Renfro v. Swenson

• Citation: 315 F. Supp. 733
• Decision Date: 14 August 1970
• Docket Number: Civ. A. No. 17760-1.
• Parties: Melvin D. RENFRO, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Missouri

315 F. Supp. 733

Melvin D. RENFRO, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Respondent.

Civ. A. No. 17760-1.

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

August 14, 1970.

B. John Readey III, Kansas City, Mo., for petitioner.

John C. Danforth, Atty. Gen., State of Missouri, Kenneth M. Romines, Asst. Atty. Gen., State of Missouri, Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

I.

This is a State prisoner habeas corpus case. Petitioner's conviction of second degree murder was affirmed on direct appeal in State v. Renfro, (Sup.Ct.Mo., Div. 2, 1966) 408 S.W.2d 57. A subsequent trial court denial of petitioner's Rule 27.26 motion was affirmed in Renfro v. State (Sup.Ct.Mo., Div. 2, 1969), 445 S.W.2d 278.

Petitioner alleged in paragraph 10 of this Court's standard habeas corpus petition form that:

(a) Petitioner's conviction rests upon an alleged statement made by him at the time of arrest, which was obtained in violation of his constitutional rights under both the Fifth and Fourteenth Amendments.

(b) Petitioner was denied the right to effective representation by counsel at the time of trial and on subsequent appeals.

We recognize that the parties have stipulated that both "federal questions presented may be submitted on the stipulated record." We also recognize that neither party has raised any question in regard to the petitioner's exhaustion of his available State court remedies in regard to either question. But we also recognize, as most recently reiterated by the Court of Appeals in Gray v. Swenson, 430 F.2d 9 (8th Cir., decided August 5, 1970) (affirming Gray v. Swenson, 302 F.Supp. 1162 (W.D.Mo., 1969)), that all federal courts are "firmly of the view that the exhaustion of State remedy rules should ordinarily be strictly adhered to."

This Court has always held and applied that view. Frankum v. Swenson, 288 F.Supp. 100 (W.D.Mo., 1968) is a good example of an earlier case in which consistent with the teaching of Baines v. Swenson, 384 F.2d 621 (8th Cir., 1967); Collins v. Swenson, 384 F.2d 623 (8th Cir., 1967); and the en banc decision of this Court in White v. Swenson, 261 F. Supp. 42 (W.D.Mo., en banc, 1966), we refused to accept the parties' stipulation concerning exhaustion and refused to exercise federal habeas jurisdiction in a case in which we concluded that "the attention of the Supreme Court of Missouri was not fairly focused on the federal question presented by petitioner's claim of coerced plea." (288 F.Supp. at 103)

Frankum, as does this case, involved both a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), question and a "potential question of effective assistance of counsel" (288 F. Supp. at 104) which had not been adequately presented on the merits to either the State trial court or the Supreme Court of Missouri. We concluded in Frankum that the State postconviction evidentiary hearing conducted in the State trial court "did not comply with the command of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L.Ed.2d 837 (1963) and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963)" (288 F. Supp. at 103). But we also noted that the State postconviction hearing there involved had been conducted under old Rule 27.26 before its amendment became effective.

Accordingly, in Frankum we noted that the Supreme Court of Missouri had explicitly stated in State v. Maxwell, (Sup.Ct.Mo., Div. 2, 1967) 411 S.W.2d 237, that it had made a radical change in its postconviction procedures. We also noted that court's decisions in Crosswhite v. State, (Mo.Sup.Ct., Div. 2, 1968) 426 S.W.2d 67; State v. Stidham, (Mo.Sup.Ct., en banc, 1967) 415 S.W.2d 297; and State v. Fritz, (Mo.Sup.Ct., Div. 1, 1968) 429 S.W.2d 699, which appropriately implemented the proper administration of amended Rule 27.26 in order that postconviction proceedings which would be conducted under that amended rule would be in accord with applicable and controlling federal standards. We stated in Frankum (as we have in many other cases) that the Missouri judiciary, both appellate and trial, has more effectively than any State in the Union recognized that "the answer to possible conflict between state and federal courts lies in the improvement of State postconviction procedures which, when properly administered, comply with the commands of the trilogy" (288 F.Supp. at 104).

In Frankum, however, and unlike this case, neither petitioner's coerced plea claim nor his ineffective assistance claim had been properly presented to the State courts on their respective merits. Under the particular circumstances presented in Frankum, we therefore concluded that we could properly refuse to exercise federal habeas jurisdiction over either claim because of our confidence that "the new procedures commanded by amended Rule 27.26 will be followed to the end that all possible claims for relief, both state and federal, will be included in a new Rule 27.26 motion and that all available evidence will be adduced in the state trial court concerning such claims" (288 F.Supp. at 105). We judicially recognized in Frankum that if Missouri's then relatively new postconviction procedures under amended Rule 27.26 were "followed by the State trial courts and by counsel representing postconviction movants, the requirements of the trilogy will be satisfied and federal court evidentiary hearings avoided" (288 F.Supp. at 105).

The transcript of the Rule 27.26 hearing in this case shows that no evidence whatsoever was adduced in regard to petitioner's ineffective assistance of counsel claim. That question was apparently injected into the case by a comment made by the trial judge at the close of the hearing.¹ The question was not briefed either in the State trial or appellate court. Neither court was afforded an appropriate or adequate opportunity to decide that question on the merits. Indeed, while the petitioner's pro se Rule 27.26 motion clearly and fully presented his Jackson v. Denno claim, the broadest reading of that motion cannot fairly be said to have put the petitioner's ineffective assistance of counsel claim in reasonable focus.

Considerations stated in Frankum concerning the avoidance of piecemeal postconviction litigation; the strictness with which exhaustion rules must be applied; and the relief appropriate in regard to a faulty Jackson v. Denno postconviction hearing, as most recently enunciated in Sigler v. Parker, 396 U.S. 482, 484, 90 S.Ct. 667, 24 L. Ed.2d 672 (1970), require that we find and conclude that petitioner has not exhausted his available State postconviction remedies in regard to his ineffective assistance of counsel claim.

As a practical matter, however, it should be added that petitioner's ineffective assistance of trial counsel claim rests almost entirely upon his claim that trial counsel did not properly protect his federally protected rights as articulated in Jackson v. Denno. If he fails to establish that those rights were in fact and law violated, it is difficult to conceive how petitioner can have any valid complaint about counsel's alleged failure to act in that regard.

At any rate, it is clear that a new Jackson v. Denno hearing must be conducted in the State trial court. We see no reason why that postconviction hearing may not be expanded in accordance with what was stated in Frankum to include a full and fair presentation of petitioner's ineffective assistance of trial counsel claim and thereby avoid a separate State postconviction hearing on that question and also avoid piecemeal consideration of a possible future appeal to the Supreme Court of Missouri in regard to that separate question. Our order will be broad enough to permit such a proceeding.

II.

The considerations concerning exhaustion which relate to petitioner's Jackson v. Denno (378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)) claim, however, stand on an entirely different footing. Petitioner has fully exhausted in regard to that separate federal claim. The circumstances of this case are not similar or comparable to those involved in Frankum for several reasons. Unlike Frankum, all State postconviction proceedings in this case were conducted under amended Rule 27.26 rather than old Rule 27.26. Both the trial court and the Supreme Court of Missouri recognized the existence of the Jackson v. Denno question and ruled it on the merits. It is apparent that the State trial court and the Supreme Court of Missouri were satisfied that an appropriate and adequate postconviction hearing had in fact been held in connection with that claim. As in Gray, the Supreme Court of Missouri has twice considered the validity of the petitioner's conviction. In spite of that prolonged litigation, the Supreme Court of Missouri has not found it necessary to require the trial court to hold a full-scale Jackson v. Denno postconviction evidentiary hearing in accord with the controlling federal standards articulated in that case. It is not reasonably to be expected that the State court's third view of the Jackson v. Denno question presented would be any different than the view taken on the two earlier occasions.

The circumstances of this case are comparable and quite similar to those presented in Gray. In this case, as in Gray, no question relating to exhaustion was or is presented in regard to whether Missouri has an "available State corrective process" within the meaning of Title 28 U.S.C. § 2254. The exhaustion question presented was, and is, whether, under the particular facts of each case, "circumstances existed rendering such available process ineffective to protect the rights of the prisoner" within the meaning of that section.

It is obvious that Missouri's amended Rule 27.26 provides an "available State corrective process" under which, if properly administered in accordance with the directions given ...