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Goldsby v. Russell

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

August 29, 2014

DEMETRICE GOLDSBY, Petitioner,
v.
TERRY RUSSELL, Respondent.

MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, District Judge.

This matter is before the Court on the pro se petition of Missouri state prisoner Demetrice Goldsby for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 18, 2008, Petitioner pleaded guilty to first-degree child molestation and was thereafter sentenced as a prior and persistent offender to five years' imprisonment. For federal habeas relief, Petitioner claims (1) there was an insufficient factual basis for the state court to accept his guilty plea; (2) Petitioner's plea counsel was constitutionally ineffective for misleading Petitioner about the likely length of his sentence if he pleaded guilty, and not advising him that he would have to complete the Missouri Sex Offender Program ("MOSOP") before being eligible for parole; (3) the plea court lacked jurisdiction to accept Petitioner's guilty plea due to the absence of a factual basis to support the plea; and (4) Petitioner's post-conviction counsel was ineffective for (a) failing to amend Petitioner's post-conviction motion to include a claim that Petitioner's counsel at sentencing was ineffective for not presenting Petitioner's sleep disorder as mitigating evidence at sentencing, and (b) failing to comply with the governing rules and to verify the post-conviction motion in accordance with state law requirements. For the reasons set forth below, federal habeas relief shall be denied.

BACKGROUND

On July 16, 2006, Petitioner was taken into custody and charged with first-degree child molestation for subjecting the victim, who was less than 14 years old, to sexual contact, in violation of Missouri Revised Statute §566.067. Section 566.067 provides that "[a] person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact." Mo. Rev. Stat. § 566.067. Section 566.010(3) defines "sexual contact" as "any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person." Mo. Rev. Stat. § 566.010(3).

Petitioner was held in custody until his guilty plea hearing on June 18, 2008. At the hearing, Petitioner stated that he understood the charge and that his appointed counsel had explained to him the elements of the offense. He stated that he had sufficient time to discuss the charge with counsel, and that counsel had answered all of his questions and that he was satisfied with counsel's services. (Resp. Ex. A at 19-20.)

The prosecutor stated that had the case proceeded to trial, the State would prove beyond a reasonable doubt that,

on or about July 15, 2006, in the City of St. Louis, State of Missouri, specifically at [victim's address], which is the residence of [Petitioner]'s ex-girlfriend, [name omitted], that [Petitioner] subjected [the victim], who is less than 14 years old, to sexual contact. Specifically... the victim [name omitted], 13 years old at the time and in 8th grade, reported [Petitioner] touched her on her privates, which is the words she used, over the clothing. She disclosed this to several people.

Id. at 19-21.

Petitioner acknowledged to the plea court that he was pleading guilty to the facts articulated by the prosecutor. He told the court that he understood that he was pleading guilty to a Class B felony, which carried a punishment range from 5 to 15 years' incarceration. Petitioner testified that his counsel had explained to him the potential range of punishment prior to the hearing. The State recommended a sentence of seven years and plea counsel stated, "we are asking for five." Id. at 21. On June 23, 2008, the court sentenced Petitioner to five years' imprisonment.

State Post-Conviction Proceedings

Petitioner sought state post-conviction relief, which was denied by the motion court following an evidentiary hearing held on September 21, 2009. The only two claims raised on appeal from the denial of post-conviction relief were that (1) there was an insufficient factual basis for Petitioner's guilty plea to first-degree child molestation because the prosecutor failed to state that Petitioner's sexual contact with the victim was for the purpose of "arousing or gratifying sexual desire of any person"; and (2) Petitioner's plea counsel was ineffective for failing to inform Petitioner that he had to complete MOSOP before becoming eligible for parole, and misadvising Petitioner that if he pleaded guilty he would serve approximately 45 days in prison due to credit for time served. (Resp. Ex. C.)

On these two claims, Petitioner had testified at the evidentiary hearing before the motion court, that his plea counsel told him that if he were sentenced to five years' imprisonment, he "would be out within approximately 45 days." (Resp. Ex. B at 8.) Petitioner also testified that his plea counsel did not inform him that he would have to complete MOSOP and that the failure to do so would extend his earliest possible release date. Petitioner stated that had plea counsel told him about MOSOP and that he would not be paroled in about 45 days, he would not have pleaded guilty but would have gone to trial. He testified that he was not currently eligible for MOSOP because he was challenging his conviction and sentence, and MOSOP participation required that he admit his guilt. Id. at 8-11.

Petitioner's plea counsel testified at the evidentiary hearing that Petitioner's case was one of his first felony cases, but that he was overseen by an experienced public defender throughout the process. He testified that he may have told Petitioner that if the state would drop the child molestation charge for a second-degree assault charge, 45 days incarceration would be a possibility. He then testified that he may have said that if a second degree assault charge were offered by the State, Petitioner would have to serve 40% to 50% of his sentence before being considered for parole, and that Petitioner may have misunderstood that to mean 45 days. But in any event, plea counsel said that he never mentioned 45 days, or 40% to 50% in connection with the child molestation charge.

Plea counsel also stated that his notes from Petitioner's case did not include mention of MOSOP, but that he believed he told Petitioner about MOSOP and that Petitioner would be required to complete the program in order to become eligible for parole. He stated that he did not believe that was something he would not have mentioned, or even been negligent about not mentioning. Also, he pointed to a written comment in his notes, "reminded client that he needed to say the same thing at the plea as in that he's guilty or his parole would likely be delayed." Counsel believed that was a reference to his telling ...


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