Robinson v. Swenson
| Decision Date | 17 September 1971 |
| Docket Number | No. 19310-1.,19310-1. |
| Citation | 331 F. Supp. 483 |
| Parties | Ronnie Lee ROBINSON, Petitioner, v. Harold R. SWENSON, Warden, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Ronnie Lee Robinson, pro se.
Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., for respondent.
Petitioner, a prisoner in the Missouri State Penitentiary, has filed a petition for a writ of habeas corpus attacking the constitutional validity of his five year sentence for robbery in the first degree. The sentence was imposed on November 8, 1968, after a plea of guilty in the Circuit Court of Jackson County, Missouri. The Supreme Court of Missouri in Robinson v. State, (Mo.Sup.Ct., Div. 2, 1970) 454 S.W.2d 930, affirmed the trial court's denial of postconviction relief sought under Missouri Rule 27.26, V.A.M.R.
The sole ground for federal habeas relief alleged by petitioner in this Court is that he was denied effective assistance of counsel. This ground was raised, along with others, at the State trial court's evidentiary hearing held pursuant to Missouri Rule 27.26. It was then presented on appeal to the Supreme Court of Missouri.
A threshold exhaustion question of importance is presented by the Attorney General's response to our order to show cause. The Attorney General directs attention to the unquestioned general rule that under ordinary circumstances all available state postconviction remedies must be exhausted before a federal court will exercise its habeas corpus jurisdiction. He then argues that:
In this regard, respondent would note Article V, Section 9, Constitution of Missouri which provides for the transferring of a case to the Court En Banc on proper motion. See also Missouri Supreme Court Rule 84.02. In consideration, for a petition for certiorari, the Supreme Court, in applying a similar exhaustion test as is to be applied in the instant case, held that absent a petition for a rehearing or transfer to the Supreme Court of Missouri en banc and the denial of that application, the appellate process of the State of Missouri had not been exhausted. Osment v. Pitcairn, 317 U.S. 587, 63 S.Ct. 21, 87 L.Ed. 481 (1942); and Gorman v. Washington University, 316 U.S. 98, 62 S.Ct. 962, 86 L.Ed. 1300 (1942). A review of the Supreme Court of Missouri file in this case indicates that no petition for rehearing or transfer to the Court En Banc has been filed by the petitioner in the instant case, and thus he has failed to exhaust his adequate and available state court remedies.
Strictly speaking, the question presented in Gorman v. Washington University did not apply "a similar exhaustion test." The question presented in that case was whether the Supreme Court had "jurisdiction under § 237(b) of the Judicial Code 28 U.S.C.A. § 344(b) which restricts our authority to review decisions of state courts to those causes wherein a judgment has been rendered `by the highest court of a State in which a decision could be had.'" (316 U.S. at 99, 62 S.Ct. at 963).
The principles applicable to exhaustion of state remedies in habeas corpus cases, initially articulated in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), and now codified in Section 2254, Title 28, United States Code, do not rest on considerations of power and jurisdiction but relate solely to the appropriate "exercise of power." Bowen v. Johnson, 306 U.S. 19, 27, 59 S.Ct. 442, 83 L.Ed. 455 (1939). See parts I and II of White v. Swenson, (W.D.Mo.1966 en banc) 261 F.Supp. 42, 44-47. See also Procunier v. Atchley, 400 U.S. 446, 451 fn. 6, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971), in which it was stated that "Congress in 1966 amended 28 U.S.C. § 2254 (see 1964 ed., Supp. V), so as substantially to codify most of the habeas corpus criteria set out in Townsend v. Sain 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770."
We therefore conclude that what the Supreme Court said in regard to the jurisdictional question presented in Gorman v. Washington University is not controlling in the determination of the question of comity presented in this case.
This Court has considered an exhaustion question which is quite close to the question presented in this case. Caffey v. Swenson (W.D.Mo., 1970) 332 F.Supp. 624 involved another case in which no motion to transfer to the Supreme Court of Missouri en banc had been filed. The question presented in that case, however, was not precisely the same as the question presented in this case. Petitioner's right to transfer in Caffey, unlike this case, could have been based on the additional and independent ground that a member of the Division of the Supreme Court of Missouri had dissented from the opinion rendered by a regular Division of that Court. See State v. Caffey, (Div. No. 1, Sup.Ct. of Mo.) 365 S.W.2d 607.
Chief Judge Becker recognized in his consideration of the exhaustion question presented in Caffey that Gorman v. Washington University, supra, "may not be fully applicable." He concluded, however, that under circumstances which included a Divisional dissenting opinion, comity required that the Supreme Court of Missouri en banc be afforded an opportunity to consider an appropriate motion to transfer. Accordingly, the petition for federal habeas corpus in Caffey was dismissed without prejudice in order to permit the petitioner an opportunity to seek leave to file such a motion.1
We are of the opinion that there is a significant distinction between a case in which a particular defendant's right to transfer could be based both upon (a) a divisional dissent plus (b) the presence of a federal question, and a case which only involves the alleged presence of a federal question. And certainly the practical consequences which flow from this Court's determination of the exhaustion question presented are far reaching.
Should this Court determine, as a matter of comity, that every state prisoner must file a motion to transfer to the Supreme Court of Missouri en banc in all cases in which a federal question is presented before he can be said to have exhausted his state court remedies, it is reasonably...
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Garton v. Swenson
...and thereafter, through the federal system, without difficulty from that point on. See, for only one reported example, Robinson v. Swenson (W.D.Mo.1971), 331 F.Supp. 483. Experience over the years shows, however, that the cases which have been properly processed in the State courts with ful......
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Fisher v. Trickey
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Kelley v. Swenson, 73-1077.
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