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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.



         This 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.

         I. Factual and Procedural Background

         The 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”)][1] 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, [2010].
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).

         In his pro se appeal[2] 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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