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Stewart v. Sachse
United States District Court, W.D. Missouri.
February 13, 2015
KENDAL STEWART, Petitioner,
JENNIFER SACHSE, et al., Respondents.
MEMORANDUM AND ORDER
STEPHEN R. BOUGH, District Judge.
Petitioner, a convicted state prisoner currently confined at the Missouri Eastern Correctional Center,  has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. A jury convicted Petitioner of one count of stalking and one count of violating a full order of protection issued to Petitioner's ex-wife, C.P. Petitioner was sentenced to consecutive, five-year sentences on the two convictions. Petitioner now seeks to overturn his convictions on six grounds:
(1) Ineffective assistance by Petitioner's direct appeal counsel for failing to raise as a point of error that the statutes of conviction, Mo. Rev. Stat. §§ 565.225, 455.010 and 455.085 (2007),  are unconstitutionally vague;
(2) Ineffective assistance by Petitioner's first trial counsel for withdrawing representation after the preliminary hearing, and ineffective assistance by Petitioner's second trial counsel for requesting a continuance of the trial date without Petitioner's consent;
(3) Violation of a plea agreement by the State for requesting consecutive rather than concurrent sentences;
(4) Violation of Petitioner's right to be free from double jeopardy as a result of his convictions for stalking and violating a full order of protection;
(5) Violation of Petitioner's right to due process because one of the judges involved in Petitioner's matter, who did not preside over the trial, had a conflict of interest in that he previously represented Petitioner in 1987; and
(6) Violation of Petitioner's right to due process when the trial court allowed the jury to hear and see evidence mentioning other of the Petitioner's past crimes. Petitioner's writ of habeas corpus must be denied. The Court may not consider grounds 2, 3 and 5 as Petitioner failed to exhaust his state court remedies as required by 28 U.S.C. § 2254(b)(1)(A), and Petitioner has procedurally defaulted these claims. The Missouri Court of Appeals reviewed grounds 4 and 6 for plain error on direct appeal as Petitioner did not object to these issues at trial. This Court cannot engage in plain error review in a section 2254 proceeding, but even if it could, Petitioner has not established plain error. Finally, a writ will not issue on ground 1 as Petitioner has failed to establish that his direct appeal counsel acted in a prejudicially deficient manner by not challenging the constitutionality of Mo. Rev. Stat. §§ 565.225, 455.010 and 455.085 on appeal.
I. Factual Background
In affirming Petitioner's convictions and sentences, the Missouri Court of Appeals, Western District, set forth the following facts:
C.P. and [Petitioner] got married in 1996. Around 2003, [Petitioner] started to use drugs and became "very abusive" in their relationship. In February 2006, [Petitioner] broke into C.P.'s house and made her sit in a chair with the claw of a hammer pressed against her skull. This went on for four hours while [Petitioner] threatened to kill C.P. and then himself. The hammer claws left imprints in C.P.'s skin. On another occasion, [Petitioner] heated the end of a clothes hanger with a lighter and threatened to burn C.P. in "places so no man would ever want [her] again." In June or July 2006, [Petitioner] grabbed C.P. on the street and threatened to cut off her head. C.P. was able to break loose and run away.
In August 2006, [Petitioner] came to C.P.'s home and beat her up "real bad." He also stomped on the backs of her legs. She went to a domestic violence shelter because she "knew [Petitioner] was going to kill [her]." As a result of the injuries C.P. sustained, she "was in a wheelchair for 16 days with almost a blood clot to [her] heart." After C.P. got out of the domestic violence shelter, she stayed with her sister for about three months. [Petitioner] constantly called and came by the house, so C.P. "just had to stay hid." On one occasion, [Petitioner] used some barrels in the yard to barricade C.P. and her sister inside the house. The police came to the house regularly. On August 16, 2006, C.P. obtained an ex parte order of protection against [Petitioner] from the Circuit Court of Greene County, Missouri. On October 19, 2006, C.P. obtained a full order of protection against [Petitioner] that was effective for one year.
After a brief lull, C.P.'s contact with [Petitioner] resumed in June 2007. [Petitioner] began constantly driving by C.P.'s house. She returned to the domestic violence shelter because [Petitioner] was harassing and stalking her. When C.P. and several other women left the shelter periodically to return to C.P.'s home, they saw [Petitioner] driving up and down the street. He would park and watch C.P. An aerial view was admitted as Exhibit 102. Using the exhibit, C.P. explained to the jury where [Petitioner] would drive and park his car. C.P. reported these incidents to police. In October 2007, C.P. obtained a one-year extension of her full order of protection.
After another brief lull, C.P.'s contact with [Petitioner] resumed. In January 2008, C.P. awoke one morning after a snow storm. [Petitioner] had written his name in the snow on C.P.'s car, and there were footprints everywhere. Later that month, C.P. noticed that [Petitioner] had followed her to the laundromat. She left her clothes there and returned home. Three days later, C.P. was driving to the laundromat when "I seen this car in my mirror. It was going like a hundred miles an hour, so I knew it was him. And I knew he was going to hit me. He was just coming right at me." C.P. called the prosecutor on a cell phone and was advised to run inside the laundromat and wait there until the police arrived. There were also a number of occasions when [Petitioner] would come to C.P.'s residence in the middle of the night and hammer on the side of the house. When C.P. would look out of her window, she would see [Petitioner] running away and call 911. [Petitioner] also broke into C.P.'s house and stole all of her clothing. During this time period, C.P. filed with the police at least six incident reports involving [Petitioner].
C.P. said all these activities had a significant emotional effect on her and that she became "petrified" of [Petitioner] because he was "a very dangerous man." [Petitioner's] stalking scared C.P. because of all the time [Petitioner] had beaten her up and threatened to kill her in the past. C.P. was on medication, saw a psychiatrist monthly, and had been diagnosed with battered-women's syndrome and post-traumatic depression. [Petitioner's] conduct destroyed C.P.'s self-esteem. State v. Stewart, 343 S.W.3d 373, 375-376 (Mo.Ct.App. 2011).
Petitioner was charged by amended information as a persistent offender with two counts of stalking (Counts I and II) and one count of violating an order of protection (Count III). Petitioner was also charged as one who had been found guilty of stalking in the last five years and one who had pleaded guilty to violation of an order of protection in the last ...
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