United States District Court, E.D. Missouri, Eastern Division
RAYMOND J. COOK, Petitioner,
JAY CASSADY, Respondent.
MEMORANDUM AND ORDER
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE
action is before the Court on Petitioner Raymond J.
Cook's Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254. [Doc. 1.] Respondent Jay Cassady filed a
response to the Petition for Writ of Habeas Corpus. [Doc.
16.] The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c)(1). [Doc. 19.] For the reasons set forth
below, Cook's petition for writ of habeas corpus will be
information filed on May 31, 2011 in the Circuit Court of
Scotland County, Missouri, Cook was charged with Driving
while Intoxicated as a Persistent Offender in violation of
Mo. Rev. Stat. § 577.010, Driving without a Valid
License in violation of Mo. Rev. Stat. § 302.020, and
Consumption of Alcoholic Beverages while Operating a Moving
Vehicle upon the Highways in violation of Mo. Rev. Stat.
§ 577.017. (Pet. Ex. F.) Cook was charged as a
persistent offender based on a September 17, 2001 plea to
Driving while Intoxicated and an October 24, 2005 plea to
Involuntary Manslaughter - Vehicular - Intoxicated, both in
the Circuit Court of McDonald County, Missouri.
(Id.) On February 15, 2012, Cook pled guilty to the
DWI count, the remaining counts were dismissed, and Cook was
sentenced to two years in the Missouri Department of
Corrections, to run concurrent with a four-year sentence for
Driving while Intoxicated as a Persistent Offender imposed on
February 8, 2012 in the Circuit Court of Macon County,
Missouri. (Pet. Ex. G; Resp't Ex. A.) Cook filed his
Petition for Writ of Habeas Corpus in this court on May 10,
2013. [Doc 1.] Respondent filed a response in opposition and
Cook filed a reply. [Docs. 16, 20.]
did not raise his claims in a direct appeal or
post-conviction motion. Therefore, the claims in his petition
are procedurally defaulted. Sweet v. Delo, 125 F.3d
1144, 1149 (8th Cir. 1997). Cook has not demonstrated
adequate cause to excuse this default. Coleman v.
Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d
640 (1991). He cites a May 15, 2012 letter from Assistant
Public Defender Alexa I. Pearson as the reason he did not
file a post-conviction motion. However, the letter concerns
the appeal of his Macon County DWI conviction, not the
Scotland County conviction he challenges here. Moreover, the
letter advises him that his post- conviction motion is not
due until after his appeal is completely over and that he
should not file his post-conviction motion “at this
time;” the letter does not advise him that he should
never file a post-conviction motion. (Pet. Ex. S.) Even if
Cook's claims were not procedurally defaulted, they lack
Insufficient Evidence (Grounds 1, 3, 5, 6, 7 & 8)
argues that there was insufficient evidence to support his
conviction. The police report of Cook's arrest states
that the arresting officer was getting gas when he observed
Cook's truck pull into the gas station off of U.S.
Highway 136. (Pet. Ex. C.) Cook got out of the truck and
began putting air in one of the tires. According to the
report, the officer approached him because the truck appeared
overloaded and improperly secured. The report reflects that
the officer observed multiple indicia of intoxication and
learned that Cook's license was suspended. Cook was
arrested for driving without a valid driver's license and
for further investigation of driving while intoxicated. Cook
takes issue with much of the police report. In addition, he
argues that because he was standing on private property and
not driving on a public highway at the time of his arrest, he
cannot be guilty of the charged offenses. Finally, Cook
argues that the state failed to present sufficient evidence
of the predicate convictions used to charge him as a
guilty plea is an admission of all the elements of a formal
criminal charge and all the material facts alleged in the
charge. McCarthy v. United States, 394 U.S. 459,
466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969); United
States v. Johnson, 888 F.2d 1255, 1256 (8th Cir. 1989).
“[W]hen the judgment of conviction upon a guilty plea
has become final and the offender seeks to reopen the
proceeding, the inquiry is ordinarily confined to whether the
underlying plea was both counseled and voluntary.”
United States v. Broce, 488 U.S. 563, 569, 109 S.Ct.
757, 762, 102 L.Ed.2d 927 (1989). “If the answer is in
the affirmative then the conviction and the plea, as a
general rule, foreclose the collateral attack.”
Id.; see also Tollett v. Henderson, 411
U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973)
(“When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise independent
claims relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea”
unless he “attack[s] the voluntary and intelligent
character of the guilty plea.”). Blackledge v.
Perry announced the exception that “[a] defendant
who pleads guilty may seek to set aside a conviction based on
prior constitutional claims which challenge ‘the very
power of the State to bring the defendant into court to
answer the charge against him.'” Haring v.
Prosise, 462 U.S. 306, 320, 103 S.Ct. 2368, 2376-77, 76
L.Ed.2d 595 (1983) (quoting Blackledge v. Perry, 417
U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974)). The
Eighth Circuit has “frequently stated the general rule
to be “‘that a valid guilty plea operates as a
waiver of all non-jurisdictional defects or
errors.'” United States v. Vaughan, 13
F.3d 1186, 1187-88 (8th Cir. 1994) (quoting Camp v.
United States, 587 F.2d 397, 399 (8th Cir. 1978)).
does not challenge the voluntary or intelligent nature of his
plea and “a guilty plea entered with assistance of
counsel is presumed to be valid.” Hanson v.
Passer, 13 F.3d 275, 281 (8th Cir. 1994). Cook's
valid guilty plea bars him from challenging the sufficiency
of the evidence against him. United States v.
Alvarado-Sanchez, 383 F. App'x 576, 577 (8th Cir.
2010). In addition, Cook need not have been driving on the
highway at the time he was arrested to be guilty of a DWI.
The state may prove its case through circumstantial evidence.
See State v. Baker, No. WD 78391, 2016 WL 4366446,
at *2 (Mo.Ct.App. Aug. 16, 2016) (“Circumstantial
evidence can be used to prove the elements of
‘driving' and ‘while' when driving is not
personally observed by an eyewitness.”). The Court
finds that Cook's challenges to the sufficiency of the
evidence should be denied.
Defective Information (Grounds 4, 7 & 8)
rehearses his challenges to the sufficiency of the evidence
as challenges to the sufficiency of the information. As
discussed above, Cook's valid guilty plea generally bars
him from attacking his conviction on collateral review. A
defendant who enters a valid guilty plea can assert that the
charging document was insufficient “only to the extent
[he] challenges the state trial court's
jurisdiction.” Weisberg v. State of Minn., 29
F.3d 1271, 1280 (8th Cir. 1994). Cook's claims are not
jurisdictional in nature and are therefore barred.
further argues that the information is defective because his
predicate conviction for Involuntary Manslaughter is invalid.
Cook may not challenge the validity of an expired conviction
used to enhance the sentence he challenges here unless this
is the first and only forum available for such review.
Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S.
394, 402-06, 121 S.Ct. 1567, 1573-75, 149 L.Ed.2d 608 (2001).
Cook does not assert that he was prevented from challenging
his Involuntary Manslaughter conviction in a direct appeal or
post-conviction motion in that case.
Cook argues that the information is defective because his
predicate offenses are too old. This argument seems to stem
from the fact that the arresting officer identified Cook as a
“prior offender” in his citation for the DWI.
(Pet. Ex. D.) Driving while intoxicated as a prior offender
is a class A misdemeanor and requires that the predicate
offense be less than five years old. See Mo. Rev.
Stat. §§ 577.010 & 577.023. However, the
information charges Cook as a persistent offender, a class D