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Hamm v. Denney

United States District Court, Western District of Missouri, Western Division

December 12, 2014

BOBBY JOE HAMM, Petitioner,
v.
LARRY DENNEY, Respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

BETH PHILLIPS UNITED STATES DISTRICT JUDGE

Petitioner, a convicted state prisoner currently confined at the Crossroads Correctional Center in Cameron, Missouri, has filed pro se this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2011 conviction and sentence for first-degree statutory rape, which was entered in the Circuit Court of Lafayette County, Missouri. Petitioner did not file a direct appeal from his conviction and sentence. Petitioner’s motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 24.035 was denied (Resp. Ex. F), as was his appeal therefrom (Resp. Ex. J).

Petitioner raises two grounds for relief in the current petition: (1) he is actually innocent of first degree statutory rape; and (2) guilty plea counsel was constitutionally ineffective because he assured petitioner that an “open” plea would result in a sentence of no more than 15 years. Doc. No. 1, pp. 6, 8. Respondent argues that Ground 1 was procedurally defaulted and/or fails to state a ground for relief because petitioner fails to allege a constitutional violation in the underlying state criminal proceedings and that Ground 2 is without merit. Doc. No. 8, pp. 5-7, 8-10.

FACTUAL BACKGROUND

The state court, in denying petitioner’s motion for post-conviction relief, set forth the following facts:

On September 7, 2010, [petitioner] was arraigned on the indictment in 10LF-CR00132-01. That indictment charged [petitioner] with nine counts of statutory rape in the first degree and seven counts of statutory rape in the second degree.
On May 4, 2011, the State filed an amended information in lieu of indictment. That information charged [petitioner] with two counts of statutory rape in the first degree and one count of statutory rape in the second degree. Movant entered an open plea of guilty to one count of statutory rape in the first degree, which was alleged to have happened between November 1, 2008 and April 7, 2009. The State dismissed the other two counts. This Court ordered a sentencing assessment report and continued the case for sentencing hearing.
On June 20, 2011, this Court sentenced [petitioner] to Life in the Missouri Department of Corrections, with that sentence to run concurrently with a sentence he received in [another case]. [Petitioner] was delivered to the Department of Corrections on June 28, 2011.

Resp. Ex. F, pp. 1-2.

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).[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.

ACTUAL INNOCENCE

In Ground 1, petitioner claims that he is actually innocent of the crime for which he was convicted. Specifically, petitioner claims that he is innocent of the Lafayette County first-degree statutory rape conviction to which he pled guilty because he was not intimate with the victim in Lafayette County until she was at least 14 years old[2], Doc. No. 1, p. 5, and because the victim was in juvenile custody in Jackson County, Missouri, most of the time period (8 months) during which the crime was alleged to have happened. Doc. No. 11, p. 1. Petitioner states that he “was convinced to give guilty plea to 1st degree and that it was in [his] best interest by [his] public offender.” Doc. No. 1, p. 5. Respondent contends that petitioner procedurally defaulted this claim and, alternatively, that it is without merit.

"A habeas petitioner is required to pursue all available avenues of relief in the state courts before the federal courts will consider a claim." Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir. 1995). “[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process” before presenting those issues in an application for habeas relief in federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). "If a petitioner fails to exhaust state remedies and the ...


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