United States District Court, W.D. Missouri, Western Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF
A. FENNER UNITED STATES DISTRICT JUDGE.
a convicted state prisoner currently confined at Jefferson
City Correctional Center in Jefferson City, Missouri, has
filed pro se this federal petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner
challenges his 2010 convictions and sentences for four counts
of first-degree robbery and one count of armed criminal
action, which were entered in the Circuit Court of Camden
County, Missouri. Petitioner’s convictions and
sentences were affirmed on direct appeal. Doc. 9-5.
Petitioner’s motion for post-conviction relief filed
pursuant to Mo. Sup. Ct. R. 29.15 was denied without an
evidentiary hearing. Doc 9-8.
spring of 2009, Petitioner was identified as the man who
committed four armed robberies between May 2 and June 5. Doc.
9-1, pp. 100-144. Prior to trial, Petitioner filed a notice
of intent to plead not guilty by reason of mental disease or
defect. Doc. 9-4, pp. 25-26. On November 17, 2010,
following trial, a Camden County jury rejected
Petitioner’s NGRI defense and found him guilty of four
counts of first-degree robbery and one count of armed
criminal action. Doc. 9-1, pp. 77. Petitioner was sentenced
to twenty-five years for each count of robbery and ten years
for the armed criminal action count, all to run concurrent
with each other. Id. at 80. The Missouri Court of
Appeals, Southern District, affirmed Petitioner’s
convictions on direct appeal. Doc. 9-5.
filed pro se a Form 40 seeking post-conviction
relief pursuant to Mo. Sup. Ct. R. 29.15. Doc. 9-6. Counsel
was appointed and thereafter filed a Statement in lieu of
Amended Motion for post-conviction relief, which was denied
without an evidentiary hearing. Doc. 9-6; Doc. 9-8.
Petitioner did not appeal the denial of his post-conviction
relief. Doc. 9-7.
raises four grounds for relief: (1) Petitioner was denied an
interpreter; (2) Petitioner’s pro se
post-conviction motion was never notarized; (3) the
state-court judgment denying post-conviction relief was never
signed; and (4) Petitioner’s counsel was ineffective
for an unspecified reason. Doc. 1, pp. 14-15.
Ground 1 is procedurally defaulted.
Ground 1, Petitioner argues that his entire case was
“fundamentally unfair” because he “could
not speak English and did not have an interpreter[.]”
Doc. 1, pp. 14-15. Respondent contends that Ground 1 is
procedurally defaulted and, alternatively, is refuted by the
record. Doc. 9, pp. 3-4.
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), cert. denied, 516 U.S.
1056 (1996). “[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 court to which he should have presented his
claim would now find it procedurally barred, there is a
procedural default.” Sloan, 54 F.3d at 1381.
did not assert Ground 1 on direct appeal (Doc. 9-2; Doc. 9-5)
or in his motion for post-conviction relief (Doc. 9-6, pp.
2-3; Doc. 9-8). As a result, these claims are procedurally
defaulted. Sweet v. Delo, 125 F.3d 1144, 1149 (8th
Cir. 1997) (recognizing that failure to present claims in the
Missouri Courts at any stage of direct appeal or
post-conviction proceedings is a procedural default),
cert. denied, 523 U.S. 1010 (1998). A federal court
may not review procedurally defaulted claims “unless
the prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Under
the cause and prejudice test, cause “must be something
external to the petitioner, something that cannot
fairly be attributed to him.” Id. at 753
(emphasis in original).
fails to establish cause and prejudice for the procedural
default of Ground 1. Notably, the record reflects that
Petitioner did, in fact, have an interpreter at trial and
during sentencing. Doc. 9-1, pp. 3, 73; Doc. 9-1, p. 16.
Insofar as Petitioner intended to claim that ineffective
assistance of counsel caused the procedural default of Ground
1, that claim is without merit for the reasons set forth in
Ground 4. Petitioner also fails to show that a fundamental
miscarriage of justice will result if his defaulted claim is
not considered. See Abdi v. Hatch, 450 F.3d 334, 338
(8th Cir. 2006) (a petitioner must present new evidence that
affirmatively demonstrates that he is actually innocent of
the crime for which he was convicted in order to fit within
the fundamental miscarriage of justice exception), cert.
denied, 549 U.S. 1036 (2006). Consequently, Ground 1 is
procedurally defaulted and is denied.
Grounds 2 and 3 are not cognizable, and, alternatively, are
Ground 2, Petitioner contends that his post-conviction motion
was “improper, unlawful, and unverified” because
it was never notarized. Doc. 1-1, p. 2; Doc. 1, p. 14. In
Ground 3, Petitioner contends that the judgement denying
state post-conviction relief is “false” and a
“fraud or gross error” because it was “not
signed.” Doc. 1-1, p. 8; Doc. 1, ...