Green v. Wyrick, 77-0076-CV-W-4.

• Court: U.S. District Court — Western District of Missouri
• Writing for the Court: Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Mo., for respondent
• Citation: Green v. Wyrick, 432 F.Supp. 965 (W.D. Mo. 1977)
• Decision Date: 27 May 1977
• Docket Number: No. 77-0076-CV-W-4.,77-0076-CV-W-4.
• Parties: Clovis Carl GREEN, Jr., Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Department of Corrections, Director, Respondent.

432 F. Supp. 965

Clovis Carl GREEN, Jr., Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Department of Corrections, Director, Respondent.

No. 77-0076-CV-W-4.

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

May 27, 1977.

Louis C. DeFeo, Jr., Jefferson City, Mo., for petitioner.

Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

ELMO B. HUNTER, District Judge.

On January 25, 1977, petitioner Green filed a pro se petition for writ of habeas corpus in the Central Division of this Court. Of the seven total claims raised by that petition, three relate to the alleged invalidity of petitioner's conviction; the others concern matters pertaining to his present confinement in the Missouri State Penitentiary. Pursuant to established procedures of this Court, the three claims relating to petitioner's conviction were by an Order entered February 1, 1977, severed from the other four claims, transferred to the Western Division, and assigned the present case number. Thus this present action is limited solely to those three separate claims each of which challenges the validity of his guilty plea to a charge of rape entered in the Circuit Court of Jackson County, Missouri, on June 25, 1975.

This habeas proceeding is at least the third such action which petitioner has instituted in this Court to challenge his guilty plea and sentence. On May 13, 1976, petitioner's first petition for writ of habeas corpus, Case No. 75 CV-498-W-4, was denied upon the finding that petitioner's plea of guilty was knowing and voluntary despite his allegation that he entered that plea in order to avoid the consequences of an indeterminate confinement which under state law could have been imposed if petitioner had stood trial and had been acquitted by reason of insanity. Green v. Wyrick, 414 F.Supp. 343 (W.D.Mo.), affd., 542 F.2d 1178 (8th Cir. 1976).¹ A second petition for writ of habeas corpus, Case No. 76 CV-328-W-4, was subsequently denied on January 11, 1977. Green v. Wyrick, 428 F.Supp. 744 (W.D.Mo.1977). In that action petitioner raised the single claim that his ten year sentence was enhanced upon the sentencing court's consideration of two prior unconstitutional convictions. That claim was found to be without merit for the reason that the record of the state proceedings clearly reflects that petitioner entered his plea of guilty pursuant to a plea bargain in return for a state recommendation that he be sentenced to ten years.

The three claims raised by petitioner in the present action are as follows: 1) "The sentencing court judge, Honorable Keith Bondurant, was improperly involved in the plea negotiations"; 2) "The Honorable Judge Keith Bondurant considered two prior unconstitutional felony convictions in the plea bargain of 10 years"; and 3) "The counsel for petitioner gave incorrect legal advance advice and the petitioner personally pled guilty based on that incorrect advance advice." Each of these claims will be described in further detail as they are separately considered below.

On March 3, 1977, the respondent was directed to respond to petitioner's claims. On timely filing of that response, the issues in this cause were joined. Subsequently the Court determined that an evidentiary hearing was necessary to properly determine petitioner's claim that his plea was induced by incorrect legal advice rendered by his counsel. In the interests of justice counsel was appointed to assist petitioner in presenting that claim to the Court. Pursuant to an order entered March 14, 1977, a full evidentiary hearing was held on May 2, 1977, to afford petitioner the opportunity with the assistance of his appointed counsel, to present any and all evidence bearing on his claim of inadequate counsel. Upon the filing of post-hearing briefs, the Court deems this cause to be fully submitted and ready for final disposition.

It is appropriate to first dispose of the second claim listed above for the reason that it is precisely the same claim raised and denied in case No. 76 CV-328-W-4. In that case the Court found that petitioner had knowingly and voluntarily entered his plea of guilty in light of the fact that the state would recommend a sentence of ten years and, accordingly, petitioner's contention that his sentence was enhanced by the trial court's consideration of other allegedly invalid convictions was totally without merit. Section 2244(a) of Title 28, United States Code, provides that a successive petition for writ of habeas corpus need not be entertained if a claim has been denied on the merits and no new ground is presented unless the interests of justice will be served by a reexamination of the claim. In response to an order to show cause why this claim should not be summarily dismissed pursuant to § 2244(a), petitioner responded by stating that he did not receive a copy of the final order in case No. 76 CV-328-W-4 and thus desired the Court to reconsider the claim to afford him the opportunity to appeal. The Court is of the view that this is an insufficient reason for reexamination of this claim which has already been denied on the merits. However, in the exercise of its discretion, the Court will for the record adopt its finding in case No. 76 CV-328-W-4 for purposes of this action. The Court has carefully considered petitioner's present allegations in support of this claim and has reviewed the allegations and matters of record in case No. 76 CV-328-W-4. Upon that total review, the Court is satisfied that the claim is without merit for the reasons stated in its prior memorandum and order of January 11, 1977. Green v. Wyrick, 428 F.Supp. 744 (W.D.Mo.1977). Accordingly, the claim of sentence enhancement will be denied.

In this action petitioner also claims that his guilty plea is invalid for the reason that "the sentencing court judge, Honorable Keith Bondurant, was improperly involved in the plea negotiations." In support of that claim, petitioner alleges the following:

"The Honorable Keith Bondurant was intimately aware and involved in the plea bargaining prior to the time that the Petitioner was sentenced. The Petitioner wanted 5 years sentence and the prosecutor wanted 15 years, and it was the judge who decided to have a 10 year sentence. This denied the Petitioner the right to an impartial court judge.

"The Petitioner was not prepared to go to trial on the sentencing date, however, the attorney for the Petitioner informed the Petitioner that the Judge Honorable Keith Bondurant would refuse to honor a continuance and would force the Petitioner to go to trial on the case by jury. The Petitioner wanted a trial by judge and not by jury, with the evidence stipulated to, so that the issue could be preserved for appeal on the denial of a private psychiatrist. The judge Honorable Keith Bondurant refused the offer and would force a trial by jury. The Petitioner was informed by counsel that he would receive a sentence of 30 to 40 years if he went to trial by jury, whereas he would be given 10 years if he plead guilty. Since the Petitioner was not prepared to go to trial and did not have the witnesses available, the Petitioner was being railroaded and would be intimadeded (sic) into pleading guilty against his will."

The Court notes first that petitioner has not exhausted his available state remedies with respect to this claim. Although this issue was raised and presented to the state trial and intermediate appellate courts in a motion pursuant to Rule 27.26, Mo.R. Crim.P., petitioner has failed to seek review in the Missouri Supreme Court of the denial of his motion by the Missouri Court of Appeals, Kansas City District, on August 2, 1976. In the absence of a showing that the highest appellate court has had an opportunity to pass on a habeas claim, in this instance by means of a motion to transfer to the Missouri Supreme Court under Rules 83.02 and 83.03, the exhaustion requirement of 28 U.S.C. § 2254 is not satisfied. Franklin v. Wyrick, 529 F.2d 79 (8th Cir. 1976); Drake v. Wyrick, 415 F.Supp. 814 (W.D.Mo. 1976).

Because of the conclusion that petitioner has not exhausted all available state remedies, the appropriate disposition of this claim would ordinarily be to dismiss it without prejudice in order to allow petitioner to seek review at all levels of the state court system. However, as this Court has heard evidence bearing on this claim and as the exhaustion requirement is a rule of comity and not one limiting the habeas jurisdiction of the federal courts, it is appropriate and proper to dispose of the present claim on the merits. Austin v. Swenson, 522 F.2d 168 (8th Cir. 1975); Losieau v. Sigler, 421 F.2d 825, 828 (8th Cir. 1970); Green v. Wyrick, 414 F.Supp. at 350.

In the memorandum and order denying petitioner's first habeas corpus before this Court, the Court stated:

"Upon review of the transcript of the June 25, 1975, plea proceeding during which petitioner entered his plea which he challenges here and in light of his testimony at this Court's hearing of January 20, 1976, the Court entertains no doubt that petitioner's plea of guilty was one which was fully voluntary and intelligent."

Green v. Wyrick, 414 F.Supp. at 352. After consideration of the credible evidence adduced during the hearing held May 2, 1977, the Court reaffirms that finding that petitioner's plea was wholly voluntary and knowing and rejects petitioner's allegations that actions of the state trial court coerced the guilty plea. The testimony of Mr. Robert Duncan, who represented petitioner after his appointment by Judge Bondurant on March 19, 1975, clearly establishes that petitioner voluntarily and knowingly entered into the plea arrangement after sound, thorough and competent advice of counsel. Mr. Duncan testified, contrary to petitioner's allegations, that 1) the plea negotiations were conducted with the prosecutor's office, 2) it was that office...