Gray v. Swenson

Decision Date15 August 1967
Docket NumberNo. 1202.,1202.
PartiesDan Westley GRAY, Petitioner, v. Harold R. SWENSON, Warden, Respondent.
CourtU.S. District Court — Western District of Missouri

Dan Westley Gray, pro se.

Norman Anderson, Atty. Gen. of Missouri, B. J. Jones, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

This habeas corpus case requires this Court again to apply the principles initially established by the Supreme Court of the United States in 1963 in Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). The undisputed factual situation is established by the pleadings. Petitioner is entitled to the issuance of our writ of habeas corpus, the execution of which will be appropriately conditioned, for reasons we shall state in detail.

Petitioner was convicted by a jury of murder in the second degree on September 12, 1960 in the Circuit Court of New Madrid County, Missouri. Petitioner was represented by counsel at the trial. After petitioner's motion for a new trial, filed by his trial counsel, was overruled an appeal was perfected to the Supreme Court of Missouri. That court affirmed petitioner's conviction in State v. Gray, (Mo.Sup.Ct.Div. 1) 360 S.W.2d 642. Petitioner is presently serving the 60 year sentence fixed by the jury. Petitioner was not represented by counsel on his direct appeal. That appeal was finally determined by the Supreme Court of Missouri before the Supreme Court of the United States decided Douglas v. People of State of California. The factual and legal situation is directly comparable to that presented in Donnell v. Swenson, (W.D.Mo.1966) 258 F.Supp. 317, affirmed 8 Cir. 1967, 382 F.2d 248, No. 18638, decided August 8, 1967. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967) and Donnell control this case.

I.

In his initial response to our order to show cause, the Attorney General of Missouri contended that "petitioner has failed to exhaust remedies under Missouri law." He relied upon the 1950 Supreme Court of the United States decision in Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950), a case expressly overruled in part by Fay v. Noia, 372 U.S. 391 at 435, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Mahurin v. Nash, (8 Cir. 1963) 321 F.2d 662, an early Eighth Circuit case applying only to cases decided by the Missouri courts before the 1963 landmark decisions of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Fay v. Noia, supra; and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The Attorney General also contended that "petitioner has the right under Supreme Court Rule 27.26 V.A. M.R. to raise the question in his petition." The respondent's contentions are not tenable, based as they are upon cases of historical interest only and upon an argument directly contrary to an established rule of decision of the Supreme Court of Missouri.

In Russell v. Swenson, (W.D.Mo. 1966), 251 F.Supp. 196, at 199, Chief Judge Becker noted the rule of decision established in regard to the scope of a Missouri Rule 27.26 motion by the Supreme Court of Missouri in State v. Schaffer, (Mo.Sup.Ct.Div. 1, 1964) 383 S.W.2d 698. Schaffer held that a prisoner does not have a right under Missouri Rule 27.26 to raise the federal constitutional question concerning an alleged deprivation of his right to appellate counsel in a State trial court. Judge Holman stated that "if defendant was denied due process because he did not have counsel on appeal the appropriate relief would be to vacate our judgment affirming the conviction and the cause would then be redocketed for another hearing in this court" (383 S.W.2d at 700). He explained that the reason a trial court could not entertain an alleged deprivation of appellate counsel question was because a trial court "could not set aside a judgment of the supreme court because of omissions or of infirmities relating solely to the validity of the proceedings in that court" (383 S.W.2d at 700).

Most important, the Supreme Court of Missouri held in Schaffer that:

If defendant desires a ruling on the point under consideration an alleged deprivation of the right to appellate counsel it would appear that it should be raised by an appropriate proceeding instituted in this court.

The rule of Schaffer has consistently been followed by the Supreme Court of Missouri. For examples, see State v. Howard, (Mo.Sup.Ct.Div. 1, 1964) 383 S.W.2d 701 at 704, and State v. Garton, (Mo.Sup.Ct.Div. 1, 1965) 396 S.W.2d 581 at 583. For other examples of this Court's recognition of the Schaffer rule, see Hooper v. Swenson, (W.D.Mo.1965) 249 F.Supp. 280 at 283.

The recent amendment of Rule 27.26 by the Supreme Court of Missouri did not change the Schaffer rule. Nor did that amendment attempt to do so. It is therefore apparent that petitioner has the right to raise the question of denial of appellate counsel only in an "appropriate proceeding" instituted in the Supreme Court of Missouri and that such a question cannot be raised in any other Missouri court. The question remains whether petitioner has exhausted that exclusive available right in the Supreme Court of Missouri under the undisputed facts presented by this case.

The Missouri Attorney General's supplemental response to our order to show cause established that on November 17, 1966 petitioner filed a motion for leave to file a motion to recall mandate in the Supreme Court of Missouri, presenting with that motion a copy of his proposed motion to recall mandate and a supporting brief. In his motion requesting leave, petitioner alleged in part that:

Appellant will show in his Motion and supporting brief that the provisions of Missouri law, under which the Missouri Supreme Court followed in the review of this appeal, was not an adequate procedure in affording the appellant with his right to "equal protection of the law" as provided by the Fourteenth Amendment to the Constitution of the United States.
Appellant will also establish in his Motion and supporting brief that the rule in Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 decided in the U. S. Supreme Court in 1963, is appliable and controlling in this case; he will further establish that Law Ex Cathedra holds the doctrine in Douglas v. California retroactive and appliable to appeals decided long before the rule was established in 1963.

That supplemental response also established that on December 12, 1966 the Supreme Court of Missouri entered an order that "petitioner's motion for leave to file motion to recall mandate as a poor person sustained." That order also ruled petitioner's motion on the merits. It stated that petitioner's "motion to recall mandate denied."

The allegations of petitioner's motion to recall mandate, within the meaning of the Schaffer rule, appropriately presented the precise federal question here involved to the Supreme Court of Missouri for decision on the merits. Petitioner's motion and his supporting brief clearly set forth the relief prayed for and the legal authorities upon which petitioner's federal claim was based.

Petitioner's motion appropriately prayed that the Supreme Court of Missouri's mandate affirming the judgment of the trial court on direct appeal be recalled, that the judgment of affirmance be set aside, and that appellate counsel now be appointed "to brief and argue the direct trial court appeal." Petitioner cited and relied on the cases of Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1962); Griffin v. People of State of Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 100 L.Ed. 891 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964); Bosler v. Swenson, (8 Cir. 1966) 363 F.2d 154 (then pending on certiorari and subsequently affirmed); and Donnell v. Swenson, (W.D.Mo.1966) 258 F. Supp 317 (then pending on appeal and subsequently affirmed by the Eighth Circuit).

The Supreme Court of Missouri under the rule of Schaffer was the only State court in which petitioner could file his motion for appropriate relief. That Court passed on the merits of petitioner's clearly stated federal claim when it denied the motion which it permitted to be filed. Under Missouri law petitioner has no other Missouri court to which he can turn to vindicate his federally protected constitutional right. We therefore find and determine, consistent with the principles fully discussed in White v. Swenson, (W.D.Mo. en banc 1966) 261 F.Supp. 42, that petitioner has in fact and in law exhausted his available post-conviction State court remedies and that we are required to decide this case on the merits.

II.

The question presented by the undisputed facts of this case is the precise question heretofore decided by this Court in Donnell v. Swenson, (W.D.Mo.1966) 258 F.Supp. 317, affirmed 8 Cir. 1967, 382 F.2d 248, No. 18638, decided August 8, 1967. We held that Douglas v. California must be retrospectively applied. The Eighth Circuit affirmed, holding that "in view of the course charted by the Supreme Court we have no alternative but to retroactively apply the principles of Douglas to the case before us."

There is no factual doubt in this case concerning petitioner's indigency at the time of his direct appeal. Nor is there any question that petitioner was not represented by counsel on his direct appeal. The original response filed by the Attorney General of Missouri to our order to show cause established that the Supreme Court of Missouri sustained an application filed by petitioner to sue as a poor person on December 8, 1961. That response also established that on September 10, 1962, shortly before the case was set for oral argument, the...

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9 cases
  • Gray v. Swenson
    • United States
    • U.S. District Court — Western District of Missouri
    • 22 Julio 1969
    ...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 est......
  • Caffey v. Swenson
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    ...therein on November 14, 1966. This appeared to have exhausted available state remedies in respect to this contention. Gray v. Swenson (W.D.Mo.) 271 F.Supp. 912. In his initial response to the show cause order entered herein, respondent stated his inability "to show that the petitioner intel......
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    • 10 Abril 1972
    ...appeal, No. 49,313, but stayed execution of the writ upon condition that this court grant him a new appeal with counsel. Gray v. Swenson, D.C.W.D.Mo., 271 F.Supp. 912; Bosler v. Swenson, 8 Cir., 363 F.2d 154; Swenson v. Donnell, 8 Cir., 382 F.2d 248. On September 11, 1967, this court, on it......
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    ...33; and Swenson v. Donnell, 8 Cir., 382 F.2d 248; and in compliance with memorandum and order dated August 11, 1967, in Gray v. Swenson, W.D.Mo., 271 F.Supp. 912 (1967), set aside the affirmance, reinstated the cause on the docket, ordered the trial court to appoint counsel to represent app......
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