Miller v. State of Missouri

• Decision Date: 11 February 1975
• Docket Number: Civ. A. No. 73CV288-W-3.
• Citation: 394 F. Supp. 94
• Parties: Gerald Lee MILLER, Petitioner, v. STATE OF MISSOURI, Respondent.
• Court: U.S. District Court — Western District of Missouri

394 F. Supp. 94

Gerald Lee MILLER, Petitioner, v. STATE OF MISSOURI, Respondent.

Civ. A. No. 73CV288-W-3.

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

February 11, 1975.

Gerald Lee Miller, pro se.

Neil MacFarlane, Asst. Atty. Gen. State of Missouri, Jefferson City, Mo., for respondent.

ORDER DENYING PETITIONER'S "MOTION FOR RELIEF ON HABEAS CORPUS BY DEFAULT," DENYING PETITIONER'S MOTION FOR THE APPOINTMENT OF COUNSEL, AND FINAL JUDGMENT DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS WITHOUT PREJUDICE

WILLIAM H. BECKER, Chief Judge.

This is a petition for a writ of federal habeas corpus by an individual formerly in custody at the Missouri State Penitentiary at Jefferson City, Missouri. Petitioner seeks an adjudication that his conviction and sentence were illegally secured and imposed upon him in violation of his federal constitutional rights. Petitioner requests leave to proceed in forma pauperis. Leave to proceed in forma pauperis has been granted by prior order of this Court on July 16, 1973.

Petitioner states that he was convicted by a jury in the Circuit Court of Jackson County, Missouri, of first degree robbery; that he was sentenced on that conviction on June 4, 1971, to a term of ten years imprisonment; that he appealed from the judgment of conviction and imposition of sentence to the Missouri Supreme Court, which affirmed the decision of the trial court on February 12, 1973, in Missouri v. Miller, 490 S.W.2d 36 (Mo.Sup.1973); that petitioner has not filed any motion under Missouri Criminal Rule 27.26, V.A.M.R., or any prior habeas corpus petitions in state or federal courts with respect to the conviction and sentence under review herein; and that he was represented by counsel during his arraignment, trial and sentencing, and on his direct appeal to the Missouri Supreme Court.

Petitioner states the following grounds in support of his contention that his conviction and sentence violated his federal constitutional rights:

"(1) Petitioner was illegally arrested, searched, detained and exhibited before an identifying witness in violation of his Constitutional right's; (sic) and has been deprived of Due Process of Law at each and every stage of all proceedings against him in the instant case.

"(2) Petitioner was deprived of his right to Due Process of Law when the Missouri Supreme Court upheld a confrontation proceeding which was irreparably suggestive, unfair, untimely absent of propriety and unjustified by the non-exigency of the situation.

"(3) Petitioner was deprived of his right to Due Process of Law when the witness was permitted to make an in-court identification which had been tainted by an irreparably suggestive, unfair and untimely confrontation proceeding.

"(4) Petitioner is falsely imprisoned as a result of an irreparable mistaken identification; and has suffered gross violation and deprivation of Due Process of Law, at each and every stage of the proceedings in the instant case; the arrest, confrontation-identification, Preliminary Hearing, Trial, Sentencing, and Hearing on Direct Appeal in the Supreme Court of Missouri.

"(5) Petitioner was deprived of a full, fair, and impartial Preliminary Hearing in the Magistrate Court of Livingston County, Missouri; when he was denied the right and opportunity to examine witnesses against him, who were duly subpoenaed and were not excused by said Court; and by false and prejudical testimony given by State witness Kelsie Reeter; and by State witness, Sheriff Reeter being allowed to remain in the Court room and hear all testimony given by all witnesses, and then take the witness stand and testify himself.

"(6) Petitioner was deprived of a fair and impartial trial and Due Process of Law; when the State recalled State witness Kelsey Reeter, in rebuttal, for the sole purpose of and intent to willfully, deliberately, and purposely prejudice the jury against petitioner; and divert the attention of the jury from the facts in issue in the instant case, by use of false, inflammatory, and prejudicial testimony, not relevant to the instant case, causing the jury to purposely convict petitioner; whereby, being an abnegation of the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States.

"(7) Petitioner's sentence is illegal, unconstitutional, and contrary to the letter and spirit of the law; and was imposed upon petitioner based on a false, prejudicial and inflammatory Presentence Investigation Report.

"(8) Petitioner was deprived of a full, fair and impartial hearing on Direct Appeal, by the Supreme Court of Missouri, when said Supreme Court handed down a decision based on erroneous assumptions, and not on facts and conclusions of law; and therefore is an abnegation and violation of petitioner's Constitutional right's (sic).

"(9) Petitioner was deprived of his right to Due Process of Law when the Missouri Supreme Court upheld conviction relying on the inconsistant, self disputed testimony of Mr. Herring, as identification of petitioner's brothers 1953 Chevrolet Automobile, as the alleged escape vehicle. (sic)

"(10) Petitioner is falsely imprisoned, contrary to the weight of creditable (sic) evidence, and in violation of his Federally guaranteed right to Due Process of Law, when the Supreme Court of Missouri upheld conviction on the basis of fingerprint evidence insufficient to place petitioner at the scene of the alleged crime, at the time said crime was allegedly committed.

"(11) Petitioner was deprived of his right to Due Process of Law and Equal Protection of the Law, when the Missouri Supreme Court upheld conviction, disregarding the facts and creditable (sic) evidence before said Court; depriving petitioner of a full, complete and fair hearing, and of the right to Court findings of facts and conclusions of law based on facts; whereby, being an abnegation and violation of petitioner's Constitutional Right's (sic) as a citizen of the United States.

"(12) Petitioner is falsely imprisoned in violation of his Constitutional, Federally guaranteed right to "Due Process of Law" and "Equal Protection of the Law", when the Supreme Court of Missouri deprived petitioner of his right to a full, complete and fair hearing, where the facts were in dispute and where petitioner's Federally guaranteed rights' (sic) was raised; and where conviction was upheld by said Court based on an in-court identification which had been tainted by an irreparably suggestive, unfair and untimely confrontation proceeding; and based on an in-court identification by Mr. Herring, whose testimony is highly inconstant, (sic) and who has a number or (sic) arrests for misdemeanor's (sic), and shows a defect of capacity to observe, remember or recount matters testified about, as the record clearly indicates and supports, whereby, being an abnegation and violation of petitioner's Constitutional Right's (sic) as a Citizen of the United States."

As facts in support of the above grounds, petitioner has presented twelve, single-spaced typed pages of lengthy supplemental statements, at times referring to the trial transcript, plus various exhibits and affidavits.

On July 16, 1973, this Court entered an order granting the petitioner leave to proceed in forma pauperis and directing the respondent to show cause why the petition herein for a writ of habeas corpus should not be granted.

Following the filing of a motion for an extension of time to file a response and the granting thereof by order of this Court on August 8, 1973, counsel for respondent filed herein on that same day his response to the order to show cause, therein stating that petitioner had apparently exhausted his currently available and adequate state court remedies with respect to grounds one, two, three, four and ten. With respect to petitioner's remaining grounds, respondent contends that petitioner has never presented those contentions to any court, either on direct appeal, or by means of a motion under Missouri Criminal Rule 27.26. As part of the response, counsel for respondent attached and submitted photocopies of the following documents: (1) the record of petitioner's trial filed as a transcript on appeal in the Missouri Supreme Court; (2) the brief of the State of Missouri on petitioner's appeal in the Missouri Supreme Court; (3) petitioner's brief on appeal in the Missouri Supreme Court; and (4) the opinion of the Missouri Supreme Court affirming the petitioner's conviction, in the case of Missouri v. Miller, 490 S.W.2d 36 (Mo. Sup.1973).

On August 6, 1973, petitioner filed herein a "Motion for Relief on Habeas Corpus by Default," therein contending that the respondent was not justified in seeking an extension of time to file a response, and that the petition herein should be granted based on such alleged lack of justification.

On August 9, 1973, petitioner filed a "Motion in Response to Respondent's Amended Motion to File Show Cause Out of Time," therein contending that the petition herein should be granted for the reason that respondent has failed to show cause why the petition should not be granted.

On October 9, 1973, petitioner filed herein a twenty-page traverse to the respondent's response to the order to show cause. In his traverse, petitioner basically reiterates the factual and legal contentions in support of his petition.

On November 28, 1973, an order was entered granting petitioner's letter request of October 25, 1973, that an affidavit be filed and submitted to the Court as "Exhibit I."

Thereafter, on January 22, 1974, petitioner filed a "Motion for Appointment of Counsel" in the case at bar, therein contending that the appointment of counsel would benefit the Court and petitioner, and insure that ". . . petitioner's allegations receive fair consideration."

On May 8, 1974, the undersigned received a letter from the petitioner dated May 4, 1974. In his letter the petitioner states that he has been "released on parole to the State of Iowa from the State of...