Green v. Wyrick, 75 CV 498 W-4.

• Decision Date: 13 May 1976
• Docket Number: No. 75 CV 498 W-4.,75 CV 498 W-4.
• Citation: 414 F. Supp. 343
• Parties: Clovis Carl GREEN, Jr., Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Missouri

414 F. Supp. 343

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

No. 75 CV 498 W-4.

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

May 13, 1976.

COPYRIGHT MATERIAL OMITTED

Sloan R. Wilson, Kansas 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.

Petitioner, a convicted state prisoner currently confined in the Missouri State Penitentiary, Jefferson City, Missouri, has filed in forma pauperis a petition for writ of habeas corpus seeking to have this Court set aside, as involuntary, his plea of guilty to a charge of rape entered in the Circuit Court of Jackson County, Missouri, on June 25, 1975.

Leave to proceed in forma pauperis was granted in the Court's Order to Show Cause of August 4, 1975, and counsel was appointed to represent petitioner by an order entered August 15, 1975.¹ After respondent had filed his response to the Order to Show Cause and petitioner through counsel had traversed that response, the Court conducted a hearing on January 20, 1976, to consider respondent's contention that petitioner has not fully exhausted adequate and available state remedies and to hear any and all evidence relating to the merits of petitioner's claims. On February 12, 1976, the Court directed respondent to file a supplemental response to the Order to Show Cause specifically addressing the contention that petitioner has failed to exhaust state remedies. As respondent has fully complied with that direction and as petitioner has been afforded the opportunity to traverse the respondent's pleadings on that question,² the Court now deems this cause to be fully and finally submitted. For the reasons stated below, the Court finds and concludes both that petitioner has failed to exhaust state remedies and that his petition for writ of habeas corpus is without merit.

Petitioner states that on June 25, 1975, he was convicted upon his plea of guilty in the Circuit Court of Jackson County, Missouri, to a charge of rape and sentenced to a term of ten years imprisonment. He now challenges that plea of guilty as one which was coerced by what petitioner terms as the "unconstitutionality" of § 552.030, Revised Statutes of Missouri, which provides for a defense to a criminal act based upon a mental disease or defect excluding responsibility, a defense which petitioner intended to assert against the charge of rape. As illuminated by his counsel's statements and his own testimony given during the hearing on January 20, 1976, petitioner's argument in this respect is actually two-pronged. First, it is urged that § 552.030 is unconstitutional and that the operative effect of its provisions coerced his plea of guilty because continued reliance on his defense of a mental disease or defect excluding responsibility under § 552.030 potentially exposed petitioner to an indefinite commitment to a state mental hospital if he were successful in that defense. Second, petitioner alleges that he was not permitted to have the opportunity to have an examination at state expense by a private psychiatrist of petitioner's own choice under § 552.030 for that section only provides for "examination of the accused by a physician of his . . . own choosing and at his . . . expense." Accordingly, petitioner argues, the effect of § 552.030 was to deny him, because of his indigency and in violation of the constitutional requirement of equal protection, the means to prove his insanity defense through a state-paid examination by a psychiatrist of his own choice. In turn the inability to prove his defense, petitioner states, left him no alternative but to plead guilty.

In his petition and during his testimony at the hearing before this Court, petitioner admitted that he did not appeal from his state court conviction and that he has filed no motion to set aside his plea and vacate sentence under Missouri Rule 27.26. He urges, however, that he has fully exhausted state remedies as required by the provisions of 28 U.S.C. § 2254 by means of petitions for habeas corpus which he filed prior to this action in the Circuit Court of Jackson County, Missouri, the Missouri Court of Appeals, Kansas City District, and the Missouri Supreme Court. Counsel for petitioner has supplied the Court with certified copies of the official files from those state courts. Review of those materials reflects the following.

On June 30, 1975, the Circuit Court of Jackson County, Missouri, received from petitioner a handwritten pro se petition for writ of habeas corpus. That petition, which encompassed the same issues asserted here, was assigned apparently as part of petitioner's original criminal action to the trial judge who had accepted petitioner's plea of guilty. Without conducting an evidentiary hearing and apparently without requiring a responsive pleading from respondent therein, the circuit judge denied the writ on July 3, 1975, by a short order in which he found petitioner's plea to be voluntary and the petition to be meritless.

Certified records from the Missouri Supreme Court file for an action styled Clovis Carl Green, Jr. v. State of Missouri, et al., No. 59130, show that petitioner filed on June 30, 1975, a petition for writ of habeas corpus in that court which incorporated a copy of the petition filed at the circuit court level. By an order entered July 14, 1975, the Supreme Court of Missouri summarily denied the writ without comment.

Petitioner next filed on July 10, 1975, a petition for writ of habeas corpus in the Missouri Court of Appeals, Kansas City District, and likewise incorporated in that petition a copy of the petition submitted in the Circuit Court of Jackson County, Missouri. The state responded with its suggestions in opposition to the writ on July 16, 1975, and therein provided the Court of Appeals a copy of the circuit court's order of July 3, 1975, denying the petitioner's original application. A single judge of the Missouri Court of Appeals summarily denied the writ on July 16, 1975.

The requirement of 28 U.S.C. § 2254 that available state remedies be exhausted prior to the granting of federal habeas corpus is satisfied if the issues presented in a habeas corpus petition have been presented to the state courts for direct review. Brown v. Allen, 344 U.S. 443, 447, 73 S.Ct. 397, 402, 97 L.Ed. 469, 483 (1953). As petitioner, however, admits that he has not attempted direct appeal of his conviction, he must show that he has employed available post-conviction proceedings in the state courts. Tyler v. Swenson, 440 F.2d 621, 623 (8th Cir. 1971). Respondent contends that the filing and dismissal of petitioner's state habeas actions does not constitute exhaustion of state remedies and that petitioner has an adequate state remedy yet available to him by a motion filed pursuant to Missouri Rule 27.26.

It is not necessary that the state courts must have ruled on the merits of an issue before the question can be considered in the federal courts. Losieau v. Sigler, 421 F.2d 825 (8th Cir. 1970). The exhaustion requirement is satisfied if the state courts have been presented the opportunity to rule on the questions raised in the federal petition. Picard v. Conner, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Rice v. Wolff, 513 F.2d 1280 (8th Cir. 1975). In the instant case, however, it is the conclusion of this Court that the two Missouri appellate courts neither ruled on the merits of the questions presented in the habeas petitions filed by petitioner nor were properly presented with a full and fair opportunity to pass on the merits of petitioner's claims. It is well settled in this district that the summary denial of a petition for habeas corpus by the Supreme Court of Missouri does not constitute the exhaustion of state remedies. See, e. g., Lindner v. Peterson, 324 F.Supp. 1261 (W.D.Mo.1971). Such a denial may be for failure to comply with Missouri Rule 91 in any essential respect, for failure to state sufficient facts entitling petitioner to relief, or for failure to employ the proper remedy such as the post-conviction remedy provided by Missouri Rule 27.26. Lindner v. Peterson, supra; Russell v. Swenson, 251 F.Supp. 196 (W.D.Mo.1966); Cox v. Nash, 226 F.Supp. 87 (W.D.Mo.1964).

This Court has observed that petitioner did not comply with Missouri Rule 91.59 which requires the filing of a state habeas petition "in the first instance" in the circuit court and then, upon an adverse decision in that court, to petition successively to the Missouri Supreme Court. See Edwards v. Engledorf, 176 S.W.2d 32 (Mo.App.1943). Instead, petitioner, apparently very impatient for judicial action, filed habeas petitions virtually simultaneously in the circuit court and the Supreme Court of Missouri. That fact was readily apparent in petitioner's own correspondence to the higher court and may well have been the basis for the summary denial of petitioner's petition by the Missouri Supreme Court. However, it is most probable that the appellate courts' denials of petitioner's state habeas actions were for failure to use his proper and available remedy under Missouri Rule 27.26. The Missouri Supreme Court recently stated in Wiglesworth v. Wyrick, 531 S.W.2d 713 (Mo. en banc, 1976) that upon receipt of a petition for writ of habeas corpus which on its face seeks relief encompassed by Rule 27.26, its practice has been to permit the petition to be filed but then to deny the writ without prejudice to the right to proceed under Rule 27.26.

But petitioner argues that his habeas petition was denied by the Missouri Supreme Court without an explicit statement that the denial was without prejudice or that he could or can pursue a remedy under Missouri Rule 27.26. Upon review of the certified material from the Missouri Supreme Court file supplied by counsel for petitioner, that...