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Downer v. Norman

United States District Court, E.D. Missouri, Eastern Division

September 12, 2019

PERCY L. DOWNER, Petitioner,
JEFF NORMAN, Respondent.



         Petitioner Percy L. Downer seeks a writ of habeas corpus, under 28 U.S.C. § 2254, arguing that his due process rights have been violated in four ways. [Doc. 1');">1]. After careful consideration of Downer&#3');">3');">3');">39;s petition [Doc. 1');">1], and respondent&#3');">3');">3');">39;s brief [Doc. 1');">11');">1], I deny Downer&#3');">3');">3');">39;s petition for the reasons set forth below.


         On or about November 8, 201');">14, Percy Downer was involved in a domestic dispute. The dispute began when Downer yelled at the victim to get her belongings out of the bathroom so he could shower. When she exited the bathroom, Downer punched her multiple times causing her to fall to the ground. Once she was on the ground Downer proceeded to choke and kick her. Downer was subsequently arrested and charged with two counts of domestic assault in the second degree, and one count of domestic assault in the third degree.

         Downer entered an Alford[1');">1" name="FN1');">1" id="FN1');">1">1');">1] plea to two counts of domestic assault in the second degree and one count of domestic assault in the third degree on June 1');">1, 201');">15. The plea court discussed the possibility of sentencing Downer to probation but made clear that it would review Downer&#3');">3');">3');">39;s sentencing report and hear from the victim prior to entering a sentence. The court made no promise with regard to sentencing. When questioned by the court about his representation, Downer did not express any dissatisfaction about the representation he had received.

         At Downer&#3');">3');">3');">39;s sentencing on July 1');">10, 201');">15, the victim told the court that since entering his plea Downer had stabbed her multiple times in the head and neck. After reviewing Downer&#3');">3');">3');">39;s sentencing report and considering the testimony of the victim, the court entered its judgment and sentenced Downer as a prior and persistent offender to fifteen years imprisonment for each charge of second-degree domestic assault, to run consecutively, and one year imprisonment for the third-degree assault charge to run concurrently.

         Downer did not make a direct appeal in the state court system and, to date, has not provided any explanation for failing to do so. Downer did seek post-conviction relief through the state court system, filing a Missouri Supreme Court Rule 24.03');">3');">3');">35 motion pro se on November 3');">3');">3');">3, 201');">15. After obtaining counsel Downer&#3');">3');">3');">39;s motion was amended. Downer sought an evidentiary hearing based on claims that he had been subject to double jeopardy and that the trial court inappropriately accepted his plea. Downer&#3');">3');">3');">39;s amended motion was denied on February 8, 201');">17 because the court found that his claims were refuted by the record. On February 1');">17, 201');">17 Downer filed a motion to reconsider, or in the alternative, a motion to amend the order and judgment, claiming the court had failed to address his double jeopardy claims. This claim was denied on March 2, 201');">17. Downer filed an appeal after being granted leave to do so. On February 1');">13');">3');">3');">3, 201');">18, the Missouri Court of Appeals affirmed the motion court&#3');">3');">3');">39;s denial of Downer&#3');">3');">3');">39;s motion for postconviction relief. He then filed this petition for a writ of habeas corpus on April 1');">18, 201');">18.


         In order for Downer to prevail under § 2254, he must show that either he has exhausted the remedies available in the state court or there is no effective process available in the state court to protect his rights. 28 U.S.C. § 2254(b). Downer must also show the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or “was based on an unreasonable determination of the facts in the light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Since, Downer claims ineffective assistance of counsel, he must demonstrate the performance of his counsel fell below an objective standard of reasonableness and that the he was prejudiced by the ineffective assistance. Strickland v. Washington, 466 U.S. 668, 687-88 (1');">1984). To make a showing that he has been prejudiced Downer must show “there is a reasonable probability that, but for counsel&#3');">3');">3');">39;s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

         Prior to bringing a § 2254 petition a prisoner of the state must exhaust the state law remedies available to them. In O&#3');">3');">3');">39;Sullivan v. Boerckel, the Supreme Court of the United States determined that for purposes of exhaustion a “state prisoner must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State&#3');">3');">3');">39;s established appellate review process.” 3');">3');">3');">38');">526 U.S. 83');">3');">3');">38, 845 (1');">1999). In Missouri, because it is considered an extraordinary measure, a prisoner need not appeal their claim to the State Supreme Court to exhaust their remedies under § 2254. See Mo. Sup. Ct. R. 83');">3');">3');">3.04; see also Randolph v. Kemna, 276 F.3');">3');">3');">3d 401');">1, 404 (8th Cir. 2002) (stating the Missouri State Supreme Court&#3');">3');">3');">39;s amendment to Rule 83');">3');">3');">3.04 following O&#3');">3');">3');">39;Sullivan “makes clear that Missouri does not consider a petitioner who bypasses its supreme court in favor of federal habeas review to have denied the State its rightful opportunity to resolve federal constitutional claims.”).

         If a petitioner fails to exhaust his claims in state court, they may be procedurally defaulted. A claim is procedurally defaulted if the petitioner “violates a state procedural rule and this violation serves as an independent and adequate state-law basis to uphold the state courts&#3');">3');">3');">39; dismissal of a claim, thereby precluding consideration of federal claims on direct appeal.” Franklin v. Hawley, 3');">3');">3');">3d 3');">3');">3');">307');">879 F.3');">3');">3');">3d 3');">3');">3');">307, 3');">3');">3');">31');">11');">1 (8th Cir. 201');">18) (internal citation omitted).


         Downer argues that his due process rights have been subject to four violations. Downer&#3');">3');">3');">39;s first three claims are related to his claim that he has been subjected to double jeopardy. First, Downer argues that his incarceration is unconstitutional because he was sentenced on three separate assault charges arising from the same incident which he claims has subjected him to double jeopardy. Second, Downer claims that he received ineffective assistance of counsel because his trial counsel failed to raise a claim of double jeopardy as a ground for dismissal of two of the charges he faced. Third, Downer claims the plea court erred when it accepted his Alford plea on three separate counts of assault. Finally, Downer claims his Alford plea was not voluntary because he would not have made the plea if he had known he would not receive probation.

         Federal habeas review of a claim is barred where a prisoner has defaulted his federal claims in a state court under an independent and adequate state procedural rule. Coleman v. Thompson, 1');">1 U.S. 722');">501');">1 U.S. 722, 750 (1');">1991');">1). State procedural rules are adequate and independent when they are “firmly established and regularly followed.” Oxford v. Delo, 3');">3');">3');">3d 741');">1');">59 F.3');">3');">3');">3d 741');">1, 746 (8th Cir. 1');">1995). If “the last state court rendering a judgment in the case ‘clearly and expressly&#3');">3');">3');">39; states that its judgment rests on a state procedural bar, ” a federal habeas court is precluded from reviewing the claim. Harris v. Reed, 489 U.S. 255, 263');">3');">3');">3 (1');">1989).

         The Missouri Court of Appeals was the “last state court rendering a judgement in this case” and its ruling stated that “Downer&#3');">3');">3');">39;s double jeopardy claim fails because it [was] not cognizable in his postconviction proceeding since it was not raised on direct appeal.” [No. 1');">1-3');">3');">3');">3, p. 7]. The Missouri Court of Appeals&#3');">3');">3');">39; then went on to discuss the merits of the double jeopardy claims in detail. Accordingly, even though the state court correctly held that the claims were procedurally defaulted, I will review the merits of the claims.


         When considering the merits of a federal habeas petition based on a claim that the state court misapplied federal law, “a federal court may grant relief only if the state court&#3');">3');">3');">39;s decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States.&#3');">3');">3');">39;” Lopez v. Smith, 1');">13');">3');">3');">35 S.Ct. 1');">1');">1');">13');">3');">3');">35 S.Ct. 1');">1, 2 (201');">14) (quoting 28 U.S.C. § 2254(d)(1');">1)). Federal habeas relief from a state court&#3');">3');">3');">39;s decision that a claim lacks merit is precluded provided “fair-minded jurists could disagree” on the correctness of the state court&#3');">3');">3');">39;s decision. Harrington v. Richter, 562 U.S. 86, 1');">101');">1 (201');">11');">1) (quoting Yarborough v. Alvarado, 1');">1 U.S. 652');">541');">1 U.S. 652, 664 (2004)).

         In his motion for post-conviction relief Downer made claims of double jeopardy, ineffective assistance of counsel, and plea court error in accepting his Alford plea. [No. 1');">1]. The Missouri Court of Appeals denied him relief. After holding that Downer&#3');">3');">3');">39;s claim was procedurally defaulted, the Court of Appeals considered the merits of his claims and held that “Downer&#3');">3');">3');">39;s claims fail because there was no double jeopardy violation…” [No. 1');">1-3');">3');">3');">3, p.7]. The decision of the Missouri Court of Appeals that Downer&#3');">3');">3');">39;s claims lacked merit is reasonable and entitled to deference.


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