Weeks v. Scurr, 80-1138-CV-W-3-9.

• Court: U.S. District Court — Western District of Missouri
• Writing for the Court: George Cox, Asst. Atty. Gen., Jefferson City, Mo., for defendants
• Citation: Weeks v. Scurr, 608 F.Supp. 884 (W.D. Mo. 1985)
• Decision Date: 01 April 1985
• Docket Number: No. 80-1138-CV-W-3-9.,80-1138-CV-W-3-9.
• Parties: Earl WEEKS, Petitioner, v. David SCURR, Warden, Iowa State Penitentiary, and Attorney General of the State of Missouri, Defendants.

608 F. Supp. 884

Earl WEEKS, Petitioner, v. David SCURR, Warden, Iowa State Penitentiary, and Attorney General of the State of Missouri, Defendants.

No. 80-1138-CV-W-3-9.

United States District Court, W.D. Missouri, W.D.

April 1, 1985.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James R. Cox, Springfield, Mo., for petitioner.

George Cox, Asst. Atty. Gen., Jefferson City, Mo., for defendants.

ORDER DENYING PETITIONER'S REQUEST FOR HABEAS CORPUS RELIEF

BARTLETT, District Judge.

Petitioner has filed a habeas corpus petition under 28 U.S.C. § 2254 challenging his conviction of first degree murder.

Proceedings in State Court

On February 6, 1975, petitioner, Earl Weeks, was charged with first degree murder for the slaying of 81 year old Lena Cukerbaum, a rural storekeeper, during the course of a robbery. On March 21, 1975, a hearing was held on defendant's motion to dismiss or, in the alternative, for a protective order for the alleged harassment of defense witnesses. The Court denied defendant's motion to dismiss, but granted his request for a protective order. On April 5, 1975, a jury found defendant guilty of first degree murder, and defendant was sentenced to life imprisonment. Pursuant to Rule 27.20(a), Missouri Rules of Civil Procedure, the trial court granted defendant thirty days beyond the ten days allowed by the rule to file his motion for new trial. Defendant's motion for new trial was filed May 16, 1975, forty-one days after the verdict.

On May 23, 1975, an evidentiary hearing was held on defendant's first motion for new trial at which testimony in support of defendant's motion was presented and affidavits were filed. The trial court denied defendant's motion for a new trial and sentenced defendant to life imprisonment.

On February 1, 1977, the Missouri Court of Appeals affirmed the defendant's conviction because defendant's late motion for new trial did not preserve the claimed errors for review. State v. Weeks, 546 S.W.2d 567, 570 (Mo.App.1977). On May 17, 1977, defendant filed a motion pursuant to Rule 27.26, Missouri Rules of Civil Procedure, seeking post-conviction relief. On July 3, 1978, the trial court vacated the judgment and sentence and granted defendant leave to file a motion for new trial.¹

On July 6, 1978, defendant filed his second motion for new trial. Evidentiary hearings and legal arguments on defendant's second motion for new trial were held July 6, 1978, July 7, 1978, July 26, 1978, August 4, 1978, September 20, 1978, and September 29, 1978. On September 29, 1978, the trial court denied the motion for new trial, granted allocution, entered judgment, and again sentenced defendant to life imprisonment. Defendant filed his second notice of appeal on October 3, 1978. On June 18, 1980, the Missouri Court of Appeals affirmed defendant's conviction and sentence. State v. Weeks, 603 S.W.2d 657 (Mo.App.1980). Defendant's motions for rehearing or for transfer to the Missouri Supreme Court were denied. Id.

Proceedings in Federal Court

Petitioner filed his pro se petition for a writ of habeas corpus in the United States District Court for the Southern District of Iowa on November 25, 1980. Thirty-three grounds for habeas corpus relief were asserted. On December 30, 1980, the case was transferred to this district because petitioner sought relief from a Missouri conviction. On May 24, 1982, the Court appointed Jim Cox to represent petitioner.

On March 9, 1983, this Court ruled that plaintiff had failed to exhaust the available state remedies for those claims designated in petitioner's petition as "Section B claims." The Order directed petitioner to brief his argument that petitioner's Section B claims were so closely intertwined with his Section A claims that they could not be considered separately. On May 11, 1983, petitioner filed a motion to reconsider the exhaustion issue.

In response to petitioner's request to reconsider the exhaustion issue, petitioner was directed on June 13, 1983, to file a list of all claims that he contended entitled him to relief. Petitioner was advised that the claims listed would be the only claims considered in this proceeding. In addition, the Court directed petitioner to file a statement for each claim showing the factual basis for petitioner's argument that available state remedies had been exhausted.

In response to the June 13, 1983, Order, petitioner filed his Statement of Claims and his Statement of Facts. In his Statement of Claims, petitioner asserted the following Section A claims:

1. Due to ineffective assistance of counsel and conflict of interest, petitioner was denied his right to call and confront co-conspirator Parcel.

2. Petitioner was denied effective assistance of counsel in that counsel failed to properly investigate and thus failed to discover the existence of Witness Pearson; did not interview said witness; failed to move to obtain the exclusion of his testimony; failed to properly object to the introduction of his testimony and to argument thereon by prosecution.

3. Petitioner was denied effective assistance of counsel and his right to confrontation, due process and a fair trial when counsel failed to properly object or otherwise protect petitioner from the threats, harassment and intimidation by the state which deprived petitioner of certain witnesses at trial (e.g. Rose, Snyder, Berton Dewitt, Murial Cozad, and Anson Weeks), and adversely affected the demeanor of all defense witnesses who testified.

4. Petitioner was denied effective assistance of counsel, due process and a fair trial in that counsel failed to properly investigate and thus failed to discover the existence of State's Exhibits 19, 19(a), 19(b), and 19(c), and failed to investigate, discover or interview six witnesses who testified concerning footprints in the snow which were never linked to the crime or the petitioner; failed to move to obtain the exclusion of this testimony and these exhibits; failed to properly object to the introduction of this testimony and these exhibits and to argument thereon by prosecution.

5. Petitioner was convicted upon insufficient evidence due to a denial of his right to effective assistance of counsel, due process and equal protection.

In addition, petitioner's Statement of Claims listed ten Section B claims.

On October 31, 1983, after reconsidering the March 9, 1983, ruling on the exhaustion issue, the Court declined to alter its previous ruling that the Section A claims asserted by petitioner were exhausted and that the Section B claims were not exhausted. On November 8, 1983, petitioner filed a motion requesting leave to amend his petition to delete the Section B claims. On November 22, 1983, leave was granted to amend the complaint by dismissing his Section B claims. Therefore, the only claims properly before the Court are petitioner's Section A claims.

Exhaustion of Section A Claims

Subsections (b) and (c) of 28 U.S.C. § 2254 provide as follows:

(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective processes or the existence of circumstances rendering such processes ineffective to protect the rights of the prisoner.

(c) An application shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

In order to exhaust available state remedies, petitioner must fairly present to state courts the substance of his grounds for habeas relief so that the state courts will have a fair opportunity to rule on them before they are presented to this court. Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 512-14, 30 L.Ed.2d 438 (1971).

Section 2254 does not address the problem of a petition for habeas corpus which presents both exhausted and unexhausted grounds. In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court instructed district courts not to consider "mixed petitions" containing both exhausted and unexhausted claims. Petitioner should be given the option of either returning to state court to exhaust all of his claims before presenting any of them to federal court, or proceeding in federal court with the exhausted claims after severing the unexhausted ones.

With the benefit of the parties' briefs on the merits and after an exhaustive review of the record, it is now apparent that petitioner has asserted several independent grounds for relief in each Section A claim.² Some of these grounds for relief have never been raised in state court.

Due to the length of time that this case has been pending, the time spent reviewing the lengthy state court record, and the desirability of ruling on the claims which petitioner has exhausted in order to simplify later proceedings, the unexhausted grounds included in the Section A claims will be dismissed without prejudice, and the exhausted grounds included in the Section A claims will be ruled.

Evidentiary Hearing

Petitioner has repeatedly requested an evidentiary hearing. On November 23, 1983, the Court ordered the parties to designate the specific factual issues on which evidence would be submitted. On December 7, 1983, respondent stated that an evidentiary hearing was not warranted. Petitioner set forth the factual issues on which petitioner intended to submit evidence.

On January 4, 1984, the Court tentatively concluded that an evidentiary hearing was not necessary or desirable. The Court directed the parties to complete the briefing of the exhausted claims. In their final briefing on the merits, the parties have addressed again the question of whether an evidentiary hearing is necessary. Because the analysis of...