United States District Court, E.D. Missouri, Eastern Division
KEVIN L. SAGO, Plaintiff,
TROY STEELE, Defendant.
MEMORANDUM AND ORDER
RODNJEY W. SIPPEL, UNITED STATES DISTRICT JUDGE.
Kevin Sago petitions for habeas corpus relief pursuant to 28
U.S.C. § 2254. Sago is an inmate at Algoa Correctional
Center, in Jefferson City, Missouri. He is serving time for a
first-degree assault. Sago pleaded guilty to the first degree
assault charge in 2011 and was sentenced to ten years and six
months' imprisonment. After serving a portion of his
sentence, the state court suspended Sago's sentence and
placed him on five years' probation. In 2014, Sago was
arrested for second-degree robbery, which would violate the
terms of his probation. After a hearing on November, 5, 2014,
the court revoked Sago's probation.
argues that he is entitled to habeas corpus relief because,
in revoking his probation, the state court violated federal
due process requirements outlined in Morrissey v.
Brewer, 408 U.S. 471, 486-86 (1972). He also argues that
he suffered ineffective assistance of counsel. The state
argues (1) that Sago failed to exhaust his state court
claims. I will deny Sago's petition because he does not
demonstrate that the state court's actions are contrary
to clearly established federal law or based on an
unreasonable determination of the facts.
2014, Kevin Sago was arrested for second-degree robbery,
which would violate his probation. After Sago's arrest,
the New Madrid County Prosecutor moved to revoke Sago's
probation. During his revocation proceedings and proceedings
for the new criminal charge, Sago was represented by Amanda
Altman of the Missouri Public Defender's Office. The New
Madrid Circuit Court scheduled an initial revocation hearing
for July 22, 2014. At Sago's request, the state court
granted continuances for the hearing four separate times,
finally holding the hearing on November 5, 2014.
the November 5 hearing, Altman examined witnesses,
cross-examined the state's two witnesses, and made
arguments on Sago's behalf. Id. In his own
testimony, Sago contended that he had not been involved in
any robbery or attempted robbery, and he disputed evidence
presented by the prosecution. After considering “the
credibility of the witnesses” and summarizing their
conflicting testimony, Missouri State Circuit Judge Copeland
found that Sago was in violation of his probation at
“the very least by being an accessory… for this
attempted robbery....” Id. at 44. The court
issued a judgment on the same day, finding Sago “in
violation of probation, and after considering the
alternatives” revoked probation. (ECF No. 1-8, p. 2.)
August 14, 2015, Sago filed a petition for writ of habeas
corpus in the Circuit Court of St. Francois County, Missouri.
(ECF No. 1-9.) In a memorandum, order, and judgment, the
circuit court denied his petition. (ECF No. 1-13.) Sago
appealed to the Missouri Court of Appeals, which also denied
his petition in an order issued on February 1, 2016. (ECF No.
1-14.) Sago declined to seek discretionary review from the
Missouri Supreme Court. Instead, he filed a petition for
habeas corpus in this court on March 24, 2017.
petitions attacking custody in state courts can be granted
only if they are (1) contrary to clearly established federal
law or (2) based on an unreasonable determination of the
facts in light of the evidence presented in the state court.
28 U.S.C. § 2254(d). “[F]ederal habeas corpus
relief does not lie for errors of state law.” Lewis
v. Jeffers, 497 U.S. 764, 780 (1990). Instead, a federal
court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States. 28
U.S.C. § 2241; Estelle v. Maguire, 502 U.S. 62,
67-68 (1991). In his petition, Sago alleges violations of
state and federal procedural requirements. Pursuant to 28
U.S.C. § 2254(d), I only consider allegations that the
state court acted contrary to federal law or made an
unreasonable determination of facts.
petitioning for habeas corpus relief, “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.”
Randolph v. Kemna, 276 F.3d 401, 403 (8th Cir.
2002). In meeting this requirement “state prisoners
[must] file petitions for discretionary review, ” with
the state's highest court. O'Sullivan v.
Boerckel, 526 U.S. 838, 847 (1999). This requirement
only applies “when that review is part of the ordinary
appellate review procedure….” Id. In
contrast, when there is “a clear indication that the
standard process is complete, ” then a petitioner need
not file a petition for discretionary review. Dixon v.
Dormire, 263 F.3d 774 at 780 (8th Cir. 2001) (quoting
Ford v. Georgia, 498 U.S. 411, 423-24, (1991)).
state argues that Sago failed to exhaust his claims because
he did not petition the Missouri Supreme Court for habeas
corpus relief. In Missouri, a party has two opportunities to
petition for a transfer of his case to the Missouri Supreme
Court. First, a party can petition the Missouri Court of
Appeals to transfer his case to the state's highest
court. Missouri Supreme Court Rule 83.02. If that petition is
denied, a party can petition the Missouri Supreme Court to
transfer the case by its own action. Missouri Supreme Court
Rule 83.04. Rule 83.04, however, contains the explicit
disclaimer that “[t]ransfer by this Court is an
extraordinary remedy that is not part of the standard review
process for purposes of federal habeas corpus review.”
Based on this provision, the United States Court of Appeals
for the Eighth Circuit has held that a petitioner need not
petition for transfer to the Missouri Supreme Court to have
exhausted his state court remedies. Randolph v.
Kemna, 276 F.3d 401, 404-05 (8th Cir. 2002). This
holding is written broadly to suggest that it addresses Rule
83.04 and 83.02: “Missouri law” does not require
“prisoners to pursue discretionary review by
petitioning for transfer to the Missouri Supreme
Court.” Id. As a result, Sago need not
petition for transfer to the Supreme Court in order to
exhaust his state court claims. Accordingly, I will consider
his petition on the merits.