Rodgers v. Wyrick, 79-1792

• Decision Date: 28 May 1980
• Docket Number: No. 79-1792,79-1792
• Citation: 621 F.2d 921
• Parties: Willis L. RODGERS, Jr., Appellant, v. Donald WYRICK, Warden, Missouri State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 921

621 F.2d 921

Willis L. RODGERS, Jr., Appellant, v. Donald WYRICK, Warden, Missouri State Penitentiary, Appellee.

No. 79-1792.

United States Court of Appeals Eighth Circuit.

Submitted May 13, 1980.

Decided May 19, 1980.

As Modified May 28, 1980.

Donald J. Hager, Farmington, Mo., for appellant.

John Ashcroft, Atty. Gen. and Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before ROSS, STEPHENSON and ARNOLD, Circuit Judges.

STEPHENSON, Circuit Judge.

Missouri state prisoner Willis L. Rodgers, Jr. appeals from the denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Rodgers attacked the validity of two 1971 state convictions, the sentences for which he had already served, on the basis that they were used to enhance the sentence on a subsequent state conviction in 1973, the sentence he is now serving. The district court, without an evidentiary hearing, dismissed the petition for failure to exhaust state remedies. ¹ See 28 U.S.C. § 2254(b), (c). We affirm the judgment of the district court.

I. Rodgers' 1971 and 1973 State Convictions

On May 27, 1971, appellant Rodgers pleaded guilty in the Circuit Court of St. Louis, Missouri to the offenses of stealing from a person and assault with intent to maim without malice. On August 6, 1971, the trial court sentenced Rodgers to a term of three years for each offense, the sentences to run concurrently. Execution of the sentences, however, was suspended, and Rodgers was placed on probation for four years.

On February 27, 1973, the state of Missouri charged Rodgers with the offense of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon. On June 28, 1973, a jury found him guilty of that offense and the trial court, having found the Missouri Second Offender Act applicable because of his 1971 convictions, assessed a sentence of thirty-five years. The conviction and sentence were affirmed on direct appeal. State v. Rodgers, 525 S.W.2d 447 (Mo.App.1975).

On November 16, 1973, the probation granted Rodgers for his first convictions stealing from a person and assault with intent to maim without malice was revoked and he was ordered to commence serving the three-year concurrent sentences which were imposed for those offenses in 1971. In November 1976, Rodgers completed service of the sentences imposed for the 1971 convictions and began to serve his robbery sentence.

II. Rodgers' State Post-Conviction Coram Nobis Action to Vacate the 1971 Convictions

On December 3, 1976, Rodgers filed a pro se petition for a writ of error coram nobis to vacate the judgments entered on his 1971 guilty pleas. ² Rodgers claimed that the 1971 convictions were impermissibly used to enhance the sentence he received on his 1973 first degree robbery conviction.

In his coram nobis proceeding, Rodgers attacked the 1971 convictions on three grounds: (1) that his due process rights were violated when the informations against him were amended to reflect different offenses from those charged in the original information; (2) that the trial court had no subject matter jurisdiction over the charge; and (3) that he was subjected to double jeopardy when the state charged him with two separate crimes resulting from the same act of force even though the two crimes had no distinct elements. The trial court denied the coram nobis petition without an evidentiary hearing and without appointment of counsel; it expressly rejected Rodgers' three arguments on the merits. Rodgers then appealed to the Missouri Court of Appeals. Rodgers v. State, 580 S.W.2d 514 (Mo.App.1978). ³ Upon appeal Rodgers then represented by counsel abandoned the three contentions he had asserted at the trial level. Instead, Rodgers contended only that the trial court erred in not appointing counsel to assist him in drafting the coram nobis petition filed in the state trial court. Id. at 516. The appellate court rejected this contention, holding that an indigent has no per se right to appointed counsel in a coram nobis proceeding. Id. ⁴

III. Rodgers' Section 2254 Attack on the Validity of his 1971 Convictions

Rodgers filed the instant section 2254 proceeding in the United States District Court, Eastern District of Missouri on February 7, 1979. Rodgers' contentions here are essentially the same as those raised at the trial level but abandoned on appeal in his state coram nobis attack on his 1971 convictions. The crux of Rodgers' section 2254 petition is that the allegedly unconstitutional 1971 convictions impermissibly enhanced the thirty-five year sentence imposed for his 1973 first degree robbery conviction by triggering application of the Missouri Second Offender Act. ⁵ In this sense, the 1971 convictions and the 1973 conviction are intertwined.

The district court, adopting the magistrate's recommendation, dismissed the section 2254 petition on the ground that Rodgers had left unexhausted avenues of state relief in the form of out-of-time ⁶ motions for rehearing ⁷ or transfer ⁸ before the Missouri Court of Appeals. ⁹ An additional unexhausted state procedure, suggested by appellee both below and here on appeal, is a motion before the Missouri Court of Appeals to recall its mandate. We must determine whether any of these three suggested state remedies need be exhausted by Rodgers before federal relief under section 2254 may be pursued.

In making such a determination, we are mindful that although comity requires that the state be afforded the initial opportunity to consider alleged violations of federal constitutional rights of its prisoners, a petitioner is not required to file repetitious or futile applications in state courts. Eaton v. Wyrick, 528 F.2d 477, 482 (8th Cir. 1975). In addition, a petitioner should not be barred from federal relief because of the mere possibility of success in additional state proceedings. Id. However, only after some clear manifestation on the record that a state court will not entertain petitioner's constitutional claims will exhaustion be disregarded as futile. Shane v. Iowa, 581 F.2d 727, 728 (8th Cir. 1978); Eaton v. Wyrick, supra, 528 F.2d at 482.

We initially consider appellee's suggestion that Rodgers could request the Missouri Court of Appeals, which denied relief in his coram nobis appeal, to grant an out-of-time motion for rehearing pursuant to Missouri Supreme Court Rules 44.01(b) and 84.17.

Rodgers contends that it would be utterly futile for him to seek leave to file an out-of-time motion for rehearing. He asserts Rule 84.17, which specifies that the "sole purpose of a motion for rehearing is to call attention to material matters of law or fact overlooked or misinterpreted by the court, as shown by its opinion," is inapplicable in his section 2254 proceeding because: (1) the issues raised here were not decided in the opinion of the Missouri Court of Appeals; and (2) the Missouri Court of Appeals' written decision does not appear to overlook or misinterpret any matters of law or fact. Appellant maintains that no grounds for relief, as required by the terms of Rule 84.17, exist under the facts of this case. Appellee merely responds that such out-of-time motions for rehearing are frequently granted.

We conclude that an out-of-time motion for rehearing would be futile under the facts of this case. As previously noted, Rule 84.17 specifies that the sole reason for rehearing is to call the Missouri Court of Appeals' attention to "material matters of law or fact overlooked or misinterpreted by the court, as shown by its opinion." The Missouri Court of Appeals which heard Rodgers' coram nobis appeal did not overlook material matters of law or fact; it expressly considered and rejected the sole contention raised by Rodgers in that coram nobis appeal. Rodgers v. State, 580 S.W.2d 514 (Mo.App.1978). Since Rodgers abandoned the three issues raised at the trial level in his state coram nobis action, it would be futile to call the Missouri Court of Appeals' attention to those matters which were not pursued on appeal. In short, it is entirely too speculative to conclude that the Missouri Court of Appeals would choose to "rehear" issues never presented to it in the first instance.

Similarly, Rodgers asserts that it would be futile to seek relief under the rules relating to transfer of cases from the Missouri Court of Appeals to the Missouri Supreme Court. ¹⁰ Appellee suggests Rodgers should request the Missouri Court of Appeals to transfer his coram nobis case to the Missouri Supreme Court pursuant to Rule 83.02. Additionally, appellee suggests that in the event Rodgers is unsuccessful under Rule 83.02, he should be required to directly request the Missouri Supreme Court to transfer that matter pursuant to Rule 83.03.

Appellee's 83.03 argument may be quickly rejected. The record shows that Rodgers petitioned the Missouri Supreme Court for transfer of his coram nobis appeal, but was denied relief. Obviously then, the Rule 83.03 procedure has been exhausted.

Rule 83.02 specifies that either of two grounds warrant transfer by the Missouri Court of Appeals: (1) where the case involves a question of general interest or importance; or (2) for the purpose of re-examining existing state law. Rodgers maintains that neither of these grounds exists in the instant proceeding. We agree.

Rule 83.02 specifies a procedure whereby a defined legal controversy properly before the Missouri Court of Appeals may be reviewed by the Missouri Supreme Court. The transfer of a controversy must necessarily be limited to a transfer of only those issues properly presented and preserved before the Missouri Court of Appeals. Under the facts of this case, therefore, a successful transfer under 83.02 would only enable review of Rodgers' argument that all indigent pro se coram nobis movants are entitled to appointment of counsel. Since that issue is not asserted in the instant section 2254 proceeding, even a successful transfer under 83.02 would...