Smith v. Swenson

• Decision Date: 21 April 1971
• Docket Number: Civ. A. No. 19037-3.
• Citation: 328 F. Supp. 747
• Parties: Cecil SMITH, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

328 F. Supp. 747

Cecil SMITH, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 19037-3.

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

April 21, 1971.

Cecil Smith, pro se.

J. Michael Jarrard, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

JUDGMENT DENYING PETITION FOR HABEAS CORPUS

WILLIAM H. BECKER, Chief Judge.

Petitioner, a state convict confined in the Missouri State Penitentiary, petitions this Court for a writ of federal habeas corpus adjudicating as invalid his state conviction of second degree burglary. Petitioner also requests leave to proceed in forma pauperis. Leave to proceed in forma pauperis has been previously granted.

Petitioner states that, after a plea of not guilty, he was convicted by a jury in the Circuit Court of Jackson County of second degree burglary; that he was sentenced on that conviction on October 18, 1968, to a term of fifteen years' imprisonment; that he appealed from the judgment of conviction and imposition of sentence to the Missouri Supreme Court; that the Missouri Supreme Court affirmed his conviction and sentence on appeal (State v. Smith, Mo., 451 S.W.2d 87); that he has filed no motion to vacate, set aside or correct sentence under Missouri Supreme Court Rule 27.26 in the state trial court, or any other petitions, motions or applications with respect to this conviction; and that he was represented by counsel at his arraignment and plea, at his trial, his sentencing, on appeal, and on preparation, presentation or consideration of the petition herein.

Petitioner states the following as the grounds on which he bases his allegation that he is being held in custody unlawfully:

"Petitioner's conviction was based on evidence obtained as a result of an illegal search and seizure in violation of his rights under the Fourth Amendment to the Constitution of the United States."

Petitioner states the following as the facts in support of the above grounds:

"On February 26, 1968, Petitioner was arrested without probably (sic) cause, searched and several items seized. On February 27, 1968, it was determined that said items had been stolen from the apartment of Mr. David Knuti. Mr. Knuti reported the burglary of his apartment one day after Petitioner was arrested."

It appeared from the foregoing that petitioner may have stated the denial of his federal rights and the exhaustion of state remedies in respect to the above contention. A show cause order was therefore issued on February 1, 1971. Respondent's response thereto was filed on February 18, 1971. Respondent attached the following exhibits: a transcript of the proceedings against petitioner in the trial court, petitioner's brief on appeal in the Missouri Supreme Court, respondent's brief in the Missouri Supreme Court, and the opinion of the Missouri Supreme Court, officially reported as noted above. Therein, it was respondent's contention that the search and seizure complained of by petitioner was lawful because it was incidental to a legal arrest made with probable cause. And the state court records submitted by respondent tended to prove that a full evidentiary hearing was held in the state trial court on a motion to suppress, at the conclusion of which the state trial court overruled the motion to suppress and the overruling was supported by substantial evidence.

In his traverse to the response, petitioner, although invited to do so by an order of the Court, did not challenge the accuracy or genuineness of the exhibits submitted by respondent. Neither did petitioner contradict respondent's averment that a plenary evidentiary hearing on the search and seizure question had been held on petitioner's motion to suppress in the state trial court in which the arresting and searching officer testified and in which petitioner was given an opportunity (which his counsel fully exercised) to cross-examine the officer and to present witnesses and other evidence in his own behalf (although he presented none). Further, petitioner has expressly stated that he desires to adduce no further evidence in this case "than that offered to the state trial court in the hearing on the motion to suppress."¹ Under these circumstances, when there has been a plenary evidentiary hearing in the state trial court and the Missouri Supreme Court, on direct appeal, has ruled adversely to petitioner on the merits of his contentions and petitioner desires to adduce no new evidence in federal court and none should apparently be adduced, petitioner's state remedies have been exhausted. White v. Swenson (W.D.Mo.) 261 F.Supp. 42. Further, when, under the same circumstances, the state courts have reliably found facts in the application of current federal standards, it is well established that the federal district court may rely upon the facts reliably found by the state court. Meller v. Swenson (W.D.Mo.) 309 F.Supp. 519, affirmed Meller v. State (C.A.8) 431 F. 2d 120; Mountjoy v. Swenson (W.D. Mo.) 306 F.Supp. 379, 381, and cases there cited; Caffey v. Swenson (W.D. Mo.) 318 F.Supp. 704, 707. The doctrine has recently been reaffirmed in In re Parker (C.A.8) 423 F.2d 1021. See also Procunier v. Atchley, 400 U.S. 446, 450, 91 S.Ct. 485, 487, 27 L.Ed.2d 524, 529. The doctrine includes the principle that the federal district court may independently find facts from the state court record. Meller v. Swenson, supra. As will be shown more fully below, the state courts have reliably found the facts and have applied current federal standards as required by the trilogy of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, and none of the circumstances under which the Townsend case requires the federal court to hold a new hearing exist in this case.²

In the hearing in the state trial court, Officer Jordan, the police officer who arrested petitioner, testified in substance that he had been informed by one Ruth James that petitioner had entered without knocking an apartment house in which she was housekeeper; had run from the house when the housekeeper called the police; that the housekeeper said that petitioner had been seen by her entering the front of a house on East 44th Street in Kansas City; and that Jordan then made the arrest and search of petitioner upon seeing him come out of yet a third building with a sack in his hand and recognizing him from Miss James' description and as a Negro in an all-white neighborhood. The facts as found by the state courts are set forth in State v. Smith, supra, 451 S.W.2d at 90:

"* * * A man fitting the description of defendant entered the home of Cornelius Roach on February 26, 1968, without any authorization or invitation, and without knocking or sounding the door chimes to advise of his presence and to attract the attention of the occupants. Instead, he simply silently opened the back door and entered the house. The opening of an unlocked door has been held to constitute the forcible breaking required for second degree burglary if done with intent to commit burglary and such intent may be inferred from the circumstances. State v. Fritz, Mo., 379 S.W.2d 589, 591; State v. Rhodes, Mo., 408 S.W.2d 68, 70. Inside, defendant did not knock or call out to attract someone's attention but, instead, opened the door to Miss James' bedroom and entered that room. When he found Miss James there, he made conversation by asking if she was the janitor, and said he was looking for work. After leaving the Roach home, he then went a short distance and entered an apartment building. This incident was reported immediately by Mrs. Roach to the police, and when Officer Jordan arrived these facts were related to him, along with the description of the man who had entered the house. After searching the neighborhood, including the apartment building which defendant had been seen entering, the officer, a few minutes later, observed defendant coming out of still a third building in that neighborhood, carrying a paper sack of something in his arms. This was an area with which the officer was familiar. He knew that it was an all white neighborhood and that no negro lived in the building from which the defendant was seen exiting. He further could see that the description given him by Miss James of the man who a few minutes previously had been in the Roach house corresponded with the man he now observed. * * *" Id. 451 S.W.2d at 90.

* * * * * *

"* * * The officer knew that the unauthorized entry of the Roach house had been made, that the man had then entered a second building in the neighborhood, and now was observed by the officer coming out of still a third building in this neighborhood, carrying a sack of something in his arms. We conclude that this trustworthy information possessed by Officer Jordan was sufficient to warrant him as a prudent officer in believing that this defendant `had committed or was committing an offense.' Beck v. Ohio, supra 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 * * *" Id. at 90.

On those facts, petitioner has not been denied any of his federal rights. The question presented is whether the arresting officer had probable cause to arrest petitioner and to make a search incident to arrest. Petitioner makes no specific contention concerning the reasonableness or scope of the search otherwise. Generally, warrantless searches, such as that which is alleged in this case, are unreasonable under the Fourth Amendment to the United States Constitution unless the search is within an exception to the warrant requirement. Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930; See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943; Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed. 2d 856; Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d...