Wilwording v. Swenson, Civ. A. No. 18809-3.

• Decision Date: 12 November 1970
• Docket Number: Civ. A. No. 18809-3.
• Citation: 326 F. Supp. 1145
• Parties: Alan Daniel WILWORDING, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

326 F. Supp. 1145

Alan Daniel WILWORDING, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 18809-3.

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

November 12, 1970.

Alan Daniel Wilwording, pro se.

No response required from respondent.

ORDER GRANTING PETITIONER LEAVE TO PROCEED IN FORMA PAUPERIS AND JUDGMENT DENYING PETITION FOR HABEAS CORPUS

WILLIAM H. BECKER, Chief Judge.

Petitioner, a state convict confined in the Missouri State Penitentiary, petitions for a writ of federal habeas corpus adjudicating as invalid his state conviction of the offense of first degree robbery. Petitioner also requests leave to proceed in forma pauperis. Leave to proceed in forma pauperis will be granted.

Petitioner states that after his plea of not guilty, he was convicted by a jury in the Circuit Court of Greene County of the offense of first degree robbery; that he was sentenced on that conviction on June 25, 1964, to a term of imprisonment for twenty years; that he appealed from the judgment of conviction and imposition of sentence to the Missouri Supreme Court, which affirmed the conviction and sentence (State v. Wilwording, Mo., 394 S.W.2d 383); that he filed a motion under Missouri Criminal Rule 27.26, V.A.M.R., in the state sentencing court, which was overruled on March 11, 1966; that he appealed this overruling to the Missouri Supreme Court, but "withdrew" and dismissed the appeal on October 27, 1966, in order to file a new Rule 27.26 motion; that thereafter petitioner filed a second Rule 27.26 motion in the state sentencing court which was ovveruled on March 18, 1968; that, on appeal from the overruling, the judgment of the trial court was affirmed by the Missouri Supreme Court on March 10, 1969 (Wilwording v. State, Mo., 438 S.W.2d 447); that he subsequently filed a petition for federal habeas corpus in this Court, which was denied on October 6, 1969 (Wilwording v. Swenson (W.D. Mo.) Civil Action No. 17547-3); and that he was represented by counsel at his trial, sentencing and on direct appeal.

Petitioner states the following as grounds for his contention that he is being illegally held:

"Petitioner's imprisonment is illegal and founded upon clearly erroneous state court rulings in contravention with the guarantees embodied in the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as hereinafter shown in supporting facts." (Emphasis petitioner's.)

Petitioner states the following as facts in support of the above grounds:

"* * * In December (26th) 1967, his new motion was filed under 27.26, in which the following issues were raised:

1. The (information) is fatally defective and the findings of the court on prior imprisonment is in error so as to deny movant due process of law in violation of Art. 1, Section 10 of the Missouri Constitution and the Fourteenth Amendment of the United States Constitution.

2. The provisions of section 556.280, Revised Statutes of Missouri, is discriminatory so as to deny movant due process of law and equal protection of the law in violation of Article 1, Section 10 of the Missouri Constitution and the Fourteenth Amendment of the United States Constitution.

3. Petitioner was denied the full amount of peremptory challenges of jurors in his original trial so as to deny him due process of law in violation of the Article 1, Section 10 of the Missouri Constitution and the Fourteenth Amendment of the United States Constitution.

4. Petitioner contends that Section 556.280, Revised Statutes of Missouri, is so vague and indefinate (sic) that he was denied due process of law in violation of the Article 1, Section 10 of the Missouri Constitution and the Fourteenth Amendment to the United States Constitution.

5. The petitioner was compelled to appear before the jury in improper attire, when he was not permitted to have access to his clean, neat clothes on the morning of trial, which clothes were provided by his family specifically for his attirement before the public tribunal prior to the morning of trial, and he was forced by the sheriff's department to dress in old soiled clothes which were provided by the jail for inmates to work in, to appear in such array of discrediting wearing apparell (sic) solely for the purpose of discrediting his character and depriving him of due process of law in violation of the Article 1, Section 10 of the Missouri Constitution and the Fourteenth Amendment of the United States Constitution.

6. The petitioner was denied the effective assistance of counsel during critical stages of the proceedings in his state court trial and appeals, in violation of the Article 1, Section 10 of the Missouri Constitution and the Sixth and Fourteenth Amendments of the United States Constitution.

"The above issues were tendered in the trial court in petitioner's second motion under rule 27.26. They were briefed and submitted to the Supreme Court of Missouri on appeal, and ruled on by the State's highest tribunal, which will fully satisfy the requirements of the Federal exhaustion doctrine.

"As for matters heretofore raised in the direct trial court appeal, they have also been presented to the State trier, and are now res judicata in the State courts in respect of having a proper remedy in a state Court, whereby relief may be obtained. Please note, as above requested, that the matters presented in the direct trial court appeal be considered in this action and in support of the above contention 10(a). 394 S.W.2d 383."

Insofar as the contentions which petitioner raised in his Rule 27.26 motion in the State courts are concerned, relief in federal habeas corpus must be denied because the identical grounds have previously been considered on their merits by this Court and determined to be without merit as denials of federal rights. Wilwording v. Swenson (W.D. Mo.) Civil Action No. 17547-3. In that case, this Court considered the identical contentions. Petitioner makes no allegation of newly-discovered evidence (which, in any instance, must first be presented to the State courts under the rule of White v. Swenson (W.D.Mo. en banc) 261 F.Supp. 42) nor of other exceptional circumstances which would require this Court not to give conclusive weight on these issues to its findings on petitioner's prior petition involving the same issues. In Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L. Ed.2d 148, it was held that a determination in habeas corpus might be of controlling weight on a subsequent application for habeas corpus if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Those three requirements are met in the case at bar with respect to the contentions which petitioner raised in the State courts on his Rule 27.26 motion. All of those contentions do not therefore constitute any basis for relief in federal habeas corpus and the petition at bar must be denied in respect of them.

Petitioner additionally requests that the contentions which he has raised on the direct appeal to the Missouri Supreme Court from his conviction and sentence also be considered by this Court on this petition. Petitioner does not set out the contentions in his petition. Further, they have been withheld by him from prior consideration by this Court on his prior petition. Such a practice violates the policy of this Court against deciding contentions of state prisoners with respect to the invalidity of their state convictions in a piecemeal fashion. See Taggert v. Swenson (W.D.Mo.) 313 F.Supp. 146. It is further to be noted that petitioner did not present the contentions to the State courts on his Rule 27.26 motion. It is conceivable that such might be regarded as the deliberate by-passing of petitioner's state remedies. Taggert v. Swenson, supra. Further, none of the contentions state the denial of any federally protected right of petitioner. As phrased in the official report of the Missouri Supreme Court in State v. Wilwording, Mo., 394 S.W.2d 383 (to which petitioner specifically refers this Court) the additional allegations of petitioner which were made on direct appeal are as follows:

(1) "He was entitled to know in advance of the voir dire and any testimony whether the State was going to proceed on the information charging a prior offense; he says that this might have affected defendant's desire to plead guilty, as well as the voir dire examination and the cross-examination of witnesses." 394 S.W. 2d at 387. It is therefore petitioner's contention that amendment of the information against him to state that he was charged under the Missouri Second Offender Statute, § 556.280 RSMo, denied him due process of law and the equal protection of the laws.

(2) "The court erred in giving Instruction No. 3, the State's only instruction on the merits, which submitted the offense of first degree robbery by means of a dangerous and deadly weapon * *. The first suggestion is that the State had waived the death penalty prior to the voir dire and that it thereby reduced the charge to robbery in the `second degree' * * *. Next, counsel says that this instruction was not consistent with the information. The latter stated that defendant committed the robbery with intent to `deprive Bill Wilkerson, agent, servant and employee of So-Lo Market, Incorporated' of the use of the money. The instruction submitted an intent to deprive the `So-Lo Market, Incorporated * * of the use thereof * * *.' Both the information and the instruction stated that the money stolen was the property of the So-Lo Market; and in both it was stated that Wilkerson was the agent, servant and

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