Tyler v. Swenson, 20090.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 427 F.2d 412
• Docket Number: No. 20090.,20090.
• Parties: Billy Joe TYLER, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.
• Decision Date: 12 June 1970

427 F.2d 412 (1970)

Billy Joe TYLER, Appellant,
v.
Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.

No. 20090.

United States Court of Appeals, Eighth Circuit.

June 12, 1970.

427 F.2d 413

Billy Joe Tyler, pro se.

John C. Danforth, Atty. Gen., Jefferson City, Mo., and Dale L. Rollings, Asst. Atty. Gen., on brief for appellee.

Before MATTHES, LAY and HEANEY, Circuit Judges.

LAY, Circuit Judge.

Appeal is made from the denial of a petition for a writ of habeas corpus under 28 U.S.C.A. § 2254 by the district court. The narrow issue upon appeal is whether the federal district court committed error in accepting the determination and findings of the state court and in otherwise refusing an evidentiary hearing to petitioner.

The facts may be briefly set out. On March 15, 1965, petitioner, contrary to advice of his counsel, pleaded guilty in state court to four separate charges — two of assault with intent to kill, and one each of first degree robbery and carrying a concealed weapon. He was sentenced to 20 years in the Missouri penitentiary. Thereafter, pursuant to Missouri Supreme Court Rule 27.26, V.A.M.R., petitioner filed an application for post-conviction relief alleging that his guilty plea was involuntarily made. As authorized by Rule 27.26, an evidentiary hearing was held before the trial judge who had accepted petitioner's guilty plea.

At the evidentiary hearing petitioner testified that prior to his guilty plea the trial judge, in chambers, discussed with petitioner the alternatives of going to trial and pleading guilty. According to petitioner, the judge made a threat that petitioner would receive a 50-year sentence if found guilty by a jury as compared with a 20-year sentence if he would enter a guilty plea. Petitioner's mother and his attorney, who had represented him when he pled guilty, both testified at the evidentiary hearing and corroborated petitioner's testimony regarding the threat made by the trial judge. The prosecuting attorney, as a witness for the state, verified that the conference between petitioner

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and the trial judge had occurred and that the judge had told petitioner of the 20-year sentence in the event he would plead guilty. However, he could not remember whether or not the judge had said anything about a 50-year sentence.¹

Throughout the hearing the trial judge, by his questioning of the witnesses and by his statements from the bench, interjected his own recollection of the events surrounding petitioner's guilty plea. At one point in the hearing the judge and petitioner's trial counsel, Clement Kieffer, became engaged in a dispute as to whether petitioner had employed another attorney, one who had failed to appear, to defend him on three of the charges. So heated was the controversy as to their respective recollections of the facts, that Kieffer was ultimately held in contempt of court. At another point in the hearing, after testimony by petitioner's mother, as to what occurred in her presence in the judge's chambers, the trial judge made a statement that petitioner's mother in fact had never even been in the court's chambers. In his findings, the trial judge found that the events had not taken place as petitioner and the other witnesses had testified.

After denial in state court of his post-conviction application to withdraw his plea, petitioner appealed to the Supreme Court of Missouri. The Supreme Court of Missouri affirmed the judgment below, holding, in essence: (1) that the finding that the petitioner's plea was not involuntarily made, was not clearly erroneous, (2) that although a judge should not ordinarily participate in plea discussion,² to do so did not result in abuse here, and (3) that it was not error for the trial judge to hear the post-conviction motion, since (a) there was no motion filed by the defendant to disqualify the trial judge, and (b) the judge himself did not actually take the stand and testify as a witness. State v. Tyler, 440 S.W.2d 470 (Mo.1969). The Missouri Supreme Court observed that "the evidence was sufficient to support the finding of the judge that the statement attributed to him was not made. Obviously that was his recollection." 440 S.W.2d at 475. (Emphasis ours.)

The federal district court, relying upon the state trial judge's findings and determination, and the affirmance of those findings by the Missouri Supreme Court, as well as upon its own determination from the evidence, denied the petition without further hearing.

Under 28 U.S.C.A. § 2254(d) as amended (Supp. 1959-1967), the findings of the state court "shall be presumed to be correct" unless there exists some deficiency in the state court hearing. Once a fair hearing has taken place, the burden is placed upon the defendant to show that the findings are not supported by the record. This court has placed great emphasis upon the independent findings of the state trial judge as to factual disputes in post-conviction matters. See Parker v. Erickson, 423 F.2d 1021 (March 1970, 8 Cir.).³ The

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peculiar competence of the trial judge to resolve matters of credibility is of great weight to a reviewing court. Therefore, factual determinations as deduced from the record itself do not serve as a substitute for the findings of a trial judge who conducts the timely examinations and observes the overall manner and demeanor of the witnesses

Assuming the state proceeding was in full compliance with the requirements of 28 U.S.C.A. § 2254(d), then the federal district court's dismissal of the petitioner's claim without an evidentiary hearing was entirely proper. Our review, therefore, is simply one to appraise the fact finding procedure in the state court to determine whether there was a "full, fair and adequate hearing." See...