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, a convicted state prisoner currently confined at the Fulton Reception and Diagnostic Center in Fulton, Missouri, has filed pro se a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging his 2009 conviction and sentence for driving while intoxicated, which were entered in the Circuit Court of Christian County, Missouri, pursuant to a plea of guilty. Petitioner was sentenced to seven years' imprisonment, but execution of the sentence was suspended and Petitioner was ordered to participate in a long-term substance abuse program.
Petitioner raises four (4) grounds for relief: (1) he was abandoned by post-conviction motion and post-conviction appellate counsel; (2) he was denied the right to appeal the denial of post-conviction relief because no transcript was available of his resentencing; (3) his guilty plea was involuntary and coerced because the state court judge intervened in the plea negotiations and caused Petitioner not to understand that he would be required to serve 80% of his sentence; and (4) his sentence is void and illegal because Petitioner never agreed to a seven-year sentence on a class C felony. Doc. No. 1, pp. 5-16. Respondent contends that Grounds 1 and 2 are not cognizable in federal habeas and that Grounds 3 and 4 are procedurally defaulted. Doc. No. 40, pp. 8-12.
In reply, Petitioner requests a transcript from his resentencing hearing on March 23, 2011. Doc. No. 42, p. 2-4; Doc. No. 43; Doc. No. 44. Petitioner does not identify how the requested transcript would be relevant considering Respondent's argument, which does not reach the merits of Petitioner's grounds for relief. Doc. No. 42, p. 2-4; Doc. No. 40, pp. 8-12. Because a decision on the procedural default and cognizability issue would preclude review of Petitioner's claims on the merits, Petitioner's request for transcripts to further expand the record will be denied. See Rule 5 of the Rules Governing Section 2254 (requiring Respondent to submit "parts of the transcript that the respondent considers relevant."); see also Beck v. Bowersox, 257 F.3d 900, 901 (8th Cir. 2001) (holding that trial transcripts should be reviewed by the district court and made part of the record when the district court reaches the merits of Petitioner's claims).
Statement of Facts
On November 13, 2009, Petitioner pleaded guilty to driving while intoxicated (DWI), and the state plea court found him to be a chronic DWI offender. Resp. Ex. A, p. 1. As a chronic offender, Petitioner's DWI offense was classified as a class B felony and Petitioner was required to serve a two-year mandatory minimum imprisonment term prior to becoming eligible for probation or parole. Id.; Mo. Rev. Stat. § 577.023.5-6. The court sentenced Petitioner to seven years' imprisonment and placed him in the Missouri Department of Corrections' (DOC) Long-term Drug Treatment Program pursuant to Mo. Rev. Stat. § 217.362. Resp. Ex. A. Petitioner immediately was delivered to the DOC to begin the treatment program. Doc. No. 40, p. 5.
On March 18, 2010, Petitioner filed pro se a motion for post-conviction relief pursuant to Mo. Sup.Ct. R. 24.035. Resp. Ex. D. Petitioner's post-conviction counsel (PCR 1 Counsel) filed an amended post-conviction motion on August 31, 2010. Resp. Ex. E. In the amended motion, Petitioner's post-conviction counsel argued that Petitioner received ineffective assistance of plea counsel because counsel failed to request certified copies of Petitioner's prior November 24, 1989, conviction, which was used to establish that Petitioner was a chronic DWI offender. Id. at 2-3. Had plea counsel requested a certified copy, counsel would have discovered that the judge presiding over Petitioner's 1989 conviction was not an attorney. Id. at 3. Counsel alleged that, had Petitioner known about this before he pleaded guilty, he would have insisted on proceeding to trial. Id.
On March 23, 2011, the motion court granted Petitioner relief. Resp. Ex. C, p. 1. As a result, the state court amended Petitioner's charge from a class B felony to a class C felony upon agreement of the parties, but the change did not alter Petitioner's sentence. Resp. Ex. A, p. 4. The finding did, however, reduce Petitioner's mandatory-minimum imprisonment term from two years to sixty-days' imprisonment, which Petitioner had already satisfied. Doc. No. 40, p. 5; see Mo. Rev. Stat. § 577.023.4. Petitioner's remaining seven-year sentence was within the statutory range permitted for a class C felony. Mo. Rev. Stat. § 558.011.1(3).
Upon successful completion of the treatment program, Petitioner was eligible for release as a result of the motion court's March 23, 2011, order. Doc. No. 40, p. 5. On April 15, 2011, Petitioner was granted probation. Resp. Ex. N, pp. 3-4. Petitioner sought no further relief from the motion court. Resp. Ex. C. On March 8, 2013, the motion court dismissed the action "for failure to prosecute as to the remaining Defendants, " and Petitioner did not appeal. Id.
On March 9, 2012, Petitioner admitted that he violated the terms of his probation. Resp. Ex. N, p. 2. Petitioner's probation was revoked, and his seven-year sentence was executed on March 28, 2012. Id. at 1-2. Petitioner was delivered to the DOC to continue service of his seven-year sentence. Doc. No. 40, p. 6. Because Petitioner has had three or more prior commitments to the DOC, he is required to serve eighty percent of his seven-year sentence. Resp. Ex. M. Petitioner would have been required to serve this percentage under either judgment. Id.; Resp. Ex. L.
After his return to the DOC, Petitioner filed another post-conviction motion (PCR 2) on July, 20, 2012. Resp. Ex. F. However, the motion court dismissed the motion as untimely. Id. Petitioner sought an appeal from the denial of his untimely post-conviction motion, but he voluntarily dismissed it on February 25, 2013. Resp. Ex. G; Resp. Ex. H.
I. Grounds 1 and 2 are not cognizable for federal habeas review.
In Ground 1, Petitioner alleges that his post-conviction motion counsel and post-conviction appellate counsel abandoned him after his successful post-conviction motion. Doc. No. 1, pp. 5-7. In Ground 2, Petitioner alleges that post-conviction counsel was ineffective for failing to inform him of the terms of his resentencing agreement and that, because no transcript or record of the post-conviction and resentencing hearing was available to him, he was denied the right to ...