Smith v. Wyrick, 82-0916-CV-W-1-R

• Decision Date: 03 March 1983
• Docket Number: 82-0476-CV-W-1 and 82-0903-CV-W-1.,No. 82-0916-CV-W-1-R,82-0916-CV-W-1-R
• Citation: 558 F. Supp. 600
• Parties: Kenneth Norman SMITH, Petitioner, v. Donald WYRICK, Warden, Respondent, and Michael David MANIS, Petitioner, v. Donald WYRICK, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

558 F. Supp. 600

Kenneth Norman SMITH, Petitioner, v. Donald WYRICK, Warden, Respondent, and Michael David MANIS, Petitioner, v. Donald WYRICK, Warden, Respondent.

Nos. 82-0916-CV-W-1-R, 82-0476-CV-W-1 and 82-0903-CV-W-1.

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

March 3, 1983.

Ronald L. Hall, Asst. Federal Public Defender, W.D. Mo., Kansas City, Mo., for petitioner.

John Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM OPINION AND ORDERS DIRECTING FURTHER PROCEEDINGS

JOHN W. OLIVER, Senior District Judge.

I.

On December 17, 1982 we entered orders directing further proceedings in both of the above entitled cases. Both cases are related for the reason that both State prisoners, acting upon the advice of a fellow inmate at the Missouri Penitentiary, have attempted to obtain an immediate hearing of all federal claims alleged in their respective applications for federal habeas corpus relief on the dual theory that each exhausted all available State postconviction remedies by filing motions to recall mandate in the Supreme Court of Missouri and that the Missouri Rule 27.26 proceedings which each petitioner admittedly has pending in the Circuit Court of Greene County, Missouri have been subject to unreasonable delay and are being processed in a manner which deprives both petitioners of an effective State post-conviction remedy.

The orders entered on December 17, 1982 required the State to file a response which would establish the procedural posture of all of each petitioner's State court filings and for a statement of the State's position in regard to any State appellate postconviction remedies that either petitioner might have under the circumstances. The Federal Public Defender's office was appointed to represent the petitioners in this Court and to take any action on behalf of the petitioners which might be appropriate under the circumstances. The Attorney General's office has filed responses to which copies of some of the relevant State court records are attached. The Federal Public Defender's Office has filed responses on behalf of each petitioner to which additional relevant State court records are attached.

We have considered the responses filed pursuant to this Court's December 17, 1982 orders and enter orders directing further proceedings for reasons which need to be stated in detail.

II. Factual Circumstances In Regard to Petitioner Smith

The response filed by the Attorney General's office in regard to petitioner Smith states that he is in State custody under three sentences of 15, 14, and 10 years imposed by the Circuit Court of Greene County, Missouri on March 14, 1980. That response attached copies of all Missouri Rule 27.26 motions which petitioner Smith filed in the Circuit Court of Greene County, Missouri in September of 1981. The response further stated that each 27.26 motion has been denied by that State trial court. In regard to the availability of further State postconviction remedies, the response stated the following:

As to petitioner's present right to appeal any adverse action that may have been taken by the Circuit Court of Greene County, Missouri court rules provide that a late notice of appeal may be filed up to six months from the date of final judgment. Rule 81.07(a), V.A.M.R., provides in pertinent part that:

When an appeal is permitted by law from a final judgment in a trial court, but the time prescribed for filing the ordinary notice of appeal with the clerk of the trial court as set forth in Rule 81.04 has expired, a party may seek a special order of the appropriate appellate court permitting a late filing of the notice of appeal. The special order may be allowed by the appellate court only upon motion with notice to adverse parties, filed within six months from the date of final judgment, and only upon a showing by affidavit, or otherwise, that there is merit in appellant's claim for the special order and that the delay was not due to appellant's culpable negligence.

Rule 81.05(a) provides that a judgment becomes final "at the expiration of thirty days after the entry of such judgment, if no timely motion for a new trial is filed." In petitioner's cases, the judgments against petitioner were filed August 17, 1982, and August 23, 1982. These judgments became final September 16 and September 22, 1982 respectively. Petitioner has until March 16 and March 22, 1983, to file a motion for a special order to permit a late filing of a notice of appeal.

In regard to the State's position as to petitioner Smith's right to further State appellate postconviction review, the response filed by the Attorney General's office stated:

Respondent does not object to the appointment of the federal public defender for the limited purpose of filing such a late notice of appeal so that the appellant's process can begin and the state court can appoint counsel for petitioner. Such a result is clearly more appropriate than a hearing on the merits in federal court without giving the state appellate courts the opportunity to correct any errors that may have occurred either in the trial or in the Rule 27.26 proceedings.... The state courts are adequately equipped to handle appellant's claim and they are presently the appropriate form sic for appellant to raise his allegations of error.

The files and records now before the Court show that none of petitioner Smith's Missouri Rule 27.26 motions which pended in the Circuit Court of Greene County, Missouri had been ruled at the time we considered petitioner Smith's first application for federal habeas corpus. We denied that first application for federal habeas corpus May 11, 1982. The files and records show that all of petitioner's Missouri Rule 27.26 motions were denied in the month of August, 1982. We made clear in Smith v. Wyrick, 538 F.Supp. 1017, 1025 (W.D.Mo. 1982) that our denial of petitioner's claim of ineffective assistance of appellate counsel was not to be considered as any adjudication of petitioner Smith's claims of ineffective assistance of trial counsel "which petitioner may assert in the pending Rule 27.26 proceeding which pends in the Circuit Court of Greene County, Missouri." In footnote 9 on page 1026 of that opinion we stated:

We reiterate that our determination of petitioner's claim of ineffective assistance of appellate counsel is not an adjudication of petitioner's claims of ineffective assistance of trial counsel. The transcript of the trial reveals that defendant's appointed trial counsel apparently had something in mind in regard to petitioner's claimed use of drugs. Exactly what trial counsel may have had in mind and how he may have intended to develop what he may have had in mind, both as matters of fact and as a matter of law, are matters which we are confident will be explored in depth during the processing of the Missouri Rule 27.26 proceeding which now pends in the Circuit Court of Greene County, Missouri. 538 F.Supp. at 1026

Our first opinion in Smith clearly indicated that under applicable Supreme Court of the United States standards, petitioner Smith was entitled to an evidentiary hearing on his claim of ineffective assistance of trial counsel. In affirming this Court's denial of federal habeas corpus relief in connection with petitioner Smith's first application, the Court of Appeals for the Eighth Circuit pointed out that:

Under the law of this Circuit, a federal district court must provide a hearing in a section 2254 action "if relevant facts are in dispute and a fair evidentiary hearing was not granted in the state court." Jensen v. Satran, 651 F.2d 605, 608 (8th Cir.1981); Pruitt v. Housewright, 624 F.2d 851, 852 (8th Cir.1980).... a petitioner contending relevant disputed facts must have a fair hearing regardless of the procedural posture of the claim in state court. The federal court must hold this hearing if the state court does not.¹

The fact that petitioner Smith has now been denied relief on his Missouri Rule 27.26 motions which had not been ruled at the time we denied petitioner Smith's first federal habeas petition merely means that petitioner Smith must exhaust his available State court appellate remedies before he can invoke the federal habeas jurisdiction of this Court.

It cannot be said that it is futile to require the filing of a motion for a late notice of appeal of the decision of the Circuit Court of Greene County, Missouri denying petitioner Smith's Missouri Rule 27.26 motions for the reason such a motion was granted by the Missouri Court of Appeals, Southern District, in connection with petitioner Manis, as we will discuss later in detail. See also Shepherd v. State, 637 S.W.2d 801 for another recent example in which a Missouri Court of Appeals granted leave to an unsuccessful Missouri Rule 27.26 movant to file a late appeal.

The response filed by the Federal Public Defender of petitioner Smith properly recognized that petitioner has not exhausted his available State postconviction remedies in regard to any of the claims alleged in his federal habeas petition. The Federal Public Defender also advised this Court that:

During the week of February 7, 1983 the undersigned conferred with Miss Rosalynn Van Heest, Assistant Attorney General, State of Missouri, who represents the respondent in this action. She advised the undersigned that if the reasons for Smith's failure to file notices of appeal in each of his four 27.26 actions were not due to his culpable negligence, the respondent would join petitioner's motion for a special order permitting a late filing of the notices of appeal in each of the 27.26 Motion Judgments, entered in the Circuit Court of Greene County, Missouri.

The Federal Public Defender accordingly made the following request in the recommended action part of the response he filed on behalf of petitioner Smith:

The undersigned requests that he be given additional time within which to investigate the facts

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