Seemiller v. Wyrick, 80-2181

• Decision Date: 01 December 1981
• Docket Number: No. 80-2181,80-2181
• Citation: 663 F.2d 805
• Parties: Paul SEEMILLER, Appellant, v. Donald WYRICK, Warden, and John Ashcroft, Attorney General, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 805

663 F.2d 805

Paul SEEMILLER, Appellant, v. Donald WYRICK, Warden, and John Ashcroft, Attorney General, Appellees.

No. 80-2181.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 14, 1981.

Decided Nov. 11, 1981.

Rehearing and Rehearing En Banc Denied Dec. 1, 1981.

Jane E. Leonard (argued), Stolar, Heitzmann, Eder, Seigel & Harris, St. Louis, Mo., for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Lew A. Kollias, Asst. Attys. Gen., Jefferson City, Mo., for appellees.

Before HENLEY and ARNOLD, Circuit Judges, and BECKER, ^* Senior District Judge.

PER CURIAM.

Paul Seemiller, a state prisoner, brought this action in federal district court, seeking habeas corpus relief. The district court found that some of his claims were meritless, and that the rest had not been fully pursued in the state court system, and accordingly denied relief. Seemiller appeals contending that he should not be required to exhaust his state court remedies. ¹

Seemiller was convicted in March, 1976 in the St. Charles County, Missouri Circuit Court of sodomy and of assault with intent to do great bodily harm without malice aforethought. He was given consecutive sentences of ten years on the sodomy count and two years on the assault count. The conviction was affirmed on appeal. State v. Seemiller, 558 S.W.2d 212 (Mo.App.1977), and transfer to the Missouri Supreme Court was denied.

In July, 1979 Seemiller filed a Missouri Rule 27.26 petition for post conviction relief in the St. Charles County Circuit Court. As grounds for relief, he stated that he was denied effective assistance of counsel and counsel of his own choosing; that he was denied a fair trial because the court instructed on assault without malice and failed to give MAI-CR instructions No. 2.70 and 2.77; and that he was denied a fair trial due to systematic exclusion of women and blacks from the jury. The petition included a motion to disqualify a judge.

The state court appointed counsel to represent Seemiller. The court denied that counsel's motion to withdraw. Counsel then filed an amended petition and a memorandum in support thereof. Eventually, the court apparently allowed counsel to withdraw, and a second attorney was appointed. On May 12, 1980 the new counsel filed a motion for disqualification of a judge, which was granted the next day. A new judge was assigned to the case on May 29, 1980, but a hearing was not held until March 21, 1981.

Dissatisfied with progress in the state trial court, Seemiller filed a petition for habeas corpus in the Missouri Supreme Court. He alleged he was being denied a prompt hearing for post conviction relief in state court, and that he was entitled to be discharged from custody because he was convicted in violation of his constitutional rights. The Missouri Supreme Court denied the petition on April 8, 1980.

On April 14, 1980 Seemiller filed the instant habeas corpus proceeding. As grounds for relief, he listed the six claims pending in his action in the St. Charles County Court, four claims of error which were rejected in his direct criminal appeal, and the delay in the state post conviction proceedings. The magistrate found that Seemiller had not exhausted his state court remedies as to the six claims pending in state court, that the four exhausted claims were without merit, and that delay in the post conviction proceedings was no reason to set aside the original conviction. He accordingly recommended that the unexhausted claims be dismissed without prejudice, and that all other claims be dismissed with prejudice.

Seemiller then objected that the issue of delay in the state proceedings was not an independent claim but was support for his contention that he should not have to exhaust his state court remedies as to the claims presented in the state trial court proceedings. The district court ordered a copy of the docket sheet of the state court action on September 30, 1980. A copy was produced, and the district court noted that the (second) change of judge motion had been granted. In light of the "inevitable delays attendant upon the reassignment of the 27.26 motion," the court found that the State had not been " 'unnecessarily and intentionally dilatory' " (quoting Mucie v. Missouri State Department of Corrections, 543 F.2d 633, 636 (8th Cir. 1976)), and that "it was not unreasonable to require petitioner to exhaust his state remedies as recommended by the Magistrate." Accordingly, the court adopted the Review and Recommendation of the Magistrate.

On appeal counsel was appointed for Seemiller. Issues which have been raised are whether delay in the state court proceedings should excuse the exhaustion requirement, and whether, in any case, exhaustion should not be required as to two of his claims because of the absence of state law in support of the claims. We will consider these contentions in order.

To some extent we perhaps differ with the district court in that we do not think the change of judge motion should have led to much "inevitable delay." At the time of the second change of judge motion, no hearing had been held, and from the docket sheet it appears that the state had not even filed a response. Thus, the only judicial duplication of effort would have been that both judges looked at a file which contained only court orders and motions filed by Seemiller and his counsel. It is true, of course, that the case had to be fit into the schedule of the judge to whom it was reassigned and had to be made ready for disposition.

After the district court entered its decision, the state court held a hearing on Seemiller's claims....