Johnson v. Wyrick

Decision Date12 August 1974
Docket NumberCiv. A. No. 73CV252-W-3.
PartiesJames Burl JOHNSON, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
CourtU.S. District Court — Western District of Missouri

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COPYRIGHT MATERIAL OMITTED

James Burl Johnson, pro se.

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

FINAL JUDGMENT DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS WITH RESPECT TO PETITIONER'S CONTENTION, SET FORTH AS GROUND FIVE, THAT FOUR PRIOR CONVICTIONS WERE ILLEGALLY SECURED AND UNCONSTITUTIONALLY EMPLOYED TO ENHANCE HIS FINAL SENTENCE, AND DENYING PETITION FOR A WRIT OF HABEAS CORPUS WITH RESPECT TO THE REMAINING EXHAUSTED GROUNDS AND CONTENTIONS

WILLIAM H. BECKER, Chief Judge.

This is a petition2 for a writ of federal habeas corpus by a state prisoner in custody at the Missouri State Penitentiary at Jefferson City, Missouri. Petitioner seeks an adjudication that his conviction and sentence were illegally secured and imposed upon him in violation of his federal constitutional rights. Petitioner requests leave to proceed in forma pauperis. Leave to proceed in forma pauperis has been granted by prior order of this Court on October 31, 1973.

The petitioner states that he was originally convicted in the Circuit Court of Vernon County, Missouri, of forcible rape in violation of Section 559.260, RSMo (1949), V.A.M.S.; that he was convicted by a jury of the above offense3; that he was sentenced on that conviction on June 17, 1953, to a term of thirty years imprisonment; that he appealed from the judgment of conviction and imposition of sentence to the Supreme Court of Missouri; that the judgment of the trial court was reversed on appeal in Missouri v. Johnson, 267 S.W. 2d 642 (Mo.Sup.1954), and remanded (for a new trial) to the trial court; that he was given a new trial before a jury in the Circuit Court of Vernon County and that he was again convicted by a jury of forcible rape in violation of Section 559.260 RSMo (1949), V.A.M.S., and he was also convicted in the new trial under the Missouri Habitual Criminal Act, Section 556.280, RSMo (1949), V.A.M.S.; that in the new trial a sentence was imposed upon him by the jury on November 19, 1954, for a period of forty years; that he did not timely appeal from the judgment of conviction and imposition of sentence following his second trial; that he filed a motion under Missouri Criminal Rule 26.26, V.A. M.R., in the Circuit Court of Vernon County to vacate the second judgment of conviction and the sentence of forty years alleging inadequate assistance of counsel in failing to appeal his conviction and sentence of forty years, which motion was denied by the Circuit Court of Vernon County; that he sought review of the denial of his motion under Rule 27.26 under Missouri Criminal Rule 28.05 repealed September 1, 1967; that the Supreme Court of Missouri affirmed the denial of petitioner's motion under Rule 27.26 on June 13, 1960, in Missouri v. Johnson, 336 S.W.2d 668 (Mo.Sup.1960); that petitioner filed a successive motion under Rule 27.26 in the Circuit Court of Vernon County requesting that (1) judgment and sentence of forty years entered in 1954 be vacated and set aside, and (2) that petitioner be granted absolute discharge, or, in the alternative, that petitioner be granted a new trial; that on the second motion under Rule 27.26, the trial court ordered: (1) that the second judgment and sentence be set aside; (2) that petitioner be allowed to file a motion for new trial challenging the second conviction and the forty year sentence, from the denial of which he could appeal; and (3) that petitioner's request for absolute discharge or for a new trial be denied; that petitioner appealed from this latter decision of the trial court on his successive 27.26 motion to the Missouri Supreme Court; that the Supreme Court of Missouri affirmed the decision of the trial court on September 14, 1970, in Johnson v. Missouri, 458 S.W.2d 713 (Mo.Sup.1970); that petitioner moved for rehearing or transfer to the Supreme Court of Missouri en banc; that this motion was denied on October 12, 1970; that pursuant to the judgment of the Missouri Supreme Court in Johnson v. Missouri, 458 S.W.2d 713 (Mo.Sup. 1970), petitioner filed a motion for a new trial challenging the second conviction; that this motion was denied by the trial court; that on May 26, 1971, the trial court imposed a new sentence of forty years imprisonment based on his second conviction by a jury; that on appeal, petitioner's contentions were denied on the merits by the Missouri Supreme Court in Missouri v. Johnson, 485 S.W.2d 106 (Mo.Sup.1972); and that petitioner moved for a rehearing or transfer to the Supreme Court of Missouri en banc, which was denied on October 9, 1972.

With respect to the petitioner's participation in federal postconviction litigation, petitioner simply states that this federal District Court ". . . has a complete list of all petitions filed by the petitioner." A review of the records and files of this Court reveals the following history of the federal habeas corpus cases in this Court which the petitioner filed and the dates of the final decisions in those cases: (1) Johnson v. Nash, Civil Action No. 820 (W.D.Mo. May 20, 1963); (2) Johnson v. Swenson, Civil Action No. 1167 (W.D.Mo. February 9, 1968); (3) Johnson v. Nash, Civil Action No. 1815 (W.D.Mo. April 22, 1965) (evidentiary hearing held)4; (4) Johnson v. Swenson, Civil Action No. 17692-3 (W.D.Mo. October 10, 1969); (5) Johnson v. Swenson, Civil Action No. 18345-3 (W.D.Mo. May 14, 1970); (6) Johnson v. Swenson, Civ-Action No. 19902-3 (W.D.Mo. June 16, 1972); (7) Johnson v. Missouri, Civil Action No. 20253-3 (W.D.Mo. June 21, 1972); and (8) Johnson v. Missouri, 381 F.Supp. 741, Civil Action No. 20627-3 (W.D.Mo.1973).

Petitioner states that he was represented by counsel at his arraignment and trial; that he was not represented by counsel at his initial sentencing; that he was represented by counsel at his resentencing; and that he was provided counsel on all his appeals and in the preparation and filing of his 27.26 motions.

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

"1. Petitioner was denied a fair and impartial trial under the due process clause of the Fourteenth Amendment to the United States Constitution. . . .
"2. Petitioner was wholly incompetent to stand trial on the charge made by the State of Missouri, and Petitioners (sic) conviction must fall because it violates the due process clause of the Fourteenth Amendment of the United States Constitution, to convict and imprison an insane person on a felony charge or any charge.
"3. Petitioner was denied his constitutional right to the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution. . . .
"4. The trial court lacked jurisdiction to try Petitioner under the Habitual Criminal Statute under the information filed in at the second trial because it allowed the finding of guilt of Petitioner on all four alleged prior convictions, when the issue of two prior convictions had been resolved by the first jury in favor of Petitioner.
"5. Petitioner has been denied due process of law in this case because the Court relied upon four prior convictions to sustain the increase in punishment of Petitioner, when such prior convictions are violating the Sixth and Fourteenth Amendments of the United States Constitution. . . ."5

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

"During the course of the trial the Special Prosecutor made remarks to the court that Petitioner was calling him names while the trial was in progress, and in the hearing of the jury and such conduct on the part of the prosecutor was so calculated as to `put on a show' for the jury to bolster (sic) the states (sic) case by inferring to the jury that Petitioner was cursing the prosecutor out because he was merely just showing the facts, and doing his duty under the law, when in fact it was calculated tactic on the part of the said prosecutor to prejudice the Petitioner in the eyes of the jury and in open court.
"Furthermore, on the last day of the trial the `stage' was once again set by the prosecutor, in that he had arranged to have the alleged victims of the crime inside the area of the courtroom reserved for counsel and the court reporter and Defendant. During the final arguments of the case, these young girls were openly crying in the presence of the jury. Such a placing of the alleged victims, over objection of trial counsel, was a calculated move on the part of the prosecutor to help influence the jury and to inflame the minds of the jurors, to such an extent that they would have a deep hatred for the Defendant, and would be unable to render an impartial verdict mandated by the due process clause, or to seriously consider the fact the Petitioner was obviously insane at the time of the commission of the crime.
"Counsel falsely told Petitioner that at the conclusion of the second trial there could not be another appeal because the law only allowed one appeal, and that when the verdict was brought in by the jury, that was the end of the case, no matter what the verdict might be.
"Counsel failed to object to the introduction of the alleged prior convictions of Petitioner at the second trial, even though Petitioner had been acquitted of the said prior convictions by the first jury. Moreover, counsel failed to object to authenticity of the alleged prior convictions, nor did he raise the issue of verified proof of these convictions, or that the state had not put forth the proof necessary under the law that the allegations pertaining to the convictions were in fact true and valid convictions.
"The prior conviction of Petitioner
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  • Miller v. State of Missouri, Civ. A. No. 73CV288-W-3.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • February 11, 1975
    ...See, e. g., Cobb v. Wyrick, 379 F.Supp. 1287 (W.D.Mo.1974); Russell v. Wyrick, 395 F.Supp. 643 (W.D.Mo.1974); Johnson v. Wyrick, 381 F.Supp. 747 (W.D.Mo., 1974). Because of the apparent uncertainty of the status of the exhaustion doctrine in this Circuit and the problems related to the appl......
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    • United States District Courts. 8th Circuit. Western District of Missouri
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    ...Swenson, 357 F.Supp. 178, 185 (W.D.Mo.1973); Russell v. Wyrick, Civil Action No. 73CV401-W-3-R (W.D. Mo. July 20, 1974); Johnson v. Wyrick, 381 F.Supp. 747 (W.D.Mo.1974). To the extent that the decision to hold a further evidentiary hearing in the case at bar is discretionary, it is conclud......
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