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Hall v. Hurley

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

November 16, 2017

MARK HALL, Petitioner,
v.
JAMES HURLEY, Respondent.

          MEMORANDUM AND ORDER

          ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on the Petition of Mark Hall for a Writ of Habeas Corpus under 28 U.S.C. § 2254.

         I. Procedural History

         Hall is currently incarcerated at Northeast Correctional Center in Bowling Green, Missouri, pursuant to the sentences and judgments of the Circuit Court of the City of St. Louis, Missouri. (Doc. 12-1 at 23-27.)

         The State charged Hall as a prior and persistent offender with unlawful possession of a firearm, unlawful use of a weapon, resisting arrest, and third-degree assault of a law enforcement officer. Id. at 14-15. On April 7, 2011, Hall pleaded guilty to all charges.[1] Id. at 21. In exchange for Hall's guilty plea, the State recommended concurrent sentences of 11 years imprisonment for the unlawful possession of a firearm charge, seven years for the unlawful use of a weapon charge, seven years for the resisting arrest charge, and one year[2] for the misdemeanor assault charge. Id. at 20. Additionally, Hall acknowledged that he had a Federal gun charge pending, for which he could be sentenced to 20 years. Id. Hall testified that it was his understanding that the United States would dismiss that charge if he pleaded guilty to the State charges. Id. The court sentenced Hall in accordance with his plea agreement to a total term of imprisonment of 11 years. Id. at 21.

         On August 3, 2011, Hall filed a pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence pursuant to Missouri Supreme Court Rule 24.035. Id. at 31-36. After appointment of counsel, Hall filed an Amended Motion and request for evidentiary hearing. Hall argued that he received ineffective assistance of counsel in that trial counsel incorrectly advised him that he would only be required to serve 40% of his sentences. Id. at 41-48. He argued that, but for this advice, he would not have pleaded guilty. Id.

         Prior to the evidentiary hearing on his post-conviction motion, Hall filed a Motion for Change of Judge for cause. Id. at 49. Hall alleged that the assigned judge, the Honorable Margaret M. Neill, had prejudged the merits of Hall's case before hearing evidence. Id. at 49-52. Specifically, Hall alleged that Judge Neill made remarks during an in-chambers scheduling conference indicating that her intent was to deny Hall's post-conviction relief motion after the evidentiary hearing because Hall had a “snowball's chance in hell” at success. Id. Hall's Motion for Change of Judge was denied. Id. at 53-55. The court found that Judge Neill's comments were based on the record in the underlying case and the plausibility of Hall's claim, which were not grounds for a change of judge. Id. at 55.

         On May 13, 2013, the motion court denied Hall's motion after holding an evidentiary hearing. Id. at 65-73.

         In his single point on appeal, Hall argued that the motion court erred in overruling his Motion for Change of Judge for cause because Judge Neill's comments indicated that she had pre-judged Hall's case and relied on extrajudicial information. (Doc. 12-3.) On April 8, 2014, the Missouri Court of Appeals affirmed the decision of the motion court. (Doc. 12-5.)

         Hall timely filed the instant Petition on February 2, 2015. (Doc. 1). Hall raises the following grounds for relief: (1) he received ineffective assistance of counsel because plea counsel told him he would only have to serve 40% of his sentence when he was in fact required to serve 80%, which rendered his guilty plea unknowing and involuntary; and (2) the motion court erred in overruling his Motion for Change of Judge because the judge's comments indicated that that the court had pre-judged the issues and relied in part on extrajudicial information.

         On July 9, 2015, Respondent filed a Response to the Order to Show Cause, in which he argues that Hall's first ground for relief is procedurally defaulted and fails on the merits; and Hall's second ground for relief is not cognizable in federal habeas proceedings. (Doc. 12.)

         Hall has filed a Traverse, in which he presents further argument in support of his grounds for relief. (Doc. 19).

         II. Facts

         At the evidentiary hearing held in connection with Hall's post-conviction motion, Hall and his mother, Celeste Hall, testified on behalf of Hall. Plea counsel, Kristi Ridings and Jeremy Farishon; and Hall's Federal Public Defender, Nanci McCarthy, testified on behalf of the State. (Doc. 12-2.)

         Hall testified that, two days prior to his guilty plea hearing, another inmate told him that he would have to serve 80% of his State sentence. Id. at 9-10. Hall stated that when he asked Ms. Ridings about this, she responded that it was incorrect, and that he would only have to serve 42% of his sentence. Id. at 10. He testified that he asked Ms. Ridings if she could put this information in writing. Id. Hall testified that Mr. Farishon appeared with him at his guilty plea hearing. Id. at 12. He indicated that Mr. Farishon handed Hall a “piece of paper that had unlawful use of a weapon with 42 percent circled on it, ” which he showed to his mother. Id. Hall testified that this piece of paper was “the very reason why I took-I plead guilty to the 11 years.” Id.

         Ms. Hall testified that she was present at Hall's plea hearing, and that Hall told her in court that he would have to serve four years and four months. Id. at 20. Ms. Hall testified that she was not present during the conversation Hall had with plea counsel. Id. at 21.

         Ms. Ridings testified as follows regarding Hall's allegations concerning his parole eligibility:

A. I don't recall any conversations about that. I know in Federal prison that's a definite no parole. With regards to the State's charge and parole, what I'm sure I told him is what I tell every client, and that is, The parole Board establishes their own rules, there's nothing that I, Judge Neill, nor the prosecuting attorney's office can do to negotiate percentages; that would be determined when you get there by a face sheet.
Q. And what is that face sheet you're talking about?
A. A face sheet? When they're delivered to the Missouri Department of Corrections they're given a face sheet that gives estimated release dates, and dates of that nature. And, unfortunately, Defense attorneys have no control over how they set those dates and what they do.
Q. Did you make any documentation or give Jeremy Farishon any documentation regarding percentages for Mr. Hall if he pled guilty to his State charges?
A. No, I don't know that-I heard Mr. Hall's testimony; I don't know what that would have been.

Id. at 29. Ms. Ridings further testified that she did not consult a parole analyst to determine the percentage of the sentence Hall would serve based on his record because “it was never an issue. The issue was: Was he going to take the Federal time or the State time?” Id. at 35. She stated that she believed Hall was facing a minimum sentence of 15 years on the Federal charge because he was an Armed Career Offender. Id.

         Mr. Farishon testified as follows when asked whether he discussed ...


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