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Mahan v. Cassady

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

September 28, 2017

CARL MAHAN, Petitioner,
v.
JAY CASSADY, Respondent.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         Carl Mahan, a Missouri prisoner, petitions the United States District Court for the Eastern District of Missouri for federal habeas corpus relief after the Missouri Board of Probation and Parole (“Board”) denied Petitioner a parole hearing within a certain period of time in alleged violation of Petitioner's plea agreement. See 28 U.S.C. § 2254. Respondent Jay Cassady[1]counters that: (1) Petitioner did not timely file the petition and (2) the ground for relief lacks merit. For the reasons set forth below the Court[2] dismisses the petition as untimely without addressing the merits of Petitioner's ground for relief.

         Background[3]

         Plea Court Proceedings

         In January 1992, Petitioner pleaded guilty to second-degree murder for a shooting occurring in May 1991, and the plea court sentenced Petitioner to life imprisonment.[4] During the change of plea proceeding, Petitioner stated under oath he shot the victim “in the head twice” and agreed with the prosecutor's statement of the facts that would be proved if the case went to trial.[5] The prosecutor also reported the agreement reached through the parties' plea negotiations.

         Petitioner would plead guilty to:

the class A felony of felony murder [and] the State would recommend the maximum punishment of life imprisonment, in return for which the State would dismiss the Count[] Two robbery, which also contains the maximum punishment of life imprisonment, and dismiss Count Three, armed criminal action, which is an unclass[ifi]ed felony which has no maximum punishment. Based upon the plea of guilty, it would be the State's intent, if accepted by the Court and finalized here today, to dismiss with prejudice Counts Two and Three.[6]

(alterations and footnote added.) Neither Petitioner nor Petitioner's attorney either contested the prosecutor's recitation of the plea agreement or offered the plea court any different or additional information regarding the parties' plea agreement.[7] Petitioner answered “No, sir” when the plea court asked him whether “any threats or promises [had] been made to [Petitioner] to induce [him] to plead guilty.”[8] Furthermore, when the plea court asked Petitioner if “anyone made any promise about the sentence [he was] to receive, ” Petitioner responded, “No, sir.”[9] After advising Petitioner of the rights that he waived by pleading guilty, and following Petitioner's admission that he shot the victim twice in the head, the plea court: (1) found Petitioner's plea of guilty was “made freely, voluntarily, and intelligently with full understanding of the charges, and consequences of the plea and with understanding of his rights attending a jury trial and the effects of a plea of guilty on those rights”; (2) concluded there was a factual basis for the plea; and (3) accepted the plea.[10] The plea court sentenced Petitioner, in accordance with the parties' agreement, to a term of life imprisonment.[11]

         The plea court then asked Petitioner about his attorney's representation.[12] In particular, the plea court asked whether, prior to the plea, Petitioner had sufficient opportunity to discuss the case with his attorney and whether his attorney “[h]a[d] done everything within the law that [Petitioner] ha[d] requested him to do.”[13] Petitioner responded affirmatively.[14] The plea court also asked Petitioner whether his attorney threatened Petitioner to induce his guilty plea.[15]Petitioner denied any threats.[16] The plea court noted that Petitioner had “changed his mind” during an earlier change of plea proceeding.[17] Based on Petitioner's responses, and his acknowledgement, including specifically that he had nothing to “add concerning the assistance [he] received from [his] attorney, ” the plea court found there was no probable cause that Petitioner had received ineffective assistance of counsel.[18] Petitioner did not file either a direct appeal or a motion for post-conviction relief under Mo. S.Ct. Rule 24.035.[19]

         Missouri Board of Probation and Parole Proceedings[20]

         In May 2004, the Missouri Board of Probation and Parole (“Board”) conducted Petitioner's first parole hearing, denied Petitioner parole, and scheduled Petitioner's next parole hearing for 2009.[21] Three years later, in August 2007, Petitioner filed a motion with the Board seeking an earlier hearing and asserting that waiting five years before conducting another parole hearing “exceeded [the Board's] authority.”[22] The Board rescheduled Petitioner's second parole hearing for September 2007, denied Petitioner parole at that time, and scheduled another hearing for September 2009.[23]

         At the third parole hearing in September 2009, the Board denied Petitioner parole and scheduled another hearing for 2014, or five years later.[24] Over one year later, in 2011, Petitioner asked the Board to advance his next hearing from five years to two years after his 2009 hearing, based on “14 CSR 80-2.010(11)(D)(1991), ” the regulation Petitioner argued applied to him.[25]The Board refused to advance his 2014 hearing date.[26]

         State Habeas Proceedings

         In November 2012, Petitioner filed a habeas petition in the Cole County Circuit Court challenging the Board's 2009 decision.[27] The circuit court denied Petitioner's state habeas petition on February 25, 2013.[28] In March 2013, Petitioner filed a habeas petition in the Missouri Court of Appeals for the Western District.[29] The Missouri Court of Appeals denied Petitioner's state habeas petition on May 15, 2013.[30] Petitioner filed a third habeas petition in the Missouri Supreme Court in June 2013.[31] The Missouri Supreme Court denied Petitioner's state habeas petition on October 29, 2013.[32]

         Federal Habeas Proceeding

         On December 30, 2013, Petitioner filed his federal habeas petition, presenting one ground for relief containing two claims. Petitioner claimed the Board's scheduling of his parole hearings less frequently than every two years violated his right to due process. First, Petitioner contended the scheduling of parole hearings less frequently than every two years after a parole hearing violated his plea agreement because:

the . . . inducement for Petitioner's acceptance of th[e] plea agreement was that Missouri law stated he would be eligible for parole after serving fifteen years, and if parole w[as] denied . . . at his initial parole hearing, he would be seen every two years by the [Board] until a release date was established. See 14 CSR 80-2.010(11)(D) (1991).[33]

         (Footnote added.) Additionally, Petitioner asserted that scheduling parole hearings less frequently than every two years rendered his guilty plea involuntary because his attorney had given him incorrect information about the frequency of his parole hearings. Specifically, Petitioner contended his attorney:

assured [him] on several occasions that he would receive these implicit benefits from the plea-agreement because that's what Missouri law stated and[, ] even if the law w[as] later changed that the new law would not apply to him because the laws concerning parole that were in effect at the time the plea-agreement was made were locked in because the plea-agreement carried the same weight as a contract under law, and once set, the terms could not be changed to make . . . his opportunity to make parole more difficult.[34]

(Alterations and footnote added.)

         Respondent counters that the Court must dismiss the petition as untimely and Petitioner's ground for relief ...


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