Martin v. Wyrick, 75 CV 747-W-1.

Citation411 F. Supp. 1069
Decision Date16 March 1976
Docket NumberNo. 75 CV 747-W-1.,75 CV 747-W-1.
PartiesFrederick JX MARTIN, Petitioner, v. Donald WYRICK, Warden, Respondent.
CourtU.S. District Court — Western District of Missouri

Frederick JX Martin, pro se, initially, and then David R. Freeman, Federal Public Defender, Kansas City, Mo., for petitioner.

John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

On Pro Se Motion for a Prompt Hearing February 19, 1976.

MEMORANDA AND ORDERS

JOHN W. OLIVER, District Judge.

Introductory Statement

In Lee v. Wyrick, (W.D.Mo.1974) 383 F.Supp. 623, we were required to consider new rules adopted by the Supreme Court of Missouri and made effective January 1, 1972, in connection with the exhaustion question presented in that case. Those rules were promulgated in light of the amendment to Article V of the Constitution of Missouri which became effective on that date. The exhaustion question presented in that case had not been theretofore determined by this Court.

In its consideration of that case, this Court made appropriate inquiry of the Supreme Court of Missouri in regard to whether the changes made in Missouri's judicial system by the amendment of Article V of the Constitution of Missouri would differ materially from the practice which formerly existed in regard to motions to transfer from a Division of the Supreme Court of Missouri to the Supreme Court of Missouri en banc, as those courts were constituted under the old Constitution. As a result of that inquiry, we concluded that:

In light of the substantial changes in the judicial system of Missouri, and in light of the indication from the Missouri Supreme Court that a substantial number of transfers would be made by the various new Courts of Appeal and by the Supreme Court itself, we believe it clear that principles of comity require this Court's determination that unless and until a particular state prisoner has unsuccessfully sought transfer under the applicable new rules, he may not properly be said to have exhausted his available state court remedies.

The petition for federal habeas corpus was denied in Lee v. Wyrick, without prejudice to the petitioner's right to exhaust available state court postconviction remedies in accordance with Missouri Rule 84.08, which authorizes all appellate courts in Missouri to "suspend or modify its rules in a particular case upon a showing that justice so requires." The exhaustion rule established in Lee v. Wyrick was approved by the Eighth Circuit Court of Appeals in Triplett v. Wyrick, No. 75-1181 (8th Cir. October 22, 1975).

The federal exhaustion rule stated in those cases is based upon the following ground:

In recognition of this Court's knowledge of the liberality which the Missouri courts have exercised in the past under similar circumstances, we are confident that Rule 84.04 would be utilized by the Missouri courts and that no question of timeliness under the circumstances would stand as a barrier to the petitioner's effort to exhaust available state remedies in this case. 383 F.Supp. at 624-625

The three memoranda opinions handed down in the pending case illustrate the construction and application of Missouri Rule 84.08 by the Missouri Court of Appeals, Kansas City District, in a manner consistent with the exhaustion rule stated in Lee v. Wyrick, approved and followed in Triplett v. Wyrick.

We have directed publication of the three memoranda opinions in this case for the purpose of illustrating the manner in which Missouri Rule 84.08 may be effectively utilized in connection with a particular state prisoner's duty to exhaust available state court postconviction remedies before seeking to invoke federal habeas corpus jurisdiction.

MEMORANDUM AND ORDER OF DECEMBER 31, 1975

The response to our order to show cause establishes that substantial questions are presented in regard to whether petitioner has exhausted available state court remedies. Exhibits F, G, H, and I attached to the respondent's response reflect that after the Missouri Court of Appeals, Kansas City District, affirmed petitioner's conviction, see State v. Martin, 525 S.W.2d 804 (1975), petitioner filed a pro se petition for writ of habeas corpus in the Supreme Court of Missouri on July 25, 1975. The petition was apparently denied by the Supreme Court on September 8, 1975 without prejudice to petitioner's right to file a Rule 27.26 motion in the Circuit Court of Jackson County, Missouri. As shown by Exhibit H, petitioner then filed a pro se application for a rehearing in the Supreme Court and in a letter to the Clerk of the Missouri Supreme Court dated October 14, 1975, stated that his appellate attorney "abandoned me after the Appeals Court affirmed my conviction and I was unaware of this procedure at the time."

Exhibit I suggests that the Clerk of the Supreme Court of Missouri treated petitioner's application for a rehearing of the Supreme Court's action denying petitioner's pro se petition for a writ of habeas corpus as an application to transfer the case from the Missouri Court of Appeals, Kansas City District, to the Supreme Court of Missouri. The Clerk advised the petitioner on October 20, 1975 that his application for rehearing, which the Clerk treated as an application to transfer, was not timely filed and that "the rules make no provision for late filing of such applications."

The files and records show that the petitioner apparently did not file a timely application to transfer in the Missouri Court of Appeals, Kansas City District, under Rule 83.02, V.A.M.R. Nor did petitioner thereafter file a timely application for transfer in the Supreme Court of Missouri under Rule 83.03, V.A.M.R. The files and records do not show that petitioner has ever attempted to make any showing, pursuant to Rule 84.08, V.A.M.R., in the Missouri Court of Appeals, Kansas City District, as to why justice may require a suspension of the time limitation of Rule 83.02 in order that a motion for transfer be filed and considered in that court. If, as a matter of fact, petitioner's appellate counsel did, as petitioner alleges, abandon the petitioner and failed to advise him of his rights to have a Rule 83.02 motion filed on his behalf, we would assume that the Missouri Court of Appeals would exercise its power to modify the time requirement of Rule 83.02 in this particular case. Should the Missouri Court of Appeals, Kansas City District, exercise power under Rule 84.08, see Lee v. Wyrick, 387 F.Supp. 625 (W.D.Mo.1974) and Triplett v. Wyrick, No. 75-1181 (8th Cir. Oct. 22, 1975), and should that court deny the motion to transfer, it is apparent that a timely motion to transfer could then be filed in the Supreme Court of Missouri within the time permitted by Rule 83.03.

Petitioner's numerous pro se filings and petitioner's numerous letters to this and to other courts have substantially complicated the presentation of what may be substantial questions of law. This Court, for example, has before it letters from the petitioner dated December 12, December 17, December 26 and December 29, 1975. Petitioner has transmitted what he has captioned "Petitioner's Answer to Respondents Reply to Order to Show Cause" and a motion for a prompt hearing. Petitioner requests this Court to forward copies of his various filings to respondent's counsel on the theory that petitioner was not able to undertake that responsibility on his own.

The exhibits attached to the respondent's response establish that petitioner needs the assistance of counsel. We shall appoint the Federal Public Defender's office to represent petitioner. We shall also rule petitioner's most recently filed pro se motions and enter an order directing that in the future petitioner shall correspond with his appointed counsel rather than with this Court in order that the confusion created by petitioner's pro se motions and his numerous letters be screened by competent counsel to insure that the merits of whatever claim petitioner may have under the circumstances not be further prejudiced by petitioner's pro se efforts.

Accordingly, it is

ORDERED (1) that petitioner's answer to respondent's reply be filed and that a copy be forwarded to counsel for the respondent. It is further

ORDERED (2) that petitioner's motion for a prompt hearing should be and the same is hereby denied. It is further

ORDERED (3) that David R. Freeman, Esq., Federal Public Defender, and R. Thomas Day, Esq., Thomas Bradshaw, Esq., H. David Robards, Esq., and Ronald Hall, Esq., Assistant Federal Public Defenders, 1124 Scarritt Building, 818 Grand Avenue, Kansas City, Missouri 64106, should be and they are hereby appointed to represent the petitioner in the above captioned action, to take any and all action on petitioner's behalf which may be appropriate under the circumstances. It is further

ORDERED (4) that the petitioner direct his correspondence to his appointed counsel rather than to this Court. In the event petitioner persists in continuing to flood this Court with his correspondence, this Court will simply direct that such correspondence be forwarded to petitioner's appointed counsel.

ON PRO SE MOTION FOR A PROMPT HEARING

In spite of the fact that this Court has permitted petitioner to proceed in forma pauperis and in spite of the fact the Federal Public Defender has been appointed to represent petitioner in this Court, the petitioner has filed a pro se motion for a prompt hearing. That motion will be denied for reasons we now state.

Petitioner's motion contains a partial statement of the factual circumstances of this case, conveniently omitting all reference to petitioner's unsuccessful effort to get the Court of Appeals for the Eighth Circuit to direct this Court to proceed in a manner in accordance with his adamant view that he is presently entitled to a...

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