United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CRITES-LEONI UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Petition of Mark Hall for a
Writ of Habeas Corpus under 28 U.S.C. § 2254.
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.)
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. 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 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.
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.
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.
13, 2013, the motion court denied Hall's motion after
holding an evidentiary hearing. Id. at 65-73.
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.
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
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.)
has filed a Traverse, in which he presents further argument
in support of his grounds for relief. (Doc. 19).
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.
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
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.
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.
Farishon testified as follows when asked whether he discussed