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

• Decision Date: 17 August 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: 569 F. Supp. 664
• 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

569 F. Supp. 664

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.

August 17, 1983.

Ronald L. Hall, Asst. Federal Public Defender, Kansas City, Mo., for petitioners.

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

MEMORANDUM AND ORDERS DISMISSING WITHOUT PREJUDICE ALL PENDING APPLICATIONS FOR HABEAS CORPUS

JOHN W. OLIVER, Senior District Judge.

I. Introduction

In part I of our March 3, 1983 memorandum opinion in the above cases, reported as Smith v. Wyrick and Manis v. Wyrick, 558 F.Supp. 600 (W.D.Mo.1983), we stated that:

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 postconviction remedy. 558 F.Supp. at 601.

Appropriate memorandum opinions were filed to support the orders entered December 17, 1982. In Order (5)(b) entered March 3, 1983, we directed that, among other things, copies of this Court's December 17, 1982 memorandum opinions and orders be forwarded to the Clerk of the Missouri Court of Appeals, Southern District, and to the Clerk of the Circuit Court of Greene County, Missouri, for the information of the Judges of those respective courts. Because we did not direct the publication of those December 17, 1982 memorandum opinions and orders, we now attach copies of the same as appendices to our memorandum opinion handed down this day in order that the publication of the principal memorandum opinions written in connection with the above cases be complete.

The files and records of this Court show that we had earlier dealt with petitioners' presently reiterated claim that a State prisoner could exhaust his available Missouri postconviction remedies by filing and having denied a motion to recall mandate in the Supreme Court of Missouri. We concluded, for reasons fully stated in Smith v. Wyrick, 538 F.Supp. 1017 (W.D.Mo.1982) that while a State prisoner could, within narrow limits, effectively exhaust a claim of ineffective assistance of appellate counsel by the filing of such a motion, the filing of a motion to recall mandate could not otherwise be said to exhaust any federal claim which a State prisoner could present in a Missouri Rule 27.26 proceeding.

This Court made clear in our earlier memorandum opinion that our denial of petitioner Smith's claim of ineffective assistance of appellate counsel was "not to be considered in any way an adjudication of any federal constitutional claim which petitioner may assert in the pending Rule 27.26 proceeding which pends in the Circuit Court of Greene County, Missouri." 538 F.Supp. at 1025. See also Id., at 1026 n. 9.

The Court of Appeals affirmed this Court's denial of petitioner Smith's claim of ineffective assistance of appellate counsel on December 1, 1982. See Smith v. Wyrick, 693 F.2d 808 (8th Cir.1982). After the Court of Appeals' affirmance of this Court's denial of petitioner's contention that the filing of a motion to recall mandate could be said to fully exhaust all of petitioner's State court postconviction remedies in regard to all alleged federal claims, it was appropriate that proceedings be directed to determine petitioners' contention that this Court should exercise its habeas corpus jurisdiction without any further exhaustion of petitioner's available State postconviction remedies. Specifically, petitioners have reasserted their contention that no further exhaustion is presently necessary for the alleged reason that the Missouri Rule 27.26 proceedings, which both petitioners had filed in the Circuit Court of Greene County, Missouri, had been subject to unreasonable delay and were allegedly being processed in a manner which respectively deprived petitioners of an effective State postconviction remedy.

We noted in our March 3, 1983 memorandum opinion that "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." That memorandum opinion also reflects that "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."

Both the Attorney General's office and the Federal Public Defender's office filed appropriate responses to our December 17, 1982 orders, to which were attached all relevant State court Rule 27.26 records, together with copies of other voluminous filings and correspondence that petitioners had made in the Supreme Court of Missouri and in various other courts. In addition, this Court was furnished copies of the pleadings in a Section 1983 action which petitioners filed in the Southern Division of this Court against two of the judges of the Circuit Court of Greene County, Missouri and several State public defenders, see Smith v. Bacon, 699 F.2d 434 (8th Cir.1983).

This Court's March 3, 1983 memorandum opinion and the orders entered that day directing further proceedings were thus based on our consideration of the responses filed pursuant to our December 17, 1982 orders and our analysis of all the numerous exhibits attached to those responses.

II. Factual Circumstances in regard to Petitioner Smith as of March 3, 1983

In regard to petitioner Smith, we stated in our March 3, 1983 memorandum opinion that "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 further noted, however, that petitioner Smith's first habeas corpus application was denied May 11, 1982 and that, thereafter, the Circuit Court of Greene County, Missouri denied all of petitioner Smith's Missouri Rule 27.26 motions during the month of August, 1982.

We concluded that under the new factual circumstances presented "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." We further noted that "the response filed by the Federal Public Defender on behalf of petitioner Smith properly recognized that petitioner Smith has not exhausted his available State postconviction remedies in regard to any of the claims alleged in his federal habeas petition."

Examination of records before the Court on March 3, 1983 revealed that petitioner Smith had not filed an immediate appeal in regard to the State trial court's denial of his Missouri Rule 27.26 motions. But the records and the responses filed by counsel made it equally clear that the time within which petitioner Smith could, under applicable State postconviction law, file a motion for a late notice of appeal had not expired. The Federal Public Defender therefore advised this Court in his response 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 and that 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 on behalf of petitioner Smith:

The undersigned requests that he be given additional time within which to investigate the facts surrounding Mr. McNabb's failure to appeal the adverse judgments entered by Judge Bacon and Judge Powell in these four 27.26 actions, and to assist the petitioner in preparing and filing in each case by March 16, 1983 (a) a motion to proceed in forma pauperis in the Missouri Court of Appeals, Southern District; (b) a motion for a special order permitting late filings of notices of appeal; and (c) a motion for appointment of appellate counsel. The granting of this request will give the petitioner an opportunity to commence exhausting his remaining available state court remedies, thereby satisfying the exhaustion requirement of 28 U.S.C.A. § 2254(b) and will allow him, if necessary, to seek federal habeas relief from his five state felony convictions at a later time.

The request of the Assistant Federal Public Defender was based on his recognition, based on the experience of the Federal Public Defender's office in earlier cases, that the failure of a State prisoner to fully exhaust his available State court postconviction remedies could, under circumstances of a...