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Brown v. Russell

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

April 30, 2018

TERRY RUSSELL, Respondent.



         This matter is before the Court on remand from the United States Court of Appeals for the Eighth Circuit to consider Petitioner Deraughn Brown's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Petitioner has also filed a Motion for Entry of Final Resolution (Doc. 72). After an evidentiary hearing, Petitioner's § 2254 petition is DENIED and this action is DISMISSED with prejudice. Petitioner's Motion is DENIED as moot.

         I. Introduction and Background

         In October 2007, Petitioner was indicted on four felony counts arising out of the August 6, 2007, shooting of Kevin Hodges: one count of assault in the first degree; one count of unlawfully discharging a firearm from a motor vehicle; and two counts of armed criminal action (Resp. Ex. B at 92-93). In January 2009, after considering the advice of counsel (“trial counsel”), Petitioner rejected the State's plea offer of a twenty-five-year sentence and entered a blind plea of guilty on all four counts (Id. at 94-96, 105). At the plea hearing, Petitioner admitted to the following facts: On August 6, 2007, Petitioner and Hodges had a disagreement in a gas station parking lot. At some point during the argument, Hodges got out of his car and approached Petitioner. Petitioner, while still in the driver's seat of his car, shot Hodges in the shoulder, causing him serious physical injury and causing a substantial risk of death and protracted loss of use of his arm (Id. at 112-13). In response to questioning, Petitioner indicated that he had been afforded sufficient opportunity to discuss the case with trial counsel, that trial counsel was informed of all the facts she needed to adequately advise Petitioner of all aspects of the case, including his legal rights, that trial counsel had done so, and that Petitioner was satisfied with trial counsel's services (Id. at 108-09).

         The court sentenced Petitioner to concurrent terms of eighteen years in prison on each count. After imposing the sentence, the court again inquired of Petitioner whether he was satisfied with trial counsel's representation. This time, Petitioner stated that he was disappointed with “everything” and the “whole situation, ” and indicated that trial counsel had not investigated all of the witnesses to the shooting (Id. at 100-04).

         Thereafter, Petitioner filed a pro se post-conviction motion to set aside his conviction, raising four claims, including that trial counsel had been ineffective by failing to interview a number of key witnesses and by misadvising Petitioner about the length of the sentence he would receive if he pled guilty (Id. at 5-11). Petitioner was appointed counsel (“motion counsel”), who amended his post-conviction motion to raise just two claims: that Petitioner's convictions violated double jeopardy and that trial counsel was ineffective for misadvising Petitioner as to the sentence he would receive upon his guilty plea. Motion counsel decided not to advance Petitioner's claim that trial counsel had been ineffective by failing to investigate witnesses to the shooting (Id. at 12, 17-47).

         The state court held an evidentiary hearing on both claims (Resp. Ex. B at 49-55). Regarding the ineffective-assistance claim, trial counsel testified that she and Petitioner had discussed the government's initial plea offer of a twenty-five year sentence but that neither of them believed it was a substantial improvement over the risk of going to trial (Resp. Ex. A at 11). Petitioner suggested to trial counsel that Brianna Wiley, who had been the passenger in Petitioner's car on the night of the shooting, would be an independent witness because he and Wiley were not well acquainted (Id. at 11-12). Trial counsel testified that the government's initial offer was even less attractive based on her belief that Wiley would be a strong defense witness (Id.). To that end, trial counsel testified that she and Petitioner discussed the possibility of seeking the lesser-included offense of assault in the second degree, based on self-defense (Id. at 24-25). She concluded that Petitioner could not prevail at trial on a complete self-defense theory because there were “a lot of initial aggressor problems” posed by Petitioner's introduction of a loaded weapon into what might have been a mere “fist fight, ” but she believed that Petitioner may have been able to argue imperfect self-defense based on “sudden passion, ” and planned to proceed to trial on that theory, relying on Wiley's and Petitioner's testimony (Id. at 25).

         However, when trial counsel endorsed Wiley as a witness, the government informed trial counsel that it had intercepted hundreds of jailhouse phone calls in which Petitioner was discussing his case with Wiley and directing her on what to say and provided records showing that Wiley had visited Petitioner in jail dozens of times (Id. at 16, 29-30). In addition, trial counsel testified that Petitioner had performed very poorly during mock testimony and specifically struggled to give credible answers regarding his relationship with Wiley (Id. at 15). On those bases, trial counsel concluded that neither Wiley nor Petitioner was a viable witness in support of a sudden-passion defense (Id. at 17-19). Lacking any credible witness to Petitioner's claim of sudden passion, trial counsel advised him to avoid trial by accepting a blind plea, believing that the court would impose a sentence shorter than twenty-five years. (Id. at 17-19).

         Petitioner testified that he told trial counsel to reject the government's twenty-five-year offer because he believed he had shot Hodges in self-defense but that trial counsel never communicated to him her concerns about proceeding to trial on a sudden-passion theory (Id. at 38, 42-43, 45). He alleged that trial counsel promised he would only serve three to five years in prison if he pleaded guilty (Id. at 45-46). Trial counsel testified that Petitioner may have asked her about pleading to a lesser-included offense-such as second-degree assault based on sudden passion-but that she advised him that, “in a blind plea situation, you have to plead to whatever's on the table, there's not going to be an amendment or reduction of the charge, there can't be, so that's a moot conversation” (Id. at 5-35). In any event, Petitioner testified that he only agreed to enter a blind plea because of trial counsel's assurances regarding his sentence (Id. at 39-42).

         The state court found credible trial counsel's testimony that Petitioner had no viable sudden-passion defense (Resp. Ex. B at 53). The state court therefore found not credible Petitioner's testimony that he would have gone to trial on a sudden-passion defense if trial counsel had not misled him as to the length of his sentence (Id.). In addition, the state court noted that Petitioner had represented under oath at his change-of-plea hearing that he was completely satisfied with trial counsel's advice and representation (Id.). The state court concluded therefore that trial counsel's advice to forgo any trial based on a sudden-passion theory and accept the blind plea was reasonable. The state court denied Petitioner's post-conviction motion, and the Missouri Court of Appeals summarily affirmed the denial. See Brown v. State, 395 S.W.3d 83, 2013 WL 1412106 (Mo. App. 2013) (per curiam).

         Petitioner then filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which he later supplemented (Docs. 1, 5). He alleged again that he shot Hodges in defense of himself and Wiley. The police report of the incident indicated that officers had seized as evidence an orange plastic handsaw with an eleven-inch metal blade found at the scene (Doc. 1-1 at 17). According to Petitioner, Hodges was “brandishing” the saw as he approached Petitioner's car, and Petitioner shot Hodges out of “terror, ” in self-defense, and as a result of “sudden passion” (Id. at 9-10).

         In his petition, Petitioner advanced a single claim involving two instances of ineffective assistance of trial counsel (Id. at 4). For the first time, Petitioner argued that trial counsel was ineffective for failing to adequately explain or pursue a potentially meritorious defense based on “sudden passion arising from adequate cause” and that she was ineffective for failing to interview Henderson, a clerk at the gas station where the shooting took place and who would have been a key witness in support of that defense (Id. at 4). Attached to Petitioner's memorandum was an affidavit dated January 4, 2013, bearing Henderson's name, and attesting to the following:

I witnessed the incident that occurred at my job at the Mobil gas station on August 6, 2007 while wiping windows. I noticed two cars with two or three young people who were confronting one another at the intersection of the Mobil station. At that very moment two guys exited the back doors of the Ford car and began circling around behind the dark blue car. There I saw the driver of the Ford car, a black guy, exit out with a chrome colored object in his hand approaching the dark blue vehicle in a threatening manner. I heard at least one shot fired and seen the dark blue car drive off.
If I had been contacted to appear in court to testify as a witness who observed this ...

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