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Franklin v. Koster

United States District Court, E.D. Missouri, Eastern Division

September 1, 2016

JERRY D. FRANKLIN, Petitioner,
v.
CHRIS KOSTER, et al., Respondents.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the petition of Jerry D. Franklin for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents have filed a response in opposition, and the issues are fully briefed.

         I. Background

         On June 29, 2010, Franklin pled guilty in the Twenty-Second Circuit Court of Missouri (City of St. Louis) to two counts of first degree assault on a law enforcement officer, in violation of Mo. Rev. Stat. § 565.081. See State v. Franklin, No. 0922-CR05755-01; Resp. Ex. A. He was sentenced on that same day to two 18-year terms of imprisonment that were to run concurrently with each other and with a previously-imposed 216-month federal sentence for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1).[1] Resp. Ex. A at 21.

         In the instant petition, Franklin asserts a claim of ineffective assistance of counsel based on the allegation that his attorneys failed to file an appeal as instructed.[2] At the time the petition was filed, it appeared that Franklin had not exhausted available state remedies. See 28 U.S.C. § 2254(b)(1) Consequently, on July 24, 2013, the Court stayed the proceedings to allow Franklin to pursue post-conviction relief under Missouri Supreme Court Rule 29.07(d). See [Doc. #29] (explaining that Rule 29.07(d) appeared to be the only state procedural avenue available to Franklin to press his claims); McCoy v. State, 456 S.W.3d 887, 892 (Mo.Ct.App. 2015) (“Rule 29.07(d) . . . authorizes a defendant to move to withdraw a guilty plea following the imposition of sentence, to correct [a] manifest injustice.” (internal quotation marks omitted)); State v. Ison, 270 S.W.3d 444, 445 (Mo.Ct.App. 2008) (“Although a Rule 29.07 motion is filed in the criminal case, it is a civil collateral attack on a criminal conviction just as are Rule 24.035 and Rule 29.15 motions.”); see also 28 U.S.C. § 2254(c).

         On October 24, 2013, Franklin filed a pro se motion under Rule 29.07(d) to withdraw his guilty plea to correct a “manifest injustice” (hereinafter, “Rule 29.07 motion”). [Doc. #37-2 and #37-4] In the Rule 29.07 motion, Franklin asserted that he had explicitly instructed his attorney to file an appeal of the judgment but the attorney failed to do so. [Doc. #37-2 at 14-18] No evidentiary hearing was held. On November 8, 2013, the state circuit court summarily denied the motion. [Doc. #37-3] Franklin states that he first received a copy of the order denying the motion on January 20, 2015, when it was sent to him by counsel for respondents. [Doc. #44-4 at 2]

         On January 21, 2015, Franklin filed a pro se “motion for late notice of appeal” of the denial of the Rule 29.07 motion in the Missouri Court of Appeals. [Doc. #44-1 at 1] That motion was granted on January 28, 2015. [Doc. #44-2] However, on March 3, 2015, the Missouri Court of Appeals suggested that the motion may not have been timely filed and therefore it “may have been improvidently granted.” [Doc. #44-3] Franklin was ordered to show cause why the January 28 order should not be set aside and his motion for leave to file a late notice of appeal should not be denied. Id. Franklin filed a pro se response.

         On March 24, 2015, the Missouri Court of Appeals found that Franklin's motion for leave to file a late notice of appeal was untimely. [Doc. #44-5] Specifically, the appellate court ruled that it lacked authority to address the merits of Franklin's claims because the motion was not filed within twelve months after the state circuit court's order denying the Rule 29.07 motion became final, as required by Missouri Supreme Court Rule 30.03. Id. As a consequence of that state procedural bar, the Missouri Court of Appeals set aside its earlier order and denied Franklin leave to file a late notice of appeal. Id. On May 5, 2015, Franklin's pro se application to transfer to the Supreme Court of Missouri was denied. [Doc. #42-2 at 2]

         Based on the procedural history recited above, the Court concludes that Franklin has exhausted his state remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Id. § 2254(b)(1)(B).

         II. Procedural Issues

         A. Procedural default

         “[I]t is well-settled that federal courts are precluded from reviewing ‘a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Greer v. Minnesota, 493 F.3d 952, 957 (8th Cir. 2007) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The “adequate and independent state grounds doctrine . . . applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman, 501 U.S. at 729-30, 739. Where the petitioner has so procedurally defaulted his claims, he “‘forfeits his right to present his federal claim through a federal habeas corpus petition, unless he can meet strict cause and prejudice or actual innocence standards.'” Greer, 493 F.3d at 957 (quoting Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir. 2004)).

         It is undisputed that Franklin did not timely appeal the state circuit court's denial of his Rule 29.07 motion. And it was for that reason that the Missouri Court of Appeals was precluded from reaching Franklin's claims on the merits. See [Doc. #44-5 at 1]; Mo. Sup. Ct. R. 30.03. Franklin's failure-to-file-an-appeal claim is thus procedurally defaulted. Therefore, the Court cannot reach that claim on the merits unless Franklin can show both cause and prejudice, or actual innocence. See Greer, 493 F.3d at 957.

         Franklin was pro se during the entirety of the review of his Rule 29.07 motion, which was a “civil collateral attack on his criminal conviction.” McCoy, 456 S.W.3d at 896 (“Although a Rule 29.07 motion is filed in the criminal case, it is a civil collateral attack on a criminal conviction just as are Rule 24.035 and Rule 29.15 motions.” (quoting Ison, 270 S.W.3d at 445)). He was not appointed counsel after he filed the Rule 29.07 motion in the state circuit court or on appeal after that motion was denied. The cause and prejudice analysis is truncated in such circumstances. See Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012).

         In Martinez, the Supreme Court held that, “when a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim . . . where the state courts did not appoint counsel in the initial-review collateral proceeding . . . .” Id. at 1318. That rule applies where the initial review collateral proceeding is the “first designated proceeding to raise a claim of ineffective assistance of counsel.” Id. at 1316; see Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013) (extending Martinez to situations where the “state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal”). Martinez applies in this case because “Missouri law does not allow a claim for ineffective assistance of counsel to be raised on direct appeal . . . .” Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012) (citing State v. Wheat, 775 S.W.2d 155, 157 (Mo. 1989) (en banc), overruled on other grounds by Joy v. Morrison, 254 S.W.3d 885 (Mo. 2008) (en banc)); see Sasser v. Hobbs, 735 F.3d 833, 852 (8th Cir. 2013) (explaining that, “a procedure to assure adequate representation cannot depend on a defendant's acting without representation”). Based on Martinez, the failure to appoint Franklin counsel before or after he filed the Rule 29.07 motion establishes cause to excuse his procedural default.

         Having established cause, Franklin must next show prejudice. See Greer, 493 F.3d at 957. “If the habeas claimant can also show prejudice, the procedural default may be excused and the merits of the trial level ineffectiveness claim may be reached by the habeas court.” United States v. Lee, 792 F.3d 1021, 1024 (8th Cir.), as corrected (Dec. 14, 2015), reh'g denied, 811 F.3d 272 (8th Cir. 2015) (citing Martinez, 132 S.Ct. at 1315). To prove “prejudice from a violation of federal law, ” the petitioner must show “that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the [petitioner] must demonstrate that the claim has some merit.” Martinez, 132 S.Ct. at 1316, 1319; see Dansby, 766 F.3d at 834. Therefore, the Court must determine whether any of Franklin's ineffective assistance of counsel claims is meritorious. If one of those claims is meritorious, he will have established prejudice, his procedural default will be excused, and, of course, he also will be entitled to relief.

         B. Applicability of 28 U.S.C. § 2254(d)

         The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254, narrows a federal court's authority to issue a writ of habeas corpus on any claim that was decided on the merits by a state court. See Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013) (explaining that “28 U.S.C. § 2254(d) makes it clear that this provision applies only when a federal claim was ‘adjudicated on the merits in State court'” (quoting 28 U.S.C. § 2254(d)) (emphasis added)). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011) (citation omitted). That presumption also applies “when a state-court opinion addresses some but not all of a defendant's claims.” Johnson, 133 S.Ct. at 1094. “When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits-but that presumption can in some limited circumstances be rebutted.” Id. at 1096.

         If a habeas petitioner succeeds in rebutting the presumption, “the claim should be considered by the federal court de novo”; that is, not subject to § 2254(d)'s barriers to federal relief. Id. But the presumption is “a strong one that may be rebutted only in unusual circumstances . . . .” Id. For example, “[t]he presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Richter, 562 U.S. at 99- 100 (citation omitted).

         One such circumstance is where a state court has stated that “state-law procedural principles” require it to deny relief. Id. at 99. Another such circumstance is where “a federal claim is rejected as a result of sheer inadvertence, ” meaning “it has not been evaluated based on the intrinsic right and wrong of the matter.” Johnson, 133 S.Ct. at 1097. However, to overcome the presumption in the absence of an explicit denial based on a state procedural barrier, the petitioner must show “the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court . . . .” Id.

         But the absence of factual findings by a state court is not itself clear evidence that the state court did not reach the federal claim on the merits. See Richter, 562 U.S. at 92. Section 2254(d)'s strong presumption that a state court denied a petitioner's federal claim on the merits “applies when state-court relief is denied without an accompanying statement of reasons.” Id. In Richter, as in the state circuit court here, the habeas petitioner's federal claims were denied in a “one-sentence summary order.” Id. at 96. The Supreme Court nonetheless held the absence of a statement of reasons was insufficient to rebut the presumption that the state court rejected the petitioner's federal claims on the merits. Id. The Supreme Court consequently held § 2254(d) applied to federal habeas review of the petitioner's claims. See Id. at 96-101.

         Here, Franklin raised the failure-to-file-an-appeal claim in the Rule 29.07 motion. [Doc. #37-2 at 14-18] The state circuit court summarily denied that motion without explanation. [Doc. #37-3] The Missouri Court of Appeals denied Franklin's motion for leave to file a late notice of appeal of the state circuit court's order for procedural reasons. [Doc. #44-5] Franklin's motion to transfer that procedural denial to the Supreme Court of Missouri for further review also was denied. [Doc. #42-2 at 2]

         It is apparent that neither the Missouri Court of Appeals nor the Supreme Court of Missouri reached the failure-to-appeal claim on the merits. But that is not true of the state circuit court's denial of the Rule 29.07 motion in the first instance. Because the state circuit court summarily denied the Rule 29.07 motion without explaining whether it considered the merits, Johnson and Richter require the Court to assume the state circuit court reached Franklin's failure-to-appeal claim and rejected it on the merits. See Johnson, 133 S.Ct. at 1094-96; Richter, 562 U.S. at 92, 96. Therefore, the Court must apply § 2254(d) to review of Franklin's failure- to-file-an-appeal claim. See Richter, 562 U.S. at 96-101; Dansby, 766 F.3d at 832-33.

         III. Merits

         A. ...


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