Swenson v. Donnell

Decision Date08 August 1967
Docket NumberNo. 18638.,18638.
Citation382 F.2d 248
PartiesHarold R. SWENSON, Warden, Missouri State Penitentiary, Appellant, v. William B. DONNELL, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Howard L. McFadden, Asst. Atty. Gen., Jefferson City, Mo., for appellant; Norman H. Anderson, Atty. Gen., Jefferson City, Mo., was with him on the brief.

P. Pierre Dominique, Jefferson City, Mo., for appellee.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT, MATTHES, BLACKMUN, MEHAFFY, LAY and HEANEY, Circuit Judges, Sitting En Banc.

MATTHES, Circuit Judge.

The crucial question presented in this habeas corpus proceeding is whether Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, (1963), is to be applied retrospectively to the case of William B. Donnell, an indigent Missouri prisoner, whose conviction in 1960 was affirmed by the Supreme Court of that state in November, 1961. State v. Donnell, 351 S.W.2d 775 (Mo.1961). The district court, Judge Oliver, decided the retroactivity issue in favor of Donnell and entered an order which determined that he was entitled to the relief sought in his application for writ of habeas corpus, but which suspended issuance of the writ for a period of ninety days in order to afford the State of Missouri an opportunity to reprocess Donnell's appeal. Donnell v. Swenson, 258 F.Supp. 317, 335-36 (W.D. Mo.1966). Swenson, as warden of the Missouri State Penitentiary, has appealed from that order.

Judge Oliver demonstrated in an exhaustive and fully documented opinion that the rule promulgated in Douglas has been given retrospective application by the Supreme Court and other federal and state courts. Donnell v. Swenson, supra at 329-332. In view of Judge Oliver's full discussion of all the relevant authorities it would be a needless exercise here to survey the law he so thoroughly explored.1

At the outset we observe that no question is presented as to the exhaustion of Donnell's state remedies. He filed a motion to vacate the sentence pursuant to Missouri Rule 27.26. Mo.Sup.Ct. (Crim.) R. 27.26. From the denial of this motion Donnell perfected an appeal through appointed counsel. The Supreme Court of Missouri, after due consideration of all constitutional allegations attacking the validity of the sentence, affirmed. State v. Donnell, 387 S.W.2d 508 (Mo. 1965).

The validity of Donnell's attack upon his conviction turned in the first instance upon the resolution of the paramount question whether the long-standing Missouri practice of disposing of appeals of nonrepresented indigent defendants comported with the constitutional standards enunciated in Douglas. That issue was squarely presented in Bosler v. Swenson, 363 F.2d 154 (8th Cir. 1966), where we held, after full consideration of the Missouri system, that "despite Missouri's forward treatment of indigents under the former practice, * * * that procedure failed to conform to the concept formulated by the Supreme Court in Douglas." 363 F.2d at 157. In deciding Bosler we were not required to, and did not decide, the applicability of the Douglas rule to convictions in Missouri which had become final prior to the decision in Douglas (March 18, 1963). We did demonstrate, however, that Douglas applied to Bosler for the reason that his appeal was pending at the time Douglas was decided. 363 F.2d 157-158.

On application of the State of Missouri the Supreme Court summarily granted certiorari and affirmed per curiam. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (March 13, 1967). The Supreme Court in its opinion rejected without discussion the contention that the Missouri practice, unlike the California appellate review proceedings, afforded an adequate means of fully protecting the rights of indigent defendants.

Although the Supreme Court in Bosler did not intimate that Douglas would be given retroactive effect to pre-Douglas Missouri convictions, that question was, in our view, settled by Hester v. Swenson, 386 U.S. 261, 87 S.Ct. 1039, 18 L.Ed.2d 49 (March 13, 1967) and Deckard v. Warden, Missouri State Penitentiary, 386 U.S. 284, 87 S.Ct. 1041, 18 L.Ed.2d 50 (March 13, 1967), decided contemporaneously with Swenson v. Bosler, supra.2 The convictions of Hester and Deckard, Missouri prisoners, had been affirmed by the Missouri Supreme Court prior to the advent of Douglas. State v. Hester, 331 S.W.2d 535 (Mo. February 8, 1960); State v. Deckard, 354 S.W.2d 886 (Mo. February 12, 1962). Subsequently Hester and Deckard sought habeas corpus relief from the Supreme Court of Missouri on the ground that they had been deprived of the services of counsel on appeal from the judgment of conviction. Following denial of such relief, they applied to the Supreme Court of the United States for certiorari. The Attorney General of Missouri opposed the granting of certiorari on the same premise advanced in Swenson v. Bosler, supra, i. e., that the Missouri appellate process was sufficient to protect the rights of indigent defendants. The Supreme Court, however, in each case summarily granted the petition for writ of certiorari, vacated the judgment, and remanded to the Supreme Court of Missouri for further consideration in light of Swenson v. Bosler, supra; Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); and Tehan v. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966).3

In view of the course charted by the Supreme Court we have no alternative but to retroactively apply the principles of Douglas to the case before us. We are mindful, of course, that our decision may have profound consequences on the orderly processes of criminal law administration. The Attorney General of Missouri has estimated that seventy-five pre-Douglas appeals will require reprocessing.4 The Supreme Court has given due weight to the effect on the administration of justice of a retroactive application of new constitutional standards. See, e. g., Stovall v. Denno, supra, 87 S.Ct. at 1969; Johnson v. State of New Jersey, 384 U.S. 719, 731, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. Shott, supra, 382 U.S. at 418-419, 86 S. Ct. 459; Linkletter v. Walker, 381 U.S. 618, 637-638, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Although this circumstance deserves careful consideration, the Supreme Court manifestly viewed the deprivation of the constitutional right to counsel on appeal as paramount to the difficulties inherent in reprocessing appeals of convictions.

The order appealed from is affirmed.

FLOYD R. GIBSON, Circuit Judge, did not participate in the disposition of this appeal.

To continue reading

Request your trial
34 cases
  • Peterson v. State of Missouri
    • United States
    • U.S. District Court — Western District of Missouri
    • 26 Febrero 1973
    ...his right to the appointment of appellate counsel. Douglas, supra and Bosler, supra have been held to be retroactive. See Swenson v. Donnell (C.A.8) 382 F.2d 248 (1967). In Caffey v. Swenson (W.D.Mo.) 298 F.Supp. 994 (1969), the trial court had refused to appoint counsel on appeal for the d......
  • Christensen Hatch Farms, Inc. v. Peavey Co.
    • United States
    • U.S. District Court — District of Minnesota
    • 13 Enero 1981
    ...v. Currier, 291 F.Supp. 810, 813 (D.Minn.1968); Donnell v. Swenson, 258 F.Supp. 317, 318 (D.Mo.1966), aff'd on other grounds, 382 F.2d 248 (8th Cir. 1967); see Timmreck v. United States, 577 F.2d 372, 374 n.6 (6th Cir. 1978), rev'd on other grounds 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 63......
  • State v. Ussery
    • United States
    • United States State Supreme Court of Missouri
    • 13 Abril 1970
    ...affirming the judgment of conviction, in accordance with the decisions in Bosler v. Swenson, 8 Cir., 363 F.2d 154, and Swenson v. Donnell, 8 Cir., 382 F.2d 248, reinstated the cause on the docket of this court, ordered the circuit court to appoint counsel to represent defendant on the appea......
  • Garton v. Swenson
    • United States
    • U.S. District Court — Western District of Missouri
    • 25 Junio 1976
    ...on the merits.24 When this Court was required in 1966 in Donnell v. Swenson (W.D.Mo.1966), 258 F.Supp. 317, affirmed (8th Cir. 1967), 382 F.2d 248, to determine whether the principles relating to the assistance of counsel on appeal enunciated in Douglas v. California, 372 U.S. 353, 83 S.Ct.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT