United States District Court, E.D. Missouri, Eastern Division
STEVEN G. KETTERER, Petitioner,
TROY STEELE,  Respondent.
ORDER AND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
THOMAS C. MUMMERT, III, Magistrate Judge.
Steven G. Ketterer (Petitioner), a Missouri prisoner, petitions the United States District Court for the Eastern District of Missouri for federal habeas corpus relief from a conviction after a guilty plea. See 28 U.S.C. § 2254. As part of his prayer for relief, Petitioner also requests an evidentiary hearing. Respondent filed a response to the petition, along with exhibits consisting of materials from the underlying state court proceedings. (See Doc. 8.)
This matter is before the undersigned United States Magistrate for review and a recommended disposition of Petitioner's federal habeas petition, and for resolution of non-dispositive matters. See 28 U.S.C. § 636(b). After careful consideration, the undersigned will recommend the denial of the petition upon concluding that Petitioner is not entitled to relief because the sole ground for relief lacks merit; and will deny Petitioner's request for an evidentiary hearing.
Petitioner was charged, as a prior and persistent offender, with committing the following offenses on December 27, 2005: first-degree trafficking in violation of Mo. Rev. Stat. § 195.222 (Count I); second-degree trafficking, in violation of Mo. Rev. Stat. § 195.223, by knowingly possessing 90 grams or more of any material containing any quantity of methamphetamine (Count II); possession of a chemical with the intent to create a controlled substance in violation of Mo. Rev. Stat. § 195.420, by knowingly possessing muriatic acid with intent to alter that chemical to create methamphetamine (Count III); and possession of drug paraphernalia with intent to use, in violation of Mo. Rev. Stat. § 195.233 (Count IV). (See Indictment, Legal File, Resp't Ex. A, at 5-7).
Petitioner subsequently entered into an agreement with the State that he would plead guilty to the trafficking and possession offenses charged in Counts II and III; the State would recommend that he receive a twenty-year term of imprisonment on the trafficking offense in Count II and a seven-year term of imprisonment on the possession offense in Count III, with those sentences running concurrently; the State would dismiss Counts I and IV; and Petitioner would "waive PSI" and be sentenced at the time of the plea. (Plea Agreement, Legal File, Resp't Ex. A, at 8-9.) On July 31, 2007, Petitioner pleaded guilty to Counts II and III; and was sentenced, respectively, to a twenty-year term and a seven-year term of imprisonment, with those sentences running concurrently. (Plea Proceeding Tr., Legal File, Resp't Ex. A, at 10-23; Am. J., Legal File, Resp't Ex. A, at 24-27.) During the plea proceeding, the plea court asked Petitioner, in relevant part, "Were there any motions of any kind, such as a motion to suppress evidence or to suppress a warrant, let's say, that [your attorney] either didn't file or didn't pursue to your satisfaction?" to which Petitioner answered, "No." (Plea Proceeding Tr., Legal File, Resp't Ex. A, at 18.)
While Petitioner did not file a notice of appeal,  he did file a timely pro se motion for post-conviction relief pursuant to Missouri Supreme Court Rule 24.035. (Pet'r Pro se Post-Conviction Mot., Legal File, Resp't Ex. A, at 32-47.) Petitioner presented three claims in that motion: that the guilty plea was not entered knowingly and voluntarily with understanding of the nature of the charges; that there was no factual basis supporting the guilty plea for second-degree trafficking because he "never possessed ninety grams or more" of a material containing methamphetamine; and that his attorney provided ineffective assistance of counsel by failing or refusing to litigate a meritorious Fourth Amendment claim. (Id. at 33.) With respect to the third claim, Petitioner cited Georgia v. Randolph , 547 U.S. 103 (2006), to support his argument that a warrantless search of his "residence" was unconstitutional because his "wife" consented to search of the "residence" from which items were seized but he was present at the time and "unequivocally refused" to give consent to the search. (Pet'r Pro se Post-Conviction Mot., Legal File, Resp't Ex. A, at 33.) Petitioner asserted that "but for counsel's unprofessional representation, [he] would not have pleaded Guilty." (Id.)
Through appointed counsel, Petitioner subsequently filed an amended post-conviction motion, including a request for an evidentiary hearing. (Pet'r Am. Post-Conviction Mot., Legal File, Resp't Ex. A, at 52-58.) In his amended post-conviction motion, Petitioner presented one claim - that his Fifth, Sixth, Eighth, and Fourteenth Amendment rights to the effective assistance of counsel were violated through his plea attorney's failure to advise him properly that the search could be challenged based on a violation of Randolph, supra. (Id. at 58.) Petitioner alleged that, absent his attorney's "inefficacy, " he would have taken the matter to trial. (Id. at 56.)
The post-conviction motion court ("motion court") denied Petitioner's post-conviction motion without an evidentiary hearing. (Findings of Fact, Conclusions of Law and J., filed Apr. 19, 2010, Legal File, Resp't Ex. A, at 59-63.) In the only point raised in his post-conviction appeal, Petitioner argued that the motion court clearly erred in denying his post-conviction motion without an evidentiary hearing because his attorney provided ineffective assistance of counsel, in violation of the Fourth, Sixth, and Fourteenth Amendments, by "misadvising" Petitioner about the merits of seeking suppression of the evidence seized from his home based on a warrantless search in his presence and over his objection. (Pet'r Br., Resp't Ex. B, at 7, 8.) Petitioner contended that had his attorney "advised him correctly, he would have chosen to litigate the suppression motion and proceed to trial." (Id.)
The Missouri Court of Appeals for the Eastern District affirmed the motion court's decision in a summary order, supplemented by a memorandum sent only to the parties setting forth the reasons for the decision. (Per Curiam Order and Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b), dated Mar. 22, 2011, Resp't Ex. E.) In its opinion, the state appellate court found, in relevant part, as follows.
[T]o be entitled to relief, [Petitioner] must allege[, in relevant part, ] facts demonstrating that his trial counsel was ineffective under the Strickland [v. Washington , 466 U.S. 668 (1984)] test. Eddy [v. State], 176 S.W.3d [214, ] 218 [(Mo.Ct.App. 2005)]. "Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the [petitioner] must also prove that his Fourth Amendment claim is meritorious...." Kimmelman v. Morrison , 477 U.S. 365, 375 (1986). In this case, a motion to suppress the evidence by the police from the barn would have failed.
[Petitioner] relies on... Randolph for the proposition that police may not search a structure and seize items over the express objection of one physically present co-occupant even if consent is given by another co-occupant.... Randolph, 547 U.S. [at] 122-23.... He concludes that since he was physically present and refused officer's initial request to search the barn, the subsequent seizure was illegal and such evidence would have been suppressed. While [Petitioner] correctly identifies the holding of Randolph, the Randolph Court explicitly stated it was drawing a "fine line" with its holding. Id. at 122. The fact pattern in this case falls on the other side of that line. Although [Petitioner] initially refused the officer's request to search the barn, he consented when he later opened it for them. "Consent to search may be expressly given or it may be implied by a defendant's actions." State v. Garcia , 930 S.W.2d 469, 472 (Mo. [Ct.] App.... 1996). Rather than a situation in which one co-occupant consents to a search and the other refuses as contemplated in Randolph, in this case both co-occupants consented to the search, the search and seizure was legal, and any motion to suppress would have failed. As [Petitioner] failed to allege facts supporting a meritorious Fourth Amendment claim, the motion court did not err in refusing to grant him an evidentiary hearing on the matter.
Additionally, even if he had a meritorious Fourth Amendment claim, when [Petitioner] entered his guilty plea, he waived any complaint of ineffective assistance of counsel based on counsel's failure to file a motion to suppress. "[I]f [Petitioner] (a) was aware that, through counsel, he could move to suppress his statements to law enforcement officers and to suppress physical evidence, (b) understood that by entering a plea of guilty he waived the right to file such a motion, and (c) voluntarily enter[ed] a plea, he cannot now successfully complain that trial counsel failed to file a motion to suppress. Patrick v. State , 160 S.W.3d 452, 456 (Mo. App. S.D. 2005) (internal citation omitted). [Petitioner] admits that trial counsel talked with him about a possible motion to suppress, that by pleading guilty he was giving up his right to trial and appeal, and the court found the plea to be voluntary, knowing and intelligent. The motion court did not err in determining that [Petitioner] waived this claim by voluntarily entering a plea of guilty.
As [Petitioner] was unable to [show he was entitled to relief if his alleged facts were true] and waived his claim of ineffective assistance of counsel for failure to file a motion to suppress, the motion court did not clearly err in denying his motion without a hearing.
The Judgment is affirmed.
(Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b), dated Mar. 22, 2011, Resp't Ex. E, at 3-4 ...