Opinion
Case No. 4:02CV 848 CDP(LMB).
August 12, 2005
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the petition of Jeffrey Wilson for a writ of habeas corpus under 28 U.S.C. § 2254. This cause was referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). Respondent has filed a Response to Order to Show Cause Why a Writ of Habeas Corpus Should Not be Granted. (Document Number 10).
Procedural History
Petitioner is presently incarcerated at the Boonville Correctional Center in Boonville, Missouri pursuant to the sentence and judgment of the Circuit Court of the County of St. Louis, Missouri. See Respondent's Exhibit A at 46. On July 7, 1997, petitioner pled guilty pursuant to North Carolina v. Alford to three counts of Robbery in the Second Degree, a Class B Felony, and one count of Burglary in the Second Degree, a Class C Felony. See id. The court sentenced petitioner to ten years on each of the robbery convictions and five years on the burglary conviction, to run concurrently with each other. See id. The court suspended execution of the sentences and placed petitioner on five years of probation with conditions. See id.
In North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970), the United States Supreme Court held that a criminal defendant may plead guilty yet maintain his claim of innocence.
On October 30, 1998, the court found that petitioner violated the terms of his probation and ordered the ten-year sentence executed, reserving the right to place the petitioner on probation after 120 days pursuant to § 559.115 R.S.Mo. See id. at 45. On February 23, 1999, petitioner was released on probation. See id. at 7. Petitioner's probation was again revoked for violating the conditions of his probation on September 26, 2001, and petitioner's sentence was ordered executed. See id. at 40.
On June 7, 2002, petitioner, pro se, filed a petition for a writ of habeas corpus, raising two grounds for relief. See Doc. No. 1. In his Response, respondent argues that petitioner has procedurally defaulted both of his claims by failing to properly raise them before the state courts. See Doc. No. 10.
Discussion
A. Standard of Review
A federal court's power to grant a writ of habeas corpus is governed by 28 U.S.C. § 2254(d), which provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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 Supreme Court construed Section 2254(d) in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to the "contrary to" language, a majority of the Court held that a state court decision is contrary to clearly established Federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or if the state court "decides a case differently than [the] Court has on a set of materially indistinguishable facts." 529 U.S. at 405, 120 S. Ct. at 1519. Under the "unreasonable application" prong of § 2254(d)(1), a writ may issue if "the state court identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies [the principle] to the facts of the particular state prisoner's case." Id. Thus, "a federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 410, 120 S. Ct. at 1521. Although the Court failed to specifically define "objectively unreasonable," it observed that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410, 120 S. Ct. at 1522.
B. Procedural Default
Respondent argues that petitioner's grounds for relief should be denied because he has procedurally defaulted those claims by not presenting them to the appropriate state courts. It is well-established that the procedural default rule requires a habeas petitioner to pursue all available avenues of relief in the state courts before the federal courts can consider the claim. See 28 U.S.C. § 2254(b); Duvall v. Purkett, 15 F.3d 745, 746 (8th Cir. 1994). In addressing this issue, a federal court must give deference to state courts and should place great importance on state procedural rules. See Buckley v. Lockhart, 892 F.2d 715, 718 (8th Cir. 1989). By virtue of these considerations, "[a] federal court can consider the merits of a habeas corpus petition only when the prisoner has `fairly presented to the state courts the substance of his [or her] federal habeas corpus claim.'" Id. (quoting Martin v. Solem, 801 F.2d 324, 333 (8th Cir. 1986) (internal citations omitted). To avoid procedural default, "Missouri procedure requires that a claim be presented `at each step of the judicial process.'" Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994) (quoting Benson v. State, 611 S.W.2d 538, 541 (Mo.Ct.App. 1980)), cert. denied, 513 U.S. 983, 115 S. Ct. 462, 130 L.Ed.2d 370 (1994). If a petitioner cannot demonstrate cause, then the court need not determine whether the petitioner has suffered actual prejudice. See Leggins v. Lockhart, 822 F.2d 764, 768 (8th Cir. 1987), cert. denied, 485 U.S. 907, 108 S. Ct. 1080, 99 L.Ed.2d 239 (1988).
In the present case, Petitioner failed to file a timely motion pursuant to Missouri Supreme Court Rule 24.035 challenging the validity of his conviction and sentence. Petitioner states in his petition that he filed a motion pursuant to Rule 24.035 and the trial judge found that it was untimely. Petitioner did not appeal the denial of his motion for post-conviction relief. Rule 24.035(a) provides, in relevant part:
A person convicted of a felony on a plea of guilty and delivered to the custody of the department of corrections who claims that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this Rule 24.035. This Rule 24.035 provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated.
Mo. Sup. Ct. R. 24.035(a). Petitioner also did not file a direct appeal challenging the validity of his conviction and sentence. Thus, petitioner defaulted his claims by failing "to present them to the Missouri courts at any stage of his direct appeal or his post-conviction proceedings." Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997). See Weeks v. Bowersox, 119 F.3d 1342, 1350 (8th Cir. 1997) (stating that a petitioner's "failure to file a timely Rule 24.035 postconviction motion constitutes" a procedural default).
Petitioner fails to allege "cause" for his procedural default. As such, this court need not address the "actual prejudice" prong of the inquiry. See Leggins, 822 F.2d at 768. A federal habeas court may also reach the merits of procedurally defaulted claims where the petitioner can demonstrate that a "miscarriage of justice" exception applies. This narrow exception is limited to extraordinary circumstances where actual innocence can be demonstrated. See Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649, 91 L.Ed.2d 397 (1986). The Petitioner must show that a constitutional violation "probably resulted" in the conviction of an innocent person. See Schlup v. Delo, 513 U.S. 298, 326-29, 115 S. Ct. 851, 867-68, 130 L.Ed.2d 808 (1995). Put another way, the petitioner must "show that it is more likely than not that `no reasonable juror' would have" found petitioner guilty beyond a reasonable doubt. Id. at 329, 115 S. Ct. at 867.
Petitioner does allege that he is actually innocent of the crimes. Petitioner states "[a]fter I had passed a polygraph test . . . it felt as if I had transferred all of powers and information to prove my innocents[sic] . . . but was still convicted as a child for a crime I didn't commit." Petitioner, however, offers no new evidence in support of this claim. As such, petitioner has not demonstrated actual innocence. Thus, the undersigned recommends that petitioner's grounds for relief be dismissed as procedurally defaulted.
C. Petitioner's Claims
The court has already pointed out that petitioner's grounds for relief are barred by the procedural default rule. Even if these claims were not procedurally defaulted, his claims fail on their merits as well. Petitioner alleges two grounds for relief. On the form petition, petitioner labels his two grounds for relief "A" and "F," and indicates that each ground is "explained on added paper." On the added pages, petitioner states, "I am asking that this case be set aside . . . on ground of `A' `F.'" Petitioner does not separate his two claims but rather provides a narrative describing the circumstances of his arrest and conviction.
Petitioner claims that when he was in police custody after his arrest, police would not allow his mother or his friends to file statements on his behalf. Petitioner contends that the charges against him should have been dropped after he passed a polygraph test that was "given by [his] lawyer." Petitioner further alleges that "there was a lot of foul play and trickery to convict a[n] innocent child." As support for this allegation, petitioner claims that his attorney told him that he and the trial judge knew that petitioner could have "won [his] robbery case," but advised petitioner to plead guilty because petitioner's attorney "owed the judge a favor."
It appears from the petition form and narrative insert that in labeling his grounds for relief "A" "F," petitioner was referring to the list of grounds for relief provided on the petition form. As such, petitioner intended to raise the following grounds for relief: (a) conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea; (f) conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. Accordingly, the undersigned will address each claim in turn.
1. Ground One
In petitioner's first ground for relief, he argues that his conviction was obtained by a plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea. The only support petitioner provides for this claim is that his attorney advised him to plead guilty because he "owed the judge a favor."
As a general rule, "a defendant's knowing and intelligent guilty plea forecloses independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea."Weisberg v. Minnesota, 29 F.3d 1271, 1279 (8th Cir. 1994). To be valid, a guilty plea must represent "a voluntary and intelligent choice among the alternative courses of action open to the defendant." Wilkins v. Bowersox, 145 F.3d 1006, 1015 (8th Cir. 1998) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970). See also United States v. Dalman, 994 F.2d 537, 538 (8th Cir. 1993) ("`[T]he standard for a valid guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'") (quoting Gregory v. Solem, 774 F.2d 309, 314 (8th Cir. 1985)). Because a defendant waives a number of constitutional rights upon a guilty plea, it must be made knowingly and voluntarily, and with an awareness of the circumstances and likely consequences of the plea. See George v. Black, 732 F.2d 108, 110 (8th Cir. 1984). An accused need only be informed of the direct consequences of his plea, not the indirect or collateral consequences. See id.
In the instant case, petitioner's claim that his plea of guilty was involuntary fails. The record reveals the following exchange took place in open court:
DEFENSE COUNSEL: . . . I would indicate to the Court that extensive plea bargaining and negotiations and — often painful ones have occurred amongst myself, my client, Mr. Wilson, members of his family, Ms. Hill, and other members of the office of the prosecuting attorney, resulting in a plea negotiation concerning this matter with respect to the acceptance of — by this Court of an Alford plea to Counts 1, 3, and 5, robbery, second degree, Class B felonies, and with respect to Count 7, burglary in the second degree, a Class C felony.
. . .
THE COURT: Before we begin, Mr. Wilson, I want to know if you agree to that and in fact will enter a plea of guilty under Alford versus North Carolina on the remaining counts as outlined by [defense counsel], that in fact the Court is going to sentence you to ten years, suspend execution of the sentence and place you on probation for a period of five years on Counts 1, 3 and 5, and sentence you to five years on Count 7, and suspend those sentences subject to these conditions: That you undergo drug and alcohol evaluation and treatment, perform 80 hours of alternative community service within nine months of today, that you obtain your GED or high school diploma, have no contact with the victims, attend an aggressive offender's program and successfully complete that program, and make restitution in the amount of $1,704.50 within six months . . . Are you in agreement with all of those terms, Mr. Wilson?
THE DEFENDANT: Yes.
. . .
THE COURT: Okay. Have you been fully advised by your attorney as to all aspects of the case, including your legal rights?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with the services your attorney has rendered to you?
THE DEFENDANT: Yes, sir.
. . .
THE COURT: Okay. You don't have to plead guilty this morning; under Alford versus North Carolina you could have a trial by a judge or a jury. Do you understand that?
THE DEFENDANT: Yes, sir.
. . .
THE COURT: Are you entering this Alford plea this morning for the reason if the case did proceed to trial you could receive a greater punishment than that which is recommended today?
THE DEFENDANT: Yes, sir.
. . .
THE COURT: Other than this plea bargain, pursuant to Alford, has anyone made any promises, threats or inducements that would lead you to plead guilty this morning.
THE DEFENDANT: No, sir.
Resp't Ex. A at 23-30.
From this discussion, it is clear that plaintiff's guilty plea was voluntary. Pursuant to Alford, plaintiff maintained his innocence yet decided that it was in his best interest to plead guilty due to the evidence that the State intended to present. Petitioner provides no support for the accusation that counsel advised him to plead guilty due to a "favor" he owed to the trial judge. Petitioner was sentenced to a total of ten years for all of the charges but the court suspended execution of the sentence and placed petitioner on five years of probation. As such, it appears that petitioner's counsel properly advised petitioner to enter his Alford plea to receive a favorable sentence. Accordingly, it is the undersigned's recommendation that petitioner's first ground for relief be denied.
2. Ground Two
In his second ground for relief, petitioner claims that his conviction was obtained by the unconstitutional failure of the prosecution to disclose to petitioner evidence that was favorable to him. Petitioner, however, does not indicate what evidence the prosecution failed to disclose.
In Brady v. Maryland, the Supreme Court held that due process requires the prosecution to produce evidence in its possession that is favorable to the defendant and material either to the issue of guilt or punishment. 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). A constitutional error occurs only where the withheld evidence is "material." Evidence is "material" if there is a "reasonable probability that, had the evidence been disclosed . . . the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985). A "reasonable probability" is a probability "sufficient to undermine confidence in the outcome." Id.
Petitioner does not explain what evidence the prosecution failed to disclose. The only evidence petitioner refers to in his petition is a polygraph test. Petitioner claims that he "passed a polygraph test . . . which was given by my lawyer and the charges were still not dismissed at that time." Petitioner does not allege that the prosecution failed to provide him with the results of his polygraph test. Rather, petitioner indicates that his own lawyer requested and oversaw the administration of the polygraph test. Petitioner has not provided any support for his argument that the prosecution withheld material evidence. Accordingly, the undersigned recommends that petitioner's second ground for relief be denied.
D. Certificate of Appealability
To grant a certificate of appealability, a federal habeas court must find a substantial showing of the denial of a federal constitutional right. See 28 U.S.C. § 2253(c)(2); Hunter v. Bowersox, 172 F.3d 1016, 1020 (8th Cir. 1999). A substantial showing is established if the issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)); Tokar v. Bowersox, 1 F. Supp.2d 986, 1016 (E.D. Mo. 1998). In this case, petitioner has failed to make a substantial showing of the denial of a constitutional right. The undersigned is not persuaded that the issues raised in his petition are debatable among reasonable jurists, that a court could resolve the issues differently, or that the issues deserve further proceedings.
Accordingly, the undersigned recommends that no certificate of appealability be issued.
RECOMMENDATION
IT IS HEREBY RECOMMENDED that the petition of Jeffrey Wilson for a writ of habeas corpus under 28 U.S.C. § 2254 be denied. IT IS FURTHER RECOMMENDED that no certificate of appealability be issued.The parties are advised that they have eleven (11) days in which to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained, and that failure to file timely objections may result in a waiver of the right to appeal questions of fact. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).