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Brown v. Russell

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

September 30, 2016

TERRY RUSSELL, Respondent.



         This matter is before the Court on Petitioner Deraughn Brown's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Government has responded (Doc. 7), and Petitioner has filed a reply (Doc. 9), a supplement to his reply (Doc. 21), and a traverse to his reply (Doc. 32). For the following reasons, Petitioner's section 2254 petition is DENIED and this action is DISMISSED with prejudice.

         I. Introduction and Background

         In October 2007, Petitioner was indicted on four felony counts arising out of the August 6, 2007 shooting of the Kevin Hodges: one count of assault in the first degree, one count of unlawfully discharging a firearm from a motor vehicle, and two counts of armed criminal action (Resp. Ex. B at 92-93). Represented by counsel (“trial counsel”) and without a written plea agreement, Petitioner pled guilty to all four counts in January 2009 (Id. at 94-96, 105). At the plea hearing, the prosecutor stated that, at trial, the government would establish that, on August 6, 2007, Petitioner and Hodges had a disagreement in a gas station parking lot; that at some point during the argument, Hodges got out of his car while Petitioner remained seated in the driver's seat of his car; and that Petitioner then shot Hodges in the shoulder, causing him serious physical injury, a substantial risk of death, and protracted loss of use of his arm (Id. at 112-13). Petitioner admitted those facts were substantially true and correct (Id. at 113). Further, in response to questioning, Petitioner indicated that he had been afforded sufficient opportunities to discuss the case with trial counsel, that he was satisfied that trial counsel was informed of all the facts she needed to know to adequately advise him in the case, that trial counsel had advised him of all aspects of the case, including his legal rights, and that he was satisfied with trial counsel's services (Id. at 108-09). At a March 2009 hearing, the court sentenced Petitioner to eighteen years in prison on each count, with the sentences to be served concurrently. After imposing the sentence, the court inquired of Petitioner whether he was satisfied with trial counsel's representation. Petitioner responded negatively, stated that he was disappointed with “everything” and the “whole situation, ” and indicated that trial counsel had not investigated all of the witnesses to the shooting (Id. at 100-04).

         Petitioner thereafter filed a pro se motion to set aside his conviction, which the parties alternately refer to as filed pursuant to Rule 24.035, Rule 29.07, and Rule 29.15 (“post-conviction motion”), arguing, as relevant, that trial counsel had been ineffective by failing to interview key witnesses and by misadvising him about the length of the sentence he would receive if he pled guilty (Id. at 5-11). Petitioner was appointed counsel (“motion counsel”), who amended his post-conviction motion to raise two issues: that Petitioner's convictions violated double jeopardy, and that trial counsel had misadvised Petitioner as to the sentence he would receive upon his guilty plea. Notably, motion counsel omitted Petitioner's claim that trial counsel had been ineffective by failing to investigate key witnesses to the shooting (Id. at 12, 17-47).

         The state court held an evidentiary hearing on the issue of whether trial counsel had misadvised Petitioner as to the length of the sentence he would receive upon his guilty plea (Resp. Ex. A). Trial counsel testified to the following relevant facts. Before she advised Petitioner to enter a blind plea, she had reviewed the police report and all other evidence the government had disclosed to her, and she had correctly advised him of the ranges of punishments he faced if he pled guilty. She felt that Petitioner may have had a viable affirmative defense of imperfect self-defense based on “sudden passion.” She did not believe he could prevail on a complete self-defense claim because there were “a lot of initial aggressor problems, ” as Petitioner had introduced a loaded weapon into what might have been a mere “fist fight.” She had planned to proceed to trial with an imperfect-defense theory, relying on the testimony of a witness who had been a passenger in Petitioner's car during the shooting. However, trial counsel later learned that Petitioner had misrepresented the nature of his relationship with the witness, discovered that the government had significant evidence it would use to impeach the witness at trial, and decided-based on Petitioner's misrepresentations and his performance during mock testimony-that Petitioner was not credible and would not be a good witness. Trial counsel then suggested that Petitioner reject the government's then-pending offer to recommend a twenty-five-year sentence, and that he instead enter a blind plea, based on her belief that the court would impose a sentence shorter than twenty-five years. According to trial counsel, Petitioner may have asked her about lesser-included offenses, but she advised him “[t]hat's not going to be a relevant consideration for you and I, because in a blind plea situation, you have to plead to whatever's on the table, there's not going to be an amendment or reduction of the charge, there can't be, so that's a moot conversation” (Id. at 5-35). Petitioner testified that he had informed trial counsel that he was not interested in accepting the government's offer to recommend a twenty-five year sentence because he believed he had shot Hodges in self-defense, and that trial counsel had not communicated to him her concerns about proceeding to trial on a self-defense theory (Id. at 38, 42-43, 45). The court denied Petitioner's post-conviction motion, finding trial counsel's testimony credible and Petitioner's testimony not credible. The Missouri Court of Appeals summarily affirmed the denial. See Brown v. State, 395 S.W.3d 83, 2013 WL 1412106 (Mo. App. 2013) (per curiam).

         Petitioner then filed his pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which he later supplemented (Docs. 1, 5). In his petition, supplement to his petition, and supporting memoranda, he alleges the following relevant facts. On August 6, 2007, Petitioner shot Kevin Hodges in the shoulder while the two men argued in the parking lot of a gas station. Law enforcement officers responded to the scene, and completed a police report which named three witnesses to the shooting (Doc. 1-1 at 14-17). The report included as a witness Keith Henderson, a clerk at the gas station, and provided his telephone number and home address. The report also indicated that police officers had seized as evidence an orange plastic handsaw with an eleven-inch metal blade found at the scene (Id. at 17). According to Petitioner, Hodges was “brandishing” a weapon (i.e., the handsaw with an eleven-inch blade), as he approached Petitioner's car, and that he shot Hodges out of “terror, ” in self-defense, and as a result of “sudden passion” (Id. at 9-10).

         In his sole ground for relief, he claims that trial counsel was ineffective by failing to adequately explain a potentially meritorious defense, i.e. an incomplete self-defense based on “sudden passion arising from adequate cause, ” and by failing to interview a key witness who would have aided that defense (Id. at 4). Petitioner concedes that his claim was procedurally defaulted in his state post-conviction proceeding, in light of the omission of the claim from his amended post-conviction motion. Petitioner asks the Court to excuse the default, arguing that motion counsel was ineffective by failing to consult with him before amending his post- conviction motion to omit the claim (Doc. 1 at 5, 14). In a supporting memorandum, Petitioner concedes that he would have been unable to establish a complete self-defense claim because he did not try to retreat before he shot Hodges (Doc. 1.1 at 9). Attached to Petitioner's memorandum is an affidavit from Henderson, dated January 4, 2013, in which he attested to the following:

I witnessed the incident that occurred at my job at the Mobil gas station on August 6, 2007 while wiping windows. I noticed two cars with two or three young people who were confronting one another at the intersection of the Mobil station. At that very moment two guys exited the back doors of the Ford car and began circling around behind the dark blue car. There I saw the driver of the Ford car, a black guy, exit out with a chrome colored object in his hand approaching the dark blue vehicle in a threatening manner. I heard at least one shot fired and seen the dark blue car drive off.
If I had been contacted to appear in court to testify as a witness who observed this situation, I would have come.

(Doc. 1-1 at 19).

         In response, the Government argues that Petitioner's claim is procedurally defaulted, as it was omitted from his amended post-conviction motion; that motion counsel was not ineffective by omitting the claim from the amended motion in order to proceed with claims on which Petitioner was more likely to prevail; and that Petitioner is not entitled to 28 U.S.C. § 2254 relief on his underlying claim because trial counsel was not ineffective by failing to interview Henderson. The Government further argues that, even assuming that trial counsel was ineffective by not interviewing Henderson, Petitioner cannot show that he was prejudiced by such failure, as it is unlikely that he would have proceeded to trial--and risked higher sentences on the other three counts--on the off chance that a jury would credit his imperfect self-defense theory, acquit him of first-degree assault, and instead convict him of a second-degree assault, the lesser included offense for first-degree assault (Doc. 7).

         In his pro se reply, Petitioner reiterates his claim that trial counsel and motion counsel were both ineffective, and asserts that he would not have pled guilty had trial counsel interviewed Henderson and properly advised him as to the availability of a lesser-included offense based on a sudden-passion defense (Docs. 9, 21). In a counseled traverse to his reply, filed with the Court on August 1, 2016, Petitioner requests an evidentiary hearing, argues that Petitioner's default of his claim should be excused based on motion counsel's ineffective assistance, asserts that Petitioner would have prevailed on his underlying claim of ineffective assistance of trial counsel because he had a viable sudden-passion defense, and raises for the first time a claim that he had a complete self-defense to all four counts (Doc. 32).

         In a sur-reply filed with leave of the Court, the Government reiterates that Petitioner's claim is procedurally defaulted and that he has not established cause for the default; and opposes his request for an evidentiary hearing (Doc. 36). The Government also argues that police officers found-in the backseat of the victim's car-the handsaw that Hodges was allegedly holding as he approached Petitioner's car (Id.; Doc. 1.1 at 18). The Government attached a ...

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