Meller v. Swenson, Civ. A. No. 1418.

• Decision Date: 09 December 1969
• Docket Number: Civ. A. No. 1418.
• Citation: 309 F. Supp. 519
• Parties: Melvin MELLER, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

309 F. Supp. 519

Melvin MELLER, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 1418.

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

December 9, 1969.

Melvin Meller, pro se, petitioner.

John C. Danforth, Atty. Gen., Jefferson City, Mo., for respondent.

ORDER DENYING PETITION FOR HABEAS CORPUS

BECKER, Chief Judge.

Petitioner, a state convict presently confined in the Missouri State Penitentiary, petitions this Court for a writ of federal habeas corpus to invalidate his state conviction for burglary and larceny. Leave to proceed in forma pauperis was granted by the show cause order entered herein on June 25, 1969.

Petitioner states that, upon his plea of guilty to an information charging both burglary and larceny in one count, he was convicted in the Circuit Court of Cole County; that he was sentenced by that court on April 22, 1952, to a term of four years' imprisonment (two years for burglary and two years for larceny); that he did not appeal from the judgment of conviction nor the imposition of sentence; that he filed a post-conviction motion to vacate the convictions under Missouri Criminal Rule 27.26, V.A.M.R., in the trial court which was denied on March 13, 1968; that the denial was affirmed by the Missouri Supreme Court (Meller v. State, Mo., 438 S.W.2d 187); and that he was not represented by counsel at his arraignment and plea and at his sentencing, but was represented by counsel on the Rule 27.26 motion and his appeal from the denial thereof.

Petitioner states the following as grounds in support of his contention that his sentence in the above case was imposed in violation of his federally protected rights:

"(a) Petitioner was not informed about nor accorded his rights against self-incrimination as guaranteed by the fifth Amendment of the United States Constitution and by Article I, Section 19 of the Missouri Constitution.

"(b) Petitioner was not informed about his rights to have the assistance of counsel for his defence, (sic) as guaranteed by the Sixth Amendment of the United States Constitution and by Article I, Section 18(a) of the Missouri Constitution.

"(c) Petitioner was not informed of the nature and cause of the accusation against him, as guaranteed by the Sixth Amendment of the United States Constitution and by Article I, Section 18(a) of the Missouri Constitution.

"(d) Petitioner was not accorded the right to meet the witnesses against him face to face, as guaranteed by the Sixth Amendment of the United States Constitution and by Article I, Section 18(a) of the Missouri Constitution.

"(e) After petitioner was sentenced, petitioner was repeatedly blocked in his efforts to obtain use of an appropriate remedy as guaranteed by the Fourteenth Amendment to the United States Constitution and by Article I, Section 14 of the Missouri Constitution."

Petitioner states the following as facts which support his contention that he was unlawfully convicted and sentenced:

"(a) Petitioner was subjected to custodial police interrogation without being told he had the right to remain silent and that any statement he would make could be used against him as evidence. Petitioner was persuaded while in police custody under promise of a brief suspended sentence to plead guilty as charged in the information without understanding the nature of the crime of which he was accused, the range of punishment therefor or the import of a guilty plea.

"(b) Petitioner requested his mother to hire an attorney to represent him. She was unwilling to mortage (sic) her farm to obtain money for the purpose and otherwise had no sourse (sic) from which to raise money. Petitioner had no money with which to pay an attorney and did not know and was not told that the Court would appoint an attorney to represent him without expense to petitioner. Petitioner did not know that an attorney could still help him even though he had committed himself while in police custody to plead guilty. Without advice of an attorney, petitioner relied upon promises and advice of the prosecuting attorney and waived his preliminary examination in the Magistrate Court and pleaded guilty in the Circuit Court as charged.

"(c) Petitioner could not understand that he was charged with having committed burglary and larceny. He could not interpret the Complaint in the Magistrate Court nor the information in the Circuit Court as stating that he committed these crimes. He was not told by the prosecuting attorney or by the Judge that by pleading guilty as charged he would be pleading guilty to these crimes. A careful reading of said complaint and said information will show language deficiencies which help explain petitioner's failure of understanding. Also, the transcript of the Circuit Court proceedings on March 22, 1952, indicates the Court advised defendant of the nature of a single crime charged against him and the punishment for such crime without naming the crime, but the transcript of the same Court's proceedings on April 22, 1952, shows that petitioner was sentenced for two crimes — two years for burglary and two years for larceny.

"(d) Petitioner was not accorded the right to be confronted with the witness against him, and in the absence of an attorney to advise him, relied upon representations made by the prosecuting attorney and custodial police; nor was he informed that in the search warrant it was alleged the property was taken on a different date than the date on which he was charged of crime in the Magistrate Court Complaint and in the Circuit Court information.

"(e) Repeated requests directed to the Clerk and other officials of Cole County Circuit Court for true copies of the warrant of arrest, complaint in the Magistrate Court, information in the Circuit Court and transcript of proceedings in the Circuit Court have not produced any of these records for petitioner and consequently petitioner has been previously unable to properly prepare motion for appropriate remedies."

In the official report of the affirmance on appeal of the trial court's denial of petitioner's Rule 27.26 motion, State v. Meller, supra, and in the files and records submitted by respondent in response to the show cause order issued herein, it appears that all the above grounds relied on by petitioner were considered by the trial court and the Missouri Supreme Court and ruled adversely to petitioner. Petitioner, in his traverse, does not question the accuracy and authenticity of such records. Nor does petitioner or respondent rely on any additional evidence in this proceeding. Therefore petitioner has exhausted his currently available state remedies. The Missouri Supreme Court has denied his contentions in an appeal from the trial court's denial of relief after an evidentiary postconviction hearing conducted in accordance with the currently available remedy provided by amended Missouri Criminal Rule 27.26 and a review on the record thereof made by the Supreme Court recognizing current federal standards as enunciated in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

In the proceedings in the state courts, the state trial court made specific findings of fact and applied current federal standards in denying all the contentions of the petitioner. These findings of fact were reliably made in accordance with current federal standards. Townsend v. Sain, supra; Noble v. Swenson (W.D.Mo.) 285 F.Supp. 385; Goodwin v. Swenson (W.D.Mo.) 287 F.Supp. 166, 167. The Missouri Supreme Court, on review of the findings, found them to be not "clearly erroneous." This type of review standing alone may not comply with the federal habeas corpus standards. But this Court may independently rely on facts reliably found by the trial court in its application of current federal standards, or in the alternative independently find the facts from all the evidence in the habeas corpus record.

Under the findings so made by the state trial court, and independently made by this Court, it is readily apparent that petitioner's contentions are without merit.

First, petitioner states that he was subjected to police custodial interrogation without having been advised that "he had the right to remain silent and that any statement he would make could be used against him." The record reveals, and the state trial court reliably so found, that petitioner made no statement during such interrogation which was used against him in evidence at his trial. The Supreme Court of Missouri properly approved this finding.

Second, petitioner further states that his federal rights were violated in that he "was persuaded while in police custody under promise of a brief suspended sentence to plead guilty as charged in the information without understanding the nature of the crime of which he was accused, the range of punishment therefor or the import of a guilty plea." In substance he contends that his plea of guilty was not voluntarily and understandingly made. The rulings of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed. 977, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, relied on by petitioner, however, deal directly with admissions or confessions made during custodial interrogation rather than with a plea made in court. Further, they would not apply to this case by virtue of their non-retroactivity. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. The principles of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, are not retroactive and do not apply to petitioner's plea. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16. If Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, is construed to require more than appears in this case, the rule of the case has not been held to be retroactive. If it should be...