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Hutcherson v. Norman
United States District Court, W.D. Missouri, Central Division
October 10, 2017
EARL HUTCHERSON, Petitioner,
JEFF NORMAN, Respondent.
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE
Earl Hutcherson, an inmate at the Missouri Department of
Corrections' Boonville Correctional Center, has filed a
petition for writ of habeas corpus under 28 U.S.C. §
2254. Hutcherson pleaded guilty on June 24, 2013, in the
Circuit Court of Boone County, Missouri to two counts of
involuntary manslaughter and was sentenced to two concurrent
terms of ten years' imprisonment. He filed a motion for
post-conviction relief pursuant to Mo. Sup. Ct. R. 24.035,
which was denied and upheld on appeal.
raises two ground for relief: (1) that his plea counsel was
ineffective for misleading him as to the amount of time he
would have to serve before becoming eligible for parole, and
affirmatively suggesting that he would only have to serve a
small fraction of his sentence before becoming eligible; and
(2) that his plea counsel was ineffective for failing to
provide him pretrial motions and evidence, rendering his plea
involuntary. The petition is denied.
pertinent facts were summarized as follows by the Missouri
Court of Appeals in connection with Hutcherson's appeal
of the order denying his Rule 24.035 motion:
While represented by retained counsel's partner Mr.
Matthew Fry, Mr. Hutcherson pleaded guilty to two counts of
the Class B felony of involuntary manslaughter in the first
degree in June 2013. He had been charged with two counts of
murder in the second degree. He admitted during the plea
colloquy that he was under the influence of alcohol in July
2011 when driving on Interstate 70 near Columbia, Missouri,
leaving his traffic lane, and striking and killing two
individuals who were not passengers in his vehicle. The court
sentenced him, in accordance with a plea agreement, to two
concurrent terms of ten years' imprisonment. Mr.
Hutcherson had two prior convictions for driving while
Mr. Hutcherson's post-conviction retained counsel filed a
motion to vacate, set aside, or correct the judgment or
sentence in December 2013. This motion claimed ineffective
assistance of counsel and an involuntary plea. According to
the motion, Mr. Hutcherson was denied the effective
assistance of counsel because his retained counsel, Mr. Scott
Rosenblum, was not present during the plea hearing and Mr.
Fry did not fully explain to Mr. Hutcherson that by pleading
guilty he was waiving a presentence investigation report and
sentencing assessment report. He also claimed ineffective
assistance because trial counsel, Mr. Rosenblum and Mr. Fry,
did not fully investigate his case, including the
admissibility and reliability of the evidence obtained from a
blood-alcohol test. Mr. Hutcherson claimed that his plea was
involuntary because he had taken prescription pain medication
for a headache some thirty or forty-five minutes before the
hearing and that this impaired his ability to concentrate on
The motion court permitted two extensions for counsel to file
an amended motion, which was filed, in compliance with Rule
24.035 in April 2014. This motion added details to Mr.
Hutcherson's claim that trial counsel did not fully
investigate his case, including sobriety testing, the
positions of the victims and their vehicles, whether a flat
tire could have caused Mr. Hutcherson's vehicle to
swerve, his phone records, and additional accident
reconstruction analysis. Mr. Hutcherson also claimed that,
because counsel failed to conduct such an investigation,
counsel's advice to plead guilty was not reasonably
effective assistance of counsel. Other alleged
representational shortcomings included that … counsel
failed to provide Mr. Hutcherson with copies of motions filed
on his behalf, discovery received from the State, and the
results of trial counsel's investigation. Mr. Hutcherson
further claimed that his plea was involuntary because he did
not understand the evidence against him and the evidence that
could be presented at trial, and he had not been given the
opportunity to review the discovery or pleadings his counsel
had filed. Among other matters, he claims that he was unaware
that the Department of Revenue certified officer on site was
not certified when she tested him, hospital emergency room
cameras were blocked and did not record sound when his blood
was drawn, an independent laboratory questioned the accuracy
of the blood alcohol test, and after the accident it appeared
that his right rear tire was flat and a witness driving
behind him said that Mr. Hutcherson veered as if a tire had
Doc. 10-4, pp. 2-5.
In the first point, Mr. Hutcherson argues that counsel was
ineffective for failing to advise him about numerous aspects
of the evidence and defense, including the circumstances
under which his blood was tested, available evidence as to
how the accident occurred, and motions filed and depositions
taken in connection with the case. Regarding Mr.
Hutcherson's claim that he did not have sufficient
information on which to base his decision to plead guilty,
the evidentiary hearing testimony shows, to the contrary,
that he was actively engaged in his defense and plea counsel
thoroughly investigated the circumstances giving rise to the
charges. Mr. Hutcherson's plea counsel was not the first
retained counsel on the case. Previously retained counsel had
gone so far as to conduct discovery and engage the services
of an accident reconstruction firm, which produced a report
and concluded that Mr. Hutcherson's vehicle had veered
off the road; a company representative even advised plea
counsel that he should not be called as a witness, because
counsel would not want “us on the stand in this
case.” Still, plea counsel did not believe that the
case was ready for trial on the basis of the work prior
counsel had done, so they consulted with other experts,
conducted depositions, and took steps to preserve his legal
defenses, including filing a motion to suppress. Mr.
Hutcherson's plea counsel advised him that he had a
triable case, no recommendation would be made to him about
whether he should accept the plea agreement that the State
had offered, and counsel would fully support him whatever
decision he made. Mr. Rosenblum also testified that
“Mr. Hutcherson was an engaged client and was in the
office frequently reviewing his case with me and with Mr.
Fry, so if he didn't actually take a physical copy [of
the motion to suppress], I'm sure he was aware of
Mr. Fry testified that, while he was unsure whether Mr.
Hutcherson was given a copy of the motion to suppress,
“I do know that we went over the document and we
discussed it, but I don't know if he physically read it
all.” This motion to suppress sought to exclude the
results of blood alcohol tests taken at the hospital about
two hours after the accident, which occurred at 7:58 p.m. It
was based on a claim of illegal detention and Mr.
Hutcherson's repeated refusals, based on counsel's
advice, to undergo sobriety testing, and included information
about the lack of audio when Mr. Hutcherson allegedly
consented to have his blood drawn. Mr. Hutcherson's plea
counsel also testified that he consulted with three different
experts regarding the admissibility of the blood-test
evidence, but ultimately did not believe that they would help
the defense. No hearing was ultimately sought on the motion
because the State said there would be no further plea offers
if a suppression hearing were held. Plea counsel further
testified that during the firm's representation of Mr.
Hutcherson, the attorneys met with him or spoke with him on
the phone frequently, went over all of the discovery the
State produced, as well as the depositions the firm had
conducted and all of the information received from various
experts. They considered with Mr. Hutcherson the pros and
cons of going to trial and the pros and cons of accepting a
plea. Counsel agreed that their “consultations with Mr.
Hutcherson probably ranked some of the highest that [they]
have had with clients over the years with this type of
charges [sic].” Plea counsel stated that on at least
two occasions he left depositions at the front desk for Mr.
Hutcherson to pick up and review.
Id., pp. 6-8.
Mr. Hutcherson testified that counsel did not provide all of
the documents to him, but the [motion] court was free not to
believe his testimony. And in fact, as to the efforts that
trial counsel undertook to work the case up for trial, the
court specifically found Mr. Fry credible. The motion court
also found Mr. Hutcherson not credible as to whether he had
been kept informed and had seen all of the documents and
evidence in the case. While Mr. Hutcherson claims that
uncontradicted testimony (his own) proves that he did not
receive all of the information and documents needed to make
an informed decision to plead guilty, plea counsel did
contradict his testimony, and the court found counsel's
testimony credible. Plea counsel were seasoned defense
lawyers with experience in DWI accident cases. Mr. Hutcherson
has not shown that they were ineffective. They did what he
asked them to do, they fully investigated the case, and they
spent a great deal of time exploring every avenue of defense
with him so that his decision to plead would be voluntary and
made on the basis of all the facts.
Id., pp. 8-9.
As to the second point, whether counsel's investigation
of the case was constitutionally defective for failing to
conduct another accident reconstruction, counsel testified
that a second accident reconstruction company was contacted,
but that no follow-up occurred because they were negotiating
a plea agreement with the State shortly after the initial
contact was made and because “Mr. Hutcherson had
indicated that he wanted us to work something out on the case
[with the State].” Mr. Hutcherson introduced the
testimony of Mr. Travis Jones, a retired police officer, who
discussed the additional factors he would have included in
such a reconstruction. …. Significantly, Mr. Jones
testified that it was only “possible” that
something besides impaired driving caused the accident, and
that, despite the presence of traffic preceding Mr.
Hutcherson in his lane of travel, Mr. Hutcherson's
vehicle was the only one that struck the pedestrians on the
Counsel's strategic choices, made “after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable.” McLaughlin v.
State, 378 S.W.3d 328, 342 (Mo. banc 2012). …
Even if the witness's testimony would have been more
favorable, “counsel is not required to shop around for
an expert who might provide more favorable testimony.”
Dorsey v. State, 448 S.W.3d 276, 294 (Mo. banc
2014). Mr. Hutcherson did not establish that counsel was
aware of Mr. Jones or that his testimony would have assisted
his defense. Moreover, as noted above, plea counsel aborted
their effort to secure a second accident reconstruction
report because active plea negotiations had begun, and Mr.
Hutcherson had indicated his preference to enter a plea.
Counsel would have wasted his resources under these
circumstances if they had paid a second accident
reconstruction expert to prepare a report.
Id., pp. 10-12.
In the third point, Mr. Hutcherson argues that his
consumption of Vicodin before the plea hearing rendered his
plea involuntary. … A review of the plea hearing
transcript shows that Mr. Hutcherson was actively engaged in
responding to the court during the plea colloquy, answering
in some cases more than just “yes” or
“no.” Thus, any contention that his cognition was
impaired during the hearing rests solely on his testimony,
which the motion court was free to believe or to discredit.
The motion court found his testimony on this point not
credible. This point is denied.
Because the court did not err in denying Mr. Hutcherson's
post-conviction motion, [the Court of Appeals] affirm[s].
Id., pp. 12-13.
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