Richardson v. Swenson

• Decision Date: 15 November 1968
• Docket Number: Civ. A. No. 1272.
• Citation: 293 F. Supp. 275
• Parties: Bitz RICHARDSON, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

293 F. Supp. 275

Bitz RICHARDSON, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 1272.

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

November 15, 1968.

Bitz Richardson, pro se.

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION FOR HABEAS CORPUS WITHOUT PREJUDICE

BECKER, Chief Judge.

Petitioner, a state convict confined in the Missouri State Penitentiary, Jefferson City, Missouri, petitions this Court for leave to proceed in forma pauperis and for a writ of federal habeas corpus in which he requests an adjudication that his state conviction for murder was secured in violation of his federal constitutional rights. Leave to proceed in forma pauperis will be granted.

Petitioner states that on December 30, 1958, after a plea of guilty, he was sentenced to a life term by the Circuit Court of Henry County; that he did not appeal the judgment of conviction nor imposition of sentence; that he filed a motion to vacate or set aside his sentence under Missouri Criminal Rule 27.26, V. A.M.R. in the Circuit Court of Henry County which was "denied without comment"; that he appealed the denial of the 27.26 motion to the Missouri Supreme Court but was denied relief (State v. Richardson, 347 S.W.2d 165); that he then filed a "motion for leave to file motion for rehearing" in the Missouri Supreme Court, but that it was denied; that he filed a petition for a writ of certiorari to the Missouri Supreme Court in the United States Supreme Court, and it was denied; that he filed a petition for a writ of federal habeas corpus in this Court and it was dismissed; and that he was represented by counsel at his arraignment, sentencing, and during his post-conviction proceedings.

Petitioner's present contentions are that he "was denied the effective assistance of counsel"; that he "demanded a trial by jury" but that "his counsel compelled him to plead guilty to first degree murder under threats that unless he plead guilty, he would receive the death penalty"; and that the death for which he was charged was an "accidental death and not due to premeditated or aforethought felonious assault to commit murder as described in the information filed."

The grounds which petitioner states to support his contentions are that his counsel induced him to plead guilty and waive a preliminary hearing so that the Gregg estate (the estate of the deceased) could collect the proceeds of an insurance policy for Gregg's "accidental death"; that the "records show he was arraigned before a magistrate" and "he had demanded a preliminary hearing before a magistrate"; that his counsel failed to investigate the charges against him and to prepare a defense; that because he stated that he wanted a preliminary hearing and did not receive one, he was denied the effective assistance of counsel; that he was denied the "right to a public and speedy trial;" that his counsel was "unfaithful" in the preparation of his defense; that he has new evidence to offer affecting the validity of the purported waiver of a preliminary hearing; that his new, factual evidence should be considered with the fact that the information filed against him was not endorsed by any witnesses and the fact that the prosecution's "main witness", Sam Eversole, died before he plead to the charge; and that his new, factual evidence corroborates his contention that the deceased, Tom Gregg, died of accidental means and was not murdered.

The official report of the Missouri Supreme Court's opinion (State v. Richardson, 347 S.W.2d 165) affirming the adverse decision of the sentencing court's denial of petitioner's motion under Missouri Criminal Rule 27.26 shows that the sentencing court held an evidentiary hearing. The contentions presented to the sentencing court in the post-conviction motion were as follows:

"* * * (1) that the magistrate court, wherein a complaint had been filed against defendant charging murder in the first degree, had `lost jurisdiction of the case * * * and therefore had no authority to certify said cause to the Circuit Court of Henry County, thereby making all further proceedings void and of no effect' because the records of the said magistrate court failed to make entries of continuances of said cause at ten day intervals from September 18, 1958, the date of defendant's arrest, to December 23, 1958, when an order was entered showing that the defendant had waived his preliminary hearing and ordering that the defendant be held without bond to await the action of the circuit court of said county; (2) that the information filed in said cause on the 29th day of December, 1958, `was defective and invalid for failure to show endorsement of witnesses on the information' and, without such endorsement, the defendant could not be fully informed of the charge against him; (3) that after the judgment and sentence of the court had

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