineffective assistance of counsel question. He did, however, include the following in his conclusory findings of fact:

Movant was represented by two highly-qualified, reputable, skilled and experienced criminal trial lawyers of his own choosing who effectively represented Movant throughout trial.

(1) Said attorneys vigorously and expertly tried and defended Movant.

(2) Said attorneys ethically and professionally performed every requirement to see that Movant's rights were protected and that he had a fair and impartial trial.

(3) The acts or omissions of counsel set forth under Movant's Amended Motion, Paragraph (P), subparagraphs 1 through 5, inclusive, are not such acts or omissions to preclude a fair and impartial trial with effective assistance of counsel.

(4) Even though an acquittal was not obtained for Movant, he nevertheless had the effective assistance of professional and skilled lawyers throughout the trial.

(5) Movant had a fair and impartial and speedy trial, although not a perfect trial (which, incidentally, is not required).¹

On appeal, the Supreme Court of Missouri stated its view that petitioner's appeal "could be disposed of summarily" (454 S.W.2d at 524). It also concluded as "an indisputable fact . . . that in no event could Garton ever be found innocent or exonerated or discharged as he apparently believes" (Id. at 525). The Supreme Court of Missouri twice referred to petitioner's ineffective assistance of counsel claim as an alleged infringement of federal due process. (Id. at 525, 529). The Sixth Amendment was not mentioned in that opinion. Petitioner's claim was described by the Supreme Court of Missouri as "the very distasteful claim of infringement of due process by reason of ineffectiveness assistance of counsel" and "incompetent defense afforded him by his attorneys." In ruling that claim, the Supreme Court of Missouri concluded that "it would serve no useful purpose here to go through all these grounds in detail and demonstrate upon the...