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McKee v. McSwain

United States District Court, E.D. Missouri, Eastern Division

July 11, 2014

TRACY EUGENE McKEE, Petitioner,
v.
ELLIS McSWAIN, [1] Respondent.

ORDER AND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ABBIE CRITES-LEONI, Magistrate Judge.

This matter is before the Court on the Petition of Tracy Eugene McKee for a Writ of Habeas Corpus under 28 U.S.C. § 2254. This cause was referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 (b). For the reasons set forth below, the undersigned recommends that the Petition be denied.

Also pending are the following motions filed by McKee: Request for Evidentiary Hearing [Doc. 27]; and Request for Blank Subpoena Forms [Doc. 30].

I. Procedural History

McKee challenges the Sentence and Judgment of the Circuit Court of the City of St. Louis for various reasons related to his right to a speedy trial. McKee was indicted by a Grand Jury for one felony and four misdemeanor charges on August 8, 2006. (Respt's Ex. A at 3-4) Between September 2006 and August 2007, McKee filed six pro se motions and letters with the trial court complaining about the fact his case had not been called for trial and requesting a speedy trial. State v. McKee, 240 S.W.3d 720, 724-25 (Mo. banc 2007). McKee then sought a writ of mandamus from the Missouri Supreme Court to direct the trial court to dismiss the charges against him with prejudice based on the failure to try him for over 18 months following his arrest. Id. at 722. On December 21, 2007, the Court directed the trial court to:

(1) immediately hold a hearing to determine whether the conditions placed upon Mr. McKee's release at the time of his arrest pursuant to Rule 33.01 remain appropriate, and (2) to convene a hearing within seven days of [the] mandate to determine whether Mr. McKee's constitutional right to a speedy trial right has been violated. If the trial court finds that his speedy trial right has been violated, the charges against Mr. McKee shall be immediately dismissed. If the trial court concludes otherwise Mr. McKee shall be brought to trial as soon as practicable thereafter, but in no event more than thirty days after the hearing on his motion.

Id. at 732.

The trial court held a hearing on January 3, 2008, in response to the Mandate of the Missouri Supreme Court. (Respt's A at 8) The trial court heard evidence related to McKee's Motion to Dismiss for the alleged violations of his right to a speedy trial and modified McKee's bond to a sponsored recognizance bond. Id . On January 7, 2008, the trial court entered an Order denying McKee's Motion to Dismiss and set the case for trial on January 28, 2008. Id. at 9.

McKee's jury trial commenced on January 28, 2008. Before the jury was selected, McKee raised his motion to dismiss for violation of his right to a speedy trial and the motion was again denied. Id . On January 30, 2008, McKee was found guilty of first degree tampering (Count I) and acquitted of stealing (Count II). Id. at 10, 13. McKee pled guilty to the misdemeanor charges of resisting arrest, second-degree property damage, and first-degree trespass. Id. at 165. On February 29, 2008, he was sentenced to seven years imprisonment for the tampering charge and time served on the misdemeanors. Id. at 166-67. Execution of the seven-year sentence was suspended, and McKee was placed on probation for three years. Id . On January 23, 2009, McKee's probation was revoked and his sentence was executed. (Respt's Ex. G)

On appeal, McKee argued that the trial court erred in denying his motion to dismiss the charges against him, because he was deprived of his constitutional right to a speedy trial. (Respt's Ex. B at 16) On March 3, 2009, the Missouri Court of Appeals affirmed McKee's conviction for first degree tampering in a brief Order ( State v. McKee , 277 S.W.3d 846 (Mo.Ct.App. 2009)), supplemented by a Memorandum sent only to the parties setting forth the reasons for its decision (Respt's Ex. C).

McKee filed a pro se motion for post-conviction relief. (Respt's Ex. D at 3-14) On September 29, 2009, after appointment of counsel, McKee filed an amended post-conviction relief motion raising the following claims: (1) he was denied due process when he was improperly found to be a prior offender; (2) he was denied effective assistance of counsel when trial counsel waived McKee's right to jury sentencing; (3) he was denied effective assistance of counsel when trial counsel failed to request an instruction on second degree tampering; and (4) he was denied effective assistance of counsel when trial counsel failed to invoke McKee's statutory right to a speedy trial. Id. at 19-57. On December 9, 2009, the motion court denied McKee's motion without an evidentiary hearing. Id. at 58-62.

In his sole claim on appeal from the denial of post-conviction relief, McKee argued that the motion court clearly erred in denying his motion for post-conviction relief, because trial counsel was ineffective for failing to request that the trial court submit an instruction on the offense of second degree tampering. (Respt's Ex. E at 12) On February 3, 2011, the Missouri Court of Appeals affirmed the denial of post-conviction relief. (Respt's Ex. F); McKee v. State , 336 S.W.3d 151 (Mo.Ct.App. 2011) (when trial counsel proceeds with an innocence defense, requesting an instruction for second-degree tampering would have been inconsistent and "would undermine the entire theory of the case presented at trial.").

On May 11, 2011, McKee, pro se, filed the present Petition for a Writ of Habeas Corpus. [Doc. 1] McKee filed an Amended Petition on June 3, 2011, alleging the same grounds for relief. [Doc. 8] At the time of the filing of the Petition, Tracy Eugene McKee was incarcerated in the St. Louis City Justice Center on unrelated charges. [Doc. 14 at 1] McKee has been paroled for the convictions he challenges in his Petition. Id.

II. Petitioner's Claims

McKee raises three grounds for relief. In his first ground for relief, McKee argues that his constitutional right to a speedy trial was violated. In his second ground for relief, McKee argues that he received ineffective assistance of counsel when trial counsel failed to pursue his right to a speedy trial. In his third ground for relief, McKee contends that the government "failed to pursue defendant with diligence, " thereby denying him of his right to a speedy trial. On July 15, 2011, respondent filed a Response ...


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