Justia Federal District Court Opinions

Lawrence M. Berkowitz (argued), Kansas City, Mo., on brief, for appellant.

Neil MacFarlane, Asst. Atty. Gen. (argued), and John C. Danforth (former Atty. Gen.), Jefferson City, Mo., on brief, for appellee.

Before STEPHENSON and HENLEY, Circuit Judges, and MEREDITH, Chief District Judge.*

MEREDITH, Chief District Judge.

This appeal is from an order of the United States District Court for the Western District of Missouri, dismissing appellant's petition for a writ of habeas corpus. The appellant raises three grounds for relief:

We affirm the district court.

The facts of the case are as follows: On November 30, 1971, a three-count information was filed in Jackson County, Missouri, charging appellant, a negro, with two counts of first-degree murder and one count of first-degree robbery. The trial began on May 30, 1972. At the conclusion of voir dire proceedings, appellant filed a motion to discharge the petit jury on the grounds that the state prosecutor deliberately and willfully used the peremptory challenges to strike negroes from the jury panel and that this has been done in case after case, whatever the circumstances, but particularly where the accused was a negro, and that this practice of excluding negroes from a petit jury denied the appellant equal protection of the law and was contrary to the Fourteenth Amendment to the Constitution of the United States. On the petit jury panel of forty-seven, four were negroes and they were stricken by the prosecutor. The state court denied the motion for a new trial and denied a hearing.

On June 1, 1972, appellant was convicted on all three counts and on September 15, 1972, was sentenced to life imprisonment on each murder count and to a term of imprisonment of ninety-nine years on the robbery count, the sentences to run consecutively. Appellant appealed his conviction and sentences to the Missouri Supreme Court. The Missouri Supreme Court affirmed the conviction, holding that under the broad conclusory allegations, without stating more specific facts to support his allegations, appellant was not entitled to a hearing concerning the practice of striking negroes from the jury panel systematically. The Court further held that Missouri Supreme Court Rule 24.04 is constitutional. This rule permits that a defendant be tried on more than one offense at the same trial, and is similar to Rule 8 of the Federal Rules of Criminal Procedure. The Court, however, held section 546.480, R.S.Mo. 1969, was constitutional insofar as it requires consecutive sentences to be imposed on a defendant convicted of more than one offense. The Court then remanded the cause to the state trial court for resentencing and requested that judicial discretion be exercised to determine if the sentences imposed were to be concurrent or consecutive. State v. Baker, 524 S.W.2d 122 (S.Ct.Mo. en banc 1975). The state trial court imposed the same sentences and had them run consecutively.

On June 7, 1976, appellant filed his petition for writ of habeas corpus in the District Court for the Western District of Missouri, and on July 6, 1976, the district court denied the writ of habeas corpus, holding that since the Supreme Court of Missouri had declared unconstitutional section 546.480, R.S.Mo. 1969, that this, in effect was holding in appellant's favor and cured any problems relating to Rule 24.04, by remanding the case to the trial court for resentencing of the appellant. The district court further held that the question of systematic exclusion of negroes from the jury had not been properly presented to the state trial court and dismissed this claim for failure to exhaust state remedies. The district court also held that such a requirement was not burdensome on appellant and that the federal courts should not interfere with state court processes until these matters are squarely presented to the state courts with sufficient facts alleged to give the state courts an opportunity to act properly on complaints.

The record before the state trial court discloses that appellant's counsel was reluctant to verify the motion for a new trial because he was not in possession of sufficient facts to make any specific and factual allegations. Appellant's counsel before this Court stated that he was not in possession of sufficient facts to know whether or not a hearing would be helpful concerning systematic exclusion of blacks, but insisted that such a hearing should be held before the district court rather than before the state court.

The Supreme Court of the United States, in Swain v. Alabama (1965), 380 U.S. 202 at pages 223-24, 85 S.Ct. 824, at page 837, 13 L.Ed.2d 759 held: