Smith v. Wyrick, 81-1060-CV-W-1.

• Decision Date: 11 May 1982
• Docket Number: No. 81-1060-CV-W-1.,81-1060-CV-W-1.
• Citation: 538 F. Supp. 1017
• Parties: Kenneth Norman SMITH, Petitioner, v. Donald WYRICK, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

538 F. Supp. 1017

Kenneth Norman SMITH, Petitioner, v. Donald WYRICK, Warden, Respondent.

No. 81-1060-CV-W-1.

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

May 11, 1982.

Kenneth Norman Smith, pro se.

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

MEMORANDUM OPINION AND ORDER

JOHN W. OLIVER, Senior District Judge.

I.

This State prisoner habeas corpus case presents an important exhaustion question not heretofore considered by this Court. The narrow question presented is how, under present Missouri law, a State prisoner may exhaust his available State postconviction remedies in regard to a claim that he was denied the effective assistance of counsel on appeal.

In its initial response to our order to show cause the Attorney General's office took the position that "respondent will not address the merits of petitioner's allegations at this time since this action has been brought prematurely and is subject to summary dismissal." That response contended that "it is clear that petitioner's petition ... should be dismissed for failure to exhaust all available State remedies."

After being required to produce additional portions of the files and records in both the State trial and appellate courts, the Attorney General's office thereafter filed a supplemental response in which it stated that "respondent now concedes that petitioner has exhausted his claim as to the ineffective assistance of his appellate counsel." That supplemental response directed this Court's attention only to the Supreme Court of Missouri's opinion in Hemphill v. State, 566 S.W.2d 200, (Mo. Banc 1978). The Attorney General's office requested and was granted leave to file a response addressed to the merits of petitioner's contentions regarding his appellate counsel.

During the course of obtaining piecemeal production of the relevant State court files and records from the Attorney General's office, petitioner filed a supplemental traverse to which he attached a document entitled "Treatise on Recalling Mandate in Missouri Jurisprudence," authored by Melvin Leroy Tyler, paralegal, and Ervin Haas, paralegal aide. This Court takes judicial notice of the fact that both Mr. Tyler and Mr. Haas are inmates of the Missouri Penitentiary. It is to be anticipated that the theories stated in that "Treatise" will be utilized by other pro se State prisoners in obvious efforts to short cut the usual exhaustion procedures required under Missouri Rule 27.26.

For reasons we shall state in detail, we conclude that petitioner has exhausted his available postconviction remedies under the narrow circumstances of this case, but that, on the merits, the petition for federal habeas corpus must be denied.¹

II.

The State court records now before the Court show that petitioner was tried and convicted of first degree robbery in the Circuit Court of Greene County, Missouri on January 24-25, 1980. He was represented at trial by appointed counsel. Petitioner's appointed trial counsel was relieved from duty and different counsel was appointed to represent the petitioner on appeal. Petitioner's conviction was affirmed by the Missouri Court of Appeals, Southern District, in Missouri v. Smith, 607 S.W.2d 824.

The factual circumstances and petitioner's single claim of error on direct appeal were accurately stated by the Missouri Court of Appeals as follows:

Defendant Kenneth Norman Smith was jury-tried and convicted of first degree robbery in violation of § 569.020, RSMo 1978, and sentenced to fifteen years imprisonment. He contends the trial court erred in failing to give his tendered instruction submitting second degree robbery. We affirm.

The evidence showed that defendant entered a Springfield, Missouri liquor store armed with a .38 caliber pistol, pointed the weapon at the store manager and demanded money. As defendant departed the building the manager obtained a pistol and shots were exchanged. Defendant testified his pistol was loaded with blank cartridges and thus he was entitled to an instruction on the lesser included offense of second degree robbery.

The Missouri Court of Appeals first noted that defendant's appointed trial counsel "did not assign his present contention of error in his motion for new trial" and that defendant's appointed appellate counsel failed to "set out ... the tendered instruction ... in defendant's brief as required by Missouri Rule 30.06(e)." "Consequently," the Missouri Court of Appeals stated, "defendant's contention is not preserved for our review."

The Missouri Court of Appeals, however, apparently pursuant to Missouri's "plain error" rule (Missouri Rule 29.12(b)) reached and disposed of the merits of petitioner's single claim of error on direct appeal by holding that:

Aside from the foregoing derelictions, there is no merit in defendant's contention. His trial testimony that the pistol was loaded with blank cartridges and that he did not intend to hurt the store manager does not alter the fact that a .38 caliber pistol is a deadly weapon as mentioned in the first degree robbery statute and it matters not whether the pistol was loaded with live cartridges, blank cartridges, or no cartridges at all. State v. Mays, 598 S.W.2d 613 (Mo.App.1980).

On July 15, 1981, petitioner filed in the Missouri Court of Appeals, Southern District, a "motion for leave to proceed in forma pauperis, for issuance of an order to show cause, for orders recalling the mandate, reinstating the appeal, for orders appointing counsel and for new appeal." That motion, which utilized in large part various portions of the standard Missouri Rule 27.26 form, alleged on a supplemental page the following:

CLAIMS SHOWING INEFFECTIVE COUNSEL

1. It was plain error affecting the substantial rights of the appellant-defendant for the trial court to fail to instruct the jury on the special defense raised under RSMo (1978) 562.076, and that counsel was ineffective on appeal for not raising the same. State v. Zweifel, 615 S.W.2d (Mo.App.E.D.Mo.1981). Instructions which ignore the defense are plain error. State v. Meeks, 619 S.W.2d 830 (Mo.App.W.Mo.1981); State v. Drane, 416 S.W.2d 105 (Mo.).

2. It was plain error for the trial counsel and appeal counsel to fail to raise the issue that appellant-petitioner was entitled to discharge when the state failed to rebuttal the special defense under RSMo (1978) 562.076. See, e.g., State v. Devine, 554 S.W.2d 442 (Mo.App. EDMo.1977).

3. Counsel was ineffective on appeal in violation of the 6th and 14th amendments for failing to raise the issues in Ground 1 and 2 above. Robinson v. Wyrick, 635 F.2d 757 (CA8 1981).

Although the Attorney General's office has thus far failed to file a copy of the order of the Missouri Court of Appeals denying that motion, both sides apparently agree that petitioner's motion to recall the mandate was denied by the Missouri Court of Appeals on its merits.²

On September 2, 1981 petitioner filed a Missouri Rule 27.26 motion in the Circuit Court of Greene County, Missouri, in which the petitioner stated numerous grounds of alleged denial of the effective assistance of counsel in regard to his appointed trial counsel. The docket sheet of the State trial judge recently produced by the Attorney General's office shows that petitioner's additional motion for disqualification of the judge who tried the case was sustained and that the Missouri Rule 27.26 motion was accordingly transferred to another judge who appointed counsel to represent petitioner in connection with his Missouri Rule 27.26 motion.³

On December 29, 1981 petitioner filed his pending petition for federal habeas corpus. That petition was carefully limited to a claim of ineffective assistance of counsel on appeal and alleged the following:

STATEMENT OF CLAIMS

1. Petitioner was denied effective assistance of counsel on direct appeal because counsel failed to present as plain error the failure of the trial court to instruct the jury on the special defense raised under RSMo (1978) Section 526.076, in violation of the 6th and 14th amendments to the United States Constitution.

2. Petitioner was denied effective assistance of counsel on direct appeal because counsel failed to raise the issue that petitioner was entitled to discharge when the state failed to offer any rebuttal to the special defense of drugged condition and drugged dependence under RSMo (1978) Section 562.076 in violation of the 6th and 14th amendments to the United States Constitution.

3. Petitioner was denied due process of law and equal protection of the law and a fair trial when the state failed to:

a) instruct the jury on the special defense raised under RSMo (1978) Section 562.076 when petitioner injected that as a defense and offered substantial witnesses;

b) petitioner was entitled to discharge because the defense raised under RSMo (1978) Section 562.076 when interjected was entitled to presumption of validity and correctness when no rebuttal evidence was offered.

CASE AUTHORITIES:

State v. Zweifel, 615 S.W.2d 470 (Mo.App. E.D.Mo.1981)

State v. Devine, 554 S.W.2d 442 (Mo. App.)

State v. Black, 611 S.W.2d 236 (Mo.App. 1981)

Robinson v. Wyrick, 635 F.2d 757 (CA8 1980)

We need not take further notice of the Missouri Rule 27.26 proceeding for the reason that none of the new procedural hurdles recently constructed by the Supreme Court of the United States in either Rose v. Lundy, supra, or, even more recently in Engle v. Isaac, ___ U.S. ___, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) purport to require exhaustion of a petitioner's claim of ineffective assistance of trial counsel, properly presented in a Missouri Rule 27.26 proceeding, before a federal district court is under duty to exercise jurisdiction in connection with petitioner's claim of ineffective assistance of appellate counsel, which has been fully exhausted under entirely different State post-conviction procedures, when the latter exhausted claim is the...