Newman v. State of Missouri

Decision Date30 September 1974
Docket NumberCiv. A. No. 20441-3.
Citation394 F. Supp. 83
CourtU.S. District Court — Western District of Missouri
PartiesJohn Henry NEWMAN, Petitioner, v. STATE OF MISSOURI, Respondent.

COPYRIGHT MATERIAL OMITTED

Robert D. Kingsland, Jefferson City, Mo., for petitioner.

Preston Dean, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

FINAL JUDGMENT DENYING PETITION FOR A WRIT OF HABEAS CORPUS

WILLIAM H. BECKER, Chief Judge.

This is a petition for a writ of federal habeas corpus by an individual formerly1 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 20, 1972.

Petitioner states that he was convicted upon his plea of guilty in the Circuit Court of Greene County, Missouri, of first degree robbery; that he was sentenced on that conviction on February 21, 1969, to a term of seven years imprisonment; that he did not appeal from the judgment of conviction and imposition of sentence; that he filed a motion in the Circuit Court of Greene County to vacate the judgment of conviction and sentence under Missouri Criminal Rule 27.26, V.A.M.R., which was voluntarily withdrawn by the petitioner on October 22, 1969; that he subsequently filed a second motion in the Circuit Court of Greene County to vacate the judgment of conviction and sentence under Missouri Criminal Rule 27.26; that petitioner's second 27.26 motion was overruled without an evidentiary hearing on March 31, 1971; that he then filed a petition for a writ of federal habeas corpus in this Court, which was dismissed without prejudice for failure to exhaust state remedies on August 5, 1971, in Newman v. Swenson, Civil Action No. 19600-3 (W.D.Mo. August 5, 1971); that he appealed the denial of his second 27.26 motion to the Missouri Supreme Court, which affirmed the decision of the Circuit Court of Greene County on June 12, 1972, in Newman v. Missouri, 481 S.W.2d 3 (Mo.Sup. 1972); that he was represented by counsel at his arraignment and sentencing; and that he was also assisted by counsel in the preparation and presentation of his two motions to vacate under Missouri Rule 27.26.

Petitioner states the following grounds on which he bases his claim that his conviction and sentence were illegally secured and imposed upon him in violation of his federal constitutional rights:

"(a) Petitioner was denied due process and equal protection of the law, in that, the trial court failed to determine that petitioner was mentally competent to enter a guilty plea, after petitioner had entered a plea of not guilty by reason of mental defect at the arraingment (sic) and was, in fact, examined by a psychiatrist between the arraingment (sic) and the day the actual plea was accepted; that failure of the trial court to conduct a hearing on the petitioner's competency, prior to the acceptance of the guilty plea, renders this sentence and conviction in violation of the due process and equal protection of the law clause in the Fourteenth Amendment to the Constitution of the United States.
"(b) Petitioner was denied due process and equal protection of the law, in that, the trial court accepted an eqivocal (sic) plea from petitioner — even though it was a guilty plea — and the Record of Sentencing reveals that the plea of guilty is a (sic) eqivocal (sic) plea, where the available defense of insanity, or exclusion of criminal responsibility for the alleged criminal act, due to mental disturbances and mental defects was placed in issue by petitioner's Attorney, prior to the assessment of the seven (7) year sentence.
"(c) Petitioner was denied due process and equal protection of the law, in that, the Record of Sentencing reveals that the petitioner was never advised of the ranges of punishment for first degree robbery and fails to show that the petitioner voluntarily entered the plea of guilty, after proper advisement of all the Constitutional Rights being waived by entry of a plea of guilty.
"(d) Petitioner urges and contends that he was given harsher punishment, by the imposition of a much longer imprisonment term that the terms received by his codefendant's (sic) on this same charge, which is contrary to and in direct violation of due process and equal protection of the law, as guaranteed by the Fourteenth Amendment to the Constitution of the United States."

Petitioner states the following as facts in support of his claim that his conviction and sentence were illegally secured and imposed upon him in violation of his federal constitutional rights:

"(a) On January 3, 1969, petitioner's court appointed attorney, Mr. Rittershouse, filed a motion for psychiatric examination, and the motion was granted by the trial court.
"On January 15, 1969, petitioner was taken to a psychiatrist, handcuffed, dirty and unshaven — petitioner had spent 12 days before being taken to the psychiatrist, in what is commanly (sic) called, a `hole'. After a ten (10) minute interview, petitioner was transported back to the county jail, and placed back in the `hole' for twenty-nine (29) more days. On February 15, 1969, petitioner's attorney informed him that the examination report had been received and that the psychiatrist had reported that petitioner able to assist in his defense. Please read pages 88, 89, 90, 91, & 92 of Petitioner's Exhibit A.
"Petitioner's attorney expressed the opinion that there was no available defense for me, that there was too much against petitioner. He said the best thing he could do, would be to make a `bargian' (sic) with the prosecutor, that he could get the prosecutor not to recommend any sentence, if I would plead guilty.
"On February 21, 1969, petitioner entered a plea of guilty. After the trial court had asked certain questions, the trial court accepted the guilty plea. And thereafter, counsel for both sides presented their statements. Petitioner's attorney stated at (sic) a part his statement to the trial court:
`At the same time the doctor's report is replete with the fact that there are psychiatric disturbances in this young man, and yet perhaps we, as a society as a whole, have failed him as much as he has failed us.' Petitioner's Exhibit A, page 54, lines 14 to 17.
"Petitioner asks the Court if it would read pages 54, 55, & 56 of Petitioner's Exhibit A. Through out (sic) petitioner's attorney's statement to the trial court, the attorney repeatedly pointed out to the trial court that petitioner had been placed in a state hospital at Fulton and Nevada, for seven years, from the age 12 to 19 years old.
"Although the trial court knew this, it was repeatedly pointed out to it by petitioner's attorney, therefore, placing in issue the question of petitioner's mental competency.
"(b) Since this point 11(b) is so closely related to 11(a), petitioner relys on the same set of facts placed above. The plea of guilty entered under these set of circumstances, is in actuality, an eqivocal (sic) plea, because petitioner did have a defense, a good defense. Please read pages 23, 24, & 25 of Petitioner's Exhibit A.
"(c) And since this point in (sic) meshed together with 11(b), please use the same facts, and read pages 23, 24, & 25 of Exhibit A "(d) Now, petitioner points out to the Court, these facts: that there were, as petitioner is told, four persons involved in this criminal act of armed robbery, the petitioner, Charles Horsey, Donald Wrieght, and Robert Snyder.
"Donald Wright, was given complete immunity from prosecution for becoming a State Witness to testify against petitioner. Since there was no trial of petitioner, Donald Wright did not have to testify. He got something for nothing.
"Charles Horsey, was charged with receiving stolen money, a reduced charged (sic) from first degree robbery. At a later date, he agreed to testify for the State in turn for complete immunity. He never testified against petitioner, because there was no trial.
"Robert Snyder, was also charged with, receiving stolen money, and he was tried by jury trial, who found him guilty, but the trial judge sentenced him to Ninety-Six (96) `Days' in the county jail, and ordered that he be given credit for time spent in jail, over one-hundred (100) days spent previously in jail. That isn't punishment.
"John H. Newman, petitioner herein, plead guilty, and was sentenced to Seven (7) Years Imprisonment.
"Therefore, it is contended that the metting out of punishment is unfair, unjust, unlawful and unconstitutional, and deprived and denied petitioner `Equal Protection of the Law!'
"There is no way that this can be called equal protection of the law, because the only one punished, was petitioner, while the other three codefendants?, were given their freedom, and turned loose.
"The only way it could be called fair, would be to call it fair in the name of Communism. And these United States are a Democarcy (sic), with equal protection of the law for all."

On July 20, 1974, 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 grant thereof by order of this Court dated August 10, 1972, counsel for respondent filed herein on August 10, 1972, his response to the order to show cause, therein stating that petitioner had exhausted his currently available and adequate state court remedies with respect to the contentions raised in the petition herein. As part of the response, counsel for respondent attached and submitted photocopies of the following documents: (1) the transcript of the record on appeal to the Missouri Supreme Court with respect to the appeal from the denial by...

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3 cases
  • Manis v. Wyrick
    • United States
    • U.S. District Court — Western District of Missouri
    • February 23, 1984
    ...... when he has not exhausted his available remedies in the courts of Tennessee." Then Chief Judge Becker's opinion in Newman v. State, 394 F.Supp. 83 (W.D.Mo. 1974) is cited in further support of the State's argument that a federal district court is not required to accept a State prisoner'......
  • Donaldson v. Wyrick, Civ. A. No. 73CV332-W-3.
    • United States
    • U.S. District Court — Western District of Missouri
    • October 14, 1974
    ...denied, 293 U.S. 615, 55 S.Ct. 148, 79 L. Ed. 704 (1934); United States v. Tobin, 429 F.2d 1261, 1265 (8th Cir. 1970); Newman v. Missouri, 394 F.Supp. 83 (W.D.Mo.1974). Furthermore, even assuming error on the part of the sentencing Judge, petitioner is not entitled to habeas corpus relief h......
  • Holmes v. Israel, 77-C-247.
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • July 19, 1978
    ...alone cannot constitute grounds for habeas corpus relief, and a state sentence will not lightly be set aside. Newman v. State of Missouri, 394 F.Supp. 83 (W.D.Mo. 1974). The petitioner relies upon United States v. Rogers, 504 F.2d 1079 (5th Cir. 1974) cert. denied 422 U.S. 1042, 95 S.Ct. 26......

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