Rulo v. Prudden
MEMORANDUM AND ORDER - For the reasons discussed above, the Court finds hat petitioner has failed to establish that he is entitled to relief based on state court proceedings that were contrary to, or an unreasonable application of, clearly establ ished federal law, or based upon an unreasonable determination of the facts in light of the evidence presented in state court proceedings. 28 U.S.C. § 2254(d). Because petitioner has failed to make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Signed by District Judge Carol E. Jackson on 1/30/13. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Case No. 4:10-CV-416 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on the petition of Lonnie Rulo for a writ of habeas
corpus pursuant to 28 U.S.C. §2254. Respondent has filed a response in opposition,
and the issues are fully briefed.
Following a jury trial in the Circuit Court of Madison County, Missouri, petitioner
was found guilty of forcible rape (Count I), kidnapping (Count II), and two counts of
armed criminal action (Counts III and IV). On October 18, 2005, the Missouri Court
of Appeals reversed the conviction,1 and remanded the case for retrial in Washington
County, Missouri. State v. Rulo, 173 S.W.3d 649 (Mo. Ct. App. 2005). On June 20,
2007, petitioner entered an Alford pled guilty to Counts II and IV.
Alford v. North
Carolina, 400 U.S. 25 (1970). In return, the prosecution dismissed Counts I and III,
and recommended a ten year sentence on Count II and an eighteen year sentence on
The Court of Appeals found that the trial court erred in overruling petitioner’s motion
for change of judge.
Count IV, to be served concurrently. On June 20, following the plea colloquy, the trial
court sentenced petitioner in accordance with the recommendation. Resp. Ex. A.
On November 28, 2007, petitioner filed a motion for post-conviction relief under
Missouri Supreme Court Rule 24.035. On June 9, 2008, the motion was denied. Resp.
Ex. A. Petitioner appealed, and the Missouri Court of Appeals affirmed. Resp. Ex. E
and F. Petitioner then filed a Rule 91 state habeas action in the Circuit Court of Pike
County, Missouri. That court denied the petition for the writ of habeas corpus on
February 11, 2010.
In the instant § 2254 petition, petitioner asserts four grounds for relief:
(1) that the state failed to bring him to trial within 180 days as required by
Mo.Rev.Stat. §217.450 (2000); (2) that he was denied effective assistance of trial
counsel; (3) that he was denied a change of judge; and (4) that he was denied
effective assistance of appellate counsel.2
Federal courts may not grant habeas relief on a claim that has been decided on
the merits in state court unless that adjudication:
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
resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
28 U.S.C. § 2254 (d)(1)-(2).
In his reply to respondent [Doc. #15], petitioner raises several claims not included in
his petition. Specifically, petitioner asserts that “fabricated evidence” and “false testimony”
were admitted during the trial. Because the conviction following the trial was reversed, these
claims are moot.
A state court's decision is "contrary to" clearly established law if "it applies a rule
that contradicts the governing law set forth in [the Supreme Court's] cases, or if it
confronts a set of facts that is materially indistinguishable from a decision of [the
Supreme Court] but reaches a different result." Brown v. Payton, 544 U.S. 133, 141
(2005). "The state court need not cite or even be aware of the governing Supreme
Court cases, ‘so long as neither the reasoning nor the result of the state-court decision
contradicts them.'" Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir. 2004) (citing Early
v. Packer, 537 U.S. 3, 8 (2002)). "In the ‘contrary to' analysis of the state court's
decision, [the federal court's] focus is on the result and any reasoning that the court
may have given; the absence of reasoning is not a barrier to a denial of relief." Id.
A decision involves an "unreasonable application" of clearly established law if
"the state court applies [the Supreme Court's] precedents to the facts in an objectively
unreasonable manner," Payton, 125 S. Ct. at 1439; Williams v. Taylor, 529 U.S. 362,
405 (2000), or "if the state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply."
Id. at 406. "Federal habeas relief is warranted only when the refusal was ‘objectively
unreasonable,' not when it was merely erroneous or incorrect." Carter v. Kemna, 255
F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529 U.S. at 410-11).
A state court decision involves an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings only if it is shown that
the state court's presumptively correct factual findings do not enjoy support in the
record. 28 U.S.C. § 2254(e)(1); Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir.2004).
“[T]he prisoner has the burden of rebutting the presumption of correctness by clear
and convincing evidence.” Barnett v. Roper, 541 F.3d 804, 811 (8th Cir. 2008).
Although respondent raised the issue of procedural default, he has responded
to petitioner’s claims on the merits. Because petitioner’s claims are clearly unavailing
on the merits, the Court will do the same, and will not address the issue of procedural
default. See Nance v. Norris, 392 F.3d 284, 291 (8th Cir. 2004) (allowing federal
habeas courts to bypass a procedural default issue and proceed to the merits when
relief is denied).
Petitioner argues that he was not brought to trial within 180 days pursuant to
Missouri’s “Uniform Mandatory Disposition of Detainers Law” (UMDDL). Mo.Rev.Stat.
§217.450 (2000). This claim presents an issue of state law and may not be reviewed
by a federal court in a habeas corpus proceeding. Poe v. Caspari, 39 F.3d 204, 207
(8th Cir. 1994) (“Violation by state officials of a state speedy trial law, taken alone,
does not present a federal claim reviewable on habeas petition.”). Petitioner replies
that his claim encompasses the constitutional guarantees of speedy trial and due
process. Petitioner did not present a federal Sixth Amendment speedy trial claim to
the state court in his motion for post-conviction relief, so this claim is procedurally
barred. Finally, while lack of jurisdiction of the sentencing court would constitute a
denial of due process, the state post-conviction review court found no violation of the
UMDDL in petitioner’s case. The question of jurisdiction is one of state law only and
cannot be reviewed by this Court. Id.
B. Ground Two
Petitioner’s claim of ineffective assistance of counsel is based on the following:
First, counsel informed petitioner that he was likely to be convicted and receive a life
sentence if he went to trial. Second, counsel told petitioner that his claim under
Missouri’s UMDDL §217.450 would fail. Third, counsel used petitioner’s child as a
“bargaining chip” to obtain a plea agreement. Finally, counsel told petitioner that an
Alford plea is not a guilty plea.
In order to state a claim of ineffective assistance of counsel, petitioner must
meet the Strickland standard: petitioner must demonstrate that his counsel’s
performance was deficient and that he was prejudiced by that performance. Strickland
v. Washington, 466 U.S. 668, 687 (1984). In the context of a guilty plea, petitioner
must show that counsel’s conduct fell below the conduct of a reasonably competent
attorney and that “there is a reasonable probability that, but for [his] counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 58-59 (1985).
Trial counsel’s performance in this case was not deficient. It is appropriate for
counsel to provide advice regarding the likely consequences of going to trial compared
to the consequences of accepting a plea bargain. Forsyth v. Spencer, 595 F.3d 81, 86
(1st Cir. 2010); Julian v. Bartley, 495 F.3d 487, 495 (7th Cir. 2007) (“The attorney
need not be 100% correct in her prediction of the consequences of pleading guilty and
of going to trial, as a mistake, in and of itself is not proof of deficient performance.”).
Counsel’s prediction was reasonable, as petitioner could have been sentenced to life
if convicted at trial.3
Counsel’s advice regarding the application of Missouri’s UMDDL was also
accurate, and therefore cannot constitute deficient performance.
The state court
denied petitioner post-conviction relief on this ground because it found petitioner’s
UMDDL claim to be without merit, as counsel had advised. Resp. Ex. A. That court’s
interpretation of state law is binding on this Court. Lupien v. Clarke, 403 F.3d 615,
619 (8th Cir. 2005).
Petitioner next claims that counsel used petitioner’s child as a “bargaining chip.”
In his reply to respondent, petitioner clarified that counsel promised to obtain the
address of petitioner’s son, which proved impossible because petitioner’s son was in
custody. Petitioner also claims that counsel misadvised him about parole eligibility.
None of these allegations cast doubt upon the knowing and voluntary nature of
petitioner’s plea, as clearly established during the plea colloquy. Nor is there any
suggestion that petitioner would not have pled guilty but for counsel’s promise to
obtain the address or statements regarding parole.
Finally, petitioner argues that counsel informed him that an Alford plea was not
a guilty plea. However, during the plea colloquy and sentencing the court explained
the meaning and legal consequence of an Alford plea, and repeatedly referred to the
plea as an “Alford plea of guilty.” Therefore, petitioner cannot show that his plea was
C. Ground Three
Petitioner faced a life sentence on the rape count, Mo. Rev. Stat. §566.030, and an
unlimited sentence on the counts of armed criminal action. Mo Rev. Stat. §571.015.
Petitioner argues that he was entitled to a change of judge at his request under
state law. This is a state law claim and may not be reviewed by a federal habeas
court. To the extent that petitioner argues the judge was biased and should have
recused, there is no evidence to support this claim.
D. Ground Four
Petitioner argues that appellate counsel was ineffective. Ineffective assistance
of post-conviction review counsel is not a ground for relief in a federal habeas
proceeding. 28 U.S.C. 2254(i) (“The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall not be a ground for relief
in a proceeding arising under section 2254.").
For the reasons discussed above, the Court finds that petitioner has failed to
establish that he is entitled to relief based on state court proceedings that were
contrary to, or an unreasonable application of, clearly established federal law, or based
upon an unreasonable determination of the facts in light of the evidence presented in
state court proceedings. 28 U.S.C. § 2254(d). Because petitioner has failed to make
a substantial showing of the denial of a constitutional right, the Court will not issue a
certificate of appealability.
See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 30th day of January, 2013.
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