Lee v. Wyrick, 74 CV 261-W-1.

• Decision Date: 07 November 1974
• Docket Number: No. 74 CV 261-W-1.,74 CV 261-W-1.
• Citation: 383 F. Supp. 623
• Parties: Sanford LEE, Petitioner, v. Donald W. WYRICK, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

383 F. Supp. 623

Sanford LEE, Petitioner, v. Donald W. WYRICK, Warden, Respondent.

No. 74 CV 261-W-1.

United States District Court, W. D. Missouri, W. D.

November 7, 1974.

Sanford Lee pro se.

John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., of Missouri, Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

This state prisoner habeas corpus case presents an exhaustion question not heretofore determined by this Court. The petition for habeas corpus, the response of the Warden, and the exhibits attached to that response, establish that the petitioner was twice convicted in the Circuit Court of Reynolds County, Missouri, on pleas of guilty to charges of breaking jail. Thereafter, petitioner filed a Rule 27.26, V.A.M.R. motion in the state trial court seeking to set aside the judgments and sentences imposed. After denial of the motion by the trial court, petitioner appealed to the Missouri Court of Appeals, Springfield District. That Court, in Cause No. 9493, affirmed the trial court's denial of petitioner's Rule 27.26 motion. Although Rule 83.02, V.A.M.R., and Rule 83.03, V. A.M.R., provide for transfer to the Supreme Court of Missouri on order of a Court of Appeals, and transfer by the Supreme Court after an opinion has been filed in a Court of Appeals, respectively, petitioner made no effort to have the case transferred to the Supreme Court of Missouri for final decision, as provided by 83.09, V.A.M.R.

The question presented is whether the petitioner has exhausted remedies available in the courts of Missouri, within the meaning of § 2254(b), Title 28, United States Code, and other applicable law. For reasons which we will state, we find and conclude that the petitioner has not done so and that his pending petition for federal habeas corpus should be denied without prejudice in order that appropriate exhaustion steps may be taken.

Rule 83.02, V.A.M.R. provides:

Transfer on Order of Court of Appeals

A case in which an opinion has been filed in a district of the Court of Appeals may be transferred to this Court by order of a majority of the participating judges, regular and special, on their own motion or on application of a party because of the general interest or importance of a question involved in the case, or for the purpose of reexamining the existing law. Application by a party for such transfer shall be filed within 15 days of the date upon which the opinion is filed.

Rule 83.03, V.A.M.R. provides:

Transfer by Supreme Court After Opinion by Court of Appeals

In any case in which a motion for rehearing and an application for transfer under Rule 83.02 have been refused, the case may be transferred by order of this Court on application of a party for any of the reasons specified in Rule 83.02, or for the reason that the opinion filed is contrary to a previous decision of an appellate court of this state. Application for such transfer shall be filed in this Court within 30 days of the date on which transfer was denied by the district of the Court of Appeals.

Rule 83.09, V.A.M.R. provides:

Determination of Cases Following Transfer

Any case coming to this Court from a district of the Court of Appeals, whether by certification, transfer or certiorari, may be finally determined the same as on original appeal. If, however, in cases transferred on order of this Court, the Court concludes that the transfer was improvidently granted, the case may be

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