Purnell v. Missouri Dept. of Corrections, 84-1150

• Decision Date: 01 February 1985
• Docket Number: No. 84-1150,84-1150
• Parties: Maurice PURNELL, Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 703

753 F.2d 703

Maurice PURNELL, Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS, et al., Appellees.

No. 84-1150.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 10, 1984.

Decided Feb. 1, 1985.

John Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

F. Vincent Vatterott, St. Louis, Mo., for appellant.

Before BRIGHT, JOHN R. GIBSON and FAGG, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Maurice Purnell appeals from denial of his petition for habeas corpus brought under 28 U.S.C. Sec. 2254 (1982). The district court dismissed the petition because there had not been full exhaustion of the petition's claims in state court and because the state's inadvertent waiver of the exhaustion requirement was not effective. We conclude that the waiver was effective and remand with directions that the district court consider Purnell's petition.

Purnell was convicted of rape, robbery in the first degree, and operating a motor vehicle without the consent of the owner. He was sentenced to two life terms and a five-year term, all to run consecutively. The convictions were affirmed. State v. Purnell, 621 S.W.2d 277 (Mo.1981).

In his appeal to the Supreme Court of Missouri, Purnell argued that the trial court had "abused its discretion" in excluding "material parts of * * * [his] expert psychiatrist's testimony." Id. at 280. Purnell had been examined by Dr. Sadashir Parwatikar, a psychiatrist. The trial court refused to allow Dr. Parwatikar to answer a hypothetical question: Would certain assumed conduct of an assailant cause him to believe that person was mentally ill? The supreme court stated:

We experience considerable difficulty in reducing this contention to a reviewable status. At no time during the discussion between counsel and the court did appellant state the purpose of the proposed testimony. In his brief to this court he states for the first time that "it goes to the identity of the assailant," * * * which we consider to be contrary to his contention. We can surmise that perhaps appellant wanted to use this testimony as the basis to argue that he could not have been the assailant because the assailant was psychotic and he was not. However, if so, that reason was never communicated to the court. In fact, the discussion between counsel and the court indicates that the purpose was to show appellant was psychotic, and it is evident that the court had that impression. Since appellant did not enter a plea of not guilty by reason of "mental disease or defect" such evidence was not admissible for that purpose. * * *

Generally speaking the admission or rejection of expert testimony such as we have here is a matter resting in the discretion of the trial judge. * * * In view of what we consider to be inadequate presentment of the purpose of the interrogation, and the understandable position taken by the trial court, we cannot hold as a matter of law that the court abused its discretion in sustaining an objection to the hypothetical question.

Id. at 281 (citations omitted).

Purnell also argued in his appeal to the Supreme Court of Missouri that the trial court abused its discretion in not declaring a mistrial after the victim of the rape made prejudicial statements to the circuit attorney that tended to inflame the jury and cause undue sympathy for her. The supreme court stated:

We find no reversible error in this situation for two reasons. In order to preserve such an incident as this for appellate review, there must be a timely and proper objection. * * * Appellant was aware of the conduct of the prosecutrix but apparently then considered it to be of insufficient importance to request any relief. At the time of the incident the trial court might have considered that some action by it other than a mistrial would have been appropriate, but appellant waited until the following morning, and he then requested no relief except the drastic remedy of a mistrial. This indicates, at least to us, that appellant was more interested in obtaining a circumstance to complain about on appeal than preventing any adverse reaction by the jury as a result of the incident.

Also, the trial court observed the incident and determined it not to have been "particularly significant." It has long been the rule that the granting of a mistrial rests largely in the discretion of the trial court, and the appellate court determines only whether the trial court abused its discretion. * * * It cannot be said as a matter of law that in the circumstances of this case the trial court abused its discretion in refusing to declare a mistrial when finally requested.

Id. at 283 (citations omitted).

Following his unsuccessful appeal, Purnell filed a petition for a writ of habeas corpus. Of the several grounds in the petition, two concerned a violation of Purnell's sixth amendment rights in the two instances at trial discussed above. After the district court issued a show cause order regarding the petition, the State of Missouri, in response, conceded that Purnell had exhausted all habeas grounds in his appeal. ¹ The district court, however, believing there was substantial doubt whether all grounds had been exhausted, appointed counsel and requested briefs on the issue. The state then retracted its position on exhaustion.

The district court ultimately determined that there was failure to exhaust the two grounds for habeas relief referred to above, since both were presented to the Supreme Court of Missouri only as alleged abuses of discretion in evidentiary rulings. The district court further determined that since the state had made an inadvertent concession, it would reject it as an effective waiver of exhaustion. Because the petition contained both exhausted and unexhausted claims, it was dismissed.

I.

Purnell first argues that the district court erred in finding two of his habeas claims unexhausted and in therefore dismissing his habeas petition under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (total exhaustion of habeas claims in state courts required). Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982), states the tests for judging whether a claim has been exhausted: "[A] federal habeas petitioner * * * [must] provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Id. at 6, 103 S.Ct. at 217 (citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971)). Further, the petitioner "must have 'fairly presented' to the state courts the 'substance' of his federal habeas corpus claim." Id. (citing Picard, 404 U.S. at 277-78, 92 S.Ct. at 513).

In Thomas v. Wyrick, 622 F.2d 411, 412 (8th Cir.1980), cert. denied, 459 U.S. 1175, 103 S.Ct. 824, 74 L.Ed.2d 1020 (1983), the habeas petitioner had previously argued to the Missouri Court of Appeals that the failure of the trial court to allow him to call character witnesses was an abuse of discretion and "denied [him] a fair trial." We held that the

reference in Thomas's brief in the Court of Appeals of Missouri to denial of a fair trial, without citation to any provision of the Federal Constitution or to any federal case, was not a sufficient presentation of the federal constitutional issue. It is not enough that Thomas presented all of the facts on which his federal constitutional claim would later be based. The substance of this claim, as a legal matter, was simply never presented to the state courts.

Id. at 413. Thomas, therefore, requires reference to the Constitution, a federal case, or a specific constitutional right to meet the "fair presentation" and "fair opportunity" tests. See also Nelson v. Solem, 714 F.2d 57 (8th Cir.1983) (no exhaustion where petitioner never used term "due process" and state court discerned no due process implications); Hall v. Iowa, 705 F.2d 283 (8th Cir.) (exhaustion where petitioner cited to case predicated on same federal ground as that contained in habeas petition), cert. denied, --- U.S. ----, 104 S.Ct. 339, 78 L.Ed.2d 307 (1983); Morrow v. Wyrick, 646 F.2d 1229, 1232 (8th Cir.) (exhaustion where petitioner's basic argument regarding constitutional issues was discernible and included citations to relevant state cases), cert. denied, 454 U.S. 899, 102 S.Ct. 401, 70 L.Ed.2d 216 (1981); United States ex rel. Diamond v. Wyrick, 581 F.Supp. 881 (E.D.Mo.1984) (claim not exhausted where petitioner raised habeas claim on appeal but failed to do so at proper appellate level).

In the state courts, Purnell argued purely on evidentiary grounds that the trial court abused its discretion in excluding expert testimony. Similarly, he asserted no constitutional ground in arguing that the trial court abused its discretion in not declaring a mistrial after the victim of the rape made alleged inflammatory prejudicial statements. Purnell, 621 S.W.2d at 282. Under Thomas, Purnell has not exhausted his state remedies. ²

Purnell also argues, however, that the Missouri Supreme Court "fully understood" the "constitutional implications" of the denial of the admission of the expert testimony, that it therefore had a fair opportunity to consider the constitutional claim, and that to hold otherwise would make his access to the federal courts dependent on the technicalities of citation form. Support for Purnell's position may be garnered from our recent observation that in determining if a state court has had the requisite fair opportunity to pass upon the federal constitutional grounds of a petitioner's claims, "[w]e must bear in mind that state courts, as co-equal guardians of constitutional rights, are able to recognize federal constitutional issues even when no explicit reference is made to the federal constitution." Graham v. Solem, 728 F.2d 1533, 1536 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 148, 83 L.Ed.2d 86 (1984). In the present case, Purnell...