Peterson v. State of Missouri

Decision Date26 February 1973
Docket NumberCiv. A. No. 20209-2,1664.,1649
PartiesGerald D. PETERSON, Petitioner, v. STATE OF MISSOURI, Respondent, (three cases).
CourtU.S. District Court — Western District of Missouri

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bruce C. Houdek, Federal Public Defender, Ronald M. Sokol, Asst. Federal Public Defender, Kansas City, Mo., for petitioner.

John C. Danforth, Atty. Gen. of Mo., Richard Paden, Asst. Atty. Gen., for respondent.

MEMORANDUM AND ORDER

COLLINSON, District Judge.

These three actions are brought as petitions in the nature of writ of error coram nobis pursuant to the All Writs Statute, 28 U.S.C. § 1651, and petitions for habeas corpus. The actions were consolidated for the purposes of discovery and hearing. An evidentiary hearing was held herein on September 27, 1972. Both parties have now filed their proposed findings of fact and conclusions of law.

The respondent, the State of Missouri, has also filed a motion to dismiss for lack of jurisdiction. Petitioner has not responded to this motion.

I.

In Civil Action No. 20209-2, petitioner has labeled his cause as a "Petition for Writ of Error Coram Nobis and Petition for Writ of Habeas Corpus"; in Civil Action No. 1649, the heading is "Petition for Writ of Error Coram Nobis"; and in Civil Action No. 1664, the cause is designated as a "Petition for Writ of Error Coram Nobis."

The gist of the State's motion to dismiss is that coram nobis jurisdiction under the All Writs Statute does not lie in this Court to attack a state criminal conviction; and that habeas corpus jurisdiction is lacking because petitioner is not in custody, but has in fact fully served, the sentences under attack here. Therefore, the State contends, it is not a proper party to this action; and petitioner's remedy is by way of a motion to vacate under 28 U.S.C. § 2255 (since Peterson is presently in federal custody), as aided by 28 U.S.C. § 1651.

In Case No. 20209-2, Peterson states that he was convicted upon his plea of guilty to the charge of auto theft, and on January 8, 1954, he was sentenced to a term of three years in the Circuit Court of Buchanan County, which he fully served.

On January 27, 1970, Peterson filed a petition for writ of error coram nobis and habeas corpus in the Buchanan County Circuit Court, pursuant to Missouri Supreme Court Rule 27.26, attacking the validity of the 1954 conviction. Counsel was appointed for Peterson, and a hearing was set for October 26, 1970. At the conclusion of the hearing, the motion was denied. Peterson, being in federal custody, was not present at the hearing.

An appeal was taken, and on February 22, 1972, the Missouri Supreme Court affirmed in a per curiam decision. Peterson v. State (Mo.Sup.) 476 S.W.2d 608 (1972). The court held, inter alia, that post-conviction relief under Rule 27.26, V.A.M.R. was not available for the reason that Peterson was not in custody under the sentence which he challenged; and since he was in federal custody, even if the sentence had not been served, he could not attack it under Rule 27.26. The Supreme Court of Missouri stated at 610:

In State v. Stodulski, Mo., 298 S.W.2d 420, this court held that a motion by a defendant in which he seeks relief from what he asserts was an invalid sentence is not to be determined by the name given to it, but rather upon the facts alleged and the relief sought, and that "a writ of error coram nobis is available to attack a judgment of conviction, even after the sentence thereunder has been served." The trial court treated the motion in this case as not being made pursuant to Rule 27.26, and we shall treat it as an application for writ of error coram nobis.

The court then considered the merits of Peterson's contentions, and denied the petition. Since the same issues are raised in this action that were determined in the State courts, there is no dispute that state remedies have been exhausted.

In addition, Peterson contends that he suffers present adverse or collateral effects from this allegedly invalid conviction in that it was used as a basis to enhance his punishment in subsequent federal convictions and to impeach his credibility in the trials of those cases.

In Case No. 1649, Peterson states that he was convicted upon his plea of guilty to a charge of auto theft, and was sentenced to a term of three years on October 11, 1963, in the Circuit Court of Nodaway County. That sentence has been fully served.

On January 11, 1971, petitioner filed a petition for writ of habeas corpus and a motion to vacate pursuant to Rule 27.26 in Nodaway County Circuit Court. The petition was treated as one seeking relief in the nature of writ of error coram nobis. A hearing was set for June 7, 1971. Upon petitioner's failure to appear (due to his confinement in the United States Penitentiary at Leavenworth, Kansas), the petition was dismissed for want of prosecution.

Peterson contends that he was not aware that his petition had been dismissed until the time to appeal had elapsed. He did on July 22, 1971, within the time to appeal, petition the Supreme Court of Missouri for a writ of mandamus compelling the trial court to appoint counsel for him and to hold an evidentiary hearing on the allegations of his petition after compelling his appearance for such hearing. The petition for mandamus was denied without discussion. Thereafter, Peterson sought a special order to appeal out of time pursuant to Missouri Supreme Court Rule 28.07. This, too, was denied.

Respondent contends that Peterson is not entitled to relief in this action for the reason that he has failed to exhaust state remedies, and, in fact, deliberately by-passed such remedies.

The exhaustion of state remedies requirement is merely an accommodation of the federal system designed to give the state an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights. Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed. 2d 837 (1963). Petitioners are not required to file repetitious applications in state courts. See Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed. 2d 418 (1971). Under the factual circumstances of this case, we conclude that Peterson has not deliberately bypassed state remedies, but that he has exhausted his available state remedies for the purposes of this proceeding.

Peterson contends that he suffers present adverse effects from this allegedly invalid state conviction in that it was used to enhance subsequent federal sentences which he is now serving; and that it affects his eligibility for parole consideration, minimum custody, job and work assignments, as well as the conditions of his confinement and the treatment accorded him.

In Case No. 1664, Peterson states that he was convicted by jury in the Circuit Court of Buchanan County of the charge of burglary, second degree as a second offender in 1956. His conviction was affirmed on appeal. State v. Peterson, (Mo.Sup.) 305 S.W.2d 695 (1957). He was sentenced to a term of 10 years, which he has fully served.

On March 12, 1971, Peterson filed a petition for writ of habeas corpus and a motion to vacate judgment and sentence pursuant to Rule 27.26 in the Circuit Court of Buchanan County. Counsel was appointed to represent him. However, on June 10, 1971, the trial court denied the petition and motion, without hearing, for lack of jurisdiction. Peterson then filed a petition for writ of error coram nobis and a motion to vacate judgment and conviction in the Missouri Supreme Court. That court denied relief without opinion. Accordingly, under the authorities cited above, petitioner has exhausted his available state remedies for the purposes of these proceedings.

The present adverse effects of this allegedly invalid conviction are identical to those set out above, particularly in regard to the enhancement of his federal sentences presently being served.

Coram nobis is an extraordinary writ, and the jurisdiction of the court to grant relief is necessarily limited. Despite the express abolition of the writ of error coram nobis in federal civil actions, it is still available with respect to criminal convictions under the All Writs section of the Judicial Code, 28 U.S.C. § 1651. United States v. Morgan, 346 U. S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Grene v. United States (C.A. 5) 448 F.2d 720 (1971). However, it is available "only under circumstances compelling such action to achieve justice." United States v. Morgan, supra; Stewart v. United States (C.A. 8) 446 F.2d 42 (1971).

Any proceeding which is challenged by the writ is presumed to be correct and the burden rests on the challenger to show otherwise. Only where there are errors of fact of "the most fundamental kind, that is, such as to render the proceeding itself irregular and invalid," can redress be had. United States v. Cariola (C.A. 3) 323 F.2d 180, 184 (1963); Byrnes v. United States (C.A. 9) 408 F.2d 599, 602 (1969). Relief will be granted only where circumstances compel such action to achieve justice or to avoid manifest injustice.

In a case where the present custody of the petitioner derives from some authority other than the challenged sentence, coram nobis relief is available under the jurisdictional mantle of the All Writs Statute. Newton v. United States (S.D.Tex.) 329 F.Supp. 90, 91 (1971). Coram nobis is a step in the criminal case and is not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding. United States v. Morgan, supra, 346 U.S. at 505, 74 S.Ct. 247 (fn. 4).

In regard to coram nobis jurisdiction, the court stated in Stubenrouch v. Sheriff of St. Louis County, Clayton, Mo., (W.D.Mo.) 260 F.Supp. 910, 911 (1966):

That jurisdiction, however, extends only to provide a post conviction remedy for federal convicts not otherwise provided by Section 2255 of Title 28, United States Code, in order that the
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