Pilchak v. Camper, 86-0972-CV-W-8.

• Decision Date: 23 March 1990
• Docket Number: No. 86-0972-CV-W-8.,86-0972-CV-W-8.
• Citation: 741 F. Supp. 782
• Parties: Deborah PILCHAK, Petitioner, v. Donald CAMPER, Respondent.
• Court: U.S. District Court — Western District of Missouri

741 F. Supp. 782

Deborah PILCHAK, Petitioner, v. Donald CAMPER, Respondent.

No. 86-0972-CV-W-8.

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

March 23, 1990.

COPYRIGHT MATERIAL OMITTED

Roger Brown, Bushman, Neff, Gallaher and Brown, Jefferson City, Mo., George M. Bock, Slagle & Bernard, P.C., Paul R. Shy, Kansas City, Mo., for petitioner.

Stephen D. Hawke, Atty. General's Office, Jefferson City, Mo., for respondent.

MEMORANDUM OPINION AND ORDER

STEVENS, District Judge.

I. INTRODUCTION

This is an action for writ of habeas corpus. Its labyrinthine progression through the successive mazes of the state and federal court systems gives one pause to wonder whether the Great Writ is able to serve its true function when it takes four years for a case to wind its way to the conclusion, as the court concludes here, that petitioner is being unconstitutionally deprived of her liberty. This court concludes that had petitioner had competent representation and had the jury been advised of all of the relevant facts in both the guilt and sentencing phases of the trial (more on the trial judge's comments about this later) it is clearly within the realm of possibility that she would have been found not guilty and it is almost undeniable, as the trial judge admitted, that she would not have been sentenced so severely.

In October of 1981 an informer by the name of Lee Downing divulged to the Cole County, Missouri Sheriff that the illicit sale of cocaine was going on in the area. The distributor was reported to be Gary Erwin McCaw. Based on this information, John Bickers, a Missouri State Highway Patrol Officer was assigned to conduct an undercover investigation. Bickers, using an assumed identity, was introduced to McCaw by Downing for the purpose of purchasing cocaine on November 11, 1981. Bickers purchased one ounce of cocaine at this initial meeting for $2,500.00. Additional purchases of a similar quantity were made on November 17 and November 24. On the latter date, Bickers and McCaw discussed a purchase of a significantly larger quantity and decided to consummate the deal on December 5, 1981 at the Best Western Motel in Jefferson City. Up to this point, Bickers had neither seen petitioner nor heard her name mentioned.

The undercover operation was to conclude with the December 5 sale, so the Best Western Motel was placed under extensive surveillance. Rooms 135 and 137 of the motel were rented, the latter to be used by Bickers and another undercover agent, and the former by police officers to monitor Room 137. McCaw and petitioner arrived at the motel together at 10:00 a.m. but they separately rented rooms. McCaw rented Room 141 and petitioner took Room 139. McCaw then telephoned Bickers and told him to come to Room 141. Bickers did so and found McCaw there with a briefcase containing 20 ounces of a hard crystalline substance which ultimately tested to be a high grade cocaine. This amount was only part of the planned purchase, McCaw telling Bickers that the balance of the drugs was in the next room with his girlfriend. McCaw and Bickers then went to Bickers' room to complete the purchase and on the way McCaw stopped at Room 139 and knocked, petitioner opened the door and McCaw handed her the briefcase but no words were exchanged. It should be noted that this is the only appearance prior to her arrest that petitioner makes in the government's case in chief and that she appears otherwise only in rebuttal evidence. Bickers and McCaw proceeded to Room 137 and the price for the cocaine being purchased was computed. A few seconds later, McCaw left and shortly returned with a briefcase which then contained the amount of cocaine which Bickers had agreed to buy from McCaw. McCaw was given cash for the cocaine and while he was counting it officers in the next room were alerted and he was arrested. At the same time, other officers went to Room 139, knocked on the door, were admitted by petitioner and she was then placed under arrest.

On May 25, 1982, after a trial in the Circuit Court of Cole County, Missouri, in which petitioner's appointed counsel was the assistant public defender of Cole County, Missouri, a jury found petitioner guilty of the felony sale of cocaine.¹ The post-conviction sentencing hearing was held and the jury recommended a life sentence. The trial judge followed the jury's recommendation and the conviction and sentence were upheld on direct appeal. State v. Pilchak, 655 S.W.2d 646 (Mo.Ct.App.1983).

McCaw was tried separately in Montgomery County, found guilty and sentenced to life on the cocaine charge and five years on a weapons charge. State v. McCaw, 668 S.W.2d 603, 604 (Mo.Ct.App.1984). McCaw succeeded in obtaining a new trial because the court determined that the jury selection procedure in his trial was fatally flawed. Id. McCaw then pled guilty and received a sentence of twenty-six years. He is now free. Tr., Evidentiary Hearing of January 26, 1990 at 69.

Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This opinion, which concludes with an order granting the writ sought by petitioner, after reviewing the procedural history of this case, discusses the following issues:

1. Was the trial fatally flawed by the participation of the Cole County Sheriff's Office in securing the venire and selection of the jury panel?

2. Should the writ be granted because petitioner did not receive effective assistance of counsel at any stage in these proceedings at which she was constitutionally entitled to such assistance?

3. In the final analysis and considering the cumulative effect of the total record, does the rule of fundamental fairness dictate that the writ issue?

II. PROCEDURAL HISTORY

Following her sentencing on July 30, 1982, petitioner sought post-conviction collateral relief in state court pursuant to Missouri Supreme Rule 27.26.² Relief was denied, and the denial was affirmed on appeal. Pilchak v. State, 705 S.W.2d 599 (Mo.Ct.App.1986) (per curiam). Petitioner then commenced this federal habeas action on August 13, 1986 by filing a pleading styled a "Petition for Habeas Corpus and Injunctive Relief for Denial of Civil and Constitutional Rights." The petition sounded both in 28 U.S.C. § 2254 and 42 U.S.C. § 1983. On November 10, 1986, this court granted petitioner leave to file a first amended petition, dismissed without prejudice the section 1983 count of that petition and directed respondent to answer the remaining section 2254 counts. After traversing respondent's answer, petitioner sought and on February 10, 1987 was granted leave to file a second amended petition. Respondent filed its answer to the second amended petition on March 3, 1987 and petitioner her traverse on March 11, 1987. By Memorandum and Order dated April 2, 1987, the court determined that petitioner had exhausted her claim of ineffective assistance of counsel in the state court except for ground 8.³ The court also ordered an evidentiary hearing.

That hearing was conducted in Jefferson City on April 9 and 10, 1987, and on May 8, 1987 in Kansas City, Missouri. As a result of this hearing, the court determined that petitioner was presenting new grounds in support of her claim that she was rendered ineffective assistance of counsel which had not previously been raised in state court. Because the court believed there was a non-futile state avenue through which these grounds could be exhausted, petitioner was directed either to go back to the state court and exhaust or delete these new grounds from her petition, pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Memorandum Opinion and Order of May 31, 1988 at 10.

Petitioner elected to return to state court and filed a second 27.26 motion which the state moved to dismiss on the grounds that it was successive and thus prohibited under Missouri Supreme Court Rule 27.26(d). On August 26, 1988, Judge McHenry of the Circuit Court in Cole County accepted that argument, ruled the motion successive and denied it. Nearly three years after petitioner filed her second amended habeas petition the Missouri Court of Appeals of the Western District affirmed the trial court. Pilchak v. State, 773 S.W.2d 867 (Mo.Ct.App.1989).

After nearly eight years since petitioner's trial and sentencing, petitioner's third amended habeas corpus petition⁴ is now before the court. Petitioner claims she is being held in custody in violation of the Constitution of the United States in that she was denied her right to a fair trial by a randomly and impartially selected jury as guaranteed by the fifth, sixth and fourteenth amendments to the Constitution and that she was denied effective assistance of counsel in violation of her sixth and fourteenth amendment rights. Petitioner sets forth thirty-four separate grounds in support of these claims. For reasons which will be detailed below, the court grants petitioner habeas corpus relief.

III. THE JURY ARRAY ISSUE

A. Introduction

The sixth amendment to the Constitution of the United States mandates a fair and impartial jury.⁵ Accordingly, the Eighth Circuit Court of Appeals, in considering the fair and impartial jury aspect of the sixth amendment, held that the "participation of an interested official in the juror selection process" is "fundamentally unfair" and thus a violation of due process. Anderson v. Frey, 715 F.2d 1304, 1309 (8th Cir.1983), cert. denied, 464 U.S. 1057, 104 S.Ct. 739, 79 L.Ed.2d 198 (1984).

Petitioner claims that the procedures employed in the selection of her jury violated the fifth, sixth, and fourteenth amendments to the United States Constitution because of the Cole County Sheriff's office participation in the selection of her jury. More specifically, at the time of petitioner's trial, the jury in Cole County was selected in the following manner: (1) A computer list of 750 prospective jurors was summoned; (2) The clerk's office mailed questionnaires to all persons on the list; (3) A...