Gray v. Swenson, 20084.

• Decision Date: 15 September 1970
• Docket Number: No. 20084.,20084.
• Citation: 430 F.2d 9
• Parties: Dan Westley GRAY, Appellant, v. Harold R. SWENSON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

430 F.2d 9 (1970)

Dan Westley GRAY, Appellant, v. Harold R. SWENSON, Appellee.

No. 20084.

United States Court of Appeals, Eighth Circuit.

August 5, 1970.

Rehearing Denied September 15, 1970.

John E. Besser, Kansas City, Mo., for appellant; Alan L. Atterbury, and W. Anthony Feiock, Kansas City, Mo., on the brief.

Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, Mo., for appellee; John C. Danforth, Atty. Gen., Jefferson City, Mo., on the brief.

Before VAN OOSTERHOUT, MEHAFFY and LAY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by Dan Westley Gray from order entered by the trial court on petition for writ of habeas corpus reading as follows:

"For the reasons stated, it is

"Ordered that petitioner be released from his present confinement in the Missouri Department of Corrections and be permanently discharged from custody at the end of ninety (90) days from the date of this order, unless within that time he has been afforded an appropriate plenary evidentiary hearing in the State trial court in accordance with the standards articulated in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), on the issue of the voluntariness of the three hundred and sixty-four question and answer statement used in his original trial, or, in the alternative, to grant petitioner a new trial. It is further

"Ordered that such hearing shall be conducted and an appropriate order entered within the ninety (90) day period in full compliance with the requirements of Missouri Supreme Court Rule 27.26 V.A.M.R., as that rule has been construed by the Supreme Court of Missouri. It is further

"Ordered that nothing stated in this opinion or order of this Court shall be construed as any limitation on petitioner\'s right to file and the State trial court\'s duty to hear any new Missouri Supreme Court 27.26 motion which petitioner may wish to file in conjunction with the Jackson v. Denno hearing first ordered. It is further

"Ordered that this Court retain jurisdiction of this cause pending further developments. The Office of the Attorney General shall keep this Court advised of any and all action taken by the State of Missouri in connection with this Order and shall, if necessary, make appropriate application for any extension of the ninety (90) day period of time above provided before the expiration of said period. No extension will be granted except for good cause shown which shall be stated with particularity in any application filed."

Before reaching the issues raised by Gray, we shall consider the State's contention that the judgment just set out is not a final judgment and hence not appealable.

Jurisdiction on appeal is based on 28 U.S.C.A. § 1291 which permits appeals from final judgment of the district court. It is the duty of this court to satisfy itself that jurisdiction exists. As pointed out in Stewart v. Bishop, 8 Cir., 403 F.2d 674, habeas corpus is a civil remedy and appeals lie only from the final judgment on all claims absent an appropriate order pursuant to Rule 54(b), Fed.R.Civ.P., or 28 U.S.C.A. § 1292(b). A final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. In Stewart, petitioner made five constitutional attacks upon his conviction (p. 676 of 403 F.2d). The order appealed from disposed of only the Jackson v. Denno, 378 U.S. 368, issue. While the court in a letter to counsel stated it was ruling adversely to petitioner on all issues except the Jackson v. Denno issue, the judgment entered did not so provide, the order stating that a memorandum will subsequently be filed.

Here, unlike the situation in Stewart v. Bishop, the court filed a memorandum opinion including thirty-two issues of fact and determined that Gray had not been afforded an evidentiary hearing on the voluntariness of his confession and that defendant be released unless the state affords a hearing meeting Jackson v. Denno standards within the time specified. The order on its face purports to dispose of all issues raised by the habeas corpus petition.

Moreover, the remedy adopted by the trial court conforms to the teaching of the Supreme Court in Sigler v. Parker, 396 U.S. 482, 484, 90 S.Ct. 667, 669, 24 L.Ed.2d 672, the Court there stating:

"However, as indicated in our opinion in Jackson v. Denno, supra, 378 U.S. at 391-396, 84 S.Ct. 1774, the appropriate remedy when a federal court finds a Jackson v. Denno error in a prior state proceeding is to allow the State a reasonable time to make an error-free determination on the voluntariness of the confession at issue. Hence it was error for the Court of Appeals to pass judgment on the voluntariness of respondent\'s confessions without first permitting a Nebraska court to make such an evaluation uninfluenced by the apparent finding of voluntariness at the 1956 trial."

See Reizenstein v. Sigler, 8 Cir., 428 F. 2d 702 (June 30, 1970.)

We hold the order appealed from constitutes a final judgment from which an appeal lies.

We now consider Gray's appeal. Gray was found guilty in the state court by a jury on September 21, 1961, on a charge of second degree murder. He was sentenced to sixty-years imprisonment. His conviction was affirmed, State v. Gray, Mo., 360 S.W.2d 642. The federal district court on a prior habeas corpus petition filed by Gray by its order determined that Gray on his direct state appeal had been deprived of his constitutional right to counsel upon appeal on the basis of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. See Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33. Issuance of the writ was stayed to permit the state a reasonable time to afford Gray a new direct appeal with the benefit of representation by counsel. Pursuant to such order, the State Supreme Court vacated the judgment entered upon the first direct appeal and granted Gray a new appellate hearing and made provision for Gray's representation by counsel. The hearing upon the direct appeal was consolidated with an appeal from an order denying relief entered on a post conviction attack under Missouri Rule 27.26 made in the state trial court on the voluntariness of statements made by defendant after his arrest. Gray was represented by appointed counsel on the consolidated appeals. The conviction was affirmed and the order denying post conviction relief was likewise affirmed. State v. Gray, 432 S.W.2d 593. In said opinion, the court refers to the Jackson v. Denno rule but does not reach such issue for the stated reason that the court determined Gray had waived any right to challenge the voluntariness of his confession.

The complex history of this litigation is fairly set out in considerable detail in the trial court's opinion reported at 302 F.Supp. 1162, and in the two reported opinions of the Missouri Supreme Court hereinabove referred to. The grounds for habeas corpus relief asserted in Gray's present petition are thus stated:

"(a) Petitioner denied equal protection of the law contrary to the Fourteenth Amendment, because the State Supreme Court failed to afford him the right of a proper direct trial Court appeal consistent with the order of the United States District Court in Gray v. Swenson, 271 F.Supp. 912 (67).

"(b) Petitioner denied equal protection of the law contrary to the Fourteenth Amendment, because the State Supreme Court failed to make an effective appointment of counsel for the Consolidated appeals on the direct and collateral consistent with the order of the United States District Court in Gray v. Swenson, 271 F.Supp. 912 (67).

"(c) Petitioner denied due process of the law because the State has failed to afford an effective State Court remedy whereby relief may be obtained on an illegal conviction where the prosecuting attorney was acting as a Magistrate Court Clerk when he filed the information, Etc."

The State has consistently and candidly admitted that Gray did not have effective assistance of counsel on his second direct appeal where his conviction was affirmed by opinion reported at 432 S.W.2d 593.¹

Gray relies upon the following errors for reversal: (1) The condition upon which the writ was stayed in the prior federal habeas corpus proceeding was not fulfilled and hence the writ of habeas corpus should issue directing Gray's immediate release from custody. (2) If a Jackson v. Denno hearing is required, findings should be made upon the basis of the record made in the prior Rule 27.26 hearing and additional evidence should not be received. (3) The court erred in failing to uphold Gray's contention that the state court lacked jurisdiction because the information upon which he was tried was void because it...