Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Forte v. Steele

United States District Court, W.D. Missouri, Western Division

September 16, 2016

DERRICK W. FORTE, Petitioner,
v.
TROY STEELE, Respondent.

          OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

          GARY A. FENNER UNITED STATES DISTRICT JUDGE

         Petitioner, a convicted state prisoner currently confined at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, Missouri has filed pro se this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2011 conviction and 2012 sentence for first-degree assault on a law enforcement officer, which were entered in the Circuit Court of Jackson County, Missouri, pursuant to a plea of guilty. Petitioner's motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 24.035 was denied after an evidentiary hearing (Doc. 7-2, pp. 117-21) and that denial was affirmed on appeal therefrom (Doc. 7-5).

         Statement of Facts

         In affirming the denial of post-conviction relief, the Missouri Court of Appeals, Western District, set forth the following facts:

In August 2009, the State charged Forte with first-degree assault of a law enforcement officer (§ 565.081, RSMo Cum. Supp. 2009) and armed criminal action (§ 571.015, RSMo 2000). On October 31, 2011, Forte appeared before the circuit court and entered an Alford plea to first-degree assault of a law enforcement officer in exchange for the State's dismissal of the armed criminal action count.
Forte testified at the plea hearing that, early in the morning on August 9, 2009, he was walking to a park at 67th and Paseo in Kansas City. He remembered that he was carrying a gun and had been smoking PCP and marijuana and drinking alcohol. When Forte got to the park, he found two of his friends. After his friends left, Forte sat down on a bench and passed out. He did not regain consciousness until he awoke in a hospital. He had been shot four times.
Forte stated that he did not remember anything else from that night. He was aware, however, that two Kansas City police officers would testify that they found him in the park and that, when one of them approached and identified himself as a police officer, Forte raised a gun and fired a shot in the officer's direction. Forte understood that the officers would testify that he ran from them and would not stop or drop the gun when they ordered him to do so, that they pursued him, and that they shot numerous rounds at him, hitting him four times.
Forte understood that the State had agreed to dismiss the armed criminal action charge if he pleaded guilty. He was aware that there was no agreement as to sentencing and that the judge ultimately would decide his sentence. Forte stated that he fully understood the charges against him. He was aware of a possible life sentence on the armed criminal action charge, with no chance of probation, and he knew that the assault charge could result in ten to thirty years or life and that, if denied probation, he would have to serve 85% of that sentence.
Forte confirmed that he had sufficient time to consult with counsel before entering his plea. He verified that counsel had explained the evidence against him. He did not have any further questions about the evidence. Forte knew that his case was set for trial that day and that the State was prepared to call the two police officers to testify against him. Forte told the court that he believed his attorney had done a good job for him and that he had no complaints. He stated that he was entering an Alford plea because he believed that it was in his best interest and that he was likely to be found guilty if he went to trial.
The court accepted Forte's Alford plea, finding him guilty of assault of a law enforcement officer. At the sentencing hearing, the State argued for a sentence that would “keep [Forte] out of our society for a very long time[.]” Plea counsel sought leniency and asked for probation with a lengthy sentence as backup. The court denied probation and sentenced Forte to eighteen years.

Doc. 7-5, pp. 4-6 (footnote omitted).

         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).[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.

         Discussion

         Petitioner raises the following grounds for relief: (1) plea counsel was ineffective for misleading Petitioner as to the likelihood that he would receive probation; and (2) plea counsel was ineffective for failing to communicate with and advise Petitioner and conduct an adequate investigation. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.