Lindner v. Peterson, Civ. A. No. 18836-3.

• Decision Date: 19 January 1971
• Docket Number: Civ. A. No. 18836-3.
• Parties: Richard Frank LINDNER, Petitioner, v. Donald PETERSON, Superintendent, State Hospital No. 1, Fulton, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

324 F. Supp. 1261

Richard Frank LINDNER, Petitioner, v. Donald PETERSON, Superintendent, State Hospital No. 1, Fulton, Missouri, Respondent.

Civ. A. No. 18836-3.

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

January 19, 1971.

Richard Frank Lindner, pro se.

Kenneth Romines, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

JUDGMENT DISMISSING PETITION FOR HABEAS CORPUS WITHOUT PREJUDICE

WILLIAM H. BECKER, Chief Judge.

Petitioner, an inmate of State Hospital No. 1 in Fulton, Missouri, petitions this Court for a writ of federal habeas corpus, maintaining that his commitment to the state hospital was in violation of his federally protected rights to due process of law and a speedy jury trial. Petitioner also requests leave to proceed in forma pauperis. Leave to proceed in forma pauperis has previously been granted.

Petitioner states that he was committed by the Circuit Court of the City of St. Louis to State Hospital No. 1 in Fulton on October 8, 1969; that the order of commitment specified that he was "not to be released until further order"; that he appealed the order of commitment to the Missouri Supreme Court, but "worded notice of appeal wrong"; that he has filed a "motion for discharge" in the committing court which was denied on December 2, 1969; that he has filed a "motion for trial by jury or discharge" in that court, which was denied on September 29, 1970; that he has filed a "motion for a writ of habeas corpus" in the committing court which was also denied on September 29, 1970; that he has filed a petition for habeas corpus in the Missouri Supreme Court, which was denied on January 12, 1970; that he filed a petition for habeas corpus in the United States District Court for the Eastern District of Missouri which was dismissed without prejudice on April 30, 1970; and that he has filed a prior petition for habeas corpus in this Court, which was dismissed without prejudice on May 27, 1970 (Lindner v. Peterson (W.D.Mo.) Civil Action No. 18836-3).

Petitioner states the following as grounds for his contention that his commitment is in violation of his federally protected rights:

"Petitioner is being held without jury trial."

Petitioner states the following as facts supporting the above contention:

"Petitioner is being held without jury trial in violation to the 14th Amendment to the Constitution of the United States of America and in violation to the due process clause of the Constitution of Missouri and in violation to the right to a speedy public trial by an impartial jury clause of the Constitution of Missouri. Petitioner has been so held for over 23 months."

Because, construing the petition liberally in favor of petitioner in accordance with the rule of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, petitioner may have stated the denial of one or more of his federal rights and that he had exhausted his currently available state remedies, the show cause order was issued herein on December 9, 1970. Respondent's response was filed herein on December 30, 1970, with leave of court to file it out of time. Therein, respondent averred that "petitioner has not exhausted his remedies available in the state courts of Missouri" because "the records of the Clerk's office of the Supreme Court of Missouri do not indicate that the petitioner herein filed a Notice of Appeal from this order of commitment." In respect to the factual merit of the petition, respondent averred (and offered the judgment of the committing State court to show) that petitioner was on October 8, 1969, found not guilty of the charge against him under the provisions of Section 552.040 RSMo because of a mental defect or disease excluding responsibility and committed to Fulton State Hospital by the Circuit Court of the City of St. Louis; and that, therefore, petitioner has not been denied his constitutional right to a speedy trial.

The response did not state whether petitioner appealed from the denial of his motion for release in the committing court on September 29, 1970, although respondent explicitly admits the denial of the motion on that date and submitted a copy of the committing court's denial. The response further did not state whether or not it was true that petitioner's petition for habeas corpus was denied by the Missouri Supreme Court on January 12, 1970. And the response did not reply to petitioner's conclusory allegation that he was denied due process in being committed to the State hospital. But neither were the statements of petitioner in this regard specific enough to provide a basis for relief in federal habeas corpus, particularly since an offending of Missouri constitutional due process was alleged, rather than due process under the United States Constitution.

For the foregoing reasons, on January 4, 1971, this Court entered its order directing petitioner to file a traverse:

"* * * in which traverse petitioner admits or denies the averments of respondent's response, and each of them, and in addition (1) states whether he has appealed from the denial of his motion for release in the committing court on September 29, 1970; (2) states what reasons the Missouri Supreme Court gave for denying his petition for habeas corpus therein on January 12, 1970; and (3) states in what respects he was denied due process of law in being committed to Fulton State Hospital."

Petitioner's traverse was filed on January 14, 1971. Therein, petitioner pertinently stated as follows:

"That petitioner has not appealed the denial of his motion for release.

"That the Missouri Supreme Court denied petitioner's petition for a writ of habeas corpus for failure to state a claim on which relief could be granted.

"That petitioner was denied due process of law for the reason that he wasn't discharged after (4) four terms of court as provided by the Revised Statutes of Missouri."

It is apparent from the foregoing that petitioner is contending that his commitment to the Missouri State Hospital in Fulton deprived him of due process of law under Missouri law in that it deprived him of a speedy trial by jury within two terms of court as set down in Section 545.890 RSMo, which provides as follows:

"If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner, or shall be occasioned by the want of time to try the cause at such second term."

It is doubtful whether petitioner states the denial of any federal right by this claim, without otherwise contesting the legality of his commitment under the provisions of Section 552.040 RSMo. In Holland v. Swenson (W.D.Mo.) 313 F. Supp. 565, affirmed (C.A. 8) 433 F.2d 909, this Court held that the above Missouri statute did not control the determination of whether, under federal standards, a state...