Wilwording v. Swenson, 74-1071

• Decision Date: 01 October 1974
• Docket Number: No. 74-1071,74-1071
• Parties: Alan Daniel WILWORDING, Appellant, v. Harold R. SWENSON, Warden, Missouri Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 844

502 F.2d 844

Alan Daniel WILWORDING, Appellant, v. Harold R. SWENSON, Warden, Missouri Penitentiary, Appellee.

No. 74-1071.

United States Court of Appeals, Eighth Circuit.

Submitted June 14, 1974.

Decided Sept. 10, 1974, Rehearing and Rehearing En Banc

Denied Oct. 1, 1974.

Ronald M. Sokol, Public Defender, St. Joseph, Mo., of counsel; Ronald M. Sokol, Kansas City, Mo., and Robert Plotkin, NLADA, Washington, D.C., on brief, for appellant.

David Robards, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before LAY, ROSS and STEPHENSON, Circuit Judges.

LAY, Circuit Judge.

Petitioner Wilwording has spent five unsuccessful years seeking an evidentiary hearing on his claim of unconstitutional disciplinary measures in the Missouri State Penitentiary. In 1969, he filed a 1983 civil rights action in the United States District Court for the Western District of Missouri and a petition for a writ of habeas corpus in the Circuit Court of Cole County, Missouri. The habeas petition was denied. The Supreme Court of Missouri affirmed the denial of the writ in December, 1969. Petitioner then filed the federal habeas petition involved in this appeal. The United States District Court dismissed the habeas petition on the ground that Wilwording had failed to exhaust a number of extraordinary writs theoretically available in Missouri in addition to the state habeas claim. This court affirmed on that ground, Wilwording v. Swenson, 439 F.2d 1331 (8th Cir. 1971). The Supreme Court of the United States summarily reversed, holding that Wilwording had adequately fulfilled the exhaustion requirement.

The exhaustion-of-state-remedies rule should not be stretched to the absurdity of requiring the exhaustion of . . . separate remedies when at the outset a petitioner cannot intelligently select the proper way, and in conclusion he may find only that none of the (alternatives) is appropriate or effective.

Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971).

The Court alternatively held that the petition might be viewed as arising under 1983, in which event there was no exhaustion requirement. Id. at 251, 92 S.Ct. 407. ¹ The Court remanded with directions, inter alia, to determine the effect on the habeas claim of Wilwording's separate civil rights suit, which had meanwhile been consolidated with those of several other Missouri prisoners. In those consolidated cases, at a pretrial conference of which no transcript has been prepared, ² the decision was made to drop most claims other than the Eighth Amendment claims which were the common question. Judge Elmo Hunter of the Western District of Missouri dismissed with prejudice the non-Eighth Amendment questions and tried the remaining claims on the merits. ³ On June 28, 1971, Judge Hunter, in an exhaustive opinion, denied relief to Wilwording and all other petitioners. The prisoners were denied a certificate of good faith to appeal by both the district court and this court. The Supreme Court denied certiorari, Beishir v. Swenson, 407 U.S. 922, 92 S.Ct. 2467, 32 L.Ed.2d 807 (1972).

Thereafter, Wilwording continued to prosecute his habeas claim. On January 18, 1972, after remand from the Supreme Court, this court sent the habeas case back to the district court. Counsel was appointed on May 11, 1972, and all pleadings were completed shortly thereafter. Pretrial briefs were ordered in January, 1973, and were filed by June of that year. On December 3, 1973, the district court, without evidentiary hearing, filed a detailed 52-page opinion denying petitioner relief on three alternative grounds: (1) that Wilwording's habeas petition should be viewed as a 1983 action, so that res judicata would bar relitigation of issues tried in the civil rights suit; (2) that even if the habeas petition was viewed outside of a 1983 claim, the dismissal in the civil rights suit should be given 'controlling weight;' and (3) that any claims not adjudicated in the civil rights suit had not been stated in the original habeas petition and hence could not now be introduced without returning to the state courts to exhaust remedies there.

A. Nature of the Claim-- Habeas or 1983?

Although the Supreme Court did state alternatively that Wilwording might be 'entitled' to have his claims viewed as 1983 questions, we find that ruling should not be invoked against him to deny relief here. On this second appeal, Wilwording has abandoned his cruel and unusual punishment claims. He urges that his petition must be treated as one seeking only habeas corpus relief (the petition has at all times been so entitled) since the surviving claims relate to denial of due process in disciplinary proceedings resulting in a false prison record and loss of good time. ⁴

In his pro se complaint Wilwording generally alleged a denial of substantive and procedural due process in the prison disciplinary action. He alleged:

that the petitioner's institutional record has been greatly tainted by the respondents false and unjust reports with absolutely no valid evidence to support such charges. That the petitioner must be granted proper judicial review by this Honorable Court regarding these false charges, to clear his record of any wrong doing for further parole consideration.

Although inarticulately expressed, this sufficiently alleges that petitioner's prison record contains false charges and affects his parole consideration. He claims 'illegal detention,' in that his imprisonment may be lengthened by arbitrary government action taken without evidence. These allegations also raise the problem of loss of good time. Such issues are clearly cognizable in habeas corpus under Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). ⁵

Treating Wilwording's petition as a petition for a writ of habeas corpus subjects it to the requirement in 28 U.S.C. 2254 of exhaustion of state remedies. However, the claims surviving were, as discussed above, adequately raised in the initial petition considered by the Supreme Court. The Supreme Court determined that Wilwording's state habeas claim had fulfilled the exhaustion requirement by giving the state 'an initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.' Wilwording v. Swenson, supra, 404 U.S. at 250, 92 S.Ct. at 409. Thus the law of this case is that the exhaustion requirement is satisfied.

B. Finality in Criminal Proceedings: Res Judicata, Collateral Estoppel, and Controlling Weight

Viewing the petition as seeking a writ of habeas corpus, traditional notions of res judicata become inapplicable. As the Supreme Court recognized in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963):

Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged . . .. The inapplicability of res judicata to habeas, then, is inherent in the very role and function of the writ.

Id. at 8, 83 S.Ct. at 1073.

Accord, Preiser v. Rodriguez, supra, 411 U.S. at 497, 93 S.Ct. 1827; Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Townsend v. Sain, 372 U.S. 293, 312-318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Vestal, Res Judicata/Preclusion 270 (1969).

Nor does it appear that the petitioner's voluntary dismissal of these claims from the civil rights suit would bar a hearing on them now under the usual principles of collateral estoppel. It has long been recognized that dismissal at plaintiff's request, even if it is with prejudice, is insufficient to invoke the bar of collateral estoppel. That doctrine precludes a new hearing only on 'issues actually litigated and determined in the prior suit.' Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122 (1955).

As the district court recognized, however, the principle that the judicial interest in finality is greatly attenuated in challenges to custody of the person does not mean it is absent altogether. The district court thus held that if neither res judicata nor collateral estoppel barred Wilwording's claim, nevertheless the prior dismissal with prejudice should be accorded 'controlling weight.' In Sanders v. United States, supra, the Supreme Court set out criteria for determining when controlling weight may be given to denial of a prior application for federal collateral relief. The Court held that prior determination would bar a rehearing only if all three of the following conditions were met:

(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.

Id. 373 U.S. at 15, 83 S.Ct. at 1077.

Dismissal with prejudice might be an adverse determination within the meaning of the first Sanders criterion, but it will not satisfy the second. The requirement of a decision 'on the merits' in this context means that an evidentiary hearing was held on the contested issues of fact, unless it could be said that the files and records conclusively resolved the issue. Id. at 16, 83 S.Ct. 1068; Raiford v. United States, 483 F.2d 445, 446 (9th Cir. 1973); Cancino v. Craven, 467 F.2d 1243, 1246 (9th Cir. 1972); Oliver v. United States, 398 F.2d 353, 355 n. 5 (9th Cir. 1968). In the instant case, the surviving claims were dismissed before trial, so there was no evidentiary hearing, and those claims rest on contested issues of fact which were not resolved. Thus, the second Sanders criterion is unsatisfied, so it was error to attribute controlling weight to the dismissal in the civil rights suit. We conclude that the Sanders criteria have not been satisfied and that the judgment in Wilwording's prior civil rights suit cannot properly be accorded 'controlling weight' in the present habeas proceeding.

C. Voluntary Dismissal...