William Pinson v. Terry Morris , 830 F.2d 896 ( 1987 )

ARNOLD, Circuit Judge.

William Pinson, an inmate of the Missouri Department of Corrections, brought this case for habeas corpus relief under 28 U.S.C. § 2254. On a recommendation of a United States Magistrate,¹ the District Court² denied the petition, and Pinson appeals. After granting his application for a certificate of probable cause, we appointed counsel and set the case for oral argument. We now affirm.

I.

In April of 1981 Pinson was convicted by a jury in the Circuit Court of Crawford County, Missouri, of rape and sodomy. The victim of both of the alleged crimes was Pinson’s mother, and she testified at the trial. Pinson was sentenced to two consecutive life terms. Petitioner argues that this sentence violated the Double Jeopardy Clause of the Fifth Amendment, as incorporated against the states by the Due Process Clause of the Fourteenth Amendment. He also argues that the sentence was so severe as to amount to cruel and unusual punishment in violation of the Eighth Amendment, which is likewise applicable to the states by virtue of the Fourteenth Amendment’s Due Process Clause.

Judge Noce’s recommended disposition, adopted by the District Court, fully answers these arguments. Under Missouri law, the crimes of rape and sodomy are distinct. See Mo.Rev.Stat. §§ 566.030, 566.060. Sodomy consists of “deviate sexual intercourse,” as defined by the statute, Mo.Rev.Stat. § 566.010, while rape does not.

Nor are the sentences excessive in a constitutional sense. The state is well within its rights, so far as the federal Constitution is concerned, in regarding the crimes of rape and forcible sodomy as deserving of special and severe condemnation. If sodomy were the only charge, a different question, to say the least, might be raised by a life sentence, but here Pin-son is under a life sentence for rape in any event, and the particular kind of sodomy— with a family member — is a clear aggravating factor.

II.

Pinson did not file a direct appeal of his convictions, and this fact gives rise to his remaining contention. The trial court, he argues, should have advised him that he had a right to appeal. We cannot agree that the federal Constitution requires any such procedure. Mo.R.Crim.P. 29.-07(b)(3) does require a trial court to advise a convicted defendant who has pleaded not guilty of his right to appeal, but whether that rule was violated is purely a question of state law, not a federal constitutional issue suitable for review on habeas corpus. Indeed, the federal Constitution, of its own force, does not even require that states afford appellate review of criminal convictions. E.g., Estelle v. Dorrough, 420 U.S. 534, 536, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975) (per curiam).

Pinson also argues that he asked his court-appointed attorney to file an appeal, and that the attorney ignored this request. (The very making of this claim, of course, necessarily admits that Pinson knew he had a right to appeal, which is an additional reason for rejecting his claim that the trial court should have advised him of this right.) The difficulty with this argument is that the state courts have found, after an evidentiary hearing, that Pinson made no such request of his lawyer. This is a finding of pure historical fact, and we are obliged to presume its correctness unless Pinson can persuade us that one of the exceptions to the presumption set forth in 28 U.S.C. § 2254(d) applies. Such findings, for example, are not presumed correct if they are not fairly supported by the record of the state-court proceeding. 28 U.S.C. § 2254(d)(8).

Following his conviction and the failure to perfect a direct appeal, Pinson brought a post-conviction proceeding under Mo.Sup.Ct.R. 27.26, the customary post-conviction remedy in the Missouri state courts. The Circuit Court of Crawford County appointed counsel to represent Pin-son and held an evidentiary hearing. Pin-son and his court-appointed trial lawyer were the only witnesses at this hearing. Pinson’s testimony was somewhat imprecise, but he apparently did insist that at various points during the proceeding (though perhaps not after the verdict of guilty was returned) he indicated a desire to appeal in the event of conviction. Counsel, on the other hand, did not recall any such request, and testified specifically that “after the sentencing I asked Mr. Pinson if there was anything else ... He did not ask me to appeal____” Tr. 35-36, quoted in Pinson v. State, 688 S.W.2d 783, 785 (Mo.App.1985).

After hearing this conflicting evidence, the trial court found as a fact “[t]hat movant did not tell his court appointed attorney ... to perfect an appeal____” See 688 S.W.2d at 784. Collateral relief was therefore denied by the state trial court. Pin-son, still represented by court-appointed counsel, appealed, and the Court of Appeals of Missouri, Southern District, Division III, affirmed. Pinson v. State, supra. The appellate court held that the trial court’s finding that Pinson had never requested that his lawyer appeal was not clearly erroneous.

The Missouri Court of Appeals, in a unanimous opinion written by Presiding Judge Crow, reasoned in substance as follows:

In determining whether these findings are clearly erroneous, we observe that movant’s testimony regarding whether he informed defense counsel that he wanted to appeal is vague and, to some degree, self-contradictory. In contrast, defense counsel testified that after the sentencing, movant did not ask him to appeal or to file a motion for a new trial. Additionally, defense counsel did not recall movant ever requesting that an appeal be filed or indicating that he wanted one filed.

* * * * * *

Bearing in mind that it was movant’s burden to establish his grounds for relief by a preponderance of the evidence, and that the credibility of the witnesses was for the circuit court, not us, to determine, we cannot, on this record, brand the circuit court’s denial of relief as clearly erroneous.

688 S.W.2d at 786 (citations omitted).

Thus, a finding of fact to the effect that no request for an appeal was ever made has been made by the state trial court in the post-conviction proceeding and affirmed by the state appellate court. Such a finding is entitled to deference here unless we can say that it is not fairly supported by the record. Having examined the transcript of the hearing in the 27.26 proceeding, we are unable to make such a statement. As Judge Noce stated below: “Although the record is somewhat ambiguous, the finding of the Missouri courts is fairly supported by the record.” Pinson v. Morris, No. 85-2266 C(5), slip op. 6 (E.D.Mo., Report and Recommendation filed June 30, 1986).

It might be desirable for the Missouri courts to lay down bright-line rules with respect to the conduct of court-appointed counsel in this sort of situation. These choices, however, are for the state, not for us. Here, appellant’s own claim that he notified his lawyer that he wished to appeal necessarily means that he knew that the Missouri statutes afforded him such a right. And the state trial court’s finding rejecting this testimony as a matter of fact is, on the basis of the record made before that court, entitled to credence in this federal habeas corpus proceeding.

Accordingly, the judgment of the District Court, denying the petition for writ of habeas corpus, must be and is

Affirmed.

1 . The Hon. David D. Noce, United States Magistrate for the Eastern District of Missouri.

2 . The Hon. Stephen N. Limbaugh, United States District Judge for the Eastern and Western Districts of Missouri.