United States District Court, W.D. Missouri, Southern Division
OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
DOUGLAS HARPOOL, District Judge.
Petitioner, Kristopher Lee Moore, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on September 29, 2014, seeking to challenge his 2008 conviction and sentence for first degree robbery, which was entered pursuant to an Alford plea in the Circuit Court of Greene County, Missouri.
The petition raises six grounds for relief: (1) that plea counsel was ineffective for failure to investigate; (2) that plea counsel was ineffective for lack of communication and miscommunication with petitioner concerning the Sentencing Assessment Report and the 15-year plea offer by the prosecutor; (3) that plea counsel was ineffective for failing to obtain full disclosure or supply petitioner with discovery; (4) that plea counsel was ineffective for "failure to properly investigate, assess, and present a defense on petitioner's prior record from New Jersey"; (5) that the prosecutor violated petitioner's rights by withdrawing the 15-year plea offer and seeking the maximum sentence due to petitioner exercising his right to have a preliminary hearing; and (6) that plea counsel was ineffective for failure to raise the issue that petitioner only should have been charged with second degree robbery rather than first degree robbery.
Noting that petitioner's sole point on appeal from the denial of his Mo. Sup.Ct. Rule 24.035 post-conviction relief motion was the allegation set forth in Ground 2 of the petition, respondent contends that that Grounds 1, 3, 4, 5, and 6 are procedurally defaulted. Respondent further contends that the allegation set forth in Ground 2 is without merit and was denied by the Missouri Court of Appeals, and that the state court's judgment is entitled to deference.
SUMMARY OF THE FACTS
On appeal from the denial of petitioner's Mo. Sup.Ct. Rule 24.035 post-conviction relief motion, the Missouri Court of Appeals summarized the facts as follows:
Kristopher Lee Moore ("Movant") pleaded guilty to first-degree robbery and received a 25-year sentence. He now claims that his Rule 24.035 motion for post-conviction relief was wrongly denied after an evidentiary hearing because he proved that bad advice he received from his attorney rendered his guilty plea involuntary. Specifically, Movant claims that if his lawyer had not advised him "that if he entered a plea of guilty... he would likely receive less than a 15-year sentence, " he would have either taken an earlier 15-year plea offer or insisted on going to trial. Finding no merit in his claim, we affirm.
Facts and Procedural Background
The underlying plea and sentencing hearings
On October 3, 2008, Movant appeared with defense counsel and informed the trial court that he wanted to plead guilty. Movant testified that he "had [been given] enough time to talk to [defense counsel]" about his decision to enter the guilty plea and was "satisfied with [defense counsel's] services[.]" Movant confirmed that his plea "was an open plea" in that there was "no plea agreement with the State[.]" The guilty plea became an " Alford plea" after Movant disagreed with the State's description of how Movant had displayed the gun he used during the robbery.
The prosecutor announced that Movant was facing a "range of punishment... from ten years to thirty years or life in the Department of Corrections." Movant confirmed that he was "pleading guilty... hoping for a more favorable result in terms of sentence than [he] would [receive] if [he] went to trial[.]" The trial court reminded Movant that "there's no plea agreement with the State in this case" and asked Movant if anyone had "made any promises to [him] about the outcome of [his] case or otherwise to try to get [him] to plead guilty?" Movant replied, "No, sir."
Movant also understood that the trial court would not make its sentencing decision until it had reviewed the Sentencing Assessment Report with its included recommendations and had "heard argument from the prosecutor and [defense counsel]." The trial court accepted Movant's guilty plea upon finding, among other things, that Movant's plea had been entered "voluntarily and with an understanding of his rights."
At the January 2009 sentencing hearing, the State argued in favor of a 25-year sentence. Defense counsel argued that the court should impose "a fifteen-year sentence... under [section] 559.115, with a placement in the Institutional Treatment Center, so that [Movant] can receive the drug treatment that clearly he needs in an institutional setting." Defense counsel further argued that the trial court could deny probation after treatment if it was not satisfied with Movant's progress. The trial court stated that "the appropriate sentence is incarceration. It's a question of how long."
After announcing its 25-year sentence, the trial court placed Movant under oath and again inquired about defense counsel's representation. Movant confirmed that "during that time leading up to [his] plea and to [his] sentence, " defense counsel did "everything on [Movant's] case [Movant] asked him to do" and did not do anything that he was asked not to do. When asked if Movant was satisfied with defense counsel's services, Movant replied, "I guess so." Movant went on to state:
Sir, I just - I don't - I'm being honest with you. I mean, I'm a little shocked. I pled guilty because I was told I'd lose [at] trial. They offered me fifteen years, and I'm going to turn around and get twenty-five because I can't win [at] trial, not because I commit - I ...