United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
This matter is before the Court on the petition of Missouri state prisoner Lonnie McCain for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of first-degree assault of a law enforcement officer, driving while intoxicated ("DWI"), and driving with a revoked license ("DWR"). He was sentenced to 15 years, one year, and one year, respectively, to run concurrently.
For habeas relief, Petitioner claims that his constitutional rights were violated in the following ways: trial counsel was ineffective by failing to call an expert witness to testify regarding Petitioner's physical and mental condition at the time of the assault; Petitioner was improperly charged with first-degree assault because, as a result of the alcoholic beverages Petitioner consumed, Petitioner was not in a physical or mental condition to commit that crime; the prosecutor improperly amended the Information by crossing out the phrase "and taking the officer to the ground" from the first-degree assault count, which Petitioner claims entitled him to a new preliminary hearing; and direct appeal counsel provided ineffective assistance by failing to argue to the appellate court that Petitioner was not afforded a proper hearing to determine whether Petitioner was a prior and persistent offender. For the reasons set forth below, federal habeas relief shall be denied.
Petitioner was arrested on May 1, 2005. On June 10, 2005, an Information was filed against Petitioner charging him with the crimes of conviction. The first count alleged that Petitioner committed felony assault of a law enforcement officer in the first degree because Petitioner knew the victim was a law enforcement officer and "attempted to cause serious physical injury to him, by punching him numerous times with a closed fist and taking the officer to the ground." (Resp. Ex. E at 11.)
On September 16, 2005, the prosecutor filed an amended Information, in which he crossed out the phrase "and taking the officer to the ground" from the first count. (Resp. Ex. E at 13.) Petitioner was arraigned the same day. Also that day, the prosecutor filed a motion to find that Petitioner was a prior and persistent offender, and in support thereof, presented documentary evidence of Petitioner's three prior felonies. (Resp. Ex. E at 69-70.)
On September 16, 2005, following oral argument on the prosecutor's motion, the trial court entered an order finding that Petitioner was a prior and persistent felony offender. The trial court reasoned that the evidence warranted a finding beyond a reasonable doubt that Petitioner was a prior and persistent felony offender in that Petitioner pled guilty or was found guilty of the prior felonies of burglary, first-degree robbery, and armed criminal action. (Resp. Ex. E at 15.)
A jury trial was held on September 16, 2005, at which the Petitioner was represented by a public defender. In opening statement and closing argument, defense counsel conceded Petitioner's guilt of driving while intoxicated. (Trial Tr., Resp. Ex. E at 101, 125-26.) The evidence presented at trial established that Petitioner was stopped by Missouri Highway Patrol Trooper Kyle Wilmont after Wilmont observed Petitioner veering from his lane of traffic onto the shoulder of the roadway and into the opposite lane of traffic. Wilmont testified that Petitioner smelled of intoxicating beverages, that there were several open beer cans in Petitioner's vehicle, and that Petitioner had bloodshot eyes and slurred speech. Wilmont also testified that Petitioner's "movements were a little slow, a little lethargic." Wilmont performed three field sobriety tests, which Petitioner failed. Wilmont then checked Petitioner's driving status and discovered that Petitioner's driver's license had been revoked. While attempting to place Petitioner under arrest, Petitioner punched Wilmont with a closed fist in the chest, jaw, and face. (Trial Tr., Resp. Ex. E at 102-107.)
The jury returned a verdict on September 16, 2005, finding Petitioner guilty on all counts. On January 10, 2006, Petitioner was sentenced as a prior and persistent offender to 15 years for the felony assault, one year for the DWI, and one year for the DWR, all to be served concurrently.
Direct Appeal and State Post-Conviction Proceedings
Petitioner, represented by private counsel, filed a notice of appeal on January 19, 2006. (Resp. Ex. E at 61-62.) Due to a dispute regarding Petitioner's failure to pay fees and failure to maintain adequate contact with counsel, Petitioner's private counsel filed a motion to withdraw, which the Missouri Court of Appeals granted. (Resp. Ex. I at 2.) The court subsequently dismissed the direct appeal for failure to perfect the appeal. (Resp. Exs. A-B.)
On February 28, 2008, Petitioner filed a pro se motion for post-conviction relief, presenting multiple grounds for relief, including that trial counsel was ineffective for failing to interview or call an unidentified "key witness, " and appellate counsel was ineffective for reasons undescribed. None of the grounds raised in Petitioner's pro se motion are raised in the petition for federal habeas relief.
On May 30, 2008, a public defender appointed on Petitioner's behalf filed an amended motion for post-conviction relief. None of the grounds raised in Petitioner's amended motion, at the evidentiary hearing on Petitioner's amended motion, or on appeal from denial ...