Garton v. Swenson

• Decision Date: 25 June 1976
• Docket Number: No. 18547-1.,18547-1.
• Citation: 417 F. Supp. 697
• Parties: Charles W. GARTON, Petitioner, v. Harold R. SWENSON, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

417 F. Supp. 697

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

No. 18547-1.

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

June 25, 1976.

David Robards, Asst. Federal Public Defender, Kansas City, Mo., for petitioner.

John C. Danforth, Atty. Gen., State of Missouri, Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER GRANTING HABEAS CORPUS RELIEF

JOHN W. OLIVER, District Judge.

I.

This is the third time this state prisoner habeas corpus case has been before this Court. In Garton v. Swenson (W.D.Mo. 1967), 266 F.Supp. 726, we granted federal habeas corpus relief because petitioner had been denied his right to counsel on direct appeal and because he had been denied a postconviction evidentiary hearing required by federal standards, enunciated in 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).

Seven years later, in Garton v. Swenson (W.D.Mo.1973), 367 F.Supp. 1355, we felt compelled to deny petitioner habeas relief in his alleged Sixth Amendment claim of ineffective assistance of counsel because "we are quite confident that should the Court of Appeals apply its `farce or mockery' test to the circumstances of this case, it would conclude that any finding this Court may make in regard to ineffective assistance would implicitly be found to be clearly erroneous and petitioner would be denied relief on the theory that the Supreme Court of Missouri had properly articulated and applied the Eighth Circuit's `farce and mockery' standard." 367 F.Supp. at 1364.¹

When this case was last before this Court in 1973, the petitioner was then serving a life sentence imposed under the Missouri Habitual Criminal Act. Approximately a month after the Court of Appeals concluded that we had read the Eighth Circuit's "decisions too narrowly" and had therefore remanded this case "for an evidentiary hearing wherein the district court shall determine whether Garton's attorneys conducted an inadequate investigation which amounted to ineffective assistance of counsel," see Garton v. Swenson (8th Cir. 1974), 497 F.2d 1137, 1140, petitioner was released on parole.²

The Federal Public Defender who had been appointed to represent petitioner both in this Court and in the Court of Appeals did not hear from petitioner until January, 1975. Inquiry developed that petitioner, because of conditions of health, would have been satisfied with being relieved of his obligations of parole. The Attorney General's office agreed that application should be made to the Missouri Board of Parole and Probation for its consideration of whether it would recommend commutation of sentence to the Governor in order that this case, as a practical matter, would be mooted.

The Assistant Attorney General in charge of the case thereafter reported that the Board of Parole and Probation wanted to review available medical data. The Board was furnished that data as it related to petitioner's recent open-heart surgery performed at the University of Missouri Medical Center and a more recent and current report of petitioner's physician in Odessa, Texas, where petitioner is presently living.

The Missouri Board of Parole and Probation finally determined, on January 23, 1976, however, that it would not make any exception to what it stated was a long-established policy of requiring a minimum period of five years supervision before considering recommendation to the Governor for commutation of a life sentence. On March 2, 1976 the Assistant Attorney General advised this Court that the Board of Parole and Probation would not reconsider its position.

Counsel were agreed that the Court of Appeals' remand for an evidentiary hearing to "determine whether Garton's attorneys conducted an inadequate investigation which amounted to ineffective assistance of counsel" must be read in light of the Court of Appeals' quotation of this Court's opinion in which we outlined the type of hearing this Court would have conducted had it been free to do so.

As we attempted to explain, we did not believe that we could properly conduct such a hearing in the face of the Supreme Court of Missouri's application of the Eighth Circuit's "farce and mockery" rule, as stated in Cardarella v. United States (8 Cir. 1967), 375 F.2d 222, 230, in a manner in which we believed our Court of Appeals had consistently applied that rule over the years.

After noting that "there is nothing in the record to show that counsel was familiar with the provisions of ? 491.420, V.A.M.S., whereby out-of-state witnesses could have been subpoenaed" and that "? 491.420, V.A. M.S., provides for the compulsory attendance of out-of-state witnesses," the Court of Appeals quoted the following portion of this Court's opinion:

If we were free to apply any standard other than the "farce and mockery" rule, we would, as we have indicated, deem it necessary to conduct a further evidentiary hearing to ascertain whether defendant's counsel or anyone else involved in the case, were familiar with the fact that all of the witnesses who testified at the two extradition hearings in New Mexico could have been compelled to testify in Missouri pursuant to V.A.M.S. ? 491.420, Missouri's version of the Uniform Law to Secure Attendance of Witnesses from Within or Without the State in Criminal Proceedings. Judicial notice requires recognition of the fact that New Mexico has also adopted the Uniform Act.

We would also make further inquiry into the circumstances surrounding the refusal of the trial court to grant a continuance. 497 F.2d 1139³

When it became apparent in March of this year that the Board of Parole and Probation was not going to take any administrative action to moot this case, counsel advised the Court that they were confident that they would be able to stipulate the material and relevant factual circumstances relating to the questions presented by the Court of Appeals' order of remand. The following stipulation was filed March 29, 1976:

COME NOW the petitioner and the respondent and hereby agree and stipulate that if Mr. Commodore M. Combs, Jr., were called as a witness at an evidentiary hearing in this case to supplement the testimony he gave on February 18, 1969 in the case of Charles W. Garton v. State of Missouri, No. E-13572, in the Circuit Court of Andrew County, Missouri, he would state as follows:

That Combs cannot recall whether he and Harrington ever discussed the possibility of subpoenaing Garton's alibi witnesses in New Mexico to testify in Missouri.

That Combs and Harrington did not pay the expenses of Garton's wife and Tommie Louise Lee Owen for the trip from New Mexico to Missouri.

That, however, Harrington did provide Tommie Louise Lee Owen with expense money for the trip back to New Mexico.

That Combs does not recall ever having utilized Missouri's out-of-state subpoena statute, Mo.Rev.Stat. Section 491.420 (1969) (enacted in 1959), and would have to say that he was unaware of the statute at the time of the Garton trial.

That Combs does not know if Harrington knew of that statute at that time or if Harrington had ever used that statute before or afterwards.

That Combs cannot recall whether an oral motion for a continuance was made at the beginning of the Garton trial and, if such a motion was made, cannot remember any of the circumstances surrounding it.

That the statements contained herein are true and correct to the best of Combs' knowledge and recollection.

Petitioner and respondent also hereby agree and stipulate that neither of them have additional evidence he wishes to adduce, and that the case may be considered on the basis of the data already in the files and records, together with the above stipulation to Mr. Combs' testimony.

Both sides thereafter filed proposed findings of fact and proposed conclusions of law. Both sides have suggested that we reiterate as an introductory finding the same finding we made when the case was last here. Accordingly, we again find that 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.

None of the remaining findings proposed by the parties are in such complete and total agreement. However, the findings proposed by each side do not present any substantial conflict in the underlying factual circumstances of this case. Generally speaking, the parties disagree only in regard to what inferences should be drawn from the undisputed factual circumstances. We shall therefore state our findings in language proposed by the parties, making such modifications as we believe are required by the record, and shall draw the inferences we are convinced must be drawn from the virtually undisputed circumstances of the case.

The four alibi witnesses mentioned above were Mr. R. E. Holliday, Mr. R. E. Jones, Mr. Jack Lewis, and Mr. A. W. Rash. None of those four witnesses testified at petitioner's state trial. On May 25, 1971, as a part of federal habeas corpus discovery, the depositions of those witnesses, with the exception of Rash who had died, were taken and filed as part of the record in this case. Had the four witnesses been subpoenaed and called to testify at the petitioner's state trial and had they...