Johnson v. Wyrick, 74-1684

• Decision Date: 05 December 1974
• Docket Number: No. 74-1684,74-1684
• Citation: Johnson v. Wyrick, 508 F.2d 123 (8th Cir. 1974)
• Parties: James Burl JOHNSON, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 123

508 F.2d 123

James Burl JOHNSON, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary Jefferson City, Missouri, Respondent.

No. 74-1684.

United States Court of Appeals, Eighth Circuit.

Submitted Nov. 15, 1974.

Decided Dec. 5, 1974.

Steven C. Cross, Des Moines, Iowa, for petitioner.

George H. Perry, Asst. U.S. Atty., Des Moines, Iowa, for respondent.

Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired, ^* and WEBSTER, Circuit Judge.

PER CURIAM.

Petitioner James Burl Johnson, a prisoner in the Missouri State Penitentiary, appeals from the District Court's ¹ denial of his petition for a writ of habeas corpus. In its memorandum opinion the District Court reviewed the extensive history of petitioner's successive direct and collateral attacks on his 1954 conviction and forty-year sentence for rape. That history, which includes eight previous federal habeas corpus petitions disposed of in the Western District of Missouri, need not be repeated here. Seven grounds were asserted by petitioner in support of his claim that his conviction and sentence pursuant to Missouri's habitual criminal statute were unconstitutionally imposed. ² The court, without a hearing, denied relief as to six of the grounds and dismissed the fifth ground without prejudice because of petitioner's failure to exhaust his available state remedies.

Having reviewed the record, we affirm the District Court's order for the reasons stated in its extensive memorandum opinion. The six asserted grounds raised and considered on the merits by the District Court were properly rejected by it, and were correctly adjudicated by the state courts in accord with prevailing federal principles. In 1970, after a series of state post-conviction proceedings, petitioner's conviction and sentence were vacated and remanded by the Missouri Supreme Court for resentencing and to permit petitioner to move for a new trial. In 1954 petitioner had purportedly waived his right of appeal without understanding the consequences of doing so. ³ His trial counsel, as a consequence of this waiver, neither filed a motion for new trial nor pursued a direct appeal on petitioner's behalf at the time of conviction. On remand in May, 1971, the trial court resentenced petitioner to the same forty-year prison term with credit for time served, and denied his motion for new trial. The conviction and sentence were affirmed by the Supreme Court of Missouri on direct appeal in that court's fourth published opinion relating to petitioner's case. State v. Johnson, 485 S.W.2d 106 (Mo.1972). There is no question that Johnson has had his days in court on the claims raised in the instant petition-- certainly more days than any other judicial system would grant him. This case is simply another glaring example of the unending flow of successive appeals and repetitive collateral attacks by prisoners which add to the congestion of our judicial system.

In petitioner's fifth asserted ground he challenged the state's use of his four allegedly unconstitutional prior felony convictions to enhance his punishment in 1954 under Missouri's habitual criminal statute. Apparently, however, petitioner has failed to challenge any of those allegedly defective prior convictions in the state courts which imposed them. Under these circumstances, he is not permitted to do so for the first time in federal court. 28 U.S.C. 2254(b). The court below, therefore, properly dismissed petitioner's fifth asserted ground because, among other of its defects, ⁴ the claim was not previously presented to the state courts for review under available remedies.

Judgment denying the petition in part and dismissing it in part without prejudice is affirmed.

Affirmed.

* Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation.

1 The Honorable William H. Becker, Chief Judge, United States District Court, Western District of Missouri. The District Court's opinion is reported at 381 F.Supp. 747 (W.D.M...