Mountjoy v. Swenson (306 F. Supp. 379, 1969)

ORDER DENYING PETITION FOR HABEAS CORPUS WITHOUT PREJUDICE

BECKER, Chief Judge.

Petitioner, a state convict serving a sentence of 15 years for first degree robbery in the Missouri State Penitentiary, seeks by this petition for federal habeas corpus to secure an adjudication that his conviction was secured in violation of his federal rights.

Petitioner states that he was charged with robbery in the first degree in the Circuit Court of Jackson County; that he plead guilty to that charge before the Honorable Tom J. Stubbs, Judge of Division 5 of that Court; that he was, subsequently, on November 15, 1961, sentenced to 15 years’ imprisonment; that he was represented by counsel at his plea of guilty; that he did not appeal from the judgment of conviction or the imposition of sentence because Missouri procedure did not provide for appeal from a guilty plea; that he filed postconviction motions under Missouri Criminal Rules 27.25 and 27.26, V.A.M.R., asking for withdrawal of the plea of guilty and to vacate, set aside or correct the conviction and sentence by those respective motions; that both motions were overruled and denied by the trial court on October 18, 1966, after a plenary hearing thereon; that the judgment overruling and denying said motions was appealed and was subsequently affirmed by the Supreme Court of Missouri on November 13, 1967 (State v. Mountjoy, Mo., 420 S.W.2d 316); and that thereby his available state remedies were exhausted.

Petitioner states as grounds for the allegation that he is being held unlawfully, that there was at his plea of guilty:

“(a) Denial of due process under the XIV Amendment in that my plea of guilty was entered because of promises and because I was under a misapprehension that I would receive only a sentence of five years (sic) imprisonment.

“(b) Denial of due process under the XIV Amendment in that my plea of guilty was entered and received by the trial court without a proper inquiry as to the voluntariness of my plea, and had such an inquiry been made I would not have plead guilty.”

The facts which petitioner states to support his contentions are that upon commencement of his trial his trial attorneys insisted that he had no defense and therefore petitioner plead guilty; that petitioner advised the court that he did not want to be represented by his attorney, but that the court insisted that petitioner either plead guilty or go to trial; that the court was angry with petitioner at the time of his plea; that petitioner’s attorney told him that if he plead guilty, the court had indicated that he would receive a sentence of five years’ imprisonment and that the prosecuting attorney would recommend such a sentence; that, in view of these considerations, he changed his plea to guilty; that, prior to accepting his plea of guilty, the court only inquired whether petitioner wanted to change his plea to guilty and whether he knew that he had a right to a jury trial; and that no inquiry was made whether his plea was induced by threats or promises.

The official records of petitioner’s appeal to the Missouri Supreme Court from the overruling and denying of petitioner’s 27.25 and 27.26 motions to withdraw guilty plea and to vacate sentence (State v. Mountjoy, supra,) reveal that a hearing was held on his 27.25 and 27.26 motions in the state trial court. When such a plenary hearing was held, this Court may rely upon the state trial court’s findings of fact if they are reliably and specifically made. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Noble v. Swenson (W.D.Mo.) 285 F.Supp. 385; Goodwin v. Swenson (W.D.Mo.) 287 F.Supp. 166, 167. As the Supreme Court of Missouri noted, the trial court specifically found after a hearing that:

“* * * (2) there was ‘no collusion or agreement between counsel for defendant and counsel for the State either prior to or at the time defendant entered his plea of guilty and was sentenced by the court;’ (3) at no time was defendant under duress and led to believe by counsel for the state or counsel for the defendant that if he would enter a plea of guilty, because of his youth and because he had no felony record he would receive a five year sentence; (4) defendant was not led to believe by his counsel that he had no defense and there were no mitigating circumstances surrounding-such offense.” State v. Mountjoy, 420 S.W.2d at 322.

As is shown by the transcript of the original proceedings, supplied by respondent in response to the show cause order of October 22, 1968, the findings were reliably made after hearing the testimony of Earl Schrader and Lawrence Schrader, petitioner’s defense counsel, of Lawrence Gepford, prosecuting attorney, and that of petitioner, his mother and his two sisters. All three counsel denied that any promise of a five-year sentence was made by the judge or prosecutor, or that any of them spoke of such promise to petitioner. In the response, which was filed November 8, 1968, respondent also contended that the trial court originally: