May v. Maschner, 87-0575-CV-W-1.
| Decision Date | 19 August 1987 |
| Docket Number | No. 87-0575-CV-W-1.,87-0575-CV-W-1. |
| Citation | 668 F. Supp. 1305 |
| Parties | West Pharris MAY, Jr., Petitioner, v. Herb MASCHNER, et al., Respondent. |
| Court | U.S. District Court — Western District of Missouri |
West Pharris May, Jr., pro se.
William L. Webster, Atty. Gen., Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for respondent.
MEMORANDUM AND ORDER DIRECTING FURTHER PROCEEDINGS
This is a State prisoner habeas corpus case. The response of the Attorney General to this Court's order to show cause contends that petitioner's pro se petition presents a mixed petition of exhausted and unexhausted claims which is subject to dismissal without prejudice under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). We disagree. We find and conclude that petitioner has exhausted his federal Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), claim. Accordingly, an order will be entered directing the Attorney General to file an appropriate brief on the merits of petitioner's federal constitutional claim.
For reasons stated in part IV of this memorandum opinion a further order will be entered directing the production of additional documentary evidence that will reflect particular pretrial proceedings that may have been conducted in the Circuit Court of Cole County, Missouri.
The Attorney General's mixed petition argument is based in large part on a portion of the pro se petition which petitioner filed in violation of Rule 2 of the Rules governing Section 2254 cases in the United States District Courts. 28 U.S.C.A. foll. § 2254, at 1094. Those Rules were promulgated by the Supreme Court of the United States on April 26, 1976 and became effective February 1, 1977 pursuant to the approval of Congress stated in Pub.L. 94-426, § 1, 90 Stat. 1334 (Sept. 8, 1976). See Legislative History of Pub.L. 94-426 in 3 U.S.Code Cong. & Admin.News, 94th Cong. 2d Sess. 2478.
Rule 2(c) provides that the "petition shall be in substantially the form annexed to these rules, except that any district court may by local rule require that petitions filed with it shall be in a form prescribed by the local rule." That rule further provides that the petition "shall specify all the grounds for relief which are available to the petitioner and of which he has or by the exercise of reasonable diligence should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified." Id.
The petition in this case was filed on the standard model form provided in the appendix to the Rules governing Section 2254 cases. See 28 U.S.C.A. foll. § 2254, at 1158. The fact the petitioner used the standard model form rather than the form long provided by this Court's Local Rule 25 is immaterial. For the general instructions and special instructions in regard to the filing of a petition for habeas corpus are stated in identical language in both forms.
Paragraph 2 of the general instructions state at the outset of both forms that:
Additional pages are not permitted except with respect to the facts which you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum. (Emphasis in the original).
Paragraph 12 of both forms directs a pro se petitioner to: (Emphasis in the original). Paragraph 12 of both forms also contains a "list of the most frequently raised grounds for relief in habeas corpus proceedings." A pro se petitioner is instructed that he may check any one of the ten grounds listed in subparagraphs (a) to (j), inclusive, of paragraph 12, but that if he selects "one or more of the listed grounds for relief, you must allege facts." Both forms then provide a space in which the petitioner shall state his "grounds" of relief and another space for a statement of petitioner's "Supporting FACTS." The petitioner is specifically directed to "tell your story briefly without citing cases or law."
The petitioner in this case alleged the following grounds for relief in paragraph 12 of his pro se petition:
In the space provided in paragraph 12 of the form in which the petitioner was required to state his "Supporting FACTS" in regard to those alleged grounds for relief, by "telling his story briefly without citing cases or law," however, the petitioner in this case directed the Court to "See" his lengthy "Habeas Corpus Attachment." That "attachment," contrary to the general instructions of the form and contrary to the explicit instruction of paragraph 12, stated petitioner's view of many questions of law. As was true in Jackson v. State of South Carolina, 498 F.Supp. 186, 190 (D.S. C.1979), the petitioner's "attachment" in this case "obscured his factual allegations by blending such factual averments as are submitted with citations of cases and legal argument."1 If the petitioner wanted his dissertation of the law considered, it should have been "submitted in the form of a separate memorandum" in accordance with paragraph 2 of the general instructions.
It is thus clear that the petition in this case does not comply with the requirements of Rule 2 of the Rules governing Section 2254 cases. This Court may not properly consider any ground for federal habeas corpus relief that the petitioner may have improperly stated in the "attachment" that the petitioner inserted in his pro se petition. For both the standard model form of petition appended to the Rules and the form approved by the Local Rule 25 of this Court require that the grounds of relief be stated separately from the facts supporting a petitioner's legal claims and that no additional pages may be added to a petition "except with respect to the facts which you rely upon to support your grounds for relief."
Both forms were designed to eliminate, or at least reduce, the delay and confusion occasioned by the frequently prolix and unschooled filings made by pro se petitioners and by filings that have been prepared on their behalf by their fellow inmates. Recognition and consideration of legal grounds of habeas corpus relief that are improperly stated in an "attachment" inserted in a petition in violation of the clear instructions of an approved form petition would defeat the purpose of the requirement of Rule 2 that a petition shall be filed in substantial accordance with an approved form of petition. See 28 U.S.C.A. foll. § 2254, at 1094.
Recognition and application of the principle that grounds of federal habeas corpus relief will not be recognized or considered if stated only in an "attachment" to a petition filed in violation of the instructions of an approved form should also help eliminate the delay and useless, unproductive paperwork produced in processing federal habeas corpus cases. Such delays are occasioned by the filing of responses to orders to show cause that, with increasing frequency, attempt to present Rose v. Lundy mixed petition arguments in cases in which such an argument is clearly untenable. This case is a good example of such a case. For it is clear that the response filed by the Attorney General in this case cites and relies solely on various statements made by the petitioner in his "attachment" to support his Rose v. Lundy mixed petition argument.
It is not necessary that we discuss what legal claims the petitioner may have attempted to state in his "attachment" in regard to an alleged denial of his due process and equal protection rights or in regard to being subjected to cruel and unusual punishment. For whatever was stated in the "attachment" in that regard may not be properly regarded or recognized as an allegation of a ground for federal habeas corpus relief. That being true, it follows that the petition filed in this case may not properly be regarded as a mixed petition for the reason the petitioner may not properly be required to exhaust a federal constitutional question that has not been properly alleged in a petition for habeas corpus.2
Application of the principles stated requires that we reject the Attorney General's argument that a Rose v. Lundy mixed petition argument may be based on the untutored and unauthorized statements of law contained in petitioner's "attachment" to his pro se petition for habeas corpus.
We have not overlooked the Attorney General's contention that the petitioner failed to exhaust an effective assistance of counsel claim which was mentioned in the attachment. A slightly different factual situation exists in regard to that claim. Although the Attorney General does not direct attention to the fact, it must be noted that petitioner did put a checkmark in front of subparagraph (i) of paragraph 12 of the petition form.
The placement of that checkmark and petitioner's loose language about ineffective assistance of counsel in his "attachment," however, may not properly be said to allege a Sixth Amendment claim of denial of effective assistance of counsel. For, contrary to the directions of paragraph 12, petitioner did not even attempt to state such a claim as a ground for relief or to state any facts in support of such a ground in the space provided for in paragraph 12 of the form petition. The principle that a claim that has not been properly alleged as a separate ground for habeas corpus relief may not properly be labeled an unexhausted claim for Rose v. Lundy purposes is therefore applicable to that possible ground...
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