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Dougan v. Lewis

United States District Court, W.D. Missouri, St. Joseph Division

July 15, 2019

JUSTIN DOUGAN, Petitioner,
JASON LEWIS, Warden, Southeast Correctional Center, Defendant.



         Pending is Petitioner Justin Dougan's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Doc. #1. For the following reasons, the Court denies the Petition, and declines to issue a Certificate of Appealability.

         I. BACKGROUND

         The underlying facts were summarized by the Missouri Court of Appeals:

Dougan was charged in the Circuit Court of Platte County with second degree felony murder, section 565.021, and armed criminal action, section 571.015. In exchange for reduced charges of murder in the second degree and unlawful use of a weapon, section 571.030, Dougan agreed to plead guilty. The charges stemmed from the shooting death of Spencer Crosthwait (“Crosthwait”).
Briefly, Dougan and Crosthwait's friend Alexander Johnson (“Johnson”) were in a dispute over a girl. Johnson went to Dougan's house and during a disagreement Dougan fired a 30 caliber rifle twice at or near Johnson. Crosthwait and Johnson left the home. Dougan and two friends went looking for Johnson. Approximately three hours later, a car in which Dougan was riding in the back seat, came to a stoplight. Crosthwait and Johnson were in a separate car which was also stopped at the same light. Dougan lifted the same 30 caliber rifle and fired one round at the vehicle in which Johnson and Crosthwait were seated. The bullet traveled through the driver's side door of the vehicle in which Crosthwait was driving. The bullet struck Crosthwait in the chest penetrating both of his lungs and heart as well as other organs. The gunshot wound was fatal.
At the plea hearing, the State presented to the court a verbal recitation of the facts that it intended to prove at trial. Dougan was asked if he agreed with the facts as set forth. While briefly clarifying the motivation behind some of his actions, Dougan confirmed that he agreed with the facts as presented by the State. The court found his plea to be knowing and voluntary. The court then sentenced Dougan, pursuant to the plea agreement, to two terms of life imprisonment to be served concurrently.
On November 9, 2011, Dougan filed a timely pro se motion for post-conviction relief. An amended motion was filed by appointed counsel on March 19, 2012 (Motion). The motion court held an evidentiary hearing on the motion on September 6, 2016. At the hearing, Dougan, Dougan's plea counsel, and Dougan's father testified. Plea counsel testified that while Dougan's decisions may have been clouded by drug use, he believed that Dougan's actions were knowing and voluntary. Dougan testified it was merely his intention to scare Crosthwait when he discharged his rifle but he did not allege that the weapon was discharged by accident.

Doc. #7-6, at 3-4. Ultimately, the motion court denied Petitioner's motion for post-conviction relief. Petitioner appealed the motion court's decision to the Missouri Court of Appeal, solely alleging there was an insufficient factual basis to support his pleas of guilty to unlawful use of a weapon in that there was no basis for the finding he “knowingly” discharged a firearm. Dougan v. State, 544 S.W.3d 327 (Mo.Ct.App. 2018); Doc. #7-6. The Missouri Court of Appeals affirmed the judgment of the motion court. Id.

         On November 8, 2018, Petitioner sought relief in this Court pursuant to 28 U.S.C. § 2254. Doc. #1. Petitioner articulates nine bases for his Petition: (1) counsel was ineffective for failing to conduct an investigation of Petitioner's alleged offenses and defenses and failing to advise Petitioner as to evidence that could undermine a conviction for first degree murder; (2) counsel was ineffective for failing to accurately advise Petitioner that the range of punishment included the possibility of a life sentence; (3) counsel was ineffective for failing to file a motion to suppress Petitioner's statements and giving erroneous legal advice as to the consequences of filing such a motion; (4) counsel was ineffective for failing to properly advise Petitioner of the possible outcomes were he to be tried for first degree murder; (5) counsel was ineffective for failing to object to the prosecutor's closing argument; (6) Petitioner's convictions violate Due Process because his plea lacked an adequate factual basis; (7) Petitioner's convictions violate the Fifth Amendment's prohibition against double jeopardy; (8) counsel was ineffective because he failed to object to the double jeopardy violation; and (9) counsel was ineffective for failing to advise him of the double jeopardy violation. Doc. #1, at 12-37.


         A. Habeas Corpus

         Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which amended 28 U.S.C. § 2254, a writ of habeas corpus shall not be issued on a claim litigated on the merits in state court unless the state court's decision either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The “contrary to” and “unreasonable application” provisions in the first subsection have independent meanings. The “contrary to” provision applies “if the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or reached a decision contrary to Supreme Court precedent when confronting facts that were materially indistinguishable.” Jackson v. Norris, 651 F.3d 923, 925 (8th Cir. 2011). The “unreasonable application” clause pertains to instances where “the state court correctly identified the governing legal principle, but unreasonably applied it to the facts of the particular case.” Id.

         Section 2254(d) “limits the applicability of the AEDPA's deferential standard to claims that have been ‘adjudicated on the merits' in state court.” Worthington v. Roper, 631 F.3d 487, 495 (8th Cir. 2011) (citation omitted). Federal courts must “undertake only a limited and deferential review of underlying state court decisions.” Id. (citation omitted). When the last state court fails to provide the rationale for the decision, district courts must “look through the unexplained decision to the last related state court decision that does provide a relevant rationale, ” and “presume that the unexplained decision adopted the same rationale.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). This presumption may be rebutted by a “showing that the unexplained [decision] relied or most likely did rely on different grounds than the lower state court's decision….” Id.

         When the state courts' decisions do not include explanations, “the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief….” Harrington v. Richter, 562 U.S. 86, 98 (2011). The district court must presume “the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 99 (citation omitted). But this presumption “may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Id. at 99-100. The state court's determination that a habeas claim lacks merit - even if the determination is unexplained - “precludes habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Id. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         B. Procedural Default

         To preserve a claim for federal habeas review, a state prisoner must present that claim to the state court and allow that court the opportunity to address the claim. Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). “Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised before the state court are procedurally defaulted.” Id. The federal habeas court will consider a procedurally defaulted claim only “where the petitioner can establish either cause for the default and actual prejudice, or that the default will result in a fundamental miscarriage of justice.” Id. (citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992), and Abdullah v. Groose, 75 F.3d 408, 41 (8th Cir. 1996) (en banc)). To demonstrate cause, a petitioner must show that “some objective factor external to the defense impeded [the petitioner's] efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice, a petitioner must demonstrate that the claimed errors “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Accord Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999). Lastly, to assert the fundamental miscarriage of justice exception, a petitioner must “present new evidence that affirmatively demonstrates that he is innocent of the crime for which he was convicted.” Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011) (quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).


         A. Ineffective ...

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