United States District Court, W.D. Missouri, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
DOUGLAS HARPOOL, District Judge.
Petitioner, Floyd Hawkins, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on August 18, 2014, seeking to challenge his 2012 convictions and sentences for manufacturing a controlled substance, delivering a controlled substance, and receiving stolen property, which were entered in the Circuit Court of Greene County, Missouri, after he pled guilty or entered an Alford plea to those offenses.
Petitioner asserts multiple claims consisting of: (1) trial court error in denying a motion to suppress in the manufacturing case and ineffective assistance of trial counsel in failing to properly present the evidence; (2) another person involved in the manufacturing case had charges dismissed after prevailing on a motion to suppress; (3) witnesses from AT&T changed their testimony between hearings and counsel was ineffective in allowing the preliminary hearing court to bind the case over for trial; (4) trial counsel was ineffective for not giving petitioner discovery on the sale case; (5) petitioner's plea of guilty was based on having a deal that guaranteed long-term treatment; (6) trial counsel was ineffective for threatening to withdraw if petitioner did not pay his legal fees in full; and (7) counsel was ineffective for not objecting to the State's argument at the sentencing hearing. (Doc. No. 1).
Respondent contends that all claims are procedurally defaulted except for petitioner's claim regarding his understanding of the plea agreement, which respondent contends is without merit.
On January 14, 2010, a confidential informant and Detective Nelson Kibby (working in an undercover capacity) met with petitioner. (Resp. Ex. A, p. 38). During that encounter, petitioner sold Detective Kibby a crystalline substance. (Resp. Ex. A, p. 38). Lab tests revealed that the substance was methamphetamine. (Resp. Ex. A, p. 38).
On March 18, 2010, sheriff's deputies went to petitioner's residence in response to reports concerning an overwhelming chemical odor. (Resp. Ex. A, p. 37). When nobody responded to a knock on the door, deputies entered the trailer and found petitioner, three other persons, and some items associated with the manufacture of methamphetamine. (Resp. Ex. A, p. 37). Deputies then obtained a search warrant for the residence. (Resp. Ex. A, p. 37). In searching the residence, deputies found infrared cameras hooked to a monitor, some bottles containing unknown liquids, and some chemicals used in the manufacture of methamphetamine. (Resp. Ex. A, pp. 37-38). Lab tests taken on samples of the unknown liquids revealed that some of the samples contained methamphetamine. (Resp. Ex. A, p. 38).
On July 14, 2011, petitioner sold 108 pounds of telephone wire that had been stolen from AT&T. (Resp. Ex. A, p. 38). The following day, deputies found petitioner and another person in one of the areas where the AT&T phone wire was cut and lying on the ground. (Resp. Ex. A, pp. 38-39). Additionally, the truck that petitioner and his co-defendant were using contained remnants of phone wire. (Resp. Ex. A, p. 39). In a post-Miranda interview, petitioner admitted to selling the phone wire on July 14 and that he had obtained that wire from various locations. (Resp. Ex. A, p. 39). The State also introduced evidence that petitioner had two previous pleas to manufacturing a controlled substance. (Resp. Ex. A, pp. 38-39).
The State charged petitioner in Greene County Case Number 1031-CR06886 with manufacturing a controlled substance (methamphetamine) as a persistent drug offender, possession of a chemical with the intent to create a controlled substance, and possession of drug paraphernalia with the intent to manufacture methamphetamine. (Resp. Ex. A, pp. 27-28). The State also charged petitioner in Greene County Case Number 1131-CR04951 with sale of a controlled substance as a persistent drug offender. (Resp. Ex. A, pp. 55-56). Lastly, the State charged petitioner in Greene County Case Number 1131-CR06271 with receiving stolen property as a persistent offender. (Resp. Ex. A, pp. 68-69).
On January 3, 2012, petitioner pleaded guilty to manufacturing a controlled substance as a prior drug offender, to the sale of a controlled substance as a prior drug offender, and to receiving stolen property as a persistent offender. (Resp. Ex. A, pp. 29, 30, 31, 35-40, 57, 58). As part of a plea agreement, the State dismissed the charges of possession of chemicals with the intent to manufacture a controlled substance and the possession of drug paraphernalia. (Resp. Ex. A, pp. 30). The plea agreement provided for concurrent sentences of fifteen years on all cases. (Resp. Ex. A, pp. 30, 58, 71). The plea agreement also provided that petitioner could argue to the court for placement in the long-term drug treatment program, but that the State could argue against such placement. (Resp. Ex. A, pp. 30, 58, 71). At sentencing, the trial court decided against placing petitioner in the long-term treatment program and, following the plea agreement, sentenced petitioner to concurrent terms of fifteen years on each case. (Resp. Ex. A, pp. 46-49, 59-62, 72-75).
In his amended state post-conviction relief motion, petitioner alleged that plea counsel was ineffective for: (1) failing to explain to petitioner that he might have to serve a fifteen years in the Department of Corrections (that the court might not place him in long-term treatment); (2) failing to interview one of petitioner's co-defendant on the manufacturing charge; and (3) failing to object to the State bringing up a potential future charge during the sentencing hearing. (Resp. Ex. A, pp. 93-99). On post-conviction appeal, petitioner only contended that counsel was ineffective for failing to make sure petitioner understood that petitioner might have to serve the full fifteen years. (Resp. Ex. B).
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.
Respondent is correct in his contention that all of petitioner's claims are procedurally defaulted except for the claim regarding petitioner's understanding of the plea agreement. Petitioner raised three claims in his amended post-conviction motion, challenging the failure of plea counsel to: (1) fully explain the plea agreement, (3) interview one of petitioner's co-defendant on the manufacturing charge, and (3) object to the State's discussion of an alleged new crime that petitioner committed while awaiting sentencing. (Resp. Ex. A, pp. 93-99). ...