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Dietz v. Russell
United States District Court, E.D. Missouri, Eastern Division
January 5, 2018
LARRY B. DIETZ, Petitioner,
TERRY RUSSELL, Respondent.
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Missouri state prisoner Larry
B. Dietz's (“Petitioner”) pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (Doc. 1). The parties have consented to the
jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 15). For
the following reasons, the petition for a writ of habeas
corpus will be denied.
Factual and Procedural Background
following background is taken from the Missouri Court of
Appeals' opinion affirming the motion court's denial
of Petitioner's motion for post-conviction relief:
On April 16, 2009, the State charged [Petitioner] with one
count of the class A felony of forcible sodomy. The
indictment alleged that [Petitioner] had deviate sexual
intercourse with J.P., without her consent, by the use of
forcible compulsion, and in the course of such offense,
displayed a deadly weapon in a threatening manner.
On June 10, 2009, while incarcerated with the Arizona
Department of Corrections, [Petitioner] filed [Interstate
Agreement on Detainers (“IAD”)] forms, requesting
the “appropriate prosecuting officer” make a
final disposition of the charge against him. Form I stated
that once he requested final disposition of the charges, he
“shall then be brought to trial within 180 days, unless
extended pursuant to the provisions of the Agreement . . .
However, the court having jurisdiction of the matter may
grant any necessary or reasonable continuance.”
On September 2, 2009, trial counsel entered his appearance on
[Petitioner]'s behalf. At a pre-trial conference, the
trial court scheduled the trial for November 30, 2009. On
November 30, 2009, during the pre-trial motions hearing, the
trial court stated that “it's been brought to the
court's attention that perhaps this matter is not ready
to go to trial today.” Trial counsel explained that
[Petitioner] had filed a “request for a disposition of
detainer” and “wishe[d] for the matter to be
tried within 180 days.” Trial counsel told the court
that during his first meeting with [Petitioner] in September,
trial counsel informed him that waiving his right to a trial
within 180 days “would allow us the opportunity to
adequately prepare his case, ” retain an expert to
review the State's DNA evidence, and depose key
witnesses. Trial counsel stated that [Petitioner] did not
want to waive his right to be tried within 180 days even
though “there are things that [Petitioner] does not
believe . . . have been done that need to be done for him to
have a proper and adequate defense[.]” Trial counsel
explained that “[s]ince [Petitioner] has made those
requests [to interview and depose witnesses and seek a DNA
expert's opinion] known to me . . . I have suggested to
him that he waive his speedy trial, ” but he was
unwilling to do so. Trial counsel continued that, based on
case law, he believed he could “waive his rights under
the Interstate Agreement on Detainers act if I feel that
justice requires for me to do an adequate and proper defense
of this case.” He then requested that “the case
be continued over [Petitioner]'s objection . . . in light
of preventing any ineffective assistance of counsel claim
that may be subsequently made.” The State responded
that it had no objection to trial counsel's
“request for a continuance for good cause as far as
preparation of the case[.]”
The trial court asked if [Petitioner] would like to address
the court, and [Petitioner] asserted that the State violated
the agreement with [Petitioner] to proceed to trial within
180 days. [Petitioner] continued by stating, “I
don't have a copy of the indictment. I don't even
know who the witnesses are in this case. I don't know who
the victim is in this case . . . [h]alf of the discovery is
not in there. And I feel that I'm just about as ready to
go to trial as I ever will be.”
The trial court found that “under these circumstances
good cause has been shown as to provide a continuance in this
matter.” The court acknowledged [Petitioner]'s
right to a trial within 180 days under the IAD but stated
that “for your attorney to provide effective assistance
of counsel, he's assured and advised the Court that he
needs this extra time to prepare.” The trial court
granted trial counsel's request for a continuance and
scheduled a status conference in January, .
The court scheduled trial for June 29, 2010. On June 25,
2010, the trial court rescheduled the trial for August 9,
2010, on which date the trial court again rescheduled the
trial for November 8, 2010. The trial court twice again
continued the trial to January 10, 2011 and April 1, 2011.
On April 4, 2011, the trial court held a jury trial. The
State presented the testimony of four witnesses. [Petitioner]
testified in his own defense, stating that the sexual
encounter was consensual.
The jury found [Petitioner] guilty of forcible sodomy . . .
and the trial court sentenced him to thirty years'
imprisonment to run consecutive to his sentences in Arizona.
This court affirmed the judgment and sentence. State v.
Dietz, 391 S.W.3d 533 (Mo.App.E.D. 2013).
[Petitioner] filed a [Rule 29.15] motion for post-conviction
relief, which counsel amended. The motion court denied
[Petitioner]'s motion without an evidentiary hearing. The
motion court concluded that [Petitioner] failed to: (1) show
that trial counsel failed to provide reasonably effective
assistance such that he was prejudiced”; (2)
“allege facts related to [trial] counsel which raised
matters not refuted by the record”; and (3)
“establish any basis in law to have his judgment or
sentence vacated, set aside or corrected.”
Resp't. Ex. K at 4-7 (footnote omitted).
pro se appeal of the motion court's denial of his
motion for post-conviction relief, Petitioner raised only two
claims. Petitioner claimed that the motion court erred in
denying his claims that his trial counsel was ineffective in
(1) waiving Petitioner's right to a speedy trial under
the IAD; and (2) failing to argue that the statute of
limitations barred prosecution of the forcible ...
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