Martin v. Wyrick

• Decision Date: 28 January 1978
• Docket Number: No. 77-1625,77-1625
• Citation: 568 F.2d 583
• Parties: Frederick J. X. MARTIN, Appellee, v. Donald W. WYRICK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 583

568 F.2d 583

Frederick J. X. MARTIN, Appellee, v. Donald W. WYRICK, Appellant.

No. 77-1625.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 14, 1977.

Decided Jan. 3, 1978.

Rehearing Denied Jan. 28, 1978.

Robert L. Presson, Asst. Atty. Gen., Jefferson City, Mo., for appellant; John D. Ashcroft, Atty. Gen., on brief.

Ronald Hall, Asst. Federal Public Defender, Kansas City, Mo., for appellee; David R. Freeman, Kansas City, Mo., on brief.

Frederick J. X. Martin pro se.

Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.

LAY, Circuit Judge.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), decided June 30, 1975, the Supreme Court held that a defendant has a constitutional right of self-representation in the conduct of his or her own defense in a criminal case. The Court declared that a defendant could not be forced to accept court-appointed counsel if a knowing and voluntary waiver of counsel has been made. Frederick Martin here maintains that the district court's order granting him habeas corpus relief properly accorded Faretta a limited retroactive effect by applying the new constitutional interpretation to his case which was pending on direct appeal before the Missouri Court of Appeals at the time Faretta was decided. The respondent Warden appeals.

The petitioner was convicted for robbery in the Missouri state court. Both before and during his trial Martin had requested that his court-appointed counsel be dismissed and that, if the court would not appoint substitute counsel or allow him to hire his own counsel, he be allowed to represent himself. The state trial court, however, denied these requests. Seven days after the Faretta decision was announced, the Missouri Court of Appeals affirmed petitioner's conviction without discussion of the issue of self-representation which had been raised in petitioner's pro se brief. Martin thereafter attempted without success to have the Missouri Supreme Court review his conviction. He then sought habeas corpus relief in the federal district court for the Western District of Missouri. On May 27, 1977, the district court granted a writ of habeas corpus to petitioner requiring the Missouri courts to apply Faretta to his case, the effect of which was to grant petitioner a new trial in the state court. ¹ We reverse and hold that the district court erroneously granted the writ.

The applicability of a new constitutional interpretation ² to cases pending on direct review at the time the new rule was handed down was addressed by this court in Bosler v. Swenson, 363 F.2d 154 (8th Cir. 1966), aff'd per curiam without discussion of the retroactivity issue, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967). In Bosler we held that the right to counsel on appeal declared in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), required Bosler be provided with counsel on his direct appeal to the Missouri Supreme Court since Bosler's appeal had been pending before that court at the time Douglas was decided. 363 F.2d at 158.

The district court felt bound under the rationale of Bosler to apply the Faretta rule to petitioner's case since Martin's appeal to the Missouri Court of Appeals was pending at the time Faretta was decided. In Bosler we said:

An analysis of the Supreme Court opinions dealing with prospective or retroactive applicability of constitutional decisions points unmistakably to the proposition that the Douglas rule must be applied to cases pending on direct review at the time it was rendered.

In Linkletter v. Walker, the Court held that the exclusionary rule announced in Mapp v. Ohio does not apply to convictions which had become final before its rendition. However, as the Court observed in Linkletter, "that decision (Mapp ) has also been applied to cases still pending on direct review at the time it was rendered." . . .

As recent as June 20, 1966 the Supreme Court held in Johnson v. New Jersey that Escobedo v. State of Illinois and Miranda v. Arizona are not to be applied retroactively. More specifically, the Court held that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of the Escobedo decision, and that Miranda applies only to those cases in which the trial began after it was decided on June 13, 1966. Of greater significance to the question before us is the Court's statement on page 732 of 384 U.S., on page 1780 of 86 S.Ct.: "Decisions prior to Linkletter and Tehan (Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 409, 15 L.Ed.2d 453 . . . ) had already established without discussion that Mapp and Griffin (Griffin v. State of California . . . ) applied to cases still on direct appeal at the time they were announced. . . . "

From the foregoing we conclude that Douglas does apply and therefore controls this case. Bosler's direct appeal from the conviction had not been decided and was still pending when the Douglas decision was announced.

363 F.2d at 158 (citations omitted).

Although a reasonable interpretation of the Bosler decision is that retroactive effect must be given to all new constitutional interpretations involving criminal rights pending appeal at the time the new rule is announced, upon reconsideration we conclude the Supreme Court decisions on this issue require a different analysis.

In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court held that the new rule pronounced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), applying the Fourth Amendment rules pertaining to search and seizure to state trials, and overriding the 12 year old precedent established in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), would not be made retroactive to cases which had reached final judgment. ³ Thus, the Court broke with a long tradition which had held new constitutional decisions to be retroactive. In discussing the retroactive application of new constitutional rules involving criminal rights the Court explained:

While the cases discussed above deal with the invalidity of statutes or the effect of a decision overturning long-established common-law rules, there seems to be no impediment constitutional or philosophical to the use of the same rule in the constitutional area where the exigencies of the situation require such an application. It is true that heretofore, without discussion, we have applied new constitutional rules to cases finalized before the promulgation of the rule. Petitioner contends that our method of resolving those prior cases demonstrates that an absolute rule of retroaction prevails in the area of constitutional adjudication. However, we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, "We think the Federal Constitution has no voice upon the subject."

381 U.S. at 628-29, 85 S.Ct. at 1737 (footnotes omitted).

A further adjustment to the Court's approach to retroactivity came in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The Court there held that the rules established in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), would be available only to persons whose trial began after the date those decisions were handed down. Although the Court did not discuss at length its reason for not applying Escobedo or Miranda to cases pending on direct review, the Court did point out that:

Our holdings in Linkletter and Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced. On the other hand, apart from the application of the holdings in Escobedo and Miranda to the parties before the Court in those cases, the possibility of applying the decisions only prospectively is yet an open issue.

384 U.S. at 732, 86 S.Ct. at 1780 (emphasis added) (citations omitted).

The rule enunciated in Johnson, contrary to the implication in Bosler, suggested that the question of retroactivity, regardless of whether the court was reviewing a decision on direct appeal, was to be decided on an individual case basis. 384 U.S. at 733, 86 S.Ct. 1772.

Subsequently in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), any uncertainty as to what the Supreme Court intended was removed. Williams, which was decided after Bosler, held the rule announced in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), inapplicable to cases pending on direct appeal. The Court, citing Johnson v. New Jersey, supra, observed:

In Linkletter v. Walker we declined to give complete retroactive effect to the exclusionary rule of Mapp v. Ohio. Relying on prior cases, we firmly rejected the idea that all new interpretations of the Constitution must be considered always to have been the law and that prior constructions to the contrary must always be ignored. Since that time, we have held to the course that there is no inflexible constitutional rule requiring in all circumstances either absolute retroactivity or complete prospectivity for decisions construing the broad language of the Bill of Rights. Nor have we accepted as a dividing line the suggested distinction between cases on direct review and those arising on collateral attack. Rather we have proceeded to "weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation."

Both from the course of decision since Linkletter and from what has been said in this opinion, it should be clear that we find no constitutional difference between the...