Taggert v. Swenson, Civ. A. No. 18300-3.
| Decision Date | 20 April 1970 |
| Docket Number | Civ. A. No. 18300-3. |
| Citation | 313 F. Supp. 146 |
| Parties | Michael J. TAGGERT, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Michael J. Taggert, pro se.
ORDER GRANTING PETITIONER LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION FOR HABEAS CORPUS WITHOUT PREJUDICE
In his prior petition for habeas corpus in this Court, petitioner, a state convict confined in the Missouri State Penitentiary, sought the invalidation of his state conviction for rape on the grounds that it was secured in violation of his federally protected rights. That petition was dismissed without prejudice on March 25, 1970, because petitioner had not exhausted his state remedies with respect to one of the contentions which he had raised in his petition in this Court. See Taggert v. Ciccone (W. D.Mo.) Civil Action No. 18191-3. Petitioner has now submitted a motion to withdraw that ground from his petition so that the petition might be reinstated in this Court for determination on the merits. Since the motion to withdraw is in substance a successive petition for habeas corpus, it will be treated as such. To save time and unproductive effort, petitioner will be granted leave to file the petition in forma pauperis.
Petitioner now seeks to assert only the grounds in this Court which he raised in the courts of Missouri. Accordingly, he now seeks to omit the allegation of his prior petition in Civil Action No. 18191-3 that "petitioner was denied and deprived of the right to be advised of the nature and cause of the accusation against him, contrary to the Sixth and Fourteenth Amendments to the Constitution of the United States, because the criminal charge and complaint on which he was tried is ambigous (sic), vague and indefinate (sic), failing to properly apprise the defendant of a crime under Missouri law." This, however, as pointed out in the order dismissing petitioner's prior petition, is a ground cognizable in postconviction proceedings collaterally attacking a conviction. If the contention is supported by a preponderance of the evidence in a Rule 27.26, V.A.M.R. hearing in the state trial court, the contention may result in the annulling and vacating of the judgment of conviction in the state court. Therefore, failure to consider this contention with petitioner's other grounds for invalidating his state conviction would frustrate the purpose of avoiding piecemeal adjudication of claims, which provided the basis of the dismissal of petitioner's prior petition in Civil Action No. 18191-3. Further, it is to pet...
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