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Jenkins v. Bowersox

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

September 30, 2016

DONTAY JENKINS, Petitioner,
v.
MICHAEL BOWERSOX, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE.

         Petitioner filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 [Doc. 1] on September 9, 2013. Respondent filed his Response to the Court's Order to Show Cause Why Relief Should Not be Granted [Doc. 9], on November 14, 2013. Petitioner filed a Reply To Respondent's Motion to Show Cause [Doc.13]. Pursuant to Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts, this Court has determined that there are no issues asserted that give rise to an evidentiary hearing and therefore one is not warranted, as will be discussed in further detail. For the reasons set forth below, the Response to the Order to Show Cause Why Relief Should not be Granted is well taken and the petition will be denied.

         Procedural Background

         On January 6, 1999, Petitioner was convicted by jury of one count first-degree robbery in the Circuit Court of Dunklin County. Jenkins was sentenced to fifteen years in the Missouri Department of Corrections. The Missouri Court of Appeals, Southern District of Missouri, affirmed his conviction. The Petitioner is currently within the custody of the Missouri Department of Corrections under the previously referenced sentences.

         Petitioner filed his motion to appeal as a poor person on September 16, 2008, to the Missouri Court of Appeals, Southern District. On March 1, 2010, the Missouri Court of Appeals issued its opinion affirming the conviction of Petitioner. The only issue raised on appeal was that the Missouri trial court erred in allowing Petitioner to proceed to trial without counsel in violation of his Sixth and Fourteenth Amendment rights under the U.S. Constitution to due process and counsel. The Missouri Court of Appeals concluded Petitioner knowingly and intelligently waived his right to counsel and chose to proceed pro se and that no manifest injustice was committed. Jenkins v. Missouri, SD31562 (Mo App. 2013)(unpublished opinion)(Respondent's Exhibit H).

         On June 7, 2010, Petitioner filed his state Motion for Post-conviction Relief. He received appointed counsel to represent him on the motion. Petitioner alleged he was denied effective assistance of appellate counsel because counsel on appeal failed to properly brief his denial of his right to due process and counsel at trial by having to try his case pro se and involuntarily. In addition he alleged ineffective assistance of appointed appellate counsel as counsel did not brief on the issue of the denial of his motion to suppress identification by the trial court and allowing the state to introduce evidence of the photo lineup. Jenkins also alleged that appellate counsel failed to include that the trial court erred in not declaring a mistrial after he was brought in court in handcuffs. There was also an allegation of denial of effective assistance of counsel in counsel not asserting the failure of the trial court to rule on his pro se motions prior to trial. He asserted appointed appellate counsel was ineffective in failing to pursue a motion for rehearing under Missouri Supreme Court Rule 30.26. An ineffective assistance of counsel claim was raised against pretrial counsel for failing to fully inform him about the case and for failing to file certain motions. Post-trial counsel was alleged to be ineffective for failing to refer to the error of the trial court in not submitting a verdict director on the lessor included offense of Second Degree Robbery. Lastly, Petitioner alleged the trial court was without jurisdiction to proceed to trial on the charge of Robbery in the First Degree. Subsequent to this filing, Jenkins filed an amended Motion on October 25, 2010, asserting additional grounds for relief in that his Sixth Amendment right to counsel was denied by pretrial counsel's failure to investigate witnesses provided to him, as well as other witnesses including the complaining witness.

         The Trial court in Dunklin County, Missouri proceeded with a hearing on the Rule 29.15 motion which took place on June 17, 2011. On July 19, 2011, the Trial court issued its order overruling the Rule 29.15 motion filed by Petitioner. A timely notice of appeal to the Missouri Court of Appeals was filed. The Missouri Court of Appeals affirmed the trial court and issued its mandate on March14, 2014.

         Petitioner filed this Petition for Writ of Habeas Corpus against Respondent on September 9, 2013. Petitioner alleges that the following: 1) The trial court erred in allowing Jenkins to proceed to trial pro se because Jenkins did not waive his right to counsel knowingly and voluntarily; 2) Trial counsel was ineffective for refusing Jenkins investigative requests; 3) Trial counsel was ineffective for refusing to investigate Mr. Chism's criminal record; 4) Appellate counsel was ineffective for failing to brief the fact that petitioner was shackled during his trial; 5) Appellate counsel was ineffective for failing to brief that the trial court erred for not conducting a hearing on all of Jenkins's pre-trial motions; 6) Appellate counsel was ineffective for failing to brief that the trial court violated his right to a speedy trial; 7) Appellate counsel was ineffective for failing to brief that the trial court erred in not granting his motion for acquittal at the close of state's evidence.

         Standard of Review

         Habeas relief is barred unless “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. §2254(b)(1)(A). To fulfill this requirement, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process” before presenting those issues in an application for habeas relief in federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “A federal habeas petitioner's claims must rely on the same factual and legal bases relied on in state court;” otherwise, they are defaulted. Winfield v. Roper, 460 F.3d 1026 (8th Cir. 2006).

         The exhaustion requirement “refers only to remedies still available at the time of the federal petition.” Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982). Thus, “if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law, ” the exhaustion requirement is satisfied. Castille v. Peoples, 489 U.S. 346, 351 (1989). “However, the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default.” Gray v. Netherland, 518 U.S. 152, 161-62 (1996).

         The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (“AEDPA”) applies to all petitions for habeas relief filed by state prisoners after the statute's effective date of April 24, 1996. When reviewing a claim that has been decided on the merits by a state court, AEDPA limits the scope of judicial review in a habeas proceeding as follows:

An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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