United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
ABBIE CRITES-LEONI, Magistrate Judge.
This matter is before the Court on the Petition of Wendell Simmons for a Writ of Habeas Corpus under 28 U.S.C. § 2254.
I. Procedural History
Petitioner is presently incarcerated at the Northeast Correctional Center in Bowling Green, Missouri, pursuant to the Sentence and Judgment of the Circuit Court of the City of St. Louis, Missouri. (Respt's Ex. A at 14-17)
On September 19, 2005, Petitioner was charged by Complaint with attempted first degree burglary. Id. at 5. Petitioner was subsequently charged by Indictment with first degree burglary. Id. at 7. On September 4, 2007, Petitioner pled guilty to one count of burglary in the first degree. Id. at 9-11. At the plea hearing, the Prosecutor stated that, if Petitioner's case had gone to trial, the evidence would show that Petitioner broke into a residence for the purpose of committing a stealing therein, and the Petitioner was seen entering a window of the residence by one of the people living there. Id. at 10. The Prosecutor indicated that Petitioner's body was partially through the window when he was seen by the residents. See id. Petitioner admitted to the facts recited by the State. Id . On November 2, 2007, Petitioner was sentenced as a persistent offender to fifteen years imprisonment. Id. at 12-13. After the court announced Petitioner's sentence, Petitioner attempted to suggest that he had entered the residence at issue because he was "high off drugs" and chasing after a person who had his money, not because he was trying to steal something. Id. at 13. The court did not permit Petitioner to withdraw his plea. Id.
On December 26, 2007, Petitioner filed a pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence pursuant to Rule 24.035. Id. at 20-25. On June 22, 2009, after appointment of counsel, Petitioner filed an Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence and Request for Evidentiary Hearing. Id. at 29-35. Petitioner argued that he received ineffective assistance of counsel in that plea counsel coerced Petitioner into pleading guilty by failing to investigate or develop potential defenses to the charge of burglary in the first degree. Id. at 31. On December 11, 2009, the motion court denied both the Petitioner's motion and request for an evidentiary hearing. Id. at 36-45.
Petitioner raised the same ineffective assistance of counsel claim on appeal from the denial of post-conviction relief. (Respt's Ex. B at 9) On December 14, 2010, the Missouri Court of Appeals affirmed the motion court's decision in a short Order, Simmons v. State , 326 S.W.3d 849 (Mo.Ct.App. 2010), supplemented by a Memorandum sent only to the parties setting forth the reasons for its decision (Respt's Ex. D).
On March 1, 2011, Petitioner, pro se, filed the instant Petition for a Writ of Habeas Corpus citing three grounds for relief. [Doc. 1] In his first ground for relief, Petitioner argues that he received ineffective assistance of counsel, because counsel failed to investigate or develop potential defenses to the charge of first degree burglary. In his second ground for relief, Petitioner argues that he received ineffective assistance of counsel in that counsel failed to properly prepare for trial by not spending adequate time with Petitioner prior to the plea and not accepting calls from Petitioner. In his third ground for relief, Petitioner contends that he is actually innocent of the charge of first degree burglary.
On April 28, 2011, Respondent filed a Response to Order to Show Cause, in which he argues that portions of Ground One; Ground Two; and Ground Three are procedurally defaulted. Respondent also argues that Petitioner's claims fail on their merits. [Doc. 7] On May 17, 2011, Petitioner filed a Traverse, in which he provides further argument in support of his Petition. [Doc. 11]
II. Standard of Review
A federal court's power to grant a writ of habeas corpus is governed by 28 U.S.C. § 2254(d), which provides
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
The Supreme Court construed Section 2254(d) in Williams v. Taylor , 529 U.S. 362 (2000). With respect to the "contrary to" language, a majority of the Court held that a state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or if the state court "decides a case differently than [the] Court has on a set of materially indistinguishable facts." Id. at 405. Under the "unreasonable application" prong of § 2254(d)(1), a writ may issue if "the state court identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies [the principle] to the facts of the particular state prisoner's case." Id . Thus, "a federal habeas court making the unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 410. Although the Court failed to specifically define "objectively unreasonable, " it observed that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410.
III. Procedural Default
To avoid defaulting on a claim, a petitioner seeking federal habeas review must have fairly presented the substance of the claim to the state courts, thereby affording the state courts a fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v. Iowa , 322 F.3d 1018, 1020-21 (8th Cir. 2003) (internal quotation marks and citations omitted) (quoting Anderson v. Harless , 459 U.S. 4, 6 (1982) (per curiam) and Anderson v. Groose , 106 F.3d 242, 245 (8th Cir. 1997)). Specifically, a state prisoner must fairly present each of his claims in each appropriate state court before seeking federal habeas review of the claim. Baldwin v. Reese , 541 U.S. 27, 29 (2004). A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts that he is attempting to raise in his federal petition. Wemark , 322 F.3d at 1021 (internal quotation marks omitted) (quoting Joubert v. Hopkins , 75 F.3d 1232, 1240 (8th Cir. 1996)). Claims that are not fairly presented to the state courts are procedurally defaulted. See id. at 1022. Absent a showing of cause and prejudice or a miscarriage of justice, a federal habeas court may not reach the merits of a federal constitutional claim procedurally defaulted due to a petitioner's failure to follow applicable state rules in raising the claim in state court. Sawyer v. Whitley , 505 U.S. 333, 338B39 (1992).
Missouri requires the raising of constitutional claims at the first available opportunity. See State v. Wilson , 812 S.W.2d 213, 216 (Mo.Ct.App. 1991), citing State v. Smith , 781 S.W.2d 761, 770 (Mo. banc 1989). Missouri Supreme Court Rule 24.035 "provides the exclusive procedure by which [a] person [convicted of a felony or a guilty plea] may seek relief in the sentencing court for the claims enumerated." Mo. S.Ct. Rule 24.035(a). The types of claims identified in the Rule include: claims that the conviction or sentence imposed violates the constitution and laws of [Missouri] or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law. Id .; see also Roberts v. Milburn, 2013 WL 4620614 (E.D. Mo. Aug. 24, 2013). When claims for relief are not presented in a Rule 24.035 motion to a state court, the state court does not have an opportunity to review the claims, therefore a petitioner's failure to present such claims "constitutes default to federal habeas review." Smith v. Groose , 998 F.2d 1439, 1441 (8th Cir. 1993).
In his first ground for relief, Petitioner argues that he received ineffective assistance of counsel when counsel failed to investigate or develop potential defenses to the charge of first degree burglary. Petitioner made the following factual allegations in support of this claim: (1) he did not enter the dwelling, did not have a weapon, and was not there for the purpose of committing theft; (2) he was coerced into pleading guilty due to the failure of counsel to perform any investigation; (3) counsel did not file a "motion to get Petitioner's charge reduced back to his original charge of attempted Burglary;" and (4) counsel did not request a reduction of charges based on the statements made during sentencing, nor did she argue the actual crime committed was trespassing. [Doc. No. 1 at 3]
In his amended post-conviction relief motion and on appeal from the denial of post-conviction relief, Petitioner argued that he received ineffective assistance of counsel in that plea counsel coerced him into pleading guilty by failing to investigate or develop potential defenses to the charge of burglary in the first degree. (Respt's Ex. A at 29-35; Respt's Ex. B) Petitioner provided the following facts in support of his claim: (1) no evidence was presented showing that he was inside the dwelling (Respt's Ex. A at 32-33; Respt's Ex. B at 12); (2) no evidence was presented that he intended to commit a crime or that he used a weapon (Respt's Ex. A at 33; Respt's Ex. B at 13); and (3) he felt coerced to plead guilty because counsel had not investigated the case nor prepared for trial (Respt's Ex. A at 31-33; Respt's Ex. B at 13-15).
Petitioner raised the first two parts of his ineffective assistance of counsel claim from Ground One of his federal habeas petition [Doc. 1 at 3], in his state post-conviction proceedings. The third and fourth parts of Petitioner's first ground for relief, in which he contends that counsel failed to file a motion for reduction of the charge, however, were not raised in state court. Thus, the third and fourth parts of Ground One are procedurally defaulted.
In his second ground for relief, Petitioner argues that he received ineffective assistance of counsel in that counsel failed to properly prepare for trial by not spending adequate time with Petitioner prior to the plea and not accepting calls from Petitioner. [Doc. 1 at 4] As supporting facts, Petitioner also contends that the relationship was negative due to Petitioner's inability to raise sufficient funds to pay counsel, and that counsel never visited the jail where Petitioner was confined. Id. at 5.
Although Petitioner raised this claim in his pro se post-conviction motion, the claim was not included in the amended motion, or in the appeal. (Respt's Ex. A at 21, 29-35; Ex. ...