Simpson v. Camper

• Decision Date: 06 August 1990
• Docket Number: No. 89-0118-CV-W-JWO-3.,89-0118-CV-W-JWO-3.
• Citation: 743 F. Supp. 1342
• Parties: Stacy Mechelle SIMPSON, Petitioner, v. Donald M. CAMPER, Respondent.
• Court: U.S. District Court — Western District of Missouri

743 F. Supp. 1342

Stacy Mechelle SIMPSON, Petitioner, v. Donald M. CAMPER, Respondent.

No. 89-0118-CV-W-JWO-3.

United States District Court, W.D. Missouri, W.D.

June 26, 1990.

As Corrected August 6, 1990.

Stacy M. Simpson, Chillicothe, Mo., pro se.

Lawrence Pelofsky, Overland Park, Kan., for petitioner.

Jared R. Cone, Mo. Atty. Gen., Jeff City, Mo., for respondent.

MEMORANDUM OPINION AND ORDER GRANTING WRIT OF HABEAS CORPUS

ELMO B. HUNTER, Senior District Judge.

This case pends on a petition for writ of habeas corpus filed by petitioner which attacks the validity of her confinement at the Chillicothe Correctional Center in Chillicothe, Missouri. Petitioner was convicted after entry of an Alford plea upon a manslaughter charge after which she was sentenced to an eleven year prison term.

An evidentiary hearing was held in this Court on May 15, 1990 on the issue of the voluntariness of petitioner's Alford plea. Two other disputed issues must be resolved before the plea's voluntariness can be determined. Those issues relate to respondent State of Missouri's contention that petitioner is procedurally barred from habeas review in this Court for failure to pursue available state remedies and petitioner's claim that the evidence presented at petitioner's juvenile court hearing which certified her to stand trial as an adult on the criminal charge was insufficient as a matter of Constitutional law. A brief discussion of the factual and procedural background of this case follows. The parties have filed herein a Stipulation as to the authenticity of the records of state court proceedings. Those records have been filed in this proceeding.

FACTS

On March 19, 1986, after a hearing in Bates County, Missouri juvenile court, petitioner was certified to stand trial as an adult for the shooting death of her mother on September 5, 1985. (Stip. # 3). Petitioner was fourteen years old at the time. Subsequently, petitioner was charged with first degree murder and after a change of venue and change of judge were granted, she came to trial in Jasper County, Missouri. On September 16, 1986, petitioner filed a petition to enter an Alford plea pursuant to a plea bargain which also called for reduction of the charge to manslaughter, preparation of a presentence investigation and report and recommendation by the prosecution of probation for a term of five years. (Stip. # 5) Petitioner was represented during these proceedings by counsel retained by her father. Petitioner's plea was accepted on September 16, 1986 by Judge Thomas Elliston, Jasper County Circuit Court. (Stip. # 6). Petitioner, born June 23, 1971, was then fifteen years old.

On October 10, 1986, petitioner filed with the circuit court a petition to withdraw her plea entered September 16. (Stip. # 8). At that time, petitioner's counsel at the plea hearing, Mr. Lee Nation, had withdrawn his representation at petitioner's request. Petitioner was represented at the hearing on the motion to withdraw plea by new counsel, Mr. Kevin Hare. The court denied petitioner's motion on November 3, 1986 and sentenced petitioner to eleven years incarceration on that date. (Stip. # 10-11). On November 13, 1986, new counsel for petitioner filed with the Missouri Court of Appeals, Southern Division, a notice of appeal from the denial of petitioner's motion to withdraw plea. (Stip. # 12). That appeal was dismissed by the Court of Appeals on May 1, 1987 for failure to submit a record on appeal or otherwise comply with Missouri appellate rules of procedure. (Stip. # 15).

On March 26, 1987, while petitioner's direct appeal was pending, she filed, pro se, with the Missouri Supreme Court, a petition for writ of habeas corpus and motion for appointment of counsel. Those petitions were denied without hearing on April 14, 1987. (Stip. # 16).

On December 9, 1988, petitioner filed a pro se motion to file out of time a motion for post-conviction relief under Missouri Rule 24.035 and a motion for relief under that Rule. (Stip. # 20). Those motions were denied without hearing on January 3, 1989. (Stip. # 17). This petition for writ of habeas corpus was filed on February 6, 1989. As noted above, an evidentiary hearing was held on petitioner's habeas corpus petition on May 15, 1990.

PROCEDURAL BAR

Respondent claims that petitioner's claims are barred from review in this Court for failure to raise the issues for state review by means of available Missouri post-conviction remedies. Claims raised by petitioner in both her original and amended petition for federal habeas corpus include the claims that petitioner's plea was involuntary and coerced, that no evidence was presented to warrant her certification to stand trial as an adult on a murder charge, a sixth amendment claim based upon ineffective assistance of appellate counsel and other claims alleging violation of petitioner's Constitutional rights.¹ Those same claims were raised in petitioner's petition for habeas corpus in state court and in the attempted postconviction motion for relief. As the direct appeal was abandoned, there is no way to tell what claims would have been raised had the appeal gone forward. Because the Court finds that this abandonment resulted in ineffective assistance of counsel and violation of petitioner's sixth amendment rights, the procedural bar alleged by respondent is no impediment to federal habeas review of her Constitutional claims.

Petitioner's direct appeal of the denial of her motion to withdraw plea was dismissed by the Missouri Court of Appeals for failure of petitioner's counsel to file a record on appeal or "to take the required steps to secure appellate review within the allowed time." (Stipulation # 15). No explanation for this failure to pursue the appeal which resulted in a procedural default of an available state remedy appears in the records submitted to the Court. That default normally results in a bar to federal habeas corpus review, unless petitioner can show cause and prejudice for the default. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

In Robinson v. Wyrick, 635 F.2d 757 (8th Cir.1981), a state habeas petitioner's counsel submitted on direct appeal a brief which was "flagrantly deficient" and which wholly failed to preserve any issues for appellate review. The Court of Appeals held that petitioner's sixth amendment rights were violated by denial of "his right to a direct appeal of his conviction and denial of his constitutional right to effective counsel — just as much as if counsel had never filed a notice of appeal." Id. at 759. Further, such circumstances warranted a denial of effective assistance of counsel without a showing of prejudice or of likely success on appeal. Id. at 758. Surely a failure to file any brief or even a record on appeal constitutes a denial of petitioner's sixth amendment right to effective assistance of counsel in the pending case before this Court. Under Robinson, that denial constitutes cause for the procedural default resulting from failure to pursue petitioner's direct appeal of her motion to withdraw Alford plea, and the requirement of showing the usual prejudice prong of the test is unnecessary.² See also Evitts v. Armstrong, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (criminal defendant entitled to effective assistance of counsel on first appeal as of right).

There is an additional reason that respondent's procedural bar argument fails. "The terms `cause' and `actual prejudice' are not rigid concepts; they take their meaning from ... principles of comity and finality ... and in appropriate cases those principles must yield to the imperatives of correcting a fundamentally unjust incarceration." Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982). Where a federal habeas petitioner suffers from a procedural default and cannot overcome the barriers of cause and prejudice which bar federal review, "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." 477 U.S. at 496, 106 S.Ct. at 2649. This Court finds that this petitioner fits into the "extraordinary" case of one who may be "actually innocent" of the crime for which she was convicted and whose conviction resulted from a violation of her Constitutional rights, namely denial of due process in the treatment afforded petitioner at the taking of her Alford plea, the denial of her motion to withdraw that plea and refusal of the trial judge to enforce the terms of the plea agreement which strongly influenced petitioner to enter an Alford plea. Further, petitioner has never pled guilty to the crime for which she was sentenced and has always, to the present time, maintained her innocence of the charge. At the evidentiary hearing in this Court, Lee Nation, who represented petitioner at the trial stage of the proceedings, testified that both he and the sheriff who investigated the murder believed it was likely that Frank Simpson, petitioner's father, had actually committed the murder. (Evid. Tr. at 39).

CERTIFICATION HEARING

On March 19, 1986, some six months after the crime occurred for which petitioner was subsequently convicted, a hearing was held in the Juvenile Division of the Circuit Court of Bates County, Missouri upon a petition filed pursuant to Missouri statutes by a juvenile officer for the State of Missouri. That petition alleged that petitioner, then fourteen years of age, had committed an offense, specifically murder, which brought her under the jurisdiction of the juvenile court. Under § 211.071, R.S. Mo., a motion was filed by the juvenile officer's attorney to dismiss the petition and allow prosecution of the petitioner as an adult under the general laws of the State of Missouri. By Order dated March 19, 1986, the petition was dismissed, thereby...