Simpson v. Camper, 90-2225WM
| Decision Date | 04 March 1991 |
| Docket Number | No. 90-2225WM,90-2225WM |
| Parties | Stacy Mechelle SIMPSON, Appellee, v. Donald M. CAMPER, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William Webster, Jefferson City, Mo., for appellant.
Lawrence H. Pelofsky, Overland Park, Kan., for appellee.
Before ARNOLD and FAGG, Circuit Judges, and McMILLAN, * Senior District Judge.
This is a petition for habeas corpus brought by Stacy Mechelle Simpson. The petitioner was originally charged, in the Circuit Court of Jasper County, Missouri, with first-degree murder in connection with the shooting death of her mother. Pursuant to a plea agreement executed September 16, 1986, Ms. Simpson entered an Alford plea of guilty 1 to the reduced charge of manslaughter. Shortly afterward, before the Circuit Court passed sentence, Ms. Simpson dismissed her attorney and petitioned the Court to allow her to withdraw her plea and proceed to trial. She was not allowed to change her plea, however, and on November 3, 1986, the Court sentenced her to eleven years in the Missouri State Penitentiary, thereby rejecting a recommendation in the plea agreement that she receive five years' probation. Petitioner was fourteen years old at the time of her mother's death; she was fifteen when she entered the plea agreement. She was charged as an adult in the proceedings at issue in this habeas petition.
Ms. Simpson's primary contention in her federal habeas petition is that she should have been allowed to withdraw her plea and be tried by a jury on the charge against her. The District Court granted the writ of habeas corpus, concluding that the plea was involuntary and was entered unknowingly. The Court cited several factors that influenced its decision, including petitioner's age, pressure from family members, and her confusion about the significance of an Alford plea. In addition, the Court believed Ms. Simpson was induced to plead guilty by promises of probation from her attorney. The District Court conditioned its grant of the writ of habeas corpus on the State's allowing petitioner to withdraw her plea and be tried on the murder charge within 60 days of the issuance of its order. If the State chose not to afford her a jury trial, the conditional issuance of the writ would become unconditional and permanent. The State of Missouri has appealed that order to this Court. For reasons to follow, we do not determine at this time whether the writ of habeas corpus was appropriately granted. Rather, we will hold this appeal in abeyance pending a further proceeding before the Missouri Court of Appeals.
The substance of Ms. Simpson's claims has never been presented to the Missouri state courts, and if any avenue remains open for her to do so, the District Court's exercise of jurisdiction in this matter was inappropriate. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Simpson's direct appeal from the Circuit Court's denial of her motion to withdraw her plea was dismissed on May 1, 1987, for failure to file a record. Other attempts to present her claims to Missouri state courts, the details of which are not important at this time, were also unsuccessful. To avoid a procedural bar to her federal habeas petition, Ms. Simpson argues that the failure of her attorney to file a record on direct appeal was ineffective assistance of counsel, in violation of her Sixth Amendment rights. The District Court agreed that petitioner received ineffective assistance of counsel on her direct appeal, excusing any procedural default under the "cause" and "prejudice" requirements of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
The State claims, however, that petitioner's remedy for ineffective assistance of counsel on appeal under state law is a motion to recall the mandate, a remedy the State claims is still available. The District Court agreed with the State that a motion to recall the mandate was a proper remedy, but thought such a motion would be futile: "That procedure at this point in time would not provide an effective remedy to petitioner, in light of the time which has expired since the original conviction challenged herein." 743 F.Supp. 1342, 1345 (W.D.Mo.1990). We have reviewed the Missouri cases presented by the State on this issue. We cannot conclude, as did the District Court, that a motion to recall the mandate would not be entertained by the Missouri Court of Appeals. We simply are not sure what that Court would do in this case. Whether a state remedy is presently available is a question of state law as to which only the state courts may speak with...
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