Moore v. Denney

Filing 16

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Petition of Brian Moore for Writ of Habeas Corpus, [Doc. No. 1], pursuant to 28 U.S.C. § 2254 is denied. IT IS FURTHER ORDERED that a Certificate of Appealability will notissue as Petitioner has not made a substantial showing of the denial of a federal constitutional right. A separate judgment in accordance with this Memorandum and Order is entered this same date. 1 Signed by District Judge Henry E. Autrey on 7/16/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRIAN MOORE,
Petitioner,
v.
LARRY DENNEY,
Respondent.

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Case No. 4:09CV1817 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the Report and Recommendation, of
Magistrate Judge Lewis M. Blanton that Brian Moore’s Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, [Doc. No. 1], be denied.
Petitioner has filed written objections to the Report and Recommendation. When
a party objects to the magistrate judge's report and recommendation, the Court
must conduct a de novo review of the portions of the report, findings, or recommendations to which the party objected. See United States v. Lothridge, 324
F.3d 599, 600 (8th Cir.2003) (citing 28 U.S.C. § 636(b)(1)). Pursuant to 28 U.S.C.
§ 636, the Court will therefore conduct a de novo review of those portions of the
Report and Recommendation to which petitioner objects.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §

2254 (AEDPA) applies to all petitions for habeas relief filed by state prisoners
after the statute’s effective date of April 24, 1996. When reviewing a claim that
has been decided on the merits by a state court, AEDPA limits the scope of
judicial review in a habeas proceeding as follows:
An application for 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).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, 529 U.S. 362 (2000), held that:
Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
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Williams, 529 U.S. at 412-13. Furthermore, the Williams Court held that “a
federal habeas court may not issue the writ simply because that court concludes in
its independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” Williams, 529 U.S. at 409.
Discussion
The Procedural History and Factual Background are set forth in the Report
and Recommendation. Petitioner does not object to the procedural background set
forth in Judge Blanton’s Report and Recommendation, rather, he objects to Judge
Blanton’s conclusions of law as applied to the facts as found by the state court.
This Court here notes the objections, however, are without merit.
Judge Blanton concluded that Petitioner’s claim that there was an
insufficient factual basis for his guilty plea was not cognizable under the habeas
statute. Petitioner objects, arguing that his plea was not entered into knowingly
and voluntarily. This objection, however, is belied by the record. As Judge
Blanton’s Report and Recommendation details, the factual basis for the guilty
plea, as presented by the prosecutor states that:
Mr. Moore was interviewed about the allegations, advised of his
rights. He admitted that he had made this juvenile, who is his
biological daughter whom he had visitation with at his house at least
on a monthly basis over the course of the year from November 1st,
2005 thourhg November 21st of 2006. He had made her watch
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pornographic movies and forced her to have sexual contact with him.
What he admitted to is that he performed sexual acts including taking
off her clothing, having her lay on the bed, lubricating his penis with
lotion and proceeding to rub his penis with lotion and he would
ejaculate, and he estimated that he had approximately twelve sexual
contacts of this nature with the juvenile victim.
The appellate court held that the court had numerous facts before it that
would support a factual basis for the guilty pleas. The court explained the nature
of the charges and confirmed that Petitioner understood that by pleading guilty, he
would have admitted the essential elements of the charges against him, specifically
that he had engaged in sexual contact with the juvenile on twelve separate
occasions.
Petitioner now contends that he did not actually touch the juvenile,
therefore, he did not have “sexual contact” with her. This argument does not rise
to the level of a finding that Petitioner’s guilty pleas were not knowing and
voluntary. Clearly, at the time of the pleas, Petitioner admitted that he had sexual
contact with the juvenile. Now, Petitioner is attempting to avoid his pleas by
grasping onto the failure of the factual basis to specifically state he had touched
his daughter.
At the time of the pleas, Petitioner heard the articulation of the factual basis
for the charges. The prosecutor detailed the events and further stated on the record

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that Petitioner had sexual contact with the victim on numerous occasions
including the described actions. The court explained that Petitioner was pleading
guilty to sexual contact with the victim. At no point did Petitioner argue that he
did not have sexual contact with her. The record supports a finding that the pleas
were indeed knowing and voluntary.
While the Court is required to review the record de novo, this review is
limited in scope. This Court is not at liberty to substitute its rulings for those of
the state court. The role and function of this court is narrowly limited. The
standard by which the Court reviews the record on a habeas petition, as set forth
above, is that relief may only be granted if the decision by the state court (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).
In reviewing whether the State Court’s decision involved an unreasonable
application of clearly established federal law, the Court examines the ultimate
legal conclusion reached by the Court, id. at 784, not simply the statement of
reasons explaining the State Court’s decision. See Gill v. Mecusker, 633 F.3d
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1272, 1291–92 (11th Cir.2011) Wright v. Sec'y for Dep't of Corr., 278 F.3d 1245,
1255 (11th Cir.2002); Neal v. Puckett, 239 F.3d 683, 696 (5th Cir.2001); Hennon
v. Cooper, 109 F.3d 330, 335 (7th Cir.1997). At least where there is no
“conspicuous misapplication of Supreme Court precedent” that makes the state
court's decision “contrary to” clearly established law, Wright, 278 F.3d at 1256 n.
3, the proper question is whether there is “any reasonable argument” that the State
Court’s judgment is consistent with Strickland. Richter, 131 S.Ct. at 788; see
Premo v. Moore, ––– U.S. ––––, 131 S.Ct. 733, 740, 178 L.Ed.2d 649 (2011). If
the State Court “reasonably could have concluded that [the petitioner] was not
prejudiced by counsel’s actions,” then federal review under AEDPA is at an end.
Moore, 131 S.Ct. at 744. Williams v. Roper, 695 F.3d 825, 831 -832 (8th Cir. 2012).
The Court agrees that the state court findings are not contrary to, nor were
they an unreasonable application of federal law.
Conclusion
This Court has conducted a de novo review of those portions of the Report
and Recommendation to which Petitioner objects. The Court has reviewed the
trial record, the Missouri court rulings, opinions and decisions. It has further
reviewed all pleadings, motions and memoranda before it. The Court finds that
the Report and Recommendation sets forth a very thorough and correct analysis of
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the issues raised in the Petition. Petitioner’s objections to the Report and
Recommendation are without merit and are denied in their entirety. The Court,
concluding its review under AEDPA, will adopt the Recommendation of Judge
Blanton that the Petition be denied.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). A substantial showing of the denial of a constitutional right requires
that “issues are debatable among reasonable jurists, a court could resolve the
issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997). This Court finds that Petitioner has not made a
substantial showing of the denial of a constitutional right. A Certificate of
Appealability will therefore not be issued.
Accordingly,
IT IS HEREBY ORDERED that the Petition of Brian Moore for Writ of
Habeas Corpus, [Doc. No. 1], pursuant to 28 U.S.C. § 2254 is denied.
IT IS FURTHER ORDERED that a Certificate of Appealability will not
issue as Petitioner has not made a substantial showing of the denial of a federal
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constitutional right.
A separate judgment in accordance with this Memorandum and Order is
entered this same date.
Dated this 16th day of July 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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