Tyler v. Swenson, 20564.

• Decision Date: 15 April 1971
• Docket Number: No. 20564.,20564.
• Citation: 440 F.2d 621
• Parties: Melvin Leroy TYLER, Appellant, v. Harold R. SWENSON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

440 F.2d 621 (1971)

Melvin Leroy TYLER, Appellant, v. Harold R. SWENSON, Appellee.

No. 20564.

United States Court of Appeals, Eighth Circuit.

April 2, 1971.

Rehearing Denied April 15, 1971.

Melvin Leroy Tyler, filed briefs pro se.

John C. Danforth, Atty. Gen., Jefferson City, Mo., and Kenneth M. Romines, Jefferson City, Mo., filed briefs for appellee.

Before MATTHES, Chief Judge, Mr. Justice CLARK,^* and BRIGHT, Circuit Judge.

MATTHES, Chief Judge.

Appellant was found guilty by a jury in the Circuit Court of the City of St. Louis of assault with intent to kill, and a sentence of twenty-five years imprisonment was imposed. The judgment of conviction and sentence was affirmed by the Missouri Supreme Court. State v. Tyler, 454 S.W.2d 564 (Mo. 1970).

Appellant's petition for writ of habeas corpus, filed in the United States District Court for the Western District of Missouri was transferred to the Eastern District of Missouri pursuant to 28 U. S.C. § 2241(d).

Appellant sought habeas corpus relief on two grounds: (1) that his pretrial identification by prosecution witnesses, who identified him in court as the assailant, did not comport with constitutional standards, and (2) that he was denied his constitutional right to confrontation and cross-examination of witnesses due to the introduction of hearsay evidence at his trial.

By order of September 14, 1970, the district court dismissed the petition without prejudice on the ground that appellant had not exhausted available state remedies as required by 28 U.S.C. § 2254(b). Certificate of probable cause having been granted by the district court, the case properly is here for review.

Appellant had never sought post-conviction relief in the state courts under Missouri Supreme Court Rule 27.26, V.A.M.R. However, he contends that the district court erred in finding that he had not exhausted state remedies, alleging that the grounds for habeas relief presented to the district court were before the Missouri Supreme Court on the direct appeal of his conviction.

Section 2254(b), Title 28, U.S.C., as amended, provides that available state remedies must be exhausted prior to the granting of federal habeas relief. This requirement is satisfied when "the same evidence and issues already decided by direct review" in the state courts are presented in the federal habeas corpus petition. Brown v. Allen, 344 U.S. 443, 447, 73 S.Ct. 397, 97 L.Ed. 469 (1953). Under these circumstances, it is not necessary for the prisoner to seek collateral post-conviction relief in the state courts. Edwards v. Swenson, 429 F.2d 1291, 1292 (8th Cir. 1970); Buffalo Chief v. South Dakota, 425 F.2d 271, 278 (8th Cir. 1970); Kennedy v. Sigler, 397 F.2d 556, 559 (8th Cir. 1968); Thompson v. Peyton, 406 F.2d 473, 474 (4th Cir. 1968). Indeed, in Missouri, when the merits of an issue have been determined on direct appeal, they will not be reconsidered in a post-conviction attack under Missouri Supreme Court Rule 27.26, V.A.M.R. State v. Durham, 416 S.W.2d 79, 84 (Mo.1967); State v. McMillian, 383 S.W.2d 721, 723 (Mo.1964).

It is clear that a pretrial identification issue, identical to that presented to the district court, was raised in appellant's direct appeal to the Missouri Supreme Court. However, that court did not reach the merits of the contention, because the alleged error had not been properly preserved for review. The identification testimony went to the jury without objection. There had been no pretrial motion going to this matter, nor any request at trial that the court ascertain whether the in-court identification had a source independent of the allegedly tainted pretrial identification. Thus, the state courts have never had the opportunity to pass upon this issue on the merits, and there is no indication that the refusal of the Missouri Supreme Court to reach the substantive aspects of the identification issue would in any way prevent the state courts from adjudicating the merits of appellant's contention in a post-conviction proceeding under Rule 27.26. Moreover, in order to decide this question, it may be necessary that an evidentiary hearing be conducted to develop the facts surrounding the identifications. In Thompson v. Peyton, supra, 406 F.2d at 475, the court held:

"If * * * it is necessary that an evidentiary hearing be held before a definitive ruling can be made on the merits of the issues, they are not considered to have been properly before the state appellate court for decision and, therefore, it is necessary that resort be had to a collateral proceeding for proper development of the claims. In such a case, where the state provides an adequate and available method for bringing the necessary collateral attack on the conviction, * * * state remedies must be pursued and utilized before a federal court will consider the merits of a habeas corpus petition in which the same contentions are raised."

Viewing the matter in this posture, we conclude that state remedies on the pretrial identification issue have not been exhausted. As we held in Barry v. Sigler, 373 F.2d 835, 838 (8th Cir. 1967):

"It is compelling that the `federal system entrusts the states with primary responsibility\' in their own criminal cases. This policy was recently affirmed by Mr. Justice Brennan, when he said:

`* * * Although relief may ultimately be denied, that the state courts should have the first opportunity to decide in the first instance is a course consistent with comity, cf. 28 U.S.C. § 2254, and a full and fair hearing in the state courts would make unnecessary further evidentiary proceedings in the federal courts. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9

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