United States District Court, E.D. Missouri, Eastern Division
D. NOCE, UNITED STATES MAGISTRATE JUDGE.
action is before the court upon the petition of Missouri
state prisoner James Lee for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. (Doc. 1). The parties have
consented to the exercise of plenary authority by the
undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). For the reasons set forth below, the
petition for a writ of habeas corpus is denied.
November 2009, petitioner James Lee was accused of shooting
into a car with two individuals inside, injuring one of them.
(Doc. 8, Ex. 3). The state of Missouri charged petitioner
with two counts of first-degree assault, as well as two
counts of armed criminal action and unlawful use of a weapon.
(Doc. 8, Ex. 3). In June 2010, he pled guilty to all five
crimes in the Circuit Court for the City of St. Louis. (Doc.
8, Ex. 3 at 24). On August 20, 2010, he received an
aggregated sentence of 30 years: 30 years for first-degree,
Class A assault; 15 years for first-degree, Class B assault;
3 years for each armed criminal action; and 4 years for the
unlawful use of a weapon, each sentence to run concurrently.
(Doc. 1 at 1; Doc. 8, Ex. 3 at 5). Petitioner subsequently
moved for post-conviction relief and appealed the denial of
his post-conviction relief in state courts. He filed the
instant petition for a writ of habeas corpus on May 13, 2015.
PETITIONER'S GROUNDS FOR FEDERAL HABEAS
raises four grounds for relief:
(1) Petitioner's plea counsel rendered constitutionally
ineffective assistance by informing petitioner that he would
receive a fifteen to twenty year sentence, thereby inducing
him to plead guilty.
(2) Petitioner's plea counsel rendered constitutionally
ineffective assistance by failing to investigate and obtain
all available discovery, which would have revealed that
petitioner suffers from a mental disease or defect.
(3) Petitioner's plea counsel rendered constitutionally
ineffective assistance in failing to raise the defense of
mental disease or defect and in failing to request a mental
evaluation of petitioner.
(4) Petitioner's plea counsel rendered constitutionally
ineffective assistance in that counsel failed to raise every
claim known to petitioner for vacating, setting aside, or
correcting petitioner's sentence and judgment.
(Doc. 1 at 6-8).
contends that the arguments in Grounds 2, 3, and 4 are
procedurally defaulted and Ground 1, which was addressed by
Missouri state courts, was not decided contrary to
established federal law. (Doc. 8).
provides a one-year window, calculated from the conclusion of
direct state review, in which a habeas applicant may file a
petition for a writ of habeas corpus. 28 U.S.C. §
2244(d)(1). Direct review concludes when the time limit for
seeking further review expires. Gonzales v. Thaler,
132 S.Ct. 641, 653-54 (2012). Under Missouri Supreme Court
Rules 30.01 and 81.04, the time limit for filing a notice of
appeal expires ten days after sentencing. The trial court
sentenced petitioner on August 20, 2010, and on August 31,
2010, the one-year limitation period began to run.
a pending state post-conviction action or other state
collateral review tolls the one-year statute of limitation.
28 U.S.C. § 2244(d)(2). On February 9, 2011, or 163 days
later, petitioner timely filed a motion for post-conviction
relief, tolling the one-year clock. (Doc. 8, Ex. 3 at 45).
Petitioner claimed his trial counsel was constitutionally
ineffective, because he failed to sufficiently investigate
the case or perform discovery, failed to evaluate or present
a mental disease or defect defense, and failed to inform
petitioner of the state's proposed plea bargain. (Doc. 8,
Ex. 3 at 51). Appointed counsel filed an amended motion
alleging that plea counsel was ineffective for affirmatively
misrepresenting that petitioner would receive a sentence in
the range of 15 to 20 years. (Doc. 8, Ex. 3 at 62-79). On
December 31, 2012, petitioner's motion for
post-conviction relief was denied. (Doc. 8, Ex. 3 at 46).
Petitioner appealed, raising only one point: that his plea
counsel was ineffective for predicting that petitioner would
receive a sentence of 15-20 years, which induced him to plead
guilty. (Doc. 8, Ex. 6 at 19). The Missouri Court of Appeals
affirmed the judgment, issuing its mandate on March 19, 2014.
(Doc. 8, Ex. 8 at 1-8). On March 20, 2014, the one-year clock
resumed, and it expired 202 days later, on October 8, 2014.
Petitioner did not file his petition until May 13, 2015.
(Doc. 1). He does not offer any excuse for his late filing.
Therefore, petitioner's federal habeas corpus petition is
untimely. The court has nevertheless considered the merits of
petitioner's grounds for relief.
EXHAUSTION AND PROCEDURAL BAR
also requires that state prisoners exhaust their state law
remedies for claims made in federal habeas corpus petitions
filed in district court under 28 U.S.C. § 2254. See 28
U.S.C. § 2254(b)(1)(A). A state prisoner has not
exhausted his remedies “if he has the right under the
law of the State to raise, by any available procedure, the
question presented.” 28 U.S.C. § 2254(c).
not sufficient for a petitioner simply to have no remaining
procedure for bringing a claim to the state court.
Anderson v. Harless, 459 U.S. 4, 6 (1982) (per
curiam). Rather, a petitioner must have fairly presented the
substance of each federal ground to the trial and appellate
courts. Id. To preserve issues for federal habeas
review, a state prisoner must fairly present his or her
claims to state courts during direct appeal or during
post-conviction proceedings. Sweet v. Delo, 125 F.3d
1144, 1149 (8th Cir. 1996). “If a petitioner fails to
exhaust state remedies and the court to which he should have
presented his claim would now find it procedurally barred,
there is a procedural default”. Sloan v. Delo,
54 F.3d 1371, 1381 (8th Cir. 1995) (citing Coleman v.
Thompson, 501 U.S. 722, 735 n. 1 (1991)).
petitioner may overcome the procedural bar if he can
demonstrate legally sufficient cause for the default and
actual prejudice resulting from it, or that failure to review
the claim would result in a fundamental miscarriage of
justice. Coleman, 501 U.S. at 750. To establish
cause for a procedural default, petitioner must “show
that some objective factor external to the defense
impeded” his “efforts to comply with the
State's procedural rule.” Id. at 753. To
establish actual prejudice, petitioner “must show that
the errors of which he complains worked to his actual and