United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
is a parolee from the Missouri Department of Corrections. In
2013, petitioner was convicted in state court of four counts
of unlawful possession of a firearm. (St. Louis City Circuit
Court Criminal Case number 1022-CR-049750-01). Petitioner was
originally sentenced as a prior and persistent offender, but
on direct appeal the Missouri Court of Appeals reversed the
sentence as improperly enhanced for the State's failure
to allege prior and persistent status in the indictment. On
remand, the state court sentenced petitioner to seven
years' imprisonment on each count.
amended petition for writ of habeas corpus under 28 U.S.C.
§ 2254, petitioner raises the following four grounds for
1) the original indictment in his case was defective for
failure to allege the essential element of enhancement of
punishment and the court therefore did not acquire
2) his conviction violates the Fifth Amendment's Grand
Jury Clause because the State failed to allege his prior and
persistent offender status in the indictment;
3) he received ineffective assistance of trial counsel
because his attorney encouraged him to plead guilty to the
unlawful possession of firearm charges in exchange for a
ten-year sentence even though that sentence was based on an
improper sentencing enhancement; and
4) his conviction violates his Second Amendment right to bear
arms because the State restored his civil rights, allowing
him to legally own firearms.
is not entitled to relief on any grounds raised in his §
2254 petition for the reasons set out below.
direct appeal, the Missouri Court of Appeals summarized the
evidence adduced at trial as follows:
On September 17, 2010, Officers Justin Ries and Marcus Alston
drove to Defendant's house to execute a warrant for
Defendant's arrest. Defendant answered the door, but he
refused to step outside the door or allow the officers to
enter. Defendant's guest allowed the officers entry to
the house and, while they were searching for Defendant, the
officers discovered two twelve-gauge shotguns, a 22-caliber
rifle, and a 243-caliber rifle. The State of Missouri charged
Movant with four counts of unlawful possession of a firearm.
The indictment alleged that, in November 1987, Defendant
“was convicted of the felony of Assault in the 1st
degree and Armed Criminal Action” . . . . The trial
court . . . found Defendant guilty of all four counts . . . .
[Doc. # 29-5].
the Antiterrorism and Effective Death Penalty Act, federal
habeas relief is available to a state prisoner “only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § ...