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Reynolds v. Bowersox

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

January 10, 2018

KENNETH REYNOLDS, Petitioner,
v.
MICHAEL S. BOWERSOX, Respondent.

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Background

         On May 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 2-3.

         In the 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 merit.

         II. Discussion

         A. Procedural Default Analysis

         Respondent first contends that both of Petitioner's claims should be denied because they have been procedurally defaulted. The Court agrees.

         To 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)).

         Here, 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)).

         Here, 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 exception applies.

         For all 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.

         B. Merits Analysis

         Respondent next argues that even if Petitioner could show cause and prejudice to excuse the procedural default of his claims, the claims should be denied ...


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