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Sago v. Steele

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

November 9, 2017

KEVIN L. SAGO, Plaintiff,
v.
TROY STEELE, Defendant.

          MEMORANDUM AND ORDER

          RODNJEY W. SIPPEL, UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         Sago 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.

         BACKGROUND

         In June 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.

         During 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....”[1] 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.)

         On 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.

         LEGAL STANDARD

         Habeas 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.

         ANALYSIS

         I. Exhaustion

         When 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)).

         The 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.

         II. ...


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