United States District Court, W.D. Missouri, Western Division
DANIEL H. KILGORE, Petitioner,
RONDA J. PASH, Warden, Crossroads Correctional Center, and CHRIS KOSTER, Missouri Attorney General, Respondents.
ORDER DENYING HABEAS PETITION
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.
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.
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:
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.
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.
October 14, 2011, the court sentenced Petitioner to placement
in the SOAU under §559.115, but imposed consecutive, not
concurrent, twelve-year sentences.
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.”
report stated Petitioner also winked at one of the
interviewers during the evaluation.
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
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.
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.
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.
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, ...