United States District Court, W.D. Missouri, Western Division
OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
GREG KAYS, District Judge.
Petitioner, a convicted state prisoner currently confined at the Jefferson City Correctional Center in Jefferson City, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 conviction and sentence for second-degree assault of a law enforcement officer, which was entered in the Circuit Court of Livingston County, Missouri.
Petitioner raises four (4) grounds for relief: ineffective assistance of post-conviction counsel; prosecutor withheld exculpatory evidence; actual innocence or insufficient evidence for his conviction; and due process violation as a result of his trial attorneys failing to testify at his post-conviction evidentiary hearing.
Respondent contends that Grounds 1, 3 and 4 are not cognizable on federal habeas review, and that Ground 2 is procedurally barred.
On direct appeal, the Missouri Court of Appeals summarized the facts, as follows:
On August 7, 2007, [petitioner] was an inmate in the Livingston County jail. During the afternoon and early evening, Sheriff Steve Cox was working in the detention area at the jail. Sheriff Cox had numerous contacts with [petitioner] because he was repeatedly beating on the door to his cell and requesting "petty" things. At some point, Sheriff Cox told him to "stop beating on the door like a monkey." [Petitioner] told his cellmate, Bryant McCracken, that he was "ready to fight and catch a charge on the Sheriff." McCracken believed [petitioner] was going to assault Sheriff Cox. McCracken slipped a note through the door in an effort to warn Sheriff Cox that [petitioner] was planning on assaulting him, but Sheriff Cox did not see the note until after the incident.
There was a camera located in [petitioner's] cell. It was common for the inmates to "flag" the camera if they needed help. [Petitioner] flagged the camera, and Sheriff Cox responded to his cell. When Sheriff Cox opened his cell door, [petitioner] began screaming that Sheriff Cox was his enemy, that he wanted to go to a different cell, and that he wanted to go to a different jail. Sheriff Cox asked [petitioner] to step out of his cell so that he could move him to a different cell but [petitioner] refused. Sheriff Cox repeated his request that [petitioner] step out of his cell numerous times but [petitioner] refused. Instead, [petitioner] walked to the back of the cell. When Sheriff Cox entered the cell, [petitioner] turned and lowered his hands in an aggressive stance as if he was going to attack Sheriff Cox. In response, Sheriff Cox discharged his taser at [petitioner]. [Petitioner] momentarily dropped to his knees but then got back up and attacked Sheriff Cox. [Petitioner] hit Sheriff Cox and wrapped his arm around Sheriff Cox's neck in an effort to get the taser. Eventually, Sheriff Cox regained control of the situation and removed the other two inmates from the cell before locking [petitioner] in. When Sheriff Cox returned to the cell with other officers, [petitioner] had tied the cell door shut. After the officers opened the cell, [petitioner] was transported to the hospital.
Respondent's Exhibit E, pp. 2-3.
Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger , 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem , 728 F.2d 1533, 1540 (8th Cir. En banc), cert. denied, 469 U.S. 842 (1984). It is petitioner's burden to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254(e)(1). Because the state court's findings of fact have fair support in the record and because petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.
In Ground 1, petitioner claims he is entitled to federal habeas relief because he received ineffective assistance of post-conviction counsel. (Doc. No. 1, p. 5). Specifically, petitioner asserts that post-conviction counsel failed to file an appeal from denial of post-conviction relief. However, there is no constitutional right to an attorney in state post-conviction proceedings. See Coleman v. Thompson , 501 U.S. 722, 752 (1950). Therefore, this claim is not cognizable on federal habeas review because there is no constitutional right to effective assistance of postconviction counsel. Where there is no constitutional right to counsel, there can be no deprivation of effective assistance. Simpson v. Norris , 490 F.3d 1029, 1033 (8th Cir. 2007), citing Wainwright v. Torna , 455 U.S. 586, 587-88 (1980). Consequently, petitioner's Ground 1 will be denied.
In Ground 2, petitioner claims the prosecution withheld exculpatory evidence. (Doc. No. 1, p. 6). Petitioner asserts that the prosecutor provided incomplete discovery because his defense counsel provided petitioner with incomplete copies of discovery. Specifically, petitioner claims the prosecutor failed to disclose medical records, photographs taken on August 8, 2007, statements from Jim Lightner, and ...