WHEADON v. Higgins, 91-1189C(8).
| Decision Date | 02 September 1993 |
| Docket Number | No. 91-1189C(8).,91-1189C(8). |
| Citation | 835 F. Supp. 1107 |
| Parties | Robert WHEADON, Petitioner, v. Gerald HIGGINS, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
Robert Wheadon, petitioner, pro se.
David Hansen, Millie E. Aulbur, Asst. Atty. Gen., Jefferson City, MO, for respondent.
This matter is before the Court on the report and recommendation of the United States Magistrate Judge and petitioner's objections thereto. Pursuant to 28 U.S.C. section 636(b)(1), the Court gives de novo consideration to those portions of the report and recommendation to which timely and specific objections are made. The magistrate judge recommends the denial of relief as to Grounds I through IV of the petition and the denial of petitioner's motions for summary judgment, and retains Ground V under consideration.
The Court's most generous construction of petitioner's objections is that they are chiefly devoted to discussion of his claims regarding ineffective assistance of counsel and his sentencing as a prior offender, and to personal criticisms of the magistrate judge. The latter, which are unsupported and entirely ineffectual, will be disregarded. As to the ineffective assistance claim, the Court concludes that petitioner's comments do not undermine the magistrate judge's analysis and rejection of that claim based on procedural default.
Concerning the prior offender issue, the Court is not persuaded that petitioner's motions for summary judgment should be granted merely because respondent proved unable to comply with the magistrate judge's order to file a copy of the "transcript" from petitioner's 1974 conviction. The magistrate judge himself ultimately concluded both that respondent acted in good faith but failed to locate such a transcript and that the transcript was not necessary to his consideration of Ground IV.
Finally, petitioner argues that the magistrate judge erred in concluding that his sentence as a prior offender under section 558.016 R.S.Mo. was not unconstitutional. Petitioner argues that he "was never plead, convicted or sentenced as a prior offender." To the contrary, respondent's exhibits include a substitute information charging petitioner as a prior offender and the sentence and judgment of the trial court which states that petitioner had been found to be a prior offender.
For the foregoing reasons,
IT IS HEREBY ORDERED that petitioner's objections to the magistrate judge's report and recommendation are overruled and the report and recommendation is accepted and adopted.
IT IS FURTHER ORDERED that petitioner's December 17, 1992, April 28, 1993 and May 10, 1993 motions for summary judgment are denied.
IT IS FURTHER ORDERED that the matter is recommitted to the magistrate judge for his continued consideration of Ground V of the petition, per his report and recommendation.
This matter is before the court on petitioner Robert Wheadon's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently pending is petitioner's Motion for Summary Judgment. The case was referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b).
Petitioner is presently incarcerated at the Central Missouri Correctional Center in Jefferson City, Missouri, pursuant to the judgment and sentence of the Circuit Court of the City of St. Louis, Missouri. Petitioner was convicted, after a plea of not guilty and a trial by jury, of two counts of assault in the first degree. He was sentenced to imprisonment for twelve years on each count to run concurrently. On appeal, the Missouri Court of Appeals, Eastern Division, affirmed the conviction. State v. Wheadon, 779 S.W.2d 708 (Mo.App.1989). Petitioner filed a Rule 29.15 motion for post-conviction relief which was dismissed as untimely filed.
On June 6, 1991, the petitioner filed a petition for writ of habeas corpus alleging:
Petitioner previously filed and litigated a petition for habeas corpus in which he raised the same three grounds. United States District Court Judge Stephen N. Limbaugh adopted and incorporated United States Magistrate Judge Frederick R. Buckles' Report and Recommendation, denying the petition without prejudice for failure to exhaust state remedies.
Petitioner then returned to the state courts and filed a petition for writ of habeas corpus pursuant to Supreme Court Rule 91. On May 16, 1991, the Cole County Circuit Court denied the writ for failure to state grounds upon which relief can be granted. On June 6, 1991, petitioner again filed a petition in federal court.
On August 5, 1991, respondent filed a Response to Order to Show Cause Why a Writ of Habeas Corpus Should not be Granted, claiming that petitioner had failed to exhaust all of his grounds in state court. Specifically, respondent asserted that because petitioner presented a ground challenging his direct appeal counsel, he should have filed a motion to recall the mandate. Therefore, respondent contended that the petition should be dismissed as containing both exhausted and unexhausted claims.
Mr. Wheadon filed an amended petition on February 21, 1992, incorporating the three grounds in his original petition and adding two new claims:
Respondent filed a response to show cause order on June 1, 1992, asserting that because petitioner failed to raise his claim that he was erroneously sentenced as a prior offender in state court, he is procedurally barred from habeas relief. Respondent further claimed that petitioner's claim regarding the calculation of jail time is not cognizable in a federal habeas corpus proceeding. In addition, respondent contended that the original three grounds which petitioner incorporated in his amended petition had not been exhausted. Therefore, respondent concluded that the amended petition should be dismissed for failure to exhaust state remedies.
On June 8, 1992, petitioner filed a traverse in response to respondent's response to show cause order. Mr. Wheadon maintained that he had, in fact, exhausted all of his state remedies. Specifically, he stated that he filed a motion to correct sentencing error on October 29, 1991, which was denied; filed an amended motion to correct sentencing error on January 17, 1992, which was denied; and filed a petition for writ of mandamus in the Missouri Court of Appeals seeking an order to compel the trial court to respond to petitioner's prior motions on January 29, 1992, which was also denied.
Petitioner further asserted that regarding his claim of miscalculated jail time, he wrote a letter to the trial judge on May 11, 1990; filed a motion requesting an order for jail time credit on February 26, 1991; filed a petition for writ of mandamus on July 9, 1991, which was denied on July 12, 1991; and filed a federal habeas corpus petition on August 21, 1991, which he moved to the Eighth Circuit Court of Appeals on September 23, 1991. He claimed that the state courts had ample opportunity to correct the error and failed to do so. Therefore, he maintained that the ground of miscalculated jail credit time was properly included in his amended petition.
On December 11, 1992, respondent filed a supplemental response stating that he was unable to obtain a transcript of petitioner's prior 1974 conviction which this court had ordered to be produced on several occasions. Respondent claimed, however, that the transcript was irrelevant because petitioner was sentenced as a prior offender under Mo.Rev. Stat. § 558.016 (1986), which only required a prior conviction not proof of prior incarceration. In addition, respondent asserted that the claim concerning his sentencing was never presented in the state court and therefore he is procedurally barred from raising it in federal court.
On December 17, 1992, Mr. Wheadon filed a Request for Summary Judgment Against Respondent for Failure to Produce Court Ordered Transcript(s). In that request, petitioner maintained that because respondent failed to produce the relevant transcript(s), he is entitled to judgment as a matter of law. On February 16, 1993, the undersigned issued an order stating that petitioner's motion for summary judgment on the basis that respondent failed to produce a transcript of petitioner's 1974 conviction would be addressed in a subsequent Report and Recommendation (which is this one).
With regard to grounds I, II, and III, which constitute petitioner's original petition, respondent claims that petitioner has failed to exhaust all of the available state remedies. Respondent maintains that petitioner's third ground pertains to ineffective assistance of appellate counsel, and therefore a motion to recall the mandate is the appropriate state remedy. See Simpson v. Camper, 927 F.2d 392, 393 (8th Cir.1991) (); see also Williams v. Wyrick, 763 F.2d 363, 365 (8th Cir.1985). As a result, respondent asserts that all of the grounds raised in the petition should be dismissed for failure to exhaust state remedies because petitioner has not filed a motion to recall the mandate.
In his original petition, petitioner's third ground states that his trial and appellate counsel (who was the same for both) was ineffective because he:
failed...
To continue reading
Request your trial