Russell v. Wyrick
Decision Date | 20 July 1974 |
Docket Number | Civ. A. No. 73CV401-W-3-R. |
Parties | Walter RUSSELL, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent. |
Court | U.S. District Court — Western District of Missouri |
Walter Russell, pro se.
Neil MacFarlane, Asst. Atty. Gen. of Mo., Jefferson City, Mo., for respondent.
FINAL JUDGMENT DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS WITH RESPECT TO THOSE UNEXHAUSTED CONTENTIONS SET FORTH AS GROUNDS A(1) and A(2), AND DENYING PETITION FOR A WRIT OF HABEAS CORPUS WITH RESPECT TO ALL REMAINING GROUNDS AND CONTENTIONS
This is a petition2 for a writ of habeas corpus by a state prisoner in custody at the Missouri State Penitentiary at Jefferson City, Missouri. Petitioner seeks an adjudication that his conviction and sentence were illegally imposed upon him in violation of his federal constitutional rights. Petitioner requests leave to proceed in forma pauperis. Leave to proceed in forma pauperis has been granted by prior order of this Court on November 1, 1973.
Petitioner states that he was convicted upon his plea of guilty in the Circuit Court of Cooper County, Missouri, of forcible rape; that he was sentenced on that conviction on September 14, 1959, to a term of life imprisonment; that he did not appeal from the judgment of conviction and imposition of sentence; and that he was represented by counsel at all critical stages of the proceedings against him, but he does not state whether he was assisted in the preparation and filing of the various postconviction motions and petitions.
Although petitioner briefly states his purported limited involvement in postconviction litigation, the records of this Court and the thorough investigation by counsel for respondent, as indicated by respondent's response to the order to show cause, indicates that petitioner has been extensively involved in state and federal postconviction litigation. A chronological review of petitioner's involvement in state and federal postconviction legal proceedings reveals the following history.
In 1962, petitioner instituted a habeas corpus proceeding in the Circuit Court of Cole County, Missouri. After the holding of an evidentiary hearing, the petition was denied. In that same year, petitioner filed a motion under Missouri Criminal Rule 27.26, V.A.M.R., in the Circuit Court of Cooper County, Missouri, the motion was subsequently withdrawn by the petitioner on March 8, 1962.
On September 13, 1962, and August 25, 1964, petitioner filed petitions for state habeas corpus relief in the Missouri Supreme Court. Those petitions for habeas corpus relief were denied by the Missouri Supreme Court without opinions.
Subsequently, petitioner filed a petition for a writ of federal habeas corpus in this Court. That petition was dismissed without prejudice on January 24, 1966 for failure to exhaust state remedies. Russell v. Swenson, 251 F.Supp. 196 (W.D.Mo.1966).
On April 26, 1966, petitioner filed a motion to withdraw his guilty plea and to vacate sentence and judgment under Missouri Criminal Rules 27.25 and 27.26 in the Circuit Court of Cooper County, Missouri. The Circuit Court denied the motion. Petitioner appealed the denial to the Missouri Supreme Court and, on June 15, 1967, the Missouri Supreme Court remanded the case to the Circuit Court for the holding of an evidentiary hearing. Thereafter, on August 21, 1967, petitioner filed another motion to vacate judgment and sentence under Rule 27.26 in the Circuit Court of Cooper County, Missouri. An evidentiary hearing was held, and on October 11, 1967, petitioner's motion was denied. Petitioner appealed that denial of his motion to the Missouri Supreme Court, which affirmed the denial on November 10, 1969, in Russell v. State of Missouri, 446 S.W.2d 782 (Mo.Sup.1969).
Thereafter, petitioner filed another petition for a writ of federal habeas corpus in this Court, which was dismissed without prejudice at the request of the petitioner. Russell v. Swenson, Civil Action No. 18022-3 (W.D.Mo. February 9, 1970). Shortly thereafter, petitioner filed another petition for a writ of federal habeas corpus in this Court, which was dismissed without prejudice for failure to exhaust available and adequate state remedies, in an opinion dated February 16, 1970. Russell v. Swenson, Civil Action No. 18119-3 (W.D.Mo. February 16, 1970).
Thereafter, petitioner filed still another petition for a writ of federal habeas corpus in this Court, which was also dismissed without prejudice for failure to exhaust adequate and available state court remedies, in an opinion dated February 26, 1970. Russell v. Swenson, Civil Action No. 18126-3 (W.D.Mo. February 26, 1970).
On January 12, 1971, petitioner filed his fourth motion under Missouri Criminal Rule 27.26 in the Circuit Court of Cooper County, Missouri. On February 8, 1971, counsel was appointed to represent the petitioner, and on February 10, 1971, an amendment was filed to petitioner's motion to vacate judgment and sentence under Rule 27.26. On July 1, 1971, the Circuit Court held an evidentiary hearing, throughout which petitioner and his appointed counsel were present. On July 21, 1971, the Circuit Court entered its findings of fact and conclusions of law and overruled petitioner's motion. Petitioner appealed that decision of the Circuit Court to the Missouri Supreme Court, which affirmed the Circuit Court's decision on May 14, 1973, in Russell v. State of Missouri, 494 S.W.2d 30 (Mo.Sup.1973). The present petition for a writ of habeas corpus followed.
Petitioner states the following grounds upon which he bases his contention that his conviction and sentence were illegally imposed in violation of his federal constitutional rights:
Petitioner states the following as facts in support of his contention that he is being held in custody unlawfully:
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