Martin v. Wyrick

• Decision Date: 17 December 1976
• Docket Number: No. 76 CV 380-W-1-R.,76 CV 380-W-1-R.
• Citation: 423 F. Supp. 884
• Parties: Frederick JX MARTIN, Petitioner, v. Donald W. WYRICK, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

423 F. Supp. 884

Frederick JX MARTIN, Petitioner, v. Donald W. WYRICK, Warden, Respondent.

No. 76 CV 380-W-1-R.

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

December 17, 1976.

David R. Freeman, Federal Public Defender, Ronald L. Hall, Asst. Federal Public Defender, Kansas City, Mo., for petitioner.

John C. Danforth, Atty. Gen. of Mo., Robert Presson, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

I.

This is the second time we are required to consider an exhaustion question presented in connection with the affirmance of petitioner's conviction by the Missouri Court of Appeals, Kansas City District, in State v. Martin, 525 S.W.2d 804 (1975). When the case was first before us, see Martin v. Wyrick (W.D.Mo.1976) 411 F.Supp. 1069, we dismissed petitioner's earlier petition for federal habeas corpus in order to permit the Missouri Court of Appeals, Kansas City District, and the Supreme Court of Missouri an opportunity to consider the federal constitutional questions presented in petitioner's first federal habeas corpus petition. Our order of dismissal, entered March 16, 1976, 411 F.Supp. at 1074, shows that, pursuant to this Court's appointment, the Federal Public Defender filed in the Missouri Court of Appeals, Kansas City District, an appropriate Missouri Rule 84.08 motion for leave to file an out of time motion for rehearing and application to transfer to the Supreme Court of Missouri. When we were advised that the Missouri Court of Appeals, Kansas City District, had granted that motion and had appointed Thomas M. Larson, Esq., State Public Defender, to represent petitioner in that court, we dismissed the first habeas corpus petition without prejudice in order to permit the State courts an opportunity to decide the federal constitutional question presented.

Petitioner's second federal habeas corpus petition under present consideration alleges two separate federal claims. The first claim, which the parties refer to as the "self-representation issue," is grounded upon an alleged violation of Sixth Amendment principles enunciated in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), decided shortly before petitioner's conviction was affirmed by the Missouri Court of Appeals, Kansas City District, but not referred to by that court in its opinion. The second federal claim, which the parties refer to as the "confrontation issue," is grounded upon an alleged violation of Sixth Amendment principles enunciated in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

The parties have stipulated the authenticity of all relevant exhibits and other factual data. They are in complete agreement in regard to what occurred after the Missouri Court of Appeals, Kansas City District, granted petitioner leave to file his out of time motion for rehearing and application to transfer to the Supreme Court of Missouri, and after it had appointed Mr. Larson to represent the petitioner in connection therewith.

The parties have stipulated that the Faretta v. California self-representation issue was specifically raised in both the motion and application to transfer filed on petitioner's behalf by Mr. Larson and also specifically raised in a pro se motion filed by the petitioner himself. The parties also agree that the Illinois v. Allen confrontation issue was not presented in any of the pleadings filed subsequent to this Court's dismissal of petitioner's first federal habeas petition. Petitioner, however, contends in regard to the Illinois v. Allen confrontation issue that such issue had been fairly presented to the Missouri Court of Appeals, Kansas City District, by reason of the following paragraph which was included in a brief filed by petitioner's court-appointed counsel on direct appeal:

Mr. Katz and Mr. Haggarty likewise failed to keep appellant apprised of the occurrences at trial during appellant's absence. Appellant was removed from the courtroom for approximately four hours, his only representative in court being court-appointed counsel. During that interval, Mr. Martin was given no opportunity to amend his behavior and return. Appellant alleges that this contravenes the guidelines set out in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Emphasis added by petitioner. (Petitioner's Brief on Issue of Exhaustion of State Remedies, page 5).

Although the Missouri Court of Appeals, Kansas City District, exercised discretion under Missouri Rule 84.08 to permit petitioner to file an out of time motion for rehearing and application of transfer, and although that court appointed the State Public Defender to act as petitioner's appellate counsel for the purpose of assisting him in filing that motion and application to transfer, the Assistant Attorney General opposed petitioner's motion in the Missouri Court of Appeals, Kansas City District, on the procedural ground that petitioner's Faretta v. California self-representation claim had not been presented on direct appeal and therefore should not be considered on motion for rehearing. The Assistant Attorney General argued in the Missouri Court of Appeals, Kansas City District, that "matters raised for the first time on a motion for rehearing are to be disregarded."

On May 3, 1976, the Missouri Court of Appeals, Kansas City District, accepted that argument and refused to consider on the merits the Faretta v. California question which had been fully and fairly presented in the motion filed by the State Public Defender. That court entered the following order:

The Court has this day overruled Appellant's Motion for rehearing because contention presented for first time on motion for rehearing and transfer to Supreme Court is denied because contention presented for first time on motion for rehearing.

Thereafter, a timely motion for transfer was filed in the Supreme Court of Missouri, in which petitioner's Faretta v. California claim was again fully and fairly presented. That motion was denied without opinion by the Supreme Court of Missouri on June 14, 1976.

In spite of the full and fair opportunity afforded both the Missouri Court of Appeals, Kansas City District, and the Supreme Court of Missouri to consider the merits of the Faretta v. California question after the dismissal of petitioner's first federal habeas petition, the Assistant Attorney General now contends in this Court that petitioner's second petition for federal habeas corpus, raising the identical Faretta v. California issue, should be dismissed on exhaustion grounds for the reason that "petitioner does, at the current time, have available to him an adequate and available state remedy, in that he can file a post-conviction action pursuant to Missouri Supreme Court Rule 27.26, V.A.M.R."

The Assistant Attorney General concedes that a federal claim may be exhausted on direct appeal if that claim is fairly presented to the State appellate courts. But respondent argues that "If an issue has not been determined on direct appeal in the state courts, it is necessary for a prisoner to seek collateral postconviction relief in the state courts" p. 4 of respondent's exhaustion brief, emphasis ours. Respondent also argues in this Court that "Under Missouri state law, where a point is not presented in the motion for new trial, as in the instant case, the alleged error is not preserved for review. State v. Yowell, 513 S.W.2d 397, 402 (Mo. en banc 1974)."

We find and conclude that neither of the exhaustion arguments presented by respondent are tenable in regard to petitioner's Faretta v. California claims. We shall first discuss the State procedural rule relied upon by respondent. State v. Yowell is the only case cited and relied upon by the Assistant Attorney General.

II.

This Court was forced to consider and decide on the merits the Fourth Amendment search and seizure question presented to the Supreme Court of Missouri in State v. Yowell, 513 S.W.2d 397 (Mo. banc, 1974). See Yowell v. Wyrick (W.D.Mo.1975) 387 F.Supp. 421. The Supreme Court of Missouri had refused, by application of state procedural rules, to reach the merits of the federal constitutional question presented in that case.

The procedural circumstances leading to this Court's granting of federal habeas corpus relief in Yowell v. Wyrick were somewhat unusual in that the Missouri Court of Appeals, Kansas City District, had earlier rejected the Missouri Attorney General's argument that the federal constitutional question involved in that case had not been properly preserved for appellate review. The Missouri Court of Appeals, Kansas City District, in an unpublished opinion, did reach the merits of the federal constitutional question presented and concluded that the defendant's Fourth Amendment rights had been violated under principles stated in both In re J.R.M., 487 S.W.2d 502 (Mo. banc, 1972), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The Supreme Court of Missouri, however, upon the application of the Missouri Attorney General, ordered the case transferred to that court where it was considered as on original appeal. The Supreme Court of Missouri did not conclude that the Missouri Court of Appeals, Kansas City District, had erred in the manner it had decided the federal constitutional question presented. Rather, the Supreme Court of Missouri affirmed the conviction without reaching the merits of the Fourth Amendment question by application of a procedural rule in regard to the steps that must be taken in order to preserve a Fourth Amendment question for State appellate review.

This Court, of course, was under duty to apply principles articulated in Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), and to consider the petitioner's federal claim on the merits. We stated that that task was "an easy task" in light of the "excellent opinion of the ...