Hooper v. Swenson
| Decision Date | 06 December 1965 |
| Docket Number | Civ. A. No. 1004. |
| Citation | 249 F. Supp. 280 |
| Parties | George C. HOOPER, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
George C. Hooper, pro se.
This is the second petition for a writ of habeas corpus filed in this Court by petitioner, a convict confined in the Missouri State Penitentiary at Jefferson City, Missouri. Cf. Hooper v. Nash (C.A. 8) 323 F.2d 995, cert. den. 376 U.S. 945, 84 S.Ct. 802, 11 L.Ed.2d 768. Petitioner requests leave to proceed in forma pauperis.
The sources of the facts stated herein are (1) the petition, (2) the materials attached thereto, (3) the official reports of the Supreme Court of Missouri, and (4) the records of this Court. There is no conflict in the factual information derived from these sources.
Petitioner was charged in the Circuit Court of the City of St. Louis, Missouri, with robbery in the first degree by means of a dangerous and deadly weapon (a pistol). He was tried on this charge by a jury in that Court. The jury found petitioner guilty on June 1, 1961. Thereafter he was sentenced under Missouri's Habitual Criminal Act, Section 556.280, R.S.Mo., V.A.M.S., to twelve years' imprisonment. The judgment of conviction was appealed to the Missouri Supreme Court and was affirmed. State v. Hooper (Mo.Sup.) 364 S.W.2d 542.
Briefly summarized, petitioner states as grounds for the writ that (1) under the law of Missouri the Habitual Criminal Act was not applicable to his conviction; (2) that he was denied the right to confront witnesses against him; (3) that he did not have the effective assistance of counsel in the sentencing court; (4) that he did not have the effective assistance of counsel on appeal. Each of these grounds is alleged to be a violation of the Fourteenth Amendment. Petitioner claims that because of ground (1) he was denied equal protection of the law. Petitioner claims that because of grounds (2), (3) and (4) he was denied due process of law.
The preliminary questions to be determined in a petition for a writ of federal habeas corpus filed by a state prisoner are whether the petitioner has exhausted the available state remedies, whether there is an absence of state court corrective processes or if not absent, whether circumstances exist rendering such processes ineffective to protect the rights of the prisoner. Section 2254, Title 28 U.S.C.A., which provides:
"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."
Ordinarily, claims or grounds for relief not properly presented to the state courts in adequate available corrective processes should not be considered on the merits in federal habeas corpus proceedings. Hooper v. Nash (C.A.8) 323 F.2d 995, cert. den. 376 U.S. 945, 84 S.Ct. 802, 11 L.Ed.2d 768.
Missouri jurisprudence affords an admirable adequate post-conviction process in Missouri Criminal Rule 27.26, V.A.M.R., which is a parallel of the federal corrective process provided by Section 2255 of Title 28 U.S.C.A. There is no time limit within which a motion must be made under said Rule 27.26. State v. Pickel (Mo.Sup.) 376 S.W.2d 181. So the Missouri state corrective process is still open. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837.
The attempts of petitioner to have his conviction reversed or to obtain relief in collateral attacks on that conviction should be examined to determine which grounds here asserted were presented to the courts of Missouri in a motion under Missouri Criminal Rule 27.26 and further, if presented, whether the grounds were properly presented so as to satisfy the exhaustion of state remedies requirement of Section 2254.
The petitioner did not timely and properly assert any alleged violations of the Fourteenth Amendment on the direct appeal from his conviction. State v. Hooper (Mo.Sup.) 364 S.W.2d 542. Because the same issues raised here by petitioner were not timely and properly raised by petitioner in the direct appeal from petitioner's conviction, the direct appeal did not satisfy the exhaustion of state remedy requirements imposed by Section 2254 of Title 28, U.S.C. Cf. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Annotation 97 L.Ed. 543, l. c. 544; Fay v. Noia, supra.
In his direct appeal the Supreme Court of Missouri did not review the assignments of error in petitioner's untimely motion for new trial because under Missouri criminal jurisprudence alleged errors not appearing on the face of the record will not be reviewed on appeal unless assigned as errors in a timely motion for new trial. State v. Franklin (Mo.Sup.) 379 S.W.2d 526; Missouri Criminal Rule 27.20.
Petitioner states that after affirmance of his conviction he asserted substantially the same grounds asserted here in a "timely motion for rehearing and for a transfer to the Court, en banc." That motion was denied. The basis for the denial of the motion does not appear in the record herein. Assuming, but not deciding, that said motion raised the same issues as are here raised, the denial of that motion did not exhaust petitioner's state remedies. On a motion for rehearing in a direct criminal appeal the Supreme Court of Missouri is not required to determine assignments of error not properly and timely raised by a motion for new trial. Missouri Civil Rule 83.16, made applicable in criminal cases by Missouri Criminal Rule 28.18; State v. Franklin (Mo.Sup.) 379 S.W.2d 526. Therefore, neither the grounds relied on in the untimely motion for new trial (whatever they were) nor the grounds of the unfounded motion for rehearing were submitted to and ruled upon the merits by the Supreme Court of Missouri in the direct appeal.
Petitioner's next step in his attempt to obtain post-conviction relief was to file his first petition for a writ of habeas corpus in this Court which was dismissed without prejudice for failure to exhaust available state remedies. This first federal habeas corpus proceeding is mentioned not only to state the facts fully, but to illustrate that petitioner was made aware of the requirements of Section 2254 of Title 28, U.S.C., as determined in his case by this Court and the Eighth Circuit Court of Appeals.
The grounds asserted for the writ in petitioner's first petition for federal habeas corpus were substantially the same as the grounds asserted herein. Hooper v. Nash (W.D.Mo.) Civil Action No. 14417-4, unreported.
This Court and the Eighth Circuit Court of Appeals denied petitioner's applications for the certificate of probable cause required by Section 2253 of Title 28, U.S.C., to appeal from the dismissal of his petition. Hooper v. Nash (C.A.8), supra. Certiorari was denied by the Supreme Court of the United States, 376 U.S. 945, 84 S.Ct. 802, 11 L.Ed.2d 768.
Following the dismissal of the first petition for habeas corpus by this Court, and denial of the certificate necessary for review on appeal by the Court of Appeals and denial of certiorari by the Supreme Court of the United States, petitioner filed in the sentencing court a motion for vacation of the judgment of conviction under Missouri Criminal Rule 27.26. The grounds asserted in petitioner's Rule 27.26 motion were substantially the same as the grounds asserted herein, with the exception of ground (4), alleged ineffectiveness of counsel on appeal, which was not presented in that motion, and which under Missouri jurisprudence could not have been presented therein. State v. Schaffer (Mo.Sup.) 383 S.W.2d 698.
Petitioner states that his Rule 27.26 motion was denied without a hearing by the sentencing court on the ground that "it had no authority to review matters already subject of appellate decision"; and that his motion that the sentencing court reconsider the order of dismissal was overruled. The basis of that ruling does not appear in the record herein.
Instead of taking an appeal to the Missouri Supreme Court from the ruling of the sentencing court on his Rule 27.26 motion petitioner then filed in the Missouri Supreme Court a document entitled "Appellant's Motion for an Order of the Court Vacating Its Mandate". That motion asserted substantially the same grounds asserted in his Rule 27.26 motion, i. e., only grounds (1), (2) and (3) of the grounds here asserted. A letter to petitioner from the Clerk of the Missouri Supreme Court dated February 9, 1965, states:
With respect to which of the grounds here asserted were asserted by petitioner in the sentencing court under Rule 27.26 and in the proceeding instituted in the Missouri Supreme Court, it should be noted that in paragraphs Nos. 14 and 15 of the questionnaire form of petition for writ of habeas corpus required by the Rules of this Court, petitioner states that all of the grounds here asserted were presented to the...
To continue reading
Request your trial
-
Gray v. Swenson
...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 atte......
-
Maxwell v. Swenson
...sentence in the courts of Missouri, although an admirable post-conviction procedure is presently available to him. See Hooper v. Swenson, (W.D.Mo.1965) 249 F.Supp. 280; and also Post-Conviction Applications Viewed by a Federal Judge, 39 F.R.D. 281, Petitioner makes no allegation that circum......