Richardson v. Miller, No. 88-1136-CV-W-9-JWO-P.

CourtUnited States District Courts. 8th Circuit. Western District of Missouri
Writing for the CourtPatrick King, Missouri Atty. Gen., Jeff City, Mo. for respondent
Citation716 F. Supp. 1246
PartiesJackie E. RICHARDSON, Petitioner, v. David MILLER, Respondent.
Decision Date30 June 1989
Docket NumberNo. 88-1136-CV-W-9-JWO-P.

716 F. Supp. 1246

Jackie E. RICHARDSON, Petitioner,
v.
David MILLER, Respondent.

No. 88-1136-CV-W-9-JWO-P.

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

June 30, 1989.


716 F. Supp. 1247

Jackie E. Richardson, Boonville, Mo., pro se.

Patrick King, Missouri Atty. Gen., Jeff City, Mo. for respondent.

MEMORANDUM AND ORDERS

JOHN W. OLIVER, Senior District Judge.

I

This state prisoner case pends in this division of the Court pursuant to an order of transfer entered by the Honorable D. Brook Bartlett. The order to show cause entered by Judge Bartlett stated that "petitioner challenges his 1986 conviction and sentence for second-degree assault entered upon his plea of guilty in the Circuit Court of Saline County, Missouri. Petitioner raises four grounds for relief: (1) he was denied effective assistance of counsel because counsel merely wanted petitioner to plead guilty; (2) he was denied effective assistance of counsel because counsel did not question petitioner `about answers that was sic given to prosecuter sic,' Petition, p. 6; (3) he was denied effective assistance of counsel in that counsel failed to interview and subpoena eyewitnesses who could have provided petitioner with a defense to the crime; and (4) he was denied effective assistance of counsel in that counsel failed to file a motion to suppress evidence that was detrimental to petitioner's case." Doc. # 2 at 1-2.

We find and conclude that the petitioner's pro se petition alleges with sufficient particularity a violation of his right to the effective assistance of counsel guaranteed by the Sixth Amendment to the Constitution of the United States.

The respondent's response fails to address the merits of petitioner's federal constitutional claim. Rather, respondent contends that because "petitioner has failed to file a Missouri Supreme Court Rule 24.035 motion during the time for him to do so, petitioner has defaulted on his available state remedies."1 Respondent's Response at 2. Respondent accordingly prayed that "this Court dismiss this petition without further judicial proceedings." Id.

A.

This case presents two questions. First, whether, the prayer of the respondent's response that this case be summarily dismissed be granted. That question turns on whether the Supreme Court of Missouri's new Rule 24.035 which affords a state prisoner an available postconviction remedy for only a period of 90 days, "precludes federal-court review" of a state prisoner's federal constitutional claims.2

Second, whether in light of the Missouri Constitution's prohibition against the suspension

716 F. Supp. 1248
of the writ of habeas corpus and its constitutional vesting of power in the Supreme Court of Missouri and the three Missouri Courts of Appeal to issue and determine original remedial writs, the petitioner nevertheless may have an available state postconviction remedy by way of State habeas corpus within the meaning of 28 U.S.C. § 2254(b) and (c) that must be exhausted before this Court exercises the habeas corpus conferred on it pursuant to 28 U.S.C. § 2254(a).3

B.

We will discuss both those questions and state the reasons for the orders that will be entered in more than usual detail in accordance with the principles of comity and federalism that prompted the judges of this Court over twenty years ago to participate in a conference with the then Attorney General of Missouri and members of his staff on April 26, 1966 that had been scheduled through the good offices of the judges of the Supreme Court of Missouri and to thereafter write and publish this Court's en banc opinion in White v. Swenson, 261 F.Supp. 42 (W.D.Mo 1966) (en banc), in November 1966.4

The first question as to whether the prayer of the response that "this Court dismiss this petition without further judicial proceedings" will be answered in the negative under the rationale of the recent opinion of the Court of Appeals for the Eighth Circuit in Barks v. Armontrout, 872 F.2d 237 (8th Cir.1989). Familiar principles of comity and federalism require that we enter an appropriate order under Rule 4 of the Rules governing Section 2254 Cases, 28 U.S.C. foll. § 2254, before we reach the second question.5

We turn now to the recent decision of the Court of Appeals in Barks v. Armontrout.

II

A.

The question presented to the Court of Appeals in Barks was whether the State

716 F. Supp. 1249
corrective process that Missouri made available to a state prisoner at the time he filed his petition for federal habeas corpus could, as the Attorney General of Missouri contended, be construed in a manner that would afford the state prisoner a State court evidentiary hearing and determination of his postconviction federal claims

The Supreme Court of Missouri had, of course, construed its repealed Rule 27.26 in Flowers v. State, 618 S.W.2d 655 (Mo. banc 1981) (en banc), in a manner that did afford a state prisoner the right to file a second Rule 27.26 motion and thus obtain an evidentiary hearing of his federal claims in the courts of Missouri. A like construction of new Rule 29.15 would have, in the same manner, made Missouri's State corrective process available to a state prisoner at the time he filed his federal petition for habeas corpus. Under familiar exhaustion principles, the state prisoner would have been required to exhaust as required by 28 U.S.C. § 2254(b) and (c).

The Court of Appeals rejected the Attorney General of Missouri's exhaustion argument in Barks and remanded the case to the Eastern District of Missouri for further proceedings. The rationale of Barks requires that an order be entered denying the prayer of the respondent's response that this case be dismissed without further judicial proceedings in this Court.

B.

The second question presented in this case, although closely related to the question decided in Barks, does not involve the construction of what a State contends is an adequate available State postconviction process. Rather, the Attorney General's preclusion argument presents the more fundamental question of whether Missouri, by its repeal of Rule 27.26, and its promulgation of new Rule 24.035, has completely eliminated any State postconviction procedure that may be said to have been available to the petitioner in this case at the time he filed his petition for habeas corpus invoking the jurisdiction conferred on this Court pursuant to 28 U.S.C. § 2254(a). For it is clear that the Attorney General contends that if a state prisoner fails for any reason to file a Rule 24.035 motion within the 90-day statute of limitation period provided in that new rule, "his default creates an adequate and independent state procedural bar which precludes federal-court review of his claims." Doc. # 3 at 2.

Although Barks involved a relatively routine exhaustion question, it is important to note what the Court of Appeals said in that case in regard to how a federal court must consider the construction it must give to the new postconviction rules that the Supreme Court of Missouri promulgated to take the place of repealed Rule 27.26 that served as Missouri's State corrective process for over thirty-five years. The Barks court noted, for example, that it agreed with the state prisoner's argument that "under the plain language of Rule 29.15, and in the absence of any Missouri Supreme Court ruling to the contrary, the state courts would be precluded from giving any further consideration to his claims." (Emphasis added). 872 F.2d at 239.

Appropriate consideration must also be given to positions taken by the Attorney General of Missouri in regard to Missouri's new postconviction rules. For Barks noted that "the Attorney General takes the position that Rule 29.15 provides for absolutely no successive petitions." Barks accordingly held that until "the highest court of the state tells us otherwise, we have no reason not to heed the position of the Attorney General of the state." Id.

Federal courts are, of course, bound by the construction that the State courts give to their State corrective procedures. Barks recognized that familiar principle when it held that:

If the Missouri Supreme Court determines that Rule 29.15 dictates a different result, we will be bound by such decision. Until then, we are convinced Barks's further attempts to seek redress in state court will be futile. Thus, we reverse the district court's dismissal without prejudice, and remand the case for the
716 F. Supp. 1250
district court to consider all of Barks's claims.6

Id.

C.

It is clear that the Court of Appeals' decision in Barks was no more and no less than a consistent application of the doctrine of exhaustion that has been recognized and applied by the Supreme Court of the United States since at least the time Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), was decided over one hundred years ago. Appendix A is attached to this memorandum opinion in order to demonstrate that Barks was decided in a manner consistent with the Supreme Court of the United States most recent trilogy of state prisoner habeas corpus cases handed down February 22, 1989 and other recently decided exhaustion cases.

Consistent with Barks' admonition that positions stated by the Attorney General of Missouri should be given appropriate consideration in the construction of Missouri's new postconviction procedures, Appendix B is attached to this memorandum opinion in which we discuss the views publicly stated by John M. Morris, Chief Counsel for the Criminal Division of the Missouri Attorney General's Office, in regard to the Supreme Court of Missouri's repeal of Rule 27.26 and that court's promulgation of new Rule 24.035 and Rule 29.15.

It is important to note that Mr. Morris' article commenced with his discussion of the new rules with the statement that although the new rules "run somewhat counter to the past trend in Missouri of expanding postconviction remedies, they represent no philosophical departure from current...

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19 practice notes
  • Fletcher v. Armontrout, No. 89-0435-CV-W-JWO.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 13 Noviembre 1989
    ...Fay v. Noia, 372 U.S. 391, 399-412, 83 S.Ct. 822, 827-835, 9 L.Ed.2d 837 (1963). For reasons stated in detail in Richardson v. Miller, 716 F.Supp. 1246 (1989), Wiglesworth simply cannot be read as sustaining the constitutionality of a State postconviction remedy that was purportedly promulg......
  • Forbes v. Trigg, No. 91-2282
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 21 Octubre 1992
    ...this is a significant question, and some state courts and at least one district court have reviewed it, see, e.g., Richardson v. Miller, 716 F.Supp. 1246, 1257-60 (W.D.Mo.1989) (thoroughly reviewing issue); Prock v. District Court of Pittsburg County, 630 P.2d 772 (Okla.1981), we do not bel......
  • Ping v. McBride, No. 3:92cv659 AS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 19 Julio 1993
    ...this is a significant question, and some state courts and at least one district court have reviewed it, see, e.g., Richardson v. Miller, 716 F.Supp. 1246, 1257-60 (W.D.Mo.1989) (thoroughly reviewing issue); Prock v. District Court of Pittsburg County, 630 P.2d 772 (Okla.1981), we do not bel......
  • Hulsey v. Sargent, Civ. No. PB-C-81-002.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • 15 Abril 1993
    ...See e.g. Williams v. Lockhart, 873 F.2d 1129 (8th Cir.1989); Edgar v. Trickey, 708 F.Supp. 1090 (W.D.Mo. 1989); Richardson v. Miller, 716 F.Supp. 1246 (W.D.Mo.1989).s counsel failed to raise this issue at trial but raised it on direct appeal to the Arkansas Supreme Court. The issues now are......
  • Request a trial to view additional results
19 cases
  • Fletcher v. Armontrout, No. 89-0435-CV-W-JWO.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 13 Noviembre 1989
    ...Fay v. Noia, 372 U.S. 391, 399-412, 83 S.Ct. 822, 827-835, 9 L.Ed.2d 837 (1963). For reasons stated in detail in Richardson v. Miller, 716 F.Supp. 1246 (1989), Wiglesworth simply cannot be read as sustaining the constitutionality of a State postconviction remedy that was purportedly promulg......
  • Forbes v. Trigg, No. 91-2282
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 21 Octubre 1992
    ...this is a significant question, and some state courts and at least one district court have reviewed it, see, e.g., Richardson v. Miller, 716 F.Supp. 1246, 1257-60 (W.D.Mo.1989) (thoroughly reviewing issue); Prock v. District Court of Pittsburg County, 630 P.2d 772 (Okla.1981), we do not bel......
  • Ping v. McBride, No. 3:92cv659 AS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 19 Julio 1993
    ...this is a significant question, and some state courts and at least one district court have reviewed it, see, e.g., Richardson v. Miller, 716 F.Supp. 1246, 1257-60 (W.D.Mo.1989) (thoroughly reviewing issue); Prock v. District Court of Pittsburg County, 630 P.2d 772 (Okla.1981), we do not bel......
  • Hulsey v. Sargent, Civ. No. PB-C-81-002.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • 15 Abril 1993
    ...See e.g. Williams v. Lockhart, 873 F.2d 1129 (8th Cir.1989); Edgar v. Trickey, 708 F.Supp. 1090 (W.D.Mo. 1989); Richardson v. Miller, 716 F.Supp. 1246 (W.D.Mo.1989).s counsel failed to raise this issue at trial but raised it on direct appeal to the Arkansas Supreme Court. The issues now are......
  • Request a trial to view additional results

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