Tyler v. Swenson, 73-1173.
| Decision Date | 15 August 1973 |
| Docket Number | No. 73-1173.,73-1173. |
| Citation | 483 F.2d 611 |
| Parties | Melvin Leroy TYLER, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Mark T. Keaney, St. Louis, Mo., for appellant.
John C. Danforth, Atty. Gen., and Preston Dean, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
Before CLARK,* Associate Justice, Retired, and HEANEY and BRIGHT, Circuit Judges.
Melvin Leroy Tyler, an inmate of the Missouri State Penitentiary, appeals from the dismissal of his habeas corpus petition by the United States District Court for the Eastern District of Missouri.
On January 18, 1965, Tyler was convicted on guilty pleas to four charges of armed robbery in the Circuit Court for the City of St. Louis, Missouri. He was sentenced on each charge to eight years imprisonment, the terms to run concurrently. Tyler was represented by appointed counsel in these proceedings. While the sentence imposed on him for these convictions has expired, he is currently serving a sentence for an unrelated crime, the punishment for which was enhanced under a habitual criminal statute by the convictions at issue here.
On November 3, 1969, Tyler instituted appropriate post-conviction proceedings pursuant to Missouri Supreme Court Rule 27.26 to vacate or set aside his convictions and sentences arising from the guilty pleas. He contended: (1) that the pleas of guilty were not voluntarily or understandingly made and were not made in compliance with Rule 25.04 of the Missouri Rules of Criminal Procedure, V.A.M.R.; and (2) that he was denied effective assistance of counsel. The state post-conviction hearing court held that the pleas were voluntarily and understandingly made even though not in compliance with Rule 25.04. It also held that Tyler was not denied effective assistance of counsel. The court did, however, set aside the judgment of conviction with respect to one of the four robbery charges.1 The First Division of the Missouri Supreme Court affirmed the post-conviction court's decision and thereafter, the court denied motions for rehearing and to proceed en banc. Tyler v. State, 485 S.W.2d 102 (Mo.1972).
On October 18, 1972, Tyler filed a petition for a writ of habeas corpus in the United States District Court. He again claimed that he was denied effective assistance of counsel and that his plea of guilty was neither voluntarily nor understandingly made. He also contended that the post-conviction court had set aside the wrong sentence and that there was no basis in the record for the setting aside such sentence. It is unclear from the record as to whether this claim was no basis in the record for set-aside such sentence. It is unclear from the record as to whether this claim We interpret the claim, as finally formulated, to serve both purposes; and with respect to its independent aspect, it would seem that the appellant was asking the District Court to set aside the proper conviction with the result that he would be relieved of both convictions. It is conceded that Tyler had exhausted his state remedies in regard to the first two grounds, but the District Court denied the petition as to all claims on the ground that Tyler had not exhausted his state remedies with respect to the claim that the state court had set aside the wrong sentence. Thereafter, Tyler filed a motion to reinstate his petition with the unexhausted claim deleted and, in the alternative, he sought a certificate of probable cause for an appeal to this Court. The District Court denied both these motions, and Tyler then appealed to this Court for a certificate of probable cause. This was granted on March 15, 1973.
Tyler makes three contentions on this appeal. First, he argues that his claim that the post-conviction hearing court set aside the wrong sentence did not constitute a new issue as to which state remedies had not been exhausted. Second, he contends that even if his claim that the post-conviction hearing court set aside the wrong sentence constitutes a new issue, his state remedies are nevertheless exhausted because, as a practical matter, he cannot present this issue to the Missouri courts. Third, Tyler contends that regardless of whether he has exhausted state remedies as to the claim that the post-conviction court set aside the wrong sentence, the District Court is required to consider his other claims for which state remedies have been exhausted. We discuss these contentions seriatim.
There is no merit to the appellant's first contention. At no time in the state proceedings did the appellant contend that the post-conviction court had set aside the wrong conviction. That claim goes to the propriety of the post-conviction court's finding of facts. The appellant's other claims — that his pleas of guilty were not voluntarily or knowingly made, and that he was denied effective assistance of counsel — arose out of events which took place or failed to take place in the earlier state proceeding where the appellant pled guilty. The appellant has exhausted his state remedies as to these two claims. In reviewing those claims, however, it was not necessary for the Missouri Supreme Court to examine whether the post-conviction court had set aside the correct conviction; furthermore, the court was not requested to do so by the appellant. The sole import of the appellant's contention in the state courts, that he was innocent of one of the charges that he was convicted of, was to demonstrate that he had been denied effective assistance of counsel and that his pleas were neither voluntarily nor knowingly made. It was irrelevant for that purpose as to which of the four charges the appellant was indeed not guilty of. In summary, it is clear that the appellant's unexhausted claim is distinct from his exhausted claims; and consistent with the doctrine of comity, the state courts should be given the first opportunity to determine if the post-conviction court set aside the wrong conviction.
The appellant's second contention is also without merit. He argues that because he could have raised the claim that the post-conviction hearing court set aside the wrong sentence in his appeal to the Missouri Supreme Court but failed to do so, he is now precluded from raising the issue in the state courts. The Missouri Attorney General submits that the appellant can present this claim in the Missouri courts either by declaratory...
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...unrelated exhausted claim stated as ground B(2), will both be hereinafter reviewed and considered on the merits. See, Tyler v. Swenson, 483 F.2d 611, 614 (8th Cir. 1973); Irby v. State of Missouri, 502 F.2d 1096, at page 1099 (8th Cir. 1974). In ground A, petitioner contends that the eviden......
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