Lyman Eugene WIGLESWORTH, Petitioner, v. Donald WYRICK, Warden, Missouri State Penitentiary, Respondent.
No. 59208.
Supreme Court of Missouri, En Banc.
Jan. 12, 1976.
531 S.W.2d 713
No. 59208.
Supreme Court of Missouri, En Banc.
Jan. 12, 1976.
John C. Danforth, Atty. Gen. (Philip M. Koppe, Asst. Atty. Gen.), Jefferson City, for respondent.
FINCH, Judge.
This is an original proceeding in habeas corpus. We quash the writ heretofore issued for the reason that the relief to which petitioner claims to be entitled is required by Rule 27.261 to be sought by a motion filed in accordance with the provisions of that rule in the circuit court wherein the judgment and sentence attacked by petitioner were entered.
Petitioner pleaded guilty on May 15, 1975, in the Circuit Court of DeKalb County to a charge of operating a motor vehicle while intoxicated, third offense, a felony under
On July 28, 1975 petitioner filed in the Missouri Court of Appeals, Kansas City District, a petition for a writ of habeas corpus alleging his imprisonment to be illegal on the grounds that (a) there was only one valid conviction against him under § 564.
The Court of Appeals, on July 30, 1975, issued its writ of habeas corpus and, pending resolution of the issues raised, admitted petitioner to bail. Respondent then filed his return to the writ which asserted reasons why the May 15, 1975, judgment and sentence and the incarceration thereunder are valid. In addition to his return, respondent filed a motion to quash the writ of habeas corpus as improvidently granted on the basis that issues raised therein must be asserted in the sentencing court by a motion to vacate under Rule 27.26. That motion to quash was ordered taken with the case by the Court of Appeals.
Thereafter, while briefs were in process of preparation and before the date on which the case had been set for argument, respondent, pursuant to Rule 83.06, filed an application in this court requesting that we transfer the case here before opinion and then proceed to decide it as authorized by
Does Rule 27.26 mandate that petitioner seek the relief requested herein by a motion to vacate in the Circuit Court of DeKalb County?
Necessarily, we consider at the outset the threshold issue, raised by the motion to quash, of whether petitioner was entitled to attack the validity of the judgment and sentence under which he was incarcerated by filing a petition for writ of habeas corpus in the Missouri Court of Appeals, Kansas City District, or whether, as contended by respondent, petitioner was required by Rule 27.26 to raise the issue by filing a motion to vacate in the Circuit Court of DeKalb County, the sentencing court.
Rule 27.26, insofar as pertinent to this issue, provides as follows:
A prisoner in custody under sentence and claiming a right to be released on the ground that such sentence was imposed in violation of the Constitution and laws of this State or the United States, or that the court imposing such sentence was without jurisdiction to do so, or that such sentence was in excess of the maximum sentence authorized by law or is otherwise subject to collateral attack, may file a motion at any time in the court which imposed such sentence to vacate, set aside or correct the same. The following procedure shall be applicable to motions filed pursuant to this Rule:
(a) Nature of Remedy. This Rule is intended to provide the exclusive procedure which shall be followed when a prisoner in custody seeks relief on the basis of any of the attacks on a sentence enumerated above. The motion seeking such relief shall be filed in the court where the sentence was imposed. This Rule does not suspend the rights available by habeas corpus but rather prescribes the procedure to be followed in seeking the enforcement of those rights. It includes all relief heretofore available in any court by habeas corpus when used for the purpose of seeking to vacate, set aside or correct a sentence, plus relief not available by habeas corpus. . . .
Does the relief sought herein by the writ of habeas corpus fall within the foregoing provisions of Rule 27.26? It is clear that it does. In the first place, petitioner asserts that the two earlier convictions relied on by the State are constitutionally deficient for lack of counsel or waiver thereof. For that reason, he says that he
Furthermore, the intention that relief to be provided by Rule 27.26 encompasses that sought by petitioner in his habeas corpus petition is disclosed by the recital in the rule that it is to provide all relief heretofore available in any court by habeas corpus, when used for the purpose of vacating, setting aside or correcting a sentence, and that the rule simply prescribes the procedure to be followed in seeking enforcement of those rights.
We conclude that Rule 27.26 does mandate that the relief requested by petitioner herein be sought in a motion to vacate filed in DeKalb County. Hence, unless for some reason the requirement in the rule that such procedure be utilized is impermissible, it would appear that the motion to quash is well taken and should be sustained.
Is Rule 27.26 unconstitutional as a suspension of the writ of habeas corpus in violation of
In response to the asserted exclusiveness of the procedure specified in Rule 27.26, petitioner insists that the remedy provided therein is supplementary to and provides an alternate remedy for habeas corpus. He argues that it does not and cannot provide an exclusive remedy because that would violate
What constitutes suspension as that term is used in constitutional provisions which prohibit suspension of the writ of habeas corpus? We find no Missouri case deciding this question, but it has been considered by other courts. It was discussed in McCall v. McDowell, 15 F.Cas. p. 1235, Case No. 8,673 (C.C.Cal.1867), in considering action by the President of the United States taken pursuant to legislation enacted in 1863 relative to suspension of habeas corpus under
Before answering this question, it is well to consider what is the purpose and practical effect of suspending the privilege of the writ. Personal liberty, unless forfeited by due course of law, is the right of every citizen of the republic. The writ of habeas corpus is the remedy by which a party is enabled to obtain deliverance from a false imprisonment. Ordinarily, every one imprisoned without legal cause or warrant is entitled to this remedy—this privilege. The power to suspend this privilege includes, and is in fact identical, with the power to take away or withhold this remedy from the individual during the period of such suspension. The suspension of the privilege of the writ and the denial of the remedy for false imprisonment are identical in effect, if not in terms. It follows that the power of congress to suspend the privilege of the writ of habeas corpus is equivalent to the power to take away from all persons, during the suspension, the right to the ordinary and only remedy for deliverance from false imprisonment. This is the effect of the suspension. . . .
In State v. Towery, 143 Ala. 48, 39 So. 309 (1905), the Supreme Court of Alabama had under consideration the question of whether a statutory provision violated section 18 of the Alabama Bill of Rights (Const.1875) which provided that the privi-
. . . The suspension of the writ which is prohibited means the denial to the citizen of the right to demand an investigation into the cause of his detention.
39 C.J.S. Habeas Corpus § 123, summarizes the question in these words:
What constitutes suspension. The suspension of the writ which is prohibited means an absolute denial of the right to demand an investigation into the cause of detention.
It seems clear that the suspension prohibited relates to denial of the substantive right to have judicial inquiry into the cause of and justification for allegedly illegal detention, not to the form and procedure utilized in such proceeding. The provisions against suspension of such a right refer to the writ of habeas corpus because historically that has been the vehicle by which such inquiry is made. The term adequately describes the substantive right being protected and preserved.
This interpretation of the constitutional language prohibiting suspension of the privilege of habeas corpus finds support in the case of United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952), in which the court considered the effect of
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.3
Subsequent portions of the statute spell out details with reference to handling of such motions, including the right of appeal to the court of appeals, and then recite that an application for habeas corpus on behalf of a prisoner authorized to apply for relief by motion under
Hayman involved a motion filed pursuant to
On certiorari the Supreme Court reviewed the problems and practical difficulties incident to habeas corpus as a post-conviction remedy vehicle which caused the Judicial Conference of the United States to recommend legislation which culminated in the enactment of
This review of the history of Section 2255 shows that it was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus juris-
diction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners’ rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.4
The Court stated that it did not find in
The Court in Hayman did not reach or decide the issue of the constitutionality of
In Stirone v. Markley, 345 F.2d 473 (7th Cir. 1965), petitioner incarcerated in the United States Penitentiary at Terre Haute, Indiana, as a result of a conviction in the Western District of Pennsylvania, sought a writ of habeas corpus from a United States District Court in Indiana. Denial of the petition by the District Court on the basis that petitioner‘s remedy under
. . . Because of this observation we have not relied solely upon the decision in Hayman but have discussed plaintiff‘s contentions and conclude that section 2255 is not an unconstitutional suspension of the writ of habeas corpus.5
See also Cantu v. Markley, 353 F.2d 696, 698 (7th Cir. 1965); United States v. Anselmi, 207 F.2d 312, 314 (3rd Cir. 1953); Barrett v. Hunter, 180 F.2d 510, 516 (10th Cir. 1950).
Comparable state statutes providing for post-conviction relief in lieu of the traditional petition for writ of habeas corpus have been held not to violate constitutional prohibitions against suspension of the writ of habeas corpus. For example, in Kinnell v. Crouse, 384 F.2d 811 (10th Cir. 1967), the court held that the Kansas post-conviction statute which was quite similar to
In Harvey v. State of South Carolina, 310 F.Supp. 83 (D.S.C.1970), the court considered an attack on the constitutionality of the South Carolina post-conviction statute which, it was claimed, suspended the writ of habeas corpus or made its use more difficult. In overruling those contentions, the court said, at 85:
The South Carolina Act affords all the protections contemplated by our founding fathers. It is designed to afford post-conviction relief of a scope sufficiently broad to comply with the mandates and holdings of the United
States Supreme Court relating to federal review of state convictions. See Curran v. State of Delaware, 10 Terry 587, 122 A.2d 126, cert. den. 352 U.S. 913, 77 S.Ct. 151, 1 L.Ed.2d 120. There is no basis here for a holding that South Carolina thus deprives a convict of constitutional rights. Rather he is provided a forum and procedure for speedy and easy application and early decision. The statutes are designed for the benefit of the convicted, defined for his ease in obtaining review at a state level and thus complying with 28 U.S.C. § 2254 .South Carolina‘s Post-Conviction Relief Act provides relief similar to that envisioned by Congress (for those convicted in federal courts) in
28 U.S.C. § 2255 . The fact that the South Carolina Legislature enacted a post-conviction statute did not suspend the right of habeas corpus by substituting the post-conviction relief statutes (procedure) as the only remedy available to a state prisoner. See Kinnell v. Crouse, 384 F.2d 811 (10th Cir. 1967), cert. den. 390 U.S. 999, 88 S.Ct. 1205, 20 L.Ed.2d 98; United States ex rel. Dopkowski v. Randolph (7th Cir. 1958), 262 F.2d 10, cert. den. 359 U.S. 1004, 79 S.Ct. 1143, 3 L.Ed.2d 1032; Smith v. State of Kansas, 356 F.2d 654 (10th Cir. 1966).
See also People ex rel. Anderson v. Warden, 68 Misc.2d 463, 325 N.Y.S.2d 829 (1971), and Lash v. Wright, 287 N.E.2d 255 (Ind.App. 1972).
The need for and the logic of the establishment of a single, unitary, post-conviction remedy, to be used in place of other remedies (except direct review appeal) such as that provided by
This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of direct review of the sentence or conviction. Except as otherwise provided in this Act, it comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the validity of the conviction or sentence. It shall be used exclusively in place of them.
The comment which follows Section 1 discusses the question of whether such provision violates constitutional prohibitions against suspending the writ of habeas corpus and concludes that it does not. It refers to Hayman and then quotes from United States ex rel. Leguillou v. Davis, 212 F.2d 681, 683 (3rd Cir. 1954), as follows:
It is now established, and we think correctly, that where the issues in controversy are such as have traditionally been within the reach of habeas corpus and now are cognizable by the sentencing court under Section 2255, a motion under Section 2255 normally supersedes habeas corpus and provides the exclusive remedy. . . . The only exception to this rule of supersession which is authorized by the language of Section 2255 occurs when ‘the remedy by motion is inadequate or ineffective to test the legality of detention.’
The comment then notes that Section 1 provides a remedy as broad as habeas corpus which is intended to incorporate and protect all rights presently available under habeas corpus and other remedies and is adequate to test the legality of detention. It points out that the change is a procedural one.
Likewise, it should be noted that the American Bar Association Project on Standards for Criminal Justice has proposed a unitary post-conviction remedy which should take primacy over any existing pro-
The validity and logic of these unitary post-conviction procedures (whether statutory or court rule) and of the cases which, in upholding them, find that they do not have the effect of suspending the writ of habeas corpus, is apparent when one stops to realize that the substantive right provided to a prisoner by the writ of habeas corpus is the right to have the validity of his imprisonment determined promptly and to be discharged therefrom if it is illegal. The particular form of such a proceeding and where it is initiated is procedural, not substantive. The particular procedural requirements specified by a state for pursuing the substantive objective are for it to determine. If they are reasonable and effective, they do not constitute a suspension of the privilege of the writ of habeas corpus. It would be illogical to hold that a particular form of proceeding labeled habeas corpus must be available to a prisoner seeking release from allegedly illegal detention to be chosen in preference to another prescribed procedure which has the same objective, protects the same rights and achieves the same results.7 To so hold would be to preserve and protect form rather than substance.
Another argument advanced by petitioner to support his contention that to construe Rule 27.26 as the exclusive remedy would violate
This contention is predicated on the premise that the privilege of the writ of habeas corpus does include a right to bail pending determination of petitioner‘s right to the writ. Such premise is incorrect. In Ex parte Heath, 227 Mo. 393, 126 S.W. 1031 (1910), the court considered the meaning of the constitutional language which is incorporated in our present constitution as
That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.
With reference thereto, the court said, 126 S.W. at 1035:
We think the construction put upon the Bill of Rights in California and Texas, in which the words ‘before conviction’ are omitted, as they are in our Constitution, is the correct one. We think the language of section 24, art. 2, of our Constitution, clearly refers to the right of bail while yet there is room for presumption, and while the ‘proof evident’ is open to consideration by the court or judge to whom an application for bail is made, and not to a time when presumptions and proofs are merged in a verdict of guilty.
This view is confirmed in Ex parte Carey, 306 Mo. 287, 267 S.W. 806 (banc 1924).
Except where the foregoing constitutional provision is applicable, the right to
Rule 27.26 does not purport to deal with the question of bail. Whether and under what circumstances bail may be granted in a Rule 27.26 proceeding is not an issue in this case and we do not undertake to deal therewith.
We hold that Rule 27.26 does not violate
Does Rule 27.26 violate
Petitioner argues that Rule 27.26 violates
We disagree. The fact that a court has jurisdiction of a particular type of case does not automatically confer on a litigant a right to have his claim litigated in that particular court. If the rule were otherwise, statutes or rules establishing venue would not be permissible. Yet it is well established that enactments fixing venue as between courts with jurisdiction are valid. The distinction between jurisdiction and venue is recognized in 21 C.J.S. Courts § 15c, in this language:
The distinction between ‘jurisdiction’ and ‘venue’ has been plainly established and has frequently been recognized. Jurisdiction connotes the power to decide a case on the merits, while venue denotes locality, the place where the suit should be heard.
This court is empowered by
The fact is that
Rule 84.22 does not impinge on the jurisdiction—the power of the various courts to issue and determine remedial writs. It establishes rules by which those courts are to
These rules do not change substantive rights or interfere with the right of appeal. They are procedural. They prescribe the guidelines to be followed in determining whether a particular court should issue a requested remedial writ. In accordance with Rule 27.26, this court, when it receives a petition for a writ of habeas corpus which on its face, as here, seeks relief encompassed by Rule 27.26, permits the petition to be filed but then denies the writ without prejudice to the right of petitioner to seek such relief by motion under Rule 27.26 in the sentencing court. In this connection, see 20 Am.Jur.2d, Courts, §§ 108, 109, 110.
We hold that Rule 27.26 does not violate
Having determined that the motion to quash the writ of habeas corpus heretofore issued should be sustained, we do not reach or consider the attacks made by petitioner on the judgment and sentence of the Circuit Court of DeKalb County pursuant to which he was confined. Those questions may be raised by him in a motion to vacate under Rule 27.26 if petitioner elects to file such a motion.
The dissenting opinion filed by the chief justice raises additional issues which we should consider. First, he suggests that respondent‘s motion to quash may not be sustained because, for purposes of the motion, the allegations of the petition must be accepted as true, and since the petition alleges that there was only one valid conviction of petitioner under § 564.440 as well as asserting that the circuit court had no jurisdiction to try petitioner by reason of a pending motion for change of judge, it states a claim which, if proved, would entitle petitioner to be remanded for resentencing.
This contention is based on a rule of law applicable when a motion attacking the sufficiency of a petition to state grounds for relief is under consideration. However, that rule has no application to the motion to quash filed herein because it does not attack the sufficiency of the facts alleged in the petition for habeas corpus or assert that, even if true, they would not entitle the petitioner to relief. Instead, it asserts simply that petitioner‘s claim is filed in the wrong forum; that petitioner‘s attack on the judgment and sentence must be asserted by a motion under Rule 27.26 in the sentencing court. Thus, this motion is comparable to a motion to quash a summons and the service thereon on the basis of improper venue or lack of jurisdiction. It is not at all similar to a motion to quash or dismiss for failure to state a claim.9
The dissent next asserts that Rule 27.26 is ineffective to afford relief to this petitioner on the hypothesis that it would take longer to process a motion under Rule 27.26 in the trial court and on appeal than the length of petitioner‘s sentence would be, assuming the correctness of his position. In brief, it asserts that the rule is ineffective when short sentences are involved. This, incidentally, is not a point asserted and briefed by petitioner herein. It is an attack raised sua sponte in the dissenting opinion.
We conclude that petitioner is not entitled to relief on this basis. In the first place, it is not a valid premise that one to three years would elapse before petitioner could get relief even if the evidence shows he is entitled thereto. In the event the
Finally, the dissent argues that when the remedy provided by Rule 27.26 is inadequate, it cannot be the exclusive remedy. The dissent then states that [u]nder the allegations of the petition 27.26 is not adequate. Accordingly, it concludes, we should proceed to hear the petition for habeas corpus.
If that procedure suggested by the dissent were adopted, the effect would be that whenever a petitioner, instead of filing a motion under Rule 27.26 in the sentencing court, files in some court a petition for writ of habeas corpus in which he alleges, as here, that the remedy provided by Rule 27.26 is inadequate in his case, the court in which the petition was filed would be required to hold a hearing thereon. The court would grant relief, if the evidence so justified, provided it found the remedy under 27.26 inadequate. However, if after hearing the evidence, the court concluded that the Rule 27.26 remedy was inadequate, it would be obligated to dismiss the petition without prejudice to petitioner‘s right to seek relief by motion filed pursuant to Rule 27.26 in the sentencing court and a second proceeding and hearing would be necessary. This necessarily follows because the sole basis for seeking habeas corpus is the allegation that relief provided under Rule 27.26 would be inadequate.
Such a bifurcated procedure would be much less desirable than what we had when post-conviction relief was sought only by habeas corpus or what we now have under Rule 27.26. Such a repetitive procedure would be time consuming and expensive and would nullify what we sought to and have up to now accomplished by the adoption of Rule 27.26. It would eliminate any reason for continuing Rule 27.26.
If at sometime in the future a petitioner is successful in proving in connection with a motion under Rule 27.26 that said procedure is inadequate to give him relief, we can and will consider taking appropriate steps to rectify that situation. Inadequacy has not been shown to be present in this case and to our knowledge has not been established in any of the many other cases filed and heard during the period in which amended Rule 27.26 has been utilized.
Accordingly, we sustain respondent‘s motion to quash. The writ of habeas corpus is quashed and petitioner is remanded to the custody of respondent.
MORGAN, HOLMAN, BARDGETT, HENLEY and DONNELLY, JJ., concur.
SEILER, C. J., dissents in separate dissenting opinion filed.
SEILER, Chief Justice (dissenting).
The majority opinion disposes of this proceeding by sustaining respondent‘s motion
The principal opinion says the foregoing has no application because the motion to quash in this instance asserts simply that petitioner‘s claim is filed in the wrong forum; that it must be asserted by motion under rule 27.26 in the sentencing court. In my view, this still is saying to petitioner that no matter whether everything you say is true, you cannot use habeas corpus. Suppose the judgment and sentence in this case had been entered in the circuit court of Cole county, which is also the location of respondent in charge of the state penitentiary. If petitioner under these circumstances were to file habeas corpus in the sentencing court, so that there could be no question of venue or jurisdiction, the state would continue to argue, I am sure, that habeas corpus was not available, that petitioner must resort to rule 27.26 in the same court. Venue has nothing to do with what we are discussing, in my opinion. The point is that even if everything petitioner says is true (whether by force of its being regarded that way on motion to quash, or whether by virtue of its making no difference even if it is true), it is the position of the principal opinion and the state that petitioner must nevertheless proceed by motion under rule 27.26.
If we take the allegations of the petition to be true, then there was only one valid conviction against petitioner under Sec. 564.440, the earlier convictions alleged in the information being invalid because petitioner was not represented by counsel and there was no knowing and intelligent waiver of his right to counsel in said cases, and the circuit court had no jurisdiction to try or hear the case against petitioner under which he is currently sentenced because he had previously filed a motion for change of judge which was never acted upon and was still pending.
If the foregoing is true, then petitioner could not legally have been convicted of a third offense, a felony, under
So if the facts alleged in the petition are true (as we must take them to be on a motion to quash), then the only adequate relief here is to sustain the petition, grant the writ, and remand petitioner to the custody of the sheriff of DeKalb County for delivery to the circuit court for sentencing under
To remand petitioner to the custody of respondent and leave petitioner to the procedure of filing a motion in the appropriate circuit court for relief under rule 27.26 is not adequate. It will take anywhere from one to three years for petitioner‘s motion to work its way through the trial and appellate courts.1 During all this time petitioner
The question whether the rule 27.26 procedure is ineffective in general when a short sentence is involved is not before us (although it may well be that it is). Here the question is a six months sentence versus a three year sentence. Some would regard either as long; others would regard either as short. But short or long, if petitioner is correct in his claim (and at the moment the state‘s position is that he can be, but if so, it is immaterial), only by resort to habeas corpus can he obtain the prompt relief which is essential if his right to be free of illegal confinement is to be more than a right in name only.
I am unable to see where permitting habeas corpus in this case would commit the courts to some sort of bifurcated procedure. If what the petitioner alleges is true, it does not require a hearing to realize that a motion under 27.26, with all its delay and litigation at all levels of the court system, is inadequate. The mere allegation that the 27.26 route is inadequate would, of course, be no more than a conclusion, and in many instances petitioner will not be able to state facts to support the conclusion. In such instances no factual hearing would be required, anymore than is the case in 27.26 motions where only conclusions are alleged, Parsons v. State, 528 S.W.2d 162, 163 (Mo. App.1975). But when the petitioner states facts, as here, which show the 27.26 method is inadequate, it will save time in the long run, not waste time, to let petitioner proceed in habeas corpus if he can establish his facts.
I therefore respectfully dissent and would overrule the motion to quash.
I do however, agree with what I take to be implicit in the final part of the principal opinion that only when the remedy provided by rule 27.26 is adequate can it be considered exclusive.
No. 58159.
Supreme Court of Missouri, En Banc.
Jan. 12, 1976.
As Modified On Denial of Rehearing Feb. 9, 1976.
Stanley E. Goldstein, Dan Hayes, Hayes & Heisler, Clayton, for appellant.