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Kilgore v. Pash

United States District Court, W.D. Missouri, Western Division

May 23, 2018

DANIEL H. KILGORE, Petitioner,
RONDA J. PASH, Warden, Crossroads Correctional Center, and CHRIS KOSTER, Missouri Attorney General, Respondents.


          GREG KAYS, JUDGE

         This case arises from Petitioner Daniel Kilgore's guilty plea to two counts of first-degree child molestation in Missouri state court. The court sentenced Petitioner to twenty-four years' imprisonment with the possibility of release on probation after 120 days. The court later determined Petitioner should not be released on probation.

         Now before the Court is Petitioner's Amended Petition for a Writ of Habeas Corpus (Doc. 2) brought under 28 U.S.C. § 2254. Petitioner raises four claims of ineffective assistance of counsel and violations of due process. For the following reasons, his Petition is DENIED.


         On a petition for a writ of habeas corpus brought by a person in state custody, a federal court views the facts and evidence in the light most favorable to t he st ate court's ver dict. Hendricks v. Lock, 238 F.3d 985, 986 (8th Cir. 2001); see also 28 U.S.C. § 2254(e)(1) (2009). The evidence and procedural history of Petitioner's case is summarized as follows:

         On April 14, 2011, Petitioner was charged in the Circuit Court of Clay County, Missouri, with three counts of first-degree child molestation for allegedly molesting three relatives who were less than fourteen years-old. On August 26, 2011, Petitioner entered into a plea agreement, negotiated through retained counsel, in which he pled guilty to two counts in return for the State dismissing the third count. As part of the agreement, the parties jointly recommended to the court that Petitioner be sentenced to concurrent twelve-year sentences under Missouri Revised Statute § 559.115 (which would allow him to be released on probation after 120 days), with placement in Missouri's Sex Offender Assessment Unit (“SOAU”). The court, however, retained the option of imposing a different sentence, and if it did, Petitioner could not withdraw his guilty plea.

         During the plea colloquy, Petitioner repeatedly acknowledged that under the agreement, the court could sentence him to any amount of time up to the statutory maximum of 30 years (if the sentences were run consecutively), and that the court might not place him on probation after 120 days.

         On October 14, 2011, the court sentenced Petitioner to placement in the SOAU under §559.115, but imposed consecutive, not concurrent, twelve-year sentences.

         On October 26, 2011, Petitioner entered prison. On or about January 25, 2012, the SOAU issued a report recommending the court not place Petitioner on probation. The report gave numerous reasons for its recommendation, including the fact that during the evaluation, Petitioner reportedly

did not display guilt, empathy or remorse and felt justified in training the victims sexually. Mr. Kilgore teared up only when he realized he could be found out, thereby focusing on his own suffering. He realized he had a problem when VP [a victim] demanded oral sex and threatened to tell his wife if he refused. Mr. Kilgore placed VP in the role of an adult perpetrator when he stated, “I begged her not to tell, but I gave in to her demands.”[1]

         The report stated Petitioner also winked at one of the interviewers during the evaluation.

         After reading the report, the trial court denied probation on January 26, 2012. Plea counsel then filed a motion for reconsideration and requested a hearing. On February 17, 2002 (which was shortly before the court's jurisdiction to place Petitioner on probation under § 559.115 would expire), the court held a hearing on the motion to reconsider.

         During this hearing, Petitioner was represented by a new attorney. This attorney had extensive experience with SOAU reports; she had worked as a probation and parole officer before attending law school and had drafted the same type of report. The court denied Petitioner's request for reconsideration on February 22, 2012.

         Petitioner subsequently filed a state post-conviction motion alleging his attorney during the plea stage was ineffective for: (1) failing to properly investigate and advise Petitioner about the nature of the SOAU; (2) failing to timely request a hearing when the SOAU report did not indicate that he had failed to successfully complete a program, and by failing to present evidence at that hearing, specifically by not calling Petitioner's parents and staff members from the SOAU; and (3) allegedly advising Petitioner that despite the court's comments during the guilty plea, he would serve only 120 days in prison. Petitioner also argued (4) any sentence to the SOAU violates due process because successful completion of SOAU as provided for in § 559.115 creates a liberty interest in release on probation.

         The state post-conviction motion court denied these claims. It also held the claims related to the reconsideration hearing on the report from the SOAU were outside the scope of a post-conviction motion. The state court of appeals affirmed the denial on April 7, 2015.

         On October 14, 2015, Petitioner filed the pending Amended Petition (Doc. 2) for a writ of habeas corpus under 28 U.S.C. § 2254. On December 28, 2017, ...

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