Russell v. Wyrick

Decision Date20 July 1974
Docket NumberCiv. A. No. 73CV401-W-3-R.
Citation395 F. Supp. 643
PartiesWalter RUSSELL, Petitioner, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
CourtU.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

WILLIAM H. BECKER, Chief Judge.

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:

"A. The Missouri Supreme Court erred in denying the appellant's allegation that he was a juvenile ward of the State of Missouri at the time of the alleged crime and that he should have been treated as such. A denial of the above was a violation of his constitutional rights (14th Amendment).
"B. The Missouri Supreme Court erred in denying the appellant's allegation that the trial court who received his plea of guilty violated his United States Constitutional Rights under the 14th Amendment when appellant entered his plea of guilty in that it was not made voluntarily and with an understanding of the nature of the charge.
"C. The Missouri Supreme Court erred in ruling that appellant's Constitutional Rights under the 14th Amendment were not violated when the trial judge did not have appellant sua sponte mentally examined before accepting a plea of guilty on a capital offense, even though the circumstances indicated such was needed.
"D. The Missouri Supreme Court erred in ruling that appellant's Constitutional Rights (under the Sixth and Fourteenth amendments) were not violated as:
1. Court appointed counsel failed to request a mental examination of Appellant either before or at the time of appellant's plea.
2. Court appointed counsel had such a conflict of interest that appellant was deprived of his constitutionally guaranteed right of counsel.
"E. The Missouri Supreme Court erred in ruling that appellant's Constitutional Rights were not violated by the trial court at his 27.26 Evidentiary Hearing (which was fundamentally unfair) in that:
1. The trial court did not protect or afford appellant due process and equal protection under the law.
2. Appellant's court appointed counsel did not afford his client effective assistance of counsel at a critical stage of the hearing."

Petitioner states the following as facts in support of his contention that he is being held in custody unlawfully:

"A. The trial court ruled in its finding of facts and conclusions of law that (and the Missouri Supreme Court affirmed same) . . . `the movant was not a juvenile within the meaning of Chapter 211, R.S.Mo.1949, on July 12, 1958, and was not entitled to be treated as a juvenile and afforded rights under that chapter . . . . that movant came under Section 219.020 R.S.Mo. through requests of the court to the Board of Training Schools.'

"The point now at issue is: that appellant was not afforded his rights under whatever section of Missouri law that was applied to his case.

"The facts of this case show that the appellant was committed to the State Board of Training School for Boys from the Juvenile Court in St. Louis, Missouri, on May 10, 1958 (MT. 2, p. 157).

"It is interesting to note that SECTION 219.020 (STATE BOARD OF TRAINING SCHOOLS DUTIES . . . POWERS) states:

There is hereby created and established a State Board of Training School which have charge and control of all training schools and industrial homes for boys and girls of this state, specifically: The Training School for Girls; and The Training School of Negro Girls, together with all institutions for correctional training of juveniles which may hereafter be created in this state, which schools are hereby classified as educational institutions and recognized to have as their purpose the special correctional training, the education and the moral rehabilitation and guidance of juvenile offenders which any court of proper jurisdiction may assign to such institutions. The Board shall provide for the rehabilitation of all juveniles committed by law to its charge or to any institution under its control. (Emphasis mine)

"In Section 219.110, dealing with the Superintendent of each school, it states in part:

`. . . each Superintendent shall be chief administrative officer of his or her respective institution and shall assume executive control of such institution, its inmates and activities, under direction of the Board and Director of Training Schools.'

"The appellant's situation boils down to this:

"Russell was arrested in the State Board of Training School for Boys in Boonville, Missouri. He was arrested when he was called to the Superintendent's office where he testifies (sic) that he was physically...

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4 cases
  • Miller v. State of Missouri
    • United States
    • U.S. District Court — Western District of Missouri
    • February 11, 1975
    ...prejudice those claims which have not been exhausted. See, e. g., Cobb v. Wyrick, 379 F.Supp. 1287 (W.D.Mo.1974); Russell v. Wyrick, 395 F.Supp. 643 (W.D.Mo.1974); Johnson v. Wyrick, 381 F.Supp. 747 (W.D.Mo., Because of the apparent uncertainty of the status of the exhaustion doctrine in th......
  • Boothe v. Wyrick, 77-0830-CV-W-4.
    • United States
    • U.S. District Court — Western District of Missouri
    • June 19, 1978
    ...535 (8th Cir. 1972); Tyler v. Swenson, 427 F.2d 412 (8th Cir. 1970); Randall v. Wyrick, 441 F.Supp. 312 (W.D.Mo.1977); Russell v. Wyrick, 395 F.Supp. 643 (W.D.Mo.1974); see also LaVallee v. DelleRose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 For the reasons stated above, it is ORDERED th......
  • Randall v. Wyrick
    • United States
    • U.S. District Court — Western District of Missouri
    • December 2, 1977
    ...without a hearing. Jones v. Swenson, 469 F.2d 535 (8th Cir. 1972); Tyler v. Swenson, 427 F.2d 412 (8th Cir. 1970); Russell v. Wyrick, 395 F.Supp. 643 (W.D. Mo.1974); see also, LaVallee v. DelleRose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 For the reasons stated above, it is ORDERED that......
  • Tillman v. Conroy, 93-1506
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • November 22, 1993
    ...(whether juvenile waiver order contains defects is a state law question, and will not be resolved in a habeas petition); Russell v. Wyrick, 395 F.Supp. 643 (D.C.Mo.1974) (claim that prisoner was entitled to juvenile code procedures and within exclusive jurisdiction of juvenile court raised ......

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