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David v. Mesmer

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

March 19, 2018

SHEILA DAVID, Petitioner,
v.
ANGELA MESMER, Respondent.

          MEMORANDUM AND ORDER

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner Sheila David's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Government has responded (Doc. 4), and Petitioner has filed a reply (Doc. 7). On September 26, 2017, the Court entered an order staying this matter pending final disposition by the Missouri Supreme Court of Petitioner's state habeas corpus claim. That petition was denied, and, on December 5, 2017, the Court lifted the stay.

         After review of the briefing submitted in this matter and for the following reasons, Petitioner's § 2254 petition is DENIED and this action is DISMISSED with prejudice.

         I. Introduction and Background

         a. Plea hearing

         Petitioner was charged by indictment with stealing over $25, 000. (Resp. Ex. B at 55). Petitioner entered into a blind plea and pleaded guilty to felony stealing as a prior and persistent offender on February 7, 2012. (Id. at 12). Before the plea hearing started, the judge and plea counsel held a discussion off the record. (Resp. Ex. A at 24).

         The State asserted that, at trial, the State would establish that Petitioner appropriated cash of a value of at least $25, 000 during her employment as a bookkeeper for Gateway Cleaning & Restoration without the consent of her employer. (Id. at 13-14). Specifically, the State indicated it would establish that Petitioner stole the money by using her position to write herself checks on the company's account, totaling $45, 027. (Id.). Petitioner admitted those facts were substantially true and correct. (Id. at 14).

         The State indicated that Petitioner's stealing offense would be enhanced from a class B felony to a class A felony, as Petitioner admitted she had two prior convictions. (Id.). The state court[1] determined that Petitioner was a prior and persistent offender, and the range of punishment for such an offense was 5 to 30 years or life imprisonment. (Id.) The state court asked whether Petitioner understood the range of punishment she would face if she were to go to trial, which she answered in the affirmative. (Id.). Petitioner then entered her blind plea and requested that the state court consider probation. (Id.). In response to questioning, Petitioner indicated that she was not under the influence of any medication or drugs, that she understood the charges against her, that her attorney explained the charges against her, and that she understood that she did not have to plead guilty. (Id. at 12-13). The state court's exchange with Petitioner went as follows:

Q. Has anyone promised you anything about your sentence, other than what the State has recommended, to get you to plead guilty?
A. No, Your Honor.
Q. (By the Court) You want me to consider probation?
A. Yes, please, Your Honor.
Q. Has anybody promised you I will give you probation?
A. No, Your Honor.
Q. Do you understand you cannot take back your guilty plea because you do not like the sentence that I give you?
A. Yes, Your Honor.

(Id. at 15). In response to further questioning, Petitioner stated that she had no complaints with her attorney, that nobody threatened, intimidated, or mistreated her or had in any way forced her to plead guilty, and that she was entering her plea by her own free will. (Id. at 15).

         The state court found that Petitioner's guilty plea was made knowingly, voluntarily, and intelligently, with a full understanding of the consequences. (Id.). The state court then engaged in the following colloquy with Petitioner:

The Court: ...Now [Petitioner], so you and I are on the same page, I spoke with your attorney, you perhaps heard me.
[Petitioner]: I heard some of it.
The Court: I'm particularly not quiet in my expressions. But I will put you on probation largely for only one reason, and that's to get restitution.
[Petitioner]: Yes, Your Honor.
The Court: So if you don't pay the restitution, whatever that number is, [] you will go away.

(Id. at 15-16). After the plea hearing and before the sentencing, Petitioner met with a probation officer, who then prepared a sentencing assessment report.

         b. Sentencing

         On April 20, 2012, Petitioner appeared for sentencing. One of the victims of Petitioner's theft, a World War II veteran, testified that as a result of Petitioner's actions, he had to file for bankruptcy because the company was in the victim's name. (Id. at 17). The victim's wife also testified, stating that Petitioner's actions affected the victim's health "in a horrendous way." (Id.). Plea counsel then argued for a sentence of probation, stating that Petitioner would be able to pay $300-$400 per month in restitution, and the following exchange occurred:

The Court: What has she done so far to make restitution?
[Counsel]: I'm not sure, Judge. If you'd like to ask [Petitioner] that I'm sure she'll let you know.
[Petitioner]: I haven't been able to do anything until I start a new job next weekend. - -1 mean next week.
The Court: So the answer is you've done nothing?
[Petitioner]: Well, I haven't had a car -
The Court: In other words, you've done nothing?
[Petitioner]: I went through a bad divorce. I pretty much lost everything in my divorce, both of us have. I've lost a ...

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