Hindman v. Wyrick, 80-0709-CV-W-1.

• Decision Date: 11 February 1982
• Docket Number: No. 80-0709-CV-W-1.,80-0709-CV-W-1.
• Citation: 531 F. Supp. 1103
• Parties: William R. HINDMAN, Petitioner, v. Donald W. WYRICK, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

531 F. Supp. 1103

William R. HINDMAN, Petitioner, v. Donald W. WYRICK, Warden, Respondent.

No. 80-0709-CV-W-1.

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

February 11, 1982.

Albert N. Moskowitz, Asst. Federal Public Defender, Kansas City, Mo., for petitioner.

John Ashcroft, Atty. Gen., State of Mo., John M. Morris, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

This case pends on a State prisoner's pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254.

I. Procedural History

The relevant history of this litigation begins with petitioner's conviction by a jury of the crime of assault with intent to kill with malice aforethought, pursuant to Section 559.180, R.S.Mo. (1969). The jury could not agree on the punishment to be inflicted and the court assessed punishment at twenty-five years imprisonment.

Petitioner appealed his conviction to the Missouri Court of Appeals, Springfield Division, which affirmed the conviction. State v. Hindman, 543 S.W.2d 278 (Mo.App.1976). During the pendency of that appeal, petitioner filed a petition for a writ of error coram nobis in the Circuit Court of Wright County, alleging that the proceedings brought against him were based on a void warrant, and lack of jurisdiction in the trial court. The Circuit Court of Wright County ruled against petitioner and dismissed the petition. Petitioner appealed to the Supreme Court of Missouri. Meanwhile, during the pendency of the coram nobis petition, petitioner had filed a motion to vacate under Rule 27.26, V.A.M.R., in the Circuit Court of Webster County. The Supreme Court of Missouri dismissed the coram nobis petition, granting petitioner leave to file an amended motion in the Rule 27.26 proceeding. Hindman v. Crouch, 560 S.W.2d 874 (Mo. banc 1978).

On November 2, 1978, after an extensive evidentiary hearing in which petitioner was represented by counsel, see Respondent's Exhibit G, the Circuit Court of Webster County denied petitioner's Rule 27.26 motion. The Circuit Court filed written findings of fact and conclusions of law.

Petitioner appealed that denial to the Supreme Court of Missouri, which transferred the case for final decision to the Missouri Court of Appeals, Southern Division. That court affirmed the judgment of the Circuit Court of Webster County in Hindman v. State, 597 S.W.2d 264 (Mo.App.1980). Thereafter, petitioner filed the petition currently before this Court.

This Court appointed the Office of the Federal Public Defender to represent petitioner and petitioner was ordered, through his appointed counsel, to file an amended complaint alleging those claims, from among the many in petitioner's pro se complaint, deemed substantial and properly exhausted in State court. Petitioner's pro se motion for an evidentiary hearing was denied at that time without prejudice. Petitioner has not seen fit to raise the motion anew. Because we find that petitioner had a full and fair hearing on his Rule 27.26 V.A.M.R. motion in State court, and the record thereof is fully before this Court, no evidentiary hearing is required. Toler v. Wyrick, 563 F.2d 372, 373 (8th Cir. 1977).

II. Summary of the Facts

The facts, in terms favorable to the jury verdict, are summarized in State v. Hindman, 543 S.W.2d 278, 281-82, 287-88 (Mo. App.1976). Briefly, those facts as reliably found by the State court are as follows: The incident occurred around midnight October 26 to 1:00 a. m. October 27, 1973, when petitioner appeared at the door of one Carroll Renfro with a rifle in hand and forced Renfro to drive him to the courthouse in Hartville, Missouri. Enroute, petitioner told Renfro, "They sic is a lying, thieving, son-of-a-bitch down there I have got to kill." Petitioner instructed Renfro to "Pull up behind the Courthouse," "Park there beside where the Sheriff is at," and "Get out and go down to the door and see if anybody is here." After Renfro "rattled the door" and got no response, petitioner said "Well, wait just a minute, and there will be someone here."

Police Officer Robert Dugger, responding to a tip received from two boys riding in an automobile, proceeded to the scene at the courthouse. Officer Dugger stopped near Renfro's truck; petitioner "whirled the gun right toward the windshield of the police car, right directly at me, aiming right in the chest." Officer Dugger then removed to the nearby post office and radioed for help. Petitioner told Renfro "to get out and go on home ... There's going to be a shooting here in just a minute." As Renfro left, Officer Dugger pulled out from behind the post office in an attempt to follow Renfro's truck. Several shots rang out; Officer Dugger was hit in the arm and hip.

Soon after, Sheriff Kelly arrived on the scene. He was told where he could find petitioner and that petitioner wanted to surrender his weapon. He and a deputy proceeded to a motor company's lot where they found petitioner "hunkered down ... between the building and a car" with a rifle in his hand. Petitioner told Sheriff Kelly "Come over here and I will give you this gun." He handed him the rifle and said, "I think I shot that there officer's arm off, didn't I?"

As Sheriff Kelly and petitioner walked back to the courthouse, petitioner told the Sheriff "that he had a bad heart condition, and that he didn't have long to live, and he said, `I am going to get rid of some of these sons-of-bitches.'" At the courthouse petitioner inquired "Who was that officer that I shot his arm off?" and was told "That is the City Police, Bob Dugger." To this defendant responded, "I don't know Bob Dugger."

III. Issues Presented

Petitioner presents three points, all of which were raised and considered in State court: (A) that he was deprived of his right to a speedy trial; (B) that he was deprived of the right to assistance of counsel; and (C) that he was denied effective assistance of counsel.

We will proceed seriatum with the issues presented.

A. Denial of Speedy Trial

Petitioner contends that he was denied his right to a speedy trial in that, despite his formal demand therefor, petitioner was not granted a trial until more than nine months had elapsed from his arrest and five months from his formal arraignment in Circuit Court.

Petitioner did not raise the speedy trial issue on direct appeal of his conviction. See State v. Hindman, supra. However, the issue was raised and decided adversely to petitioner on his Rule 27.26 motion and on appeal of that motion. See petitioner's Rule 27.26 motion, Claims 11-13, Respondent's Exhibit G at 1-5, 1-6; Hindman v. State, 597 S.W.2d at 269. The State Circuit Court made the following factual findings pertinent to petitioner's claim:

* * * * * *

6. Defendant was arrested late at night of October 26 or early morning of October 27 by Sheriff Kelly of Wright County .... G at 249

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15. On October 30, 1973 defendant was arraigned and was by the Magistrate committed to Fulton State Hospital to determine `whether or not the defendant has a mental disease or defect within the meaning of Section 552.010 RS Mo. ....' G. at 251

16. Under date of December 10, 1973 a report of the psychiatric examination made pursuant to the provisions of Chapter 552 RSMo as ordered by Magistrate was filed. Id.

* * * * * *

19. A preliminary hearing was had on February 8, 1974.... Defendant was bound over to Circuit Court. G. at 252

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22. On February 25, 1974 the case was set for trial by agreement of all parties. Id.

23. On June 6, 1974 defendant made application for change of Venue and change of Judge, which application was sustained and Venue changed to Webster County, Missouri by agreement of the attorneys. Id.

* * * * * *

47. On June 17, 1974 the Judge ordered Defendant be delivered to the Missouri Department of Corrections to be held for Webster County, Missouri, pending trial. Defendant had suffered a heart attack and required hospitalization. Webster County had no adequate facility. G at 255; See also Finding of Fact No. 24, G at 252.

25. On July 25, 1974 defendant filed application for the disqualification of Judge of Webster County Circuit Court. This motion was by the Court overruled on July 30, 1974. G. at 252

26. On July 30, 1974, defendant filed Petition for Writ of Prohibition in the Supreme Court of Missouri .... G. at 252-53.

27. On August 7, 1974 the Supreme Court denied the Writ of Prohibition. G. at 253

28. On August 2, 1974 defendant was advised that his case was set for trial for August 9, 1974. Id.

29. On August 8, 1974 defendant filed Motion to Suppress evidence. Id.

30. On August 9, 1974 case was called for trial and State and Defendant announced ready for trial. Id.

Supported by those factual findings, the Circuit Court reached the legal conclusion that:

9. Defendant was not denied a speedy trial, nor was he denied a fair trial. G. at 257

The Missouri Court of Appeals considered petitioner's speedy trial claim in the context of a claim of ineffective assistance of trial counsel for not requesting a speedy trial. In that context, the court stated:

Nowhere does movant undertake to demonstrate that a trial conducted August 9-10, 1974, for a crime committed October 26-27, 1973, was prejudicial to him. Furthermore, movant conveniently overlooks the fact that, because of his pleas to the crime charged, he was sent to Fulton State Hospital for examination from October 31, 1973, until December 7, 1973, and that, due to a heart attack, he was hospitalized in Springfield and at Jefferson City from the first week of June, 1974, until July 7 or 9, 1974. In other words, two months of the nine and one-half months which elapsed from the date of crime and trial found defendant undergoing examination and treatment for reasons or conditions over which his trial lawyers had no control. Here there was an actual delay of only seven and a half months from the time of the crime until the trial was conducted. With no claim or

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