United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
matter is before the undersigned on the petition of Missouri
state prisoner Kenneth Reynolds (“Petitioner”)
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. 11). For
the following reasons, the petition will be denied.
5, 2014, Petitioner pleaded guilty in the St. Louis City
Circuit Court to three counts of first-degree robbery and
three counts of armed criminal action. Resp't Ex. A, at
1. The court sentenced Petitioner to thirteen years of
imprisonment on each count, to be served concurrently.
Id. at 2-3. Petitioner did not seek review through a
direct appeal and did not file a Rule 24.035 motion for
post-conviction relief. See Pet'n, Doc. 1, at
instant pro se petition, Petitioner asserts two
grounds for relief: (1) that his plea counsel was
ineffective; and (2) that he and the judge who presided over
his plea had a “conflict of interest.” Respondent
contends that both claims should be denied because they have
been procedurally defaulted and because they are without
Procedural Default Analysis
first contends that both of Petitioner's claims should be
denied because they have been procedurally defaulted. The
preserve a claim for federal habeas review, “a state
habeas petitioner must present that claim to the state court
and allow that court an opportunity to address his
claim.” Moore-El v. Luebbers, 446 F.3d 890,
896 (8th Cir. 2006) (citing Coleman v. Thompson, 501
U.S. 722, 731-32 (1991)). “Where a petitioner fails to
follow applicable state procedural rules, any claims not
properly raised before the state court are procedurally
defaulted.” Id. “In Missouri, ‘a
claim must be presented at each step of the judicial process
in order to avoid default.'” Arnold v.
Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012) (quoting
Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994)).
Petitioner acknowledges that he did not present either of his
claims to any state court. He did not file either a direct
appeal or a motion for post-conviction relief pursuant to
Missouri Supreme Court Rule 24.035. Thus, his claims have
been procedurally defaulted. The federal habeas court will
consider a procedurally defaulted claim “only where the
petitioner can establish either cause for the default and
actual prejudice, or that the default will result in a
fundamental miscarriage of justice.” Moore-El,
446 F.3d at 896 (citing Sawyer v. Whitley, 505 U.S.
333, 338-39 (1992)). To demonstrate cause, a petitioner must
show that “some objective factor external to the
defense impeded [the petitioner's] efforts to comply with
the State's procedural rule.” Murray v.
Carrier, 477 U.S. 478, 488 (1986). To establish
prejudice, a petitioner must demonstrate that the claimed
errors “worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 170 (1982); accord Ivy v.
Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999). Lastly, in
order to assert the fundamental miscarriage of justice
exception, a petitioner must “present new evidence that
affirmatively demonstrates that he is innocent of the crime
for which he was convicted.” Murphy v. King,
652 F.3d 845, 850 (8th Cir. 2011) (quoting Abdi v.
Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).
the only attempt Petitioner makes to show cause to excuse his
procedural default is his bare assertion that he was
“misled by counsel.” Petitioner does not assert
what his counsel told him (or failed to tell him) or how he
was misled by that advice. It is unclear whether his
contention is that his counsel misled him about his right to
assert these claims, misled him about the procedures through
which he could assert these claims, misled him about the
likelihood of success of these claims, or misled him about
something else. Moreover, Petitioner does not even specify
whether the attorney who misled him was his plea counsel or
some other attorney he consulted about a possible motion for
postconviction relief. The Court notes that Petitioner had
the opportunity to file a Reply brief in which he could have
added additional details, but he did not do so.
Petitioner's vague assertion that he was misled by
counsel is not sufficient to show cause to excuse his
procedural default. Moreover, Petitioner makes no attempt to
show that the alleged errors in his case “worked to his
actual and substantial disadvantage.” Thus, Petitioner
has not shown prejudice. Petitioner also has not presented
any new evidence that affirmatively demonstrates that he is
innocent of the crime for which he was convicted, so he
cannot show that the fundamental miscarriage of justice
of the above reasons, both of Petitioner's claims are
procedurally defaulted, Petitioner has not shown any basis on
which to excuse the procedural default, and the Court is
barred from considering the merits of those claims. Thus,
they will be denied. However, as discussed below, even
assuming, arguendo, that Petitioner had shown cause
and prejudice to excuse the procedural default, the claims
would be denied because they are without merit.
next argues that even if Petitioner could show cause and
prejudice to excuse the procedural default of his claims, the
claims should be denied ...