Gray v. Swenson

• Citation: 302 F. Supp. 1162
• Decision Date: 22 July 1969
• Docket Number: No. 1392.,1392.
• Parties: Dan Westley GRAY, Petitioner, v. Harold R. SWENSON, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

302 F. Supp. 1162

Dan Westley GRAY, Petitioner, v. Harold R. SWENSON, Warden, Respondent.

No. 1392.

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

July 22, 1969.

John E. Besser, Morrison, Hecker, Cozad, Morrison & Curtis, Kansas City, Mo., for petitioner.

John C. Danforth, Atty. Gen., Gene E. Voigts, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM OPINION AND ORDER

GRANTING HABEAS CORPUS

JOHN W. OLIVER, District Judge.

I.

The state prisoner involved in this habeas corpus case is before this Court for a second time. In Gray v. Swenson (W. D.Mo.1967) 271 F.Supp. 912, we determined that petitioner had been deprived of his federally protected right to appellate counsel. Consistent with the established practice of this Court, we stayed the issuance of the writ in order to permit the State of Missouri to take appropriate steps to set aside and vacate the Supreme Court of Missouri's affirmance of petitioner's original conviction on direct appeal as reported in State v. Gray, 360 S.W.2d 642, to appoint appellate counsel, and to afford petitioner a new direct appeal in accordance with the command of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

Appropriate procedural steps were taken to comply with the conditions of this Court's stay order. Petitioner's second direct appeal in the Supreme Court of Missouri was consolidated with an appeal which was also then pending in that court from a denial of an earlier Missouri Supreme Court Rule 27.26, V. A.M.R. motion. After hearing, petitioner's original conviction was again affirmed by the Supreme Court of Missouri in State v. Gray, Mo.Sup.Ct.Div. 3, 1968, 432 S.W.2d 593.

In the second habeas proceeding in this Court, petitioner alleged and proved that the representation afforded petitioner by counsel appointed by the state trial court to represent him on his second direct appeal in the Supreme Court of Missouri was so inadequate and ineffective that his federal constitutional right to the effective assistance of counsel was again violated. The factual situation is undisputed. Counsel for respondent states with commendable candor and responsibility that "respondent would be lacking in credibility and candor before this Court and amiss in the fulfillment of his professional obligation to attempt to contend that petitioner was the recipient of effective assistance of counsel under the facts and circumstances presented."¹

Both parties agree that under the undisputed factual situation presented that petitioner was, as a matter of law, deprived of rights guaranteed him by the Constitution of the United States in connection with his second direct appeal in the Supreme Court of Missouri. We state that conclusion of law in language suggested by respondent's counsel, namely, "that the representation afforded petitioner by his court-appointed counsel was such that it constituted inadequate and ineffective representation by counsel in contravention of the guarantees of the Sixth and Fourteenth Amendments to the United States Constitution."

II.

The parties are not, however, agreed in regard to what relief should now be granted. Petitioner contends that this Court's writ of habeas corpus should now be issued directing petitioner's permanent release from custody. Respondent's first contention is that this Court should grant the writ but that a stay order substantially identical to that entered in August, 1967 be again entered to afford the State still another opportunity to vacate and set aside its second affirmance of petitioner's direct appeal, and to appoint new appellate counsel to represent petitioner on what would be a third direct appeal. As a second alternative, respondent suggests that, at most, "petitioner be accorded a new trial, if the State desires to retry him for the offense charged, and, otherwise that he be released from custody."

This Court is under duty to dispose of this case "as law and justice require," Section 2243, Title 28, United States Code. We believe that the flexibility of remedy contemplated by that section affords, under the particular circumstances of this case, alternatives of relief which do not require this Court to make the hard choice between an unconditional grant of the writ and conditioning its stay order in a manner which would require a third direct appeal in the Supreme Court of Missouri.

We have concluded, for reasons we shall state, that an appropriate order be entered to allow the State of Missouri a reasonable time to afford petitioner an appropriate Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing in the state trial court, or a new trial, failing either of which, petitioner would then be entitled to his release.

III.

The unique and most unfortunate factual circumstances involved in this case tend to obscure the principles applicable to this Court's exercise of its habeas corpus jurisdiction. Those circumstances, when viewed with appropriate judicial objectivity, merely require this Court, in order to dispose of the matter as law and justice require, to make an ultimate finding that, within the meaning of Section 2254(b), Title 28, United States Code, circumstances in fact exist which rendered the "available State corrective * * * ineffective to protect the rights of the prisoner."

Under Section 2254(b), a federal habeas court may not properly refuse to exercise its habeas jurisdiction if either (1) there is "an absence of available State corrective process," or (2) the factual situation presented in a particular case establishes "the existence of circumstances rendering such available State corrective process ineffective to protect the rights of the prisoner."

Cases both before and after the Supreme Court's 1963 habeas trilogy, 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), make clear that the second exception to the exhaustion rule codified in Section 2254 is as important as the first. See Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177 (1946); Young v. Ragen, 337 U.S. 235, 69 S.Ct. 1073, 93 L.Ed. 1333 (1949) and Jennings v. Illinois, 342 U.S. 104, 72 S. Ct. 123, 96 L.Ed. 119 (1951), for examples which make inquiry into whether any "available State corrective process" in fact existed in Illinois at that particular time, within the meaning of the first exception to the exhaustion rule.

And see United States ex rel. Mercer v. Commonwealth of Pennsylvania, (3rd Cir.1962) 310 F.2d 25; Hunt v. Warden, Maryland Penitentiary, (4th Cir.1964) 335 F.2d 936, 940; Harvey v. Mississippi, (5th Cir.1965) 340 F.2d 263, 268; and Smith v. Kansas, (10th Cir.1966) 356 F.2d 654, for cases which make inquiry into the second exception of whether the available state remedy was rendered ineffective under the particular facts of those cases.

Fay v. Noia, supra, 372 U.S. at 441, 83 S.Ct. at 850, states that "if the States withhold effective relief, the federal courts have the power and the duty to provide it." Our finding that the circumstances of this case did in fact render Missouri's available post-conviction process ineffective to protect the rights of the prisoner means that this Court has the power and duty to exercise its habeas jurisdiction on the merits, and, pursuant to Section 2243, to dispose of the case as law and justice require.

The guiding principle to be followed was stated by Mr. Justice Cardozo in Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674 (1934):

Justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.

Neither law nor justice require this Court to grant petitioner more relief than that which he could have possibly obtained had he been properly represented in connection with either of his two direct appeals in the Supreme Court of Missouri.²

The maximum relief obtainable on direct appeal in the Supreme Court of Missouri in regard to the federal confession question presented would have been a remand to the state trial court for it to conduct an appropriate hearing in accordance with the federal constitutional rule stated in Jackson v. Denno. It is true that Rogers v. Richmond, 365 U.S. 534, 549, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) (a confession case which antedated both Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) and Jackson v. Denno), the Supreme Court remanded to the lower federal courts with a direction to hold the case "in order to give the State opportunity to retry petitioner." Jackson v. Denno, however, was decided three years later. That case was the first case which directed that the federal courts allow the state trial court an opportunity to conduct a post-trial evidentiary hearing on the voluntariness issue of a confession. Mr. Justice White stated in Jackson v. Denno (footnote 22, page 394-395 of 378 U.S., page 1790 of 84 S.Ct.) that "it does not appear that the Court considered the possibility of a more limited initial hearing in the state court with a new trial dependent upon the outcome of the hearing when it decided Rogers v. Richmond." We must and do assume that the Supreme Court of Missouri would have followed Jackson v. Denno had it reached that question on direct appeal.

IV.

The Supreme Court of Missouri on petitioner's second direct appeal appropriately noted that extensive use was made at petitioner's trial of a statement of three hundred and sixty-four questions and answers taken by highway patrolmen after petitioner's arrest (432 S.W. 2d at 595). That court stated that "at no time during the trial did the appellant assert that he was physically or mentally abused or coerced or that the statement was other than voluntary" (432 S.W.2d at 595). But the Supreme...