Wilwording v. Swenson

• Decision Date: 06 October 1969
• Docket Number: Civ. A. No. 17547-3.
• Citation: 331 F. Supp. 1188
• 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

331 F. Supp. 1188

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

Civ. A. No. 17547-3.

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

October 6, 1969.

COPYRIGHT MATERIAL OMITTED

Alan Daniel Wilwording, pro se.

Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

JUDGMENT DENYING PETITION FOR HABEAS CORPUS IN PART WITH PREJUDICE AND IN PART WITHOUT PREJUDICE

WILLIAM H. BECKER, Chief Judge.

Petitioner, a state convict confined in the Missouri State Penitentiary, petitions for a writ of federal habeas corpus to adjudicate the invalidity of his state conviction for first degree robbery and to grant him relief from certain conditions of confinement which he alleges currently to be suffering. Leave to proceed in forma pauperis was previously granted in the show cause order of August 11, 1969.

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 to a term of twenty years' imprisonment; that he appealed from the judgment of conviction and imposition of sentence to the Missouri Supreme Court, which court 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 in the state sentencing court, which was overruled on March 11, 1966; that he appealed this overruling to the Missouri Supreme Court, but "withdrew" 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 overruled on March 18, 1968; that his appeal from that overruling was upheld by the Missouri Supreme Court on March 10, 1969 (Wilwording v. State, Mo., 438 S.W.2d 447); that he was represented by counsel at his arraignment and plea, his trial, his sentencing and appeal and that he was aided by a fellow prisoner in the preparation and submission of this petition.

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

"(a) Petitioner's imprisonment in the Missouri State Penitentiary is illegal an (sic) 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.

"(b) Petitioner's imprisonment in the Missouri State Penitentiary, under his present prevailing conditions of confinement by the respondent, has breached the commitment of judgment and imposed greater punishment than the law and constitution permits, and all because of the unwarranted, unjustified orders confining the petitioner in maximum security, causing loss of privileges and the right of earning extra merited good time, without substantial proof and possibly based on the uncredible (sic) word of another convict without legal collaboration." (Emphasis petitioner's.)

Petitioner states the following as facts which support his contention that his conviction was secured in violation of his federally protected rights:

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

"2. The provisions of Section 556.280, Revised Statutes of Missouri, V. A.M.S. is (sic) discriminatory so as to deny movant due process of law and equal protection of the law in violation of Article I, Section 10 of the Missouri Constitution and the Fourteenth Amendment to the United States Constitution.

"3. Petitioner was denied the full amount (sic) of peremptory challenges of jurors in his original trial so as to deny him due process of law in violation of the Article I, 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 indefinite that he was denied due process of the law in violation of the Article I, 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 the 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 discredited wearing apparell (sic) solely for the purpose of discrediting his character and depriving him of due process of law in violation of the Article I, 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 I, Section 10 of the Missouri Constitution and the Sixth and Fourteenth Amendments of the United States Constitution."

Since petitioner otherwise alleged that he had exhausted his currently available state remedies under Missouri Criminal Rule 27.26, the show cause order of this Court was issued on August 11, 1969. Respondent's response thereto was filed on August 28, 1969. Therein respondent admitted that petitioner had exhausted state remedies in respect to his contentions regarding the validity of his conviction, but denied that petitioner had exhausted his currently available state remedies with regard to his contentions respecting conditions of confinement. Respondent further contended that the Missouri Supreme Court had reliably found the facts at issue on petitioner's Rule 27.26 motion after a hearing and in applying current federal standards. Petitioner, in his traverse filed September 10, 1969, challenges neither the accuracy of the transcripts and records of the state proceedings nor the reliability of the factual findings by the state courts on his Rule 27.26 motion, but contends that such transcripts, records and findings show that he is entitled to relief as a matter of law.

The record conclusively shows that petitioner has exhausted his currently available state remedies with regard to his contentions of the invalidity of his conviction. The precise contentions which are presented in this case were ruled adversely to him by the Missouri Supreme Court after a hearing was held in the state trial court in accordance with the newer version of Rule 27.26 (effective September 1, 1967) on a date following the enunciation of applicable federal standards by the United States Supreme Court in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; and Sanders v. United States, 372 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, and the recognition of the applicability of those standards by the Missouri Supreme Court in State v. Pickel, Mo., 376 S.W.2d 181, and State v. Herron, Mo., 376 S.W.2d 192.

Because of the complete, unchallenged transcripts and the records of the state courts, this Court is not obliged to have a plenary evidentiary hearing on the issues raised in this petition. A hearing "is not required when the habeas court has before it full and uncontested records of the state proceedings which furnish all of the data necessary for a satisfactory determination of the factual issues." United States ex rel. McGrath v. LaVallee (C.A.2) 319 F. 2d 308, 312. Similarly, published decisions of this Court hold that when a plenary evidentiary hearing has been held in the state trial court and that court applied current federal standards and reliably found the facts and such findings are specifically made, the federal district court may defer to the state court's findings of fact. Noble v. Swenson (W.D.Mo.) 285 F.Supp. 385; Goodwin v. Swenson (W.D.Mo.) 287 F.Supp. 166.

Viewed in the light of current federal standards, petitioner's first contention, that the information under which he was tried was "fatally defective" for not correctly listing the place at which he had been confined under a previous sentence, is not meritorious. The Missouri Supreme Court found that the error was inconsequential. The files and records herein show, and the Missouri Supreme Court found, that the information stated that petitioner had been confined in the Intermediate Reformatory when petitioner in reality had been confined in the State Penitentiary. But for the Second Offender Act to apply, it is only necessary that the petitioner be sentenced and subsequently "placed on probation, paroled, fined or imprisoned therefor." Section 556.280, RSMo, V.A.M.S. Further, confinement in the Intermediate Reformatory is tantamount to confinement in the State Penitentiary insofar as it constitutes "imprisonment" within the contemplation of the Second Offender Act. No federally protected right was violated by this inconsequential error. Petitioner states that this error violated his Sixth Amendment right to be informed of the nature and cause of the charge against him. He was given reasonable notice by this information of the prior offense which it alleged. Nothing more is required by federal standards.

Second, petitioner contends that Section 556.280 is unconstitutional and deprives him of his right to due process and equal protection of the laws in that the state's prosecutor enjoys a discretion to prosecute a given second offender under it or not to prosecute. The constitutionality of the statute, however, is well established. Spencer v. Texas, 385 U.S. 554, 87 S.Ct....