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Collins v. McSwain

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

February 22, 2018

CURTIS COLLINS, Petitioner,
v.
ELLIS McSWAIN, JR., [1] Respondent.

          MEMORANDUM

          ABBIE CRITES-LEONI, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on the Petition of Curtis Collins for a Writ of Habeas Corpus under 28 U.S.C. § 2254.

         I. Procedural History

         On December 15, 2009, Collins pleaded guilty to one count of manufacturing or production of a controlled substance in the Circuit Court of Ste. Genevieve County, Missouri. (Doc. 10-1 at 23-29.) The court sentenced Collins to a term of fifteen years' imprisonment. Id. at 8. The court suspended execution of that sentence and placed him on probation for a period of five years. Id. Collins' probation was revoked on January 17, 2012. Id. at 12.

         On February 29, 2012, Collins 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 34-40. On August 7, 2012, after appointment of counsel, Collins filed an Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence. Id. at 45-48. Collins argued that he was denied effective assistance of counsel because plea counsel failed to adequately investigate his case; and failed to raise the issue of the prosecutor's conflict of interest. Id. On November 5, 2012, the motion court denied Collins' motion, and his request for an evidentiary hearing. Id. at 49-51.

         In his appeal from the denial of post-conviction relief, Collins argued that post-conviction counsel abandoned him by failing to sufficiently allege facts in support of his request for relief. (Doc. 10-2.) On June 28, 2013, the Missouri Court of Appeals dismissed Collins' appeal, finding his claim was not properly before the court. (Doc. 10-5.)

         On November 12, 2014, Collins, pro se, filed the instant Petition for a Writ of Habeas Corpus. (Doc. 1). In his sole ground for relief, Collins argues that post-conviction appellate counsel was ineffective for failing to assert the claims raised in his post-conviction motion and instead asserting only the abandonment claim.

         On March 3, 2015, Respondent filed a Response to Order to Show Cause, in which he argues that the Petition is untimely. Respondent argues in the alternative that Petitioner's claim is not cognizable. (Doc. 10-8.)

         Collins has filed a Traverse, in which he provides additional argument in support of his claims. (Doc. 11.)

         II. Standard of Review

         A federal court's power to grant a writ of habeas corpus is governed by 28 U.S.C. § 2254(d), which provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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