Alonzo Virgil Selman v. State Missouri

Appellant was convicted of the crime of assault with intent to kill and in 1965 the judgment of conviction was affirmed. State v. Selman, Mo., 391 S.W.2d 193. Inasmuch as the appointed counsel filed no brief on the direct appeal, the affirmance was set aside (Bosler v. Swenson (C.A.8th), 363 F.2d 154), the direct appeal was reinstated, and was consolidated with a then pending appeal from a judgment overruling a motion to vacate the judgment under Supreme Court Rule 27.26, V.A.M.R. The judgment of conviction on the direct appeal was again affirmed, and the judgment overruling the motion to vacate judgment and sentence was also affirmed by decision October 30, 1968. See State v. Selman, Mo., 433 S.W.2d 572. According to appellant's motion and his brief, he filed a petition in in the United States District Court for the Western District of Missouri which was dismissed without prejudice ""for the reason that petitioner had not effectively exhausted his State remedies."" That order gave rise to the filing of the instant motion to vacate the judgment and sentence. On July 14, 1969, the trial court overruled the motion without first holding an evidentiary hearing on the finding ""from the files and records of this Court that the grounds presented by the instant motion were raised and determined adversely to Movant in a substantially identical motion filed pursuant to Rule 27.26 on the 1st day of June, 1966 (State of Missouri vs. Alonzo Virgil Selman, 433 S.W.2d 572).""