Kelley v. Swenson, 73-1077.
Decision Date | 22 June 1973 |
Docket Number | No. 73-1077.,73-1077. |
Parties | Robert KELLEY, Appellant, v. Harold R. SWENSON, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Richard D. Schreiber, Clayton, Mo., for appellant.
Preston Dean, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and TALBOT SMITH,* Senior District Judge.
VAN OOSTERHOUT, Senior Circuit Judge.
This is an appeal in forma pauperis by petitioner Robert Kelley from order of the United States District Court filed January 8, 1973, denying without prejudice his petition filed pursuant to 28 U. S.C. § 2254, for his release from custody on a Missouri State conviction. Petitioner sought relief upon the ground that his constitutional rights were violated by the admission into evidence of confessions alleged to have been obtained as the result of an unlawful arrest not based on probable cause by the St. Louis police. The dismissal was based upon failure to exhaust state remedies. Certificate of probable cause was issued by the trial court.
Petitioner predicated his right to relief in the present action on the following basic allegation:
He elaborates upon his contention that he was illegally arrested by the St. Louis police and then goes on to set out the undisputed federal constitutional law that the product resulting from an illegal arrest cannot be used against him.
The identical issue was raised by Kelley in his state trial resulting in his conviction. The trial court held a Jackson-Denno hearing out of the presence of the jury and determined the initial arrest was valid and that the confession which he made to the St. Charles County officers was voluntary and admissible. The conviction was affirmed by Division I of the Supreme Court of Missouri, State v. Kelley, 473 S.W.2d 707 (Mo. Sup.Ct.1971). In the course of its opinion, the Court states:
" \' 473 S.W.2d 707, 708.
The Missouri Supreme Court states in detail the reason why it determined the initial arrest by the St. Louis police was based upon probable cause and was valid. The facts pertinent to this appeal are fully set out in the Missouri Supreme Court's opinion.
The federal trial court states the threshold issue to be whether the petitioner has exhausted his state remedies and then goes on to say:
It is quite true that the initial arrest of defendant was made by the St. Louis police without a warrant on a burglary committed in St. Charles County, and that Kelley was turned over to the St. Charles authorities who charged Kelley with the St. Charles burglary, and that the confession here involved was made to the St. Charles officers and included the St. Charles burglary and also the burglary upon which he was convicted, being the conviction to which his present petition is directed.
Turning over a person properly arrested to the proper officers of the county in which the crime was committed does not operate to alter the lawful character of the initial arrest where the defendant has not been released from custody. See Reed v. United States, 364 F.2d 630, 633 (9th Cir. 1966).
More significantly, Kelley did not either in the State court or in the present proceedings, challenge any arrest other than his initial arrest by the St. Louis police.
Possibly as intimated by the trial court in its opinion, petitioner could raise other issues in his habeas corpus proceeding. He has not done so. The exhaustion of remedy must be determined upon the basis of the issues fairly presented by the petition or tried by consent. Subject to the resolution of the issue immediately hereinafter discussed, we hold that the court erred in dismissing the petition on the ground that state remedies were not exhausted.
The State in its brief before the trial court and in its brief before us urges that the highest court in Missouri is the Supreme Court of Missouri en banc and that a litigant in a case determined by a division of the Supreme Court has not exhausted his state remedies unless he has filed a petition for rehearing or transfer to the Supreme Court en banc. The Supreme Court of Missouri legally sits in two divisions. It is admitted that no motion for rehearing or transfer to the court en banc was made by petitioner on the decision of Division I. The trial court did not comment upon nor base its decision upon defendant's failure to apply for an en banc hearing but since such issue is raised by the State, we feel that it must be met.
The State's contention is based principally upon Gorman v. Washington University, 316 U.S. 98, 62 S.Ct. 962, 86 L. Ed. 1300 (1942). See also Osment v. Pitcairn, 317 U.S. 587, 63 S.Ct. 21, 87 L.Ed. 481 (1942). Under §§ 1 and 4 of Article VI of the 1890 amendments to the Missouri Constitution, "when a federal question is involved, the cause, on the application of the losing party, shall be transferred to the court for its decision." Gorman held that the failure of the losing party to seek a transfer in a case in which a "federal question is involved" to the court en banc constituted a failure to exhaust available state remedies and hence that the United States Supreme Court was without jurisdiction to review the case.1
In Teamsters Local v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) the Supreme Court held it had jurisdiction to review by certiorari a decision of a division of the Washington Supreme Court. In distinguishing Gorman from the case before it, the Court states:
In so far as the federal question language is concerned, Article V, § 9 of the present Missouri Constitution, V.A.M.S., is substantially the same as the former Article VI, § 4 quoted in Gorman. Subsequent to Gorman, however, the Missouri Supreme Court has held that the federal question language of Article V, § 9 creates a right to a transfer only when the construction or validity of a constitutional provision is involved. There is no right to a transfer where only the application of constitutional principles is involved. White v. State, 430 S.W.2d 144, 148 (Mo.Sup.Ct.1968); Ackerman v. Globe-Democrat Publishing Co., 368 S.W.2d 469, 479 (Mo.Sup.Ct. 1963); Robinson v. Swenson, 331 F. Supp. 483 (W.D.Mo.1971); Hegwood v. Swenson, 344 F.Supp. 226 (W.D.Mo. 1972), see State v. Harris, 321 S.W.2d 468 (Mo.Sup.Ct.1959).
While distinguishable in some respects, Corlew v. Swenson, 336 F.Supp. 592 (E.D.Mo.1971), and Caffey v. Swenson, 332 F.Supp. 624 (W.D.Mo.1971), could be construed as reaching a contrary result. To the extent that Corlew and Caffey cannot be reconciled with Robinson and Hegwood, we prefer the reasoning of the latter two cases.
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