Jones v. Jerrison

Decision Date13 May 1994
Docket NumberNo. 93-1399,93-1399
PartiesElbert Whaley JONES, Appellant, v. Gary JERRISON, Parole Officer; Cranston Mitchell, Board of Probation and Parole; and the Attorney General of Missouri, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Cheryl A. Rafert, St. Louis, MO, argued for appellant.

John W. Simon, Asst. Atty. Gen., of Jefferson City, MO, argued, for appellee.

Before HANSEN, Circuit Judge, JOHN R. GIBSON, * Senior Circuit Judge, and MELLOY, ** District Judge.

HANSEN, Circuit Judge.

Elbert Whaley Jones filed a petition for a writ of habeas corpus attacking his Missouri state-court conviction for stealing by means of deceit. He alleged that he did not have proper notice of the charges against him, that the evidence was insufficient to support a conviction, and that his trial counsel was ineffective. The district court 1 denied relief. We affirm.


In 1971, Theola Griffis bought a two-level duplex at 459 Laurel, St. Louis, Missouri. In August 1985, she was living on the second floor, while the first floor was vacant. Then she met Jones, the petitioner in this case, and permitted him to live with her on the second floor in exchange for his help fixing up the dwelling, which was in a state of extreme disrepair. In early September 1985, Jones told Griffis that he was attempting to get a loan for the planned renovations. On September 13, 1985, Jones persuaded Griffis, who was 80 years old and partially blind, to sign a quit claim deed transferring title to him. Jones later sold the property for $5,000. Griffis first learned that she no longer owned the property when Jones's buyer contacted her two months later to arrange for the transfer of possession.

Jones was charged with stealing by means of deceit. See Mo.Rev.Stat. Sec. 570.030 (West 1979 & Supp.1993). Griffis testified at trial that she did not intend to convey the property to Jones. A jury returned a verdict of guilty. The trial court sentenced Jones to seven years of imprisonment and a $3,300 fine. The Missouri Court of Appeals affirmed on direct appeal, where Jones argued only that the indictment was defective and that the substitute information was untimely. State v. Jones, 738 S.W.2d 920, 921 (Mo.Ct.App.1987). Jones then filed a motion for postconviction relief, alleging only that his trial counsel was ineffective. The trial court denied the motion, and the Missouri Court of Appeals affirmed. Jones v. State, 773 S.W.2d 156, 159 (Mo.Ct.App.1989). Jones later filed a motion to recall the mandate in the Missouri Court of Appeals, alleging only that the evidence was insufficient to support the conviction. The court denied the motion in a one-sentence order.

Jones then filed this pro se petition for a writ of habeas corpus, which contained three claims. 2 The respondents asserted in their answer that two of Jones's claims are procedurally defaulted and that, in any event, all three claims are without merit. About four months later, without having received a reply from Jones, the magistrate judge filed a report and recommendation that rejected the respondents' procedural default arguments and recommended that all claims be denied on the merits. Jones filed objections, which were overruled by the district judge. Jones appeals.


For his first claim, Jones alleged:

The trial court erred in overruling petitioner's objection to the substitute information in lieu of indictment. The indictment failed to charge a crime in that it did not allege that petitioner knowingly deceived Griffis or that she had relied on petitioner's representations. The indictment failed to charge a crime and thus, the proceedings thereafter are null. The trial court permitted the state to file a substitute information in lieu of indictment at the close of all of the evidence, over petitioner's objection. The substitute information was filed in an untimely manner.

(R. at 3.) The magistrate judge, in her report and recommendation, first concluded that the respondents' defense of procedural default should fail. She then concluded that the claim should be denied on the merits because Jones failed to allege a violation of federal law. The district court adopted the report and recommendation. We believe it is proper to first determine whether Jones has alleged a claim that is cognizable in a federal habeas proceeding.


A petition for a writ of habeas corpus must allege that the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. Sec. 2254(a); see also Higgins v. Smith, 991 F.2d 440, 442 (8th Cir.1993). The petition "shall specify all the grounds for relief which are available to the petitioner ... and shall set forth in summary form the facts supporting each of the grounds thus specified." Rule 2(c), Rules Governing Section 2254 Cases in the United States District Courts. No statute or rule requires that a petition identify a legal theory or include citations to legal authority. See Johnson v. Puckett, 929 F.2d 1067, 1070 (5th Cir.) (stating that habeas petitioner "need not plead the law"), cert. denied, --- U.S. ----, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991); cf. 1 James S. Liebman, Federal Habeas Corpus Practice and Procedure Sec. 11.4, at 150-51 (1988) (stating that petitions drafted by counsel "should" cite to "the controlling constitutional, statutory, or other bases for relief"). Furthermore, a petition filed by a pro se petitioner should be "interpreted liberally and ... should be construed to encompass any allegation stating federal relief." White v. Wyrick, 530 F.2d 818, 819 (8th Cir.1976).

We recognize that Jones's petition was phrased in a manner that suggested primarily errors of state law. But the magistrate judge construed the petition too narrowly when she concluded that Jones challenged only the timeliness of the filing of the information. A district court is obligated to analyze all alleged facts to determine whether they state a federal claim. Jones's allegation that the "indictment failed to charge a crime in that it did not allege that petitioner knowingly deceived Griffis or that she had relied on petitioner's representations" was sufficient to apprise the district court of a possible denial of due process. See Hulstine v. Morris, 819 F.2d 861, 863-64 (8th Cir.1987) ("Due process requirements may be satisfied if a defendant receives actual notice of the charges against him...."), cert. denied, 484 U.S. 1068, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988); Franklin v. White, 803 F.2d 416, 417 (8th Cir.1986) (stating that Fourteenth Amendment incorporates Sixth Amendment right to reasonable notice of criminal charges), cert. denied, 481 U.S. 1020, 107 S.Ct. 1904, 95 L.Ed.2d 510 (1987); Goodloe v. Parratt, 605 F.2d 1041, 1045 (8th Cir.1979) (same) (citing In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), and Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948)). We believe Jones sufficiently alleged a violation of the Due Process Clause of the Fourteenth Amendment.


Having determined that Jones pleaded a cognizable claim, we will next consider the respondents' argument that, contrary to the district court's determination, Jones's claim is procedurally defaulted because he did not adequately present it to the Missouri state courts. Federal habeas review is barred when a state court has not decided a federal claim on the merits because the prisoner violated a state procedural law. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). Federal courts will not review a procedurally defaulted claim because "a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Coleman v. Thompson, 501 U.S. 722, ----, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 (1991).

The facts alleged in Jones's first habeas claim were presented to the state courts on direct appeal from his conviction. The Missouri Court of Appeals affirmed Jones's conviction, reasoning as follows:

The original indictment was not defective. State v. O'Connell, 726 S.W.2d 742, 746 (Mo. banc 1987). Thus, the issue before us is the timeliness of the filing of the substitute information. When the State filed the substitute information, defendant did not object to it as untimely. State v. Robinson, 694 S.W.2d 748, 750 (Mo.App.1985). Even had he objected, a substitute information filed before the verdict is timely. Rule 23.08; State v. Toney, 680 S.W.2d 268, 272-73[1-3] (Mo.App.1984). Defendant was fully apprised on the charge against him by the original indictment, he was not inhibited from presenting any defenses and was not prejudiced by the amendment.

Jones, 738 S.W.2d at 921.

The respondents first argue that Jones has procedurally defaulted his first claim because he failed to object at trial to the timeliness of the substitute information. Their reasoning would be correct if the Missouri Court of Appeals had resolved Jones's appeal on the basis of a state procedural rule. But Missouri courts are permitted to review for plain error if a defendant failed to object at trial. See Mo.R.Crim.P. 29.12(b). Here, the Missouri Court of Appeals noted Jones's lack of an objection and proceeded to consider the substance of Jones's claim, concluding that the substitute information was timely filed. See Jones, 738 S.W.2d at 921. We construe the court's opinion as considering and rejecting Jones's substantive claim on the ground that no plain error existed, not as declining to reach the merits on the ground that Jones violated a procedural rule. See Harris v. Reed, 489 U.S. 255, 257-58, 266 & n. 13, 109 S.Ct. 1038, 1040-41, 1045 & n. 13, 103 L.Ed.2d 308 (1989). Because the state courts reviewed Jones's claim under a plain-error...

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