United States District Court, W.D. Missouri, Western Division
DERRICK W. FORTE, Petitioner,
TROY STEELE, Respondent.
OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS
AND DENYING THE ISSUANCE OF A CERTIFICATE OF
A. FENNER UNITED STATES DISTRICT JUDGE
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).
affirming the denial of post-conviction relief, the Missouri
Court of Appeals, Western District, set forth the following
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
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).
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). 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.
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. ...