Edgar Vernell FUTRELL, Appellant, v. STATE of Missouri, Respondent.
No. 64385.
Supreme Court of Missouri, En Banc.
March 20, 1984.
667 S.W.2d 404
John Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, for respondent.
RENDLEN, Chief Justice.
Appeal from dismissal of second Rule 27.26 motion without an evidentiary hearing. Movant‘s challenge to the validity of
In February, 1977, movant Edgar Futrell was convicted of robbery first degree, two counts, and sentenced under the second offender statute to concurrent terms of 45 years on each count. His conviction was affirmed by the Missouri Court of Appeals in State v. Futrell, 565 S.W.2d 465 (Mo. App.1978).
On September 26, 1979, movant filed a motion [first motion] under Rule 27.26 to set aside judgment and sentence, citing exclusion of women from his jury, bias of the trial judge, failure of the trial judge to give an alibi instruction and ineffective assistance of counsel. After appointment of counsel and an evidentiary hearing, the mo
Following an unsuccessful petition for habeas corpus in federal court, movant, again represented by counsel, returned to state court on May 26, 1982 with a second 27.26 motion [second motion] and the following claims:
Movant was sentenced under the Persistent Offenders Statute, Section 556.280, RSMo 19691 which is unconstitutional for the following reasons:
a) Section 556.280, RSMo.1969 as applied to Mr. Futrell, violates the Fifth Amendment to the United States Constitution.
b) Section 556.280 RSMo.1969 on its face and as applied to Mr. Futrell violates the Sixth Amendment to the United States Constitution.
c) Section 556.280 RSMo.1969 on its face and as applied to Mr. Futrell, violates the Eighth Amendment to the United States Constitution.
d) Section 556.280 RSMo.1969 on its face and as applied to Mr. Futrell, violates the Fourteenth Amendment to the United States Constitution.
e) Police investigative techniques employed against Mr. Futrell were suggestive, unreliable and violative of due process.
After hearing arguments, the trial court issued extensive findings and dismissed the motion without an evidentiary hearing. In its order of dismissal, the court concluded:
... each and every issue in movant‘s second motion could have been brought in the first motion, and, separately, that movant did not allege sufficient facts to show that the complained-of statute was unconstitutional as applied to him or that the statute was unconstitutional on its face, and further movant has not shown sufficient facts to identify which police procedures were invalid or wherein that movant‘s rights were violated.
Movant appeals, contending invalidity of
Rule 27.26(c) requires that a motion filed under the Rule include every ground known to the movant for vacating, setting aside or correcting his conviction and sentence and requires each movant to verify that he has recited all claims known to him. Paragraph (d) prohibits the sentencing court from entertaining a second motion for relief when the ground presented is new but could have been raised in the prior motion and places the burden on movant to establish that any new ground raised in the second motion could not have been raised
Vaughan v. State, 614 S.W.2d 718 (Mo. App.1981), is an appeal from denial of a second 27.26 motion in which the Court of Appeals opined, “If there are new facts or new constitutional principles which could not have been known to the petitioner at the time of the first motion, the court will not foreclose a second motion based on these new grounds.” Id. at 720. (Emphasis added.) That portion of the court‘s statement regarding new constitutional principles was dictum, however, as consideration of movant‘s second motion was premised on the existence of facts unknown to petitioner at the time of his first motion. In Bonner v. State, 595 S.W.2d 393 (Mo. App.1980), the Court of Appeals entertained a second motion on the basis of an intervening ruling in State v. Baker, 524 S.W.2d 122 (Mo. banc 1975), that the consecutive sentencing statute which allegedly induced movants’ guilty pleas was unconstitutional. “Thus,” it was concluded, “the ground alleged in movants’ present post-conviction motions was not available when their prior motions were filed, did not be
In this case, movant claims
this is so, we are not persuaded that the principles announced in Rogers are new, are of sufficient magnitude to entitle him to a successive Rule 27.26 motion, or were unavailable at the time of his first motion.
Britton v. Rogers, 631 F.2d 572 (8th Cir. 1980), involved a claim that Arkansas’ standardless non-capital sentencing scheme violated petitioner‘s right to due process of law. In addressing this issue, the federal Court of Appeals first turned to Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), an action challenging the constitutional validity of certain administrative procedures established by the Secretary of Health, Education and Welfare, for a useful specification of factors to be considered in any case raising procedural due process questions:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements will entail.
Britton v. Rogers, 631 F.2d at 579-80 (quoting Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903).
Noting that Eldridge was developed for the administrative context and “has not yet been expressly employed by a federal court to test the procedures used at criminal trial,” the Rogers court added:
In extending Eldridge to the criminal context, however, we wish to preserve the deference which federal courts have customarily displayed when called upon to review state rules of criminal procedure.... Accordingly, we are unwilling to find a procedural due process violation under Eldridge unless the private interest in obtaining a particular procedure substantially outweighs the governmental interest in withholding it.
Although Rogers may be the first case in which Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), was expressly employed by a federal court to test the adequacy of criminal trial procedures, we are unconvinced the case announces any new constitutional principle. Movant does not argue and we cannot find that the defendant‘s interest, risk of an erroneous deprivation of that interest through the procedures used, the probable value of additional or substitute procedures and the government‘s interest are considerations theretofore foreign to evaluation of criminal due process claims. Nowhere in Rogers, moreover, does the Eighth Circuit Court of Appeals purport to announce a new constitutional principle, and its holding breaks no new ground.
Even if principles announced in Rogers could be characterized as “new,” however we are not convinced they rise to a level that would entitle movant to a successive Rule 27.26 motion. While unquestionably meriting respect, rulings of the Eighth Circuit Court of Appeals are not generally binding on Missouri state courts, Kraus v. Board of Education, 492 S.W.2d 783, 784 (Mo.1973); see also Hanch v. K.F.C. National Management Corp., 615 S.W.2d 28, 33 (Mo. banc 1981), and the trial court‘s evaluation of movant‘s claim would be independent of Britton v. Rogers. For this reason, it cannot be said Rogers provides grounds for vacating, correcting or setting aside movant‘s sentence.
Finally, we are unconvinced Rogers announces any constitutional principle that was unavailable to movant at the time of his first motion. The due process clause of the Fourteenth Amendment and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), was as available to mov
In his second motion, movant also claims
Like the federal writ of habeas corpus, Rule 27.26 is a bulwark against convictions that violate fundamental fairness but entails significant costs. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 1570, 71 L.Ed.2d 783 (1982). As five justices of the United States Supreme Court aptly opined in Engle:
Collateral review of a conviction extends the ordeal of trial for both society and the accused.... By frustrating [the] interests [of the criminal defendant and society in insuring that there will at some point be the certainty that comes with an end to litigation], the writ undermines the usual principles of finality of litigation.
Liberal allowance of the writ, moreover, degrades the prominence of the tri
al itself. A criminal trial concentrates society‘s resources at one “time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence.” ... Our Constitution and laws surround the trial with a multitude of protections for the accused. Rather than enhancing these safeguards, ready availability of habeas corpus may diminish their sanctity by suggesting to the trial participants that there may be no need to adhere to those safeguards during the trial itself.
Id., 456 U.S. at 127; 102 S.Ct. at 1571.
What may be said of the costs of a single motion for collateral review, applies at least doubly to a successive motion. Accordingly, Rule 27.26 is designed, where possible, to discover and adjudicate all claims for relief in one application. State v. Stidham, 415 S.W.2d 297, 298 (Mo. banc 1967). Movant has already been provided by this state with three opportunities to raise his constitutional objections: at trial, on direct appeal and in his first motion. In the second motion, he makes no showing that justice requires an exception in his case to our well-considered policy of adjudicating all constitutional claims in a single collateral proceeding. Accordingly, the trial court‘s conclusion that each claim raised in movant‘s second motion could have been raised in the first is not clearly erroneous. Dismissal without an evidentiary hearing was warranted, see Grant v. State, 486 S.W.2d 641 (Mo.1972), and the judgment is affirmed.
WELLIVER, GUNN, BILLINGS, BLACKMAR and DONNELLY, JJ., concur.
HIGGINS, J., dissents in separate opinion filed.
HIGGINS, Judge dissents.
I believe movant‘s second Rule 27.26 motion qualifies for a hearing under the provisions of Rule 27.26(d) governing successive motions.
Rule 27.26(d) was well-interpreted in Vaughan v. State, 614 S.W.2d 718 (Mo. App.1981): “If there are new facts or new constitutional principles which could not have been known to the petitioner at the time of the first motion, the court will not foreclose a second motion based on these new grounds.” Id. at 720.
Movant‘s “new constitutional principle” is an allegation of denial of due process in his sentencing procedure which he says arises from Britton v. Rogers, 631 F.2d 572 (8th Cir.1980), and its interpretation of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
In these circumstances I feel that movant is entitled to be heard on the merits of his motion rather than to be precluded because he states his claim in a second motion.
Accordingly, I would reverse the judgment and remand the case for a hearing on the motion.
ROBERT E. RENDLEN
CHIEF JUSTICE