United States District Court, E.D. Missouri, Eastern Division
JAMES K. SMITH, Petitioner,
TERRY RUSSELL, Respondent.
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on the petition of James K. Smith
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Respondent has filed a response in opposition, and the
issues are fully briefed.
is currently confined in the Missouri Department of
Corrections pursuant to the sentence and judgment of the
Twenty-First Judicial Circuit Court of Missouri (St. Louis
County). After pleading guilty to forcible sodomy, armed
criminal action, and assault second degree, petitioner was
sentenced on June 10, 2010 to an aggregate 23-year term of
imprisonment. [Doc. #12-2 at 69-73, 4-5].
September 10, 2010, petitioner filed a pro se motion
for postconviction relief in the circuit court under Missouri
Supreme Court Rule 24.035. [Doc. #12-2 at 74, 85]. On April
18, 2011, petitioner filed an amended petition after the
appointment of counsel, asserting that (1) the court failed
to advise him of the possibility of a future, indefinite,
involuntary civil commitment as a “sexually violent
predator, ” as required by Missouri Supreme Court Rule
24.02(e), and in violation of the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution; (2)
the court failed to establish an adequate factual basis for
the culpable mental states required for the offenses and
therefore the pleas were involuntary and
unknowing; (3) the court failed to inform petitioner
that forcible sodomy constituted a “dangerous felony,
” which would require him to serve at least 85 percent
of his sentence before being considered for parole, as
required by Missouri Supreme Court Rule 24.02, and in
violation of Fifth, Sixth, and Fourteenth Amendments, as well
as Article I of the Missouri Constitution; and (4) he
received ineffective assistance of counsel regarding the
consequences of his conviction for a dangerous felony, as
well as his status as a sexually violent predator,
violation of the Fifth, Sixth, and Fourteenth Amendments, and
Article I of the Missouri Constitution. Id. at
84-123. After an evidentiary hearing, the court denied
petitioner's motion on the merits. Id. at 128,
appealed the denial of his post-conviction motion, asserting
only one claim for relief: that his guilty plea lacked a
factual basis that he aided and abetted the charged crimes,
or that he had knowledge that the charged acts occurred.
[Doc. #12-3 at 7]. On December 3, 2013, the Missouri Court of
Appeals affirmed the denial of petitioner's motion. [Doc.
instant habeas corpus petition petitioner asserts the
following grounds for relief: (1) that the court failed to
advise him of the possibility of indefinite civil commitment,
due to his status as a sexually violent predator; (2) that
the court failed to advise him that, as a result of pleading
guilty to forcible sodomy, he would be required to serve 85
percent of his sentence before becoming eligible for parole;
and (3) that he received ineffective assistance of counsel as
a result of his attorney's failure to advise him of the
possibility of indefinite civil commitment due to his status
as a sexually violent predator.
a federal court reviewing a state conviction in a 28 U.S.C.
§ 2254 proceeding may consider only those claims which
the petitioner has presented to the state court in accordance
with state procedural rules.'” Arnold v.
Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012) (quoting
Beaulieu v. Minnesota, 583 F.3d 570, 573 (8th Cir.
2009)). “In Missouri, a claim must be presented at each
step of the judicial process in order to avoid
default.” Id. at 1087 (internal quotation
marks and citations omitted). Therefore, if a petitioner
failed to follow applicable state procedural rules for
raising claims, he has procedurally defaulted, even if he
exhausted his state remedies. Sweet v. Delo, 125
F.3d 1144, 1151 (8th Cir. 1997) (citing Coleman v.
Thompson, 501 U.S. 722, 731-32 (1991)); see, e.g.,
Moore-El v. Luebbers, 446 F.3d 890, 897 (8th Cir. 2006)
(holding that a petitioner abandoned his claims under
Missouri law when he did not appeal those claims in the
Missouri Court of Appeals).
prisoner must >fairly present= not only the facts, but
also the substance of his federal habeas corpus claim.@
Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir.
1996). That is, a petitioner is Arequired to >refer to a
specific federal constitutional right, a particular
constitutional provision, a federal constitutional case, or a
state case raising a pertinent federal constitutional
issue' in the Missouri state court.” Id.
at 411-12. “‘[R]aising a state-law claim in state
court that is merely similar to the constitutional claim
later pressed in a habeas action is insufficient to preserve
the latter for federal review.'” Boysiewick v.
Schriro, 179 F.3d 616, 621 (8th Cir. 1999) (quoting
Sweet, 125 F.3d at 1153).
prisoner can overcome procedural default if he can
demonstrate cause and actual prejudice. Dretke v.
Haley, 541 U.S. 386, 388-89 (2004); see
Coleman, 501 U.S. at 750 (holding that a state habeas
petitioner can overcome procedural default by demonstrating
cause for the default and actual prejudice or demonstrate
that default will result in a fundamental
miscarriage-of-justice); Battle v. Delo, 19 F.3d
1547, 1552 (8th Cir. 1994)). A demonstrated claim of actual
innocence will also overcome procedural default. U.S. v.
Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (citing
Bousley v. United States, 523 U.S. 614, 621 (1998)).
claims petitioner asserts in the instant habeas petition were
properly presented his claims in the post-conviction
proceedings before the circuit court. However, he committed a
procedural default by abandoning the claims on appeal.
See Arnold, 675 F.3d at 1086-87. Petitioner has not
demonstrated the threshold requirement of cause for this
procedural default. Storey v. Roper, 603 F.3d 507,
524 (8th Cir. 2010). Therefore, it is unnecessary to address
the issue of prejudice. Robinson v. Wallace, No.
4:10-CV-0526 (TCM), 2013 WL 1293817, at *8 (E.D. Mo. Mar. 28,
2013). Finally, petitioner has not raised a claim of actual
innocence here. See, e.g., House v. Bell, 547 U.S.
518, 522 (2006).
of the procedural default, the Court will not consider the
merits of petitioner's claims. The petition for a ...