Manis v. Wyrick
| Decision Date | 23 February 1984 |
| Docket Number | No. 83-1195-CV-W-1-R.,83-1195-CV-W-1-R. |
| Citation | 580 F. Supp. 1350 |
| Parties | Michael David MANIS, Petitioner, v. Donald WYRICK, Warden, Missouri State Penitentiary, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Michael David Manis, pro se.
John Ashcroft, Atty. Gen. David C. Mason, Asst. Atty. Gen., Jefferson City, Mo., for respondent.
This is a State prisoner habeas corpus case. Because an order appointing counsel and an order of reference to a United States Magistrate will be entered, it is appropriate that we state in some detail the petitioner's prior efforts to seek federal habeas corpus relief in order that the Magistrate and counsel be advised of what questions are and are not presented in connection with the currently pending petition.
The earlier and complicated procedural history of petitioner Manis' efforts to seek federal habeas corpus relief in regard to four separate State court convictions is fully detailed in Smith v. Wyrick, 558 F.Supp. 600 (W.D.Mo.1983) and in Smith v. Wyrick, 569 F.Supp. 664 (W.D.Mo.1983). Both those cases considered petitioner Smith's separate petitions for federal habeas corpus relief which pended in this Court as Smith v. Wyrick, No. 82-0916-CV-W-1-R and petitioner Manis' two separate applications for federal habeas relief which pended as Manis v. Wyrick, No. 82-0476-CV-W-1 and as Manis v. Wyrick, No. 82-0903-CV-W-1.
Part III, A, of Smith v. Wyrick, 558 F.Supp. at 604-05, detailed the factual circumstances concerning petitioner Manis' Missouri Rule 27.26 motion to vacate a seven-year sentence imposed March 1, 1977 on Manis' plea of guilty to a charge of robbery in Case No. 82-692-4 in the Circuit Court of Greene County, Missouri. That sentence, and only that sentence, is involved in petitioner Manis' currently pending petition for federal habeas corpus.
We noted in Part III, A, of the cited case, that the Circuit Court of Green County, Missouri, in Case No. CV-181-2597-CC-2 in that Court, had denied that motion on August 5, 1982; that on December 22, 1982 the Missouri Court of Appeals, Southern District, had granted petitioner Manis leave to file a late appeal; and that on February 11, 1983 the State Public Defender appointed to represent petitioner on appeal had, in fact, filed a Notice of Appeal from the State trial court's denial of Missouri Rule 27.26 relief on behalf of petitioner Manis.
We therefore concluded that under the circumstances, petitioner Manis had not exhausted his available State court postconviction remedies in regard to his March 1, 1977 seven-year sentence. We further stated that "at an appropriate time, this Court will enter an order dismissing petitioner Manis' federal petition for habeas corpus in regard to his seven-year sentence." 558 F.Supp. at 600.
Part IV, B, of Smith v. Wyrick, 569 F.Supp. at 669-71, detailed the procedural developments as of August 17, 1983 in regard to both petitioner Smith's and petitioner Manis' various petitions for federal habeas corpus since this Court entered its March 3, 1983 Orders reported in 558 F.Supp. at 612. In specific regard to petitioner Manis' attack on his March 1, 1977 seven-year sentence, we noted that the adverse decision of the Circuit Court of Greene County on petitioner Manis' Missouri Rule 27.26 motion "is presently pending on appeal in the Missouri Court of Appeals, Southern District" and that "Mr. Peter Sterling is petitioner's appellate counsel and has submitted petitioner's brief to that Court." 569 F.Supp. at 670. We therefore concluded that:
This Court's retention of jurisdiction in March, 1983 for the purpose of directing procedures which would, in fact, afford each petitioner an appropriate opportunity to exhaust available State postconviction remedies has served its purpose. There is therefore no occasion for the future retention of jurisdiction. (569 F.Supp. at 671)
Orders were accordingly entered on August 17, 1983 dismissing both of petitioner Manis' petitions for federal habeas corpus which sought federal habeas corpus relief in regard to, but not limited to, his March 1, 1977 seven-year sentence. Those dismissals of both of petitioner Manis' petitions for federal habeas corpus and the like dismissal of petitioner Smith's petitions for federal habeas corpus were "without prejudice" in order that both petitioners would be able to exhaust their available State court postconviction remedies. See 569 F.Supp. at 672.
On October 14, 1983 we received from petitioner Manis a motion and supporting suggestions to vacate our August 17, 1983 Order dismissing petitioner Manis' petitions for federal habeas corpus as those petitions related to his March 1, 1977 seven-year sentence. In an unreported Memorandum Opinion dated October 19, 1983, which stated the reasons for this Court's denial of petitioner Manis' October 14, 1983 motion to vacate this Court's earlier orders dismissing his federal habeas corpus petitions without prejudice, we noted that:
Petitioner Manis, together with petitioner Smith, filed separate appeals from the orders entered by this Court on August 17, 1983. This Court refused to grant a certificate of probable cause. Petitioners thereafter made application to the Court of Appeals for the Eighth Circuit for a certificate of probable cause. The Court of Appeals denied that application on October 11, 1983. This Court's August 17, 1983 order is thus a final order.
We further noted in our October 19, 1983 unreported Memorandum Opinion that the Missouri Court of Appeals, Southern District, had, on October 4, 1983, in Manis v. State of Missouri, No. 13136 in that court, now reported in 659 S.W.2d 337 (Mo.App. 1983), affirmed the Circuit Court of Greene County, Missouri's denial of petitioner Manis' Missouri Rule 27.26 motion to vacate his March 1, 1977 seven-year sentence. We also noted in that Memorandum Opinion that "The recent decision of the Missouri Court of Appeals, Southern District, affirming the denial of rule 27.26 relief by the Circuit Court of Greene County, Missouri in connection with the seven year robbery sentence may reflect an exhaustion of petitioner Manis' available State postconviction remedies in connection with that particular sentence." We added that:
If petitioner Manis so contends, the next appropriate procedural step is for petitioner Manis to prepare, serve and file a completely new application for federal habeas corpus which will be confined solely to the seven year sentence. Such an application for federal habeas corpus will be subject to established procedures of this Court and be given appropriate consideration after the Court will have reviewed the response to an order to show cause to which will be attached all State court records relating to the seven year sentence.
We explained in our October 19, 1983 unreported Memorandum that "the practical effect of this Court's denial of petitioner Manis' pending motions will require the separation of all questions which relate to the seven-year sentence from the questions which may relate to petitioner Manis' other sentences and thus, in an entirely new proceeding, may enhance the orderly processing of any and all questions which may relate to petitioner Manis' 1977 conviction on his plea of guilty."
Petitioner Manis filed a Notice of Appeal to the Court of Appeals for the Eighth Circuit. This Court refused to make a certificate of probable cause. The Court of Appeals considered petitioner Manis' application for a certificate of probable cause in that Court in Manis v. Wyrick, Misc. No. 83-8161, and, on January 16, 1984, entered an order which stated that "The Court has carefully considered the application, the original file of the District Court in its cases Nos. 82-476-CV-W-1 and 82-0903-CV-W-1, as well as the District Court's order of October 19, 1983 and it is hereby ordered that appellant's application be denied."
Although petitioner Manis unsuccessfully sought to appeal this Court's October 19, 1983 Order, the files and records of this Court show that on November 1, 1983 petitioner Manis, in accordance with what this Court stated in its October 19, 1983 unreported Memorandum, did file a new and separate petition for federal habeas corpus in which he attacked only his March 1, 1977 seven-year conviction. It is the validity of that conviction, and only the validity of that conviction, that is involved in the currently pending case.
The Office of the Attorney General of Missouri filed a response to this Court's order to show cause entered in petitioner's new case which prayed that "This cause should be dismissed without further judicial proceedings." We find and conclude, however, that the response of the Attorney General's office and the exhibits attached thereto establish that petitioner Manis is entitled to a federal plenary evidentiary hearing for the reasons we now state.
The Attorney General's response and the exhibits attached thereto must be considered in light of various subparagraphs of 28 U.S.C. § 2254(d) which, consistent with the principles stated in the trilogy of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), provide that a State prisoner is not entitled to federal evidentiary habeas hearing unless it appears (1) that the merits of the factual dispute were not resolved in the State court hearing, (2) that the fact finding procedure employed by the State court was not adequate to afford a full and fair hearing, (3) that the material facts were not adequately developed at the State court hearing, or (4) that the application did not receive a full, fair, and adequate hearing in the State court proceeding.
The first factual dispute that could...
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