Gregg v. Wyrick, Civ. A. No. 73CV432-W-3-R.

• Decision Date: 25 October 1974
• Docket Number: Civ. A. No. 73CV432-W-3-R.
• Citation: 391 F. Supp. 1217
• Parties: Theodore Woodrow GREGG, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

391 F. Supp. 1217

Theodore Woodrow GREGG, Petitioner, v. Donald W. WYRICK, Warden,¹ Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 73CV432-W-3-R.

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

October 25, 1974.

Jerome F. Waterman, Kansas City, Mo., for petitioner.

Karen I. Harper, Asst. Atty. Gen., State of Missouri, Jefferson City, Mo., for respondent.

FINAL JUDGMENT DISMISSING WITHOUT PREJUDICE GROUNDS B AND C, AND DENYING THE REMAINDER OF THE PETITION FOR A WRIT OF HABEAS CORPUS

WILLIAM H. BECKER, Chief Judge.

This is a petition for a writ of federal habeas corpus by a state prisoner in custody at the Missouri State Penitentiary (Church Farm) at Jefferson City, Missouri. Petitioner seeks an adjudication that his conviction and sentence were secured and imposed upon him illegally in violation of his federal constitutional rights. Petitioner does not herein proceed in forma pauperis.

Petitioner states that he was convicted by a jury in the Circuit Court of Howell County, Missouri, of murder in the second degree; that he was sentenced on that conviction on April 19, 1965, to a term of twenty-five years imprisonment; that he appealed the judgment of conviction to the Missouri Supreme Court, which affirmed the conviction on February 14, 1966, in Missouri v. Gregg, 399 S.W.2d 7 (Mo.Sup.1966); that he filed a motion under Missouri Criminal Rule 27.26, V.A.M.R., in the Circuit Court of Howell County, Missouri, which was denied on June 24, 1968; that he appealed the denial of his 27.26 motion to the Missouri Supreme Court, which affirmed the denial of the Circuit Court of Howell County on November 10, 1969, in Gregg v. Missouri, 446 S.W.2d 630 (Mo.Sup.1969); that he also filed a petition for a writ of federal habeas corpus in the United States District Court for the Western District of Missouri, which was dismissed without prejudice for failure to exhaust state remedies on March 8, 1967; and that he was represented by counsel at all stages of the proceedings against him, on his appeal of his conviction, in the preparation and filing of his postconviction motion and petition for habeas corpus and on the appeals from the denials thereof.

Petitioner states the following grounds on which he bases his contention that he is being held in custody unlawfully:

"(a) Admission of statements at the trial of movant. Said statements made at or about the time of movant's arrest without movant's knowledge of his constitutional right to remain silent, and to have the advice and assistance of counsel.

"(b) Failure of the trial court to instruct the jury with respect to the voluntariness of statements made by movant which were introduced into evidence at the time of the trial.

"(c) Failure of the trial court to instruct the jury on the meaning of `reasonable doubt'.

"(d) The comment of the prosecutor in the closing argument that the defendant did not deny the admissions introduced into evidence, thereby commenting on movant's failure to testify, in violation of Amendment V, United States Constitution."

Petitioner states the following as facts in support of his contention that he is being held in custody unlawfully:

"(a) After the alleged shooting, movant was questioned by a deputy sheriff with respect to the alleged shooting and was not warned by the said deputy sheriff of his right to remain silent and thereby movant admitted that he had committed a shooting.

"(b) The trial Court failed to give any instruction with respect to the statements made by movant which were admitted against movant, said statements being involuntary and made by movant while in a state of intoxication.

"(c) The trial Court failed to define the meaning of `reasonable doubt' in its instructions to the jury.

"(d) The prosecuting attorney in his closing argument stated that the defendant (movant) did not deny or controvert certain statements, introduced into evidence, made by movant. Movant did not testify on his own behalf."

In further support of the above contentions, counsel for petitioner in the case at bar has filed herein "Suggestions in Support of Petition for Writ of Habeas Corpus" and a transcript of both the trial proceeding and the hearing on petitioner's 27.26 motion. In his suggestions in support of the petition herein, counsel for petitioner expands upon the grounds set forth in the petition and, although acknowledging that grounds B and C have not been exhausted, contends that the presentation of those grounds to the Missouri state courts would be an exercise in futility.

On November 8, 1973, an order was entered directing the respondent to show cause why the petition herein for a writ of habeas corpus should not be granted.

Thereafter, on November 28, 1973, counsel for respondent filed herein a response to the show cause order therein contending that petitioner had not exhausted his adequate and available state court remedies with respect to grounds B and C. As part of the response, counsel for respondent attached and submitted photocopies of the following documents: (1) petitioner's brief filed in the Missouri Supreme Court in connection with his direct appeal of his conviction; (2) respondent's brief filed in the Missouri Supreme Court with respect to petitioner's direct appeal of his convictions; (3) the opinion of the Missouri Supreme Court affirming petitioner's conviction in Missouri v. Gregg, 399 S.W.2d 7 (Mo.Sup.1966); (4) petitioner's brief filed in the Missouri Supreme Court in respect to the appeal from the denial of his 27.26 motion; (5) respondent's brief filed in the Missouri Supreme Court in respect to petitioner's appeal from the denial of his 27.26 motion; and (6) the opinion of the Missouri Supreme Court affirming the denial of petitioner's 27.26 motion in Gregg v. Missouri, 446 S.W.2d 630 (Mo. Sup.1969).

On December 3, 1973, counsel for the petitioner filed herein his suggestions in opposition to the respondent's response to the order to show cause.

Under the provisions of Section 2254, Title 28, United States Code, a state prisoner, in the absence of exceptional circumstances not shown to be present in the case at bar, must fully exhaust his currently available and adequate state court remedies before invoking federal habeas corpus jurisdiction. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1970); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L. Ed.2d 837 (1963). Under subsection (c) of Section 2254, Title 28, United States Code, a state prisoner's state court remedies are ordinarily not considered exhausted so long as he may present his contentions to the state courts by "any available procedure."

A careful review of the record presented to this Court discloses that grounds B and C have never been presented, considered and determined on the merits by any Missouri state court. Counsel for petitioner acknowledges that these two grounds have not been exhausted. However, counsel contends that the presentation of grounds B and C to the Missouri state courts would be futile.

Petitioner's reliance on past decisions of the Missouri Supreme Court in support of his allegation of futility is without merit. `Past decisions of the Missouri Supreme Court do not ordinarily indicate that state remedies are inadequate to protect federal rights when each case must be decided on the basis of its own facts.' Gregg v. Missouri Department of Corrections, 335 F.Supp. 344, 346 (W.D.Mo.1971). Under the present circumstances, when neither the facts presented nor applicable law show conclusively that the Missouri Supreme Court, bound by its past decisions, will deny petitioner his federal rights, it cannot be concluded that such a denial is a "foregone conclusion." Gregg v. Missouri Department of Corrections, supra. While petitioner's allegations of futility might be construed as indicating the Missouri Supreme Court's propensity to deny petitioner relief, it is concluded that, in the absence of exceptional circumstances not shown to be present in the case at bar, the Missouri state courts ". . . should have the opportunity to determine the merits of the petitioner's allegations." Reynolds v. Lockhart, 497 F.2d 314, 317 (8th Cir. 1974).

Under the circumstances presented in the case at bar, petitioner has a currently available and adequate state court remedy within the meaning of Section 2254, by means of a motion to vacate his sentence under Missouri Criminal Rule 27.26 in the Circuit Court of Howell County, Missouri. Bosler v. Swenson, 423 F.2d 257 (8th Cir. 1970); Baines v. Swenson, 384 F.2d 621 (8th Cir. 1967); Collins v. Swenson, 384 F.2d 623 (8th Cir. 1967); Hooper v. Nash, 323 F.2d 995 (8th Cir. 1963), cert. denied, 376 U. S. 945, 84 S.Ct. 802, 11 L.Ed.2d 768 (1964); Gregg v. Missouri Department of Corrections, supra; White v. Swenson, 261 F.Supp. 42 (W.D.Mo.1966).

Petitioner should therefore file a motion to vacate his sentence under Missouri Criminal Rule 27.26 in the Circuit Court of Howell County, Missouri, raising grounds B and C and all evidentiary contentions in respect thereto, and all other grounds known to him for invalidating his state sentence. Dixon v. Missouri, 295 F.Supp. 170 (W.D.Mo.1969); Richardson v. Swenson, 293 F.Supp. 275 (W.D.Mo.1968); Gregg v. Missouri Department of Corrections, supra; Cobb v. Wyrick, 379 F.Supp. 1287 (W.D.Mo. 1974). From any adverse decision of the state trial court on that motion, petitioner should also appeal to the Missouri Supreme Court. In the absence of exceptional circumstances, not shown to be present in the case at bar, only when the Missouri Supreme Court, applying current federal standards and having before it an adequate evidentiary record, has ruled adversely to petitioner on the merits of those contentions can his state remedies be deemed exhausted for purpose of federal habeas corpus jurisdiction, 28 U.S.C. § 2254; Picard v. Connor, supra; Fay v. Noia, supra; Bosler v. Swenson, supra; Cobb v. Wyrick, supra; White v....