United States District Court, W.D. Missouri, St. Joseph Division
ORDER AND OPINION (1) DENYING PETITIONER'S
PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING ISSUANCE OF
CERTIFICATE OF APPEALABILITY, AND (3) DISMISSING MATTER WITH
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT.
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.
underlying facts were summarized by the Missouri Court of
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
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.
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.
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;
(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.”
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
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)).
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)).