Mugler v. State of Missouri

Filing 14

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that Michael Mugler's petition [# 1 ] and amended petition [# 6 ] for writ of habeas corpus under 28 U.S.C. § 2254 are denied. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate Judgment in accord with this Memorandum and Order is entered this same date. Signed by Honorable Catherine D. Perry on 6/8/11. (KLH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL JAMES MUGLER,
Petitioner,
vs.
STEVE LARKINS,
Respondent.

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Case No. 4:10CV1050 CDP

MEMORANDUM AND ORDER
This matter is before me on Michael Mugler’s petition for writ of habeas
corpus under 28 U.S.C. § 2254. For the reasons set forth below, the motion will be
denied.
Background
After a bench trial, Mugler was found guilty of one count of forgery and
sentenced to seven years imprisonment. The Missouri Court of Appeals affirmed
his conviction and sentence. State v. Mugler, 280 S.W.3d 796 (Mo. Ct. App.
2009). The mandate issued on May 15, 2009. Mugler sought no other direct
review. Mugler filed a Motion for Reduction of Term of Sentence1 with the trial
court on May 6, 2010. The motion was denied on May 18, 2010. Mugler also
filed a § 2254 petition with the Western District of Missouri. The § 2254 petition
1

The motion was filed under Mo. Rev. Stat. § 558.046.

requests that the Court grant his state court Motion for Reduction of Term of
Sentence. Like the state court motion, the § 2254 petition is dated May 6, 2010,
but it was postmarked on June 1, 2010 and received by the district court on June 3,
2010. After the case was transferred to this district, Mugler filed an amended
habeas petition raising the following grounds for relief:
1. Mugler claims he was prosecuted in the wrong jurisdiction because
he was prosecuted in Warren County, Missouri for a check from St.
Louis County, Missouri;
2. Mugler received ineffective assistance of counsel because his
attorney failed to call a witness during trial and failed to notify him of
appellate hearings and procedures;
3. Mugler was prosecuted for a Class C Felony even though he did not
attempt to cash a check; and
4. Mugler seeks a motion for a reduction in term of sentence.2
Discussion
Even assuming Mugler’s petition is timely filed,3 he is still not entitled to
2

Ground 4 of the amended petition is the same as the ground for relief asserted in
Mugler’s original § 2254 petition. For this reason, I address this ground for relief only once
below.
3

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires a
federal habeas petition to be filed within one year after the petitioner’s state conviction becomes
final. 28 U.S.C. § 2244(d)(1). The judgment becomes final at the “conclusion of direct review”
or “the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Here, the
statute of limitations began to run when the mandate issued. See Riddle v. Kemna, 523 F.3d
850, 856 (8th Cir. 2008) (en banc); Meuir v. Bowersox, 692 F. Supp. 2d 1115, 1118 (E.D. Mo.
2010). Excluded from the computation of the one-year limitations period is the time during
which a “properly filed” application for post-conviction review, or other collateral review, is
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habeas relief. See Shelton v. Purkett, 563 F.3d 404, 407 (8th Cir. 2009) (even
where habeas petition’s timeliness is doubtful, court may proceed to merits of
habeas petition in the interest of judicial economy). In Grounds 1, 3, and 4 of his
habeas petition, Mugler alleges only violations of Missouri law.4 He claims no
violations of the Constitution or federal law. The federal habeas corpus statute
grants authority to this court to consider an application for a writ of habeas corpus
“only on the ground that he is in custody in violation of the Constitution or laws or

pending in state court. 28 U.S.C. § 2244(d)(2); Payne v. Kemna, 441 F.3d 570, 571 (8th Cir.
2006). “A request for sentence reduction cannot constitute an application for ‘other collateral
review’ having the effect of tolling the one-year limitations period inasmuch as such request was
one for sentencing leniency and did not challenge the lawfulness of his conviction or sentence.”
Croft v. Kemna, 2008 WL 163563, *4 (E.D. Mo. Jan. 16, 2008) (citing Hartmann v. Carroll, 492
F.3d 478 (3rd Cir. 2007); Storey v. Roper, No. 4:05-CV-2073 (JCH), 2007 WL 957313, at *4
(E.D. Mo. Mar. 27, 2007) (“motions that do not attack the judgment are not considered ‘other
collateral review.’ ”)).
The “prison mailbox rule” applies to decide whether a § 2254 petition is timely filed.
See Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir. 1999), abrogated on other grounds, 523
F.3d 850 (8th Cir. 2008)(“We hold that for purposes of applying 28 U.S.C. 2244(d), a pro se
prisoner’s petition for a writ of habeas corpus is filed on the date it is delivered to prison
authorities for mailing to the clerk of the court.”). Under this rule, “a pro se inmate’s 2254
petition is timely filed if it is deposited in the institution’s internal mail system on or before the
last day for filing.” Nichols, 172 F.3d at 1077 n. 5. Here, it is unclear whether Mugler mailed
his § 2254 petition on the same date he signed it. Respondent’s barebones argument on this
issue does not discuss the prison mailbox rule or the discrepancy between the date on the petition
and the date upon which it is file stamped. For purposes of its statute of limitations analysis, the
Court has given Mugler the benefit of applying the prison mailbox rule and assuming that the
petition was timely filed by placing it in the prison mail system on May 6, 2010.
4

Ground 4 is technically a request for this Court to grant his motion to reduce sentence
under state law, which is also not cognizable on federal habeas review. The Court has construed
Ground 4 liberally to state that the state court erred by failing to grant his motion to reduce
sentence.
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treaties of the United States.” 28 U.S.C. § 2254(a). A purely state law claim is not
cognizable under the federal habeas corpus statute. See Estelle v. McGuire, 502
U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”); Pulley v. Harris,
465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a
perceived error of state law.”); Evenstad v. Carlson, 470 F.3d 777, 782 (8th Cir.
2006). Furthermore, “[j]urisdiction is no exception to the general rule that federal
courts will not engage in collateral review of state court decisions based on state
law.” Poe v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994). In Poe, the petitioner
claimed that the trial court had violated a Missouri statute and thus lacked
jurisdiction to sentence him. Id. Poe then argued that being sentenced by a court
lacking jurisdiction denied him due process in violation of the Fourteenth
Amendment. Id. The Eighth Circuit found that “[t]o reach the question of denial
of due process ... [a] court must first determine that the sentencing court has no
jurisdiction. This is not, however, a determination for the federal courts when the
question of jurisdiction is one of valid state law only.” Id.
As in Poe, Mugler’s argument that the trial court lacked jurisdiction to
prosecute him is based solely on state law and is not cognizable on federal habeas
review. The same is true of Mugler’s claim in Ground 4 that the trial erred by
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failing to grant his motion for discretionary relief under Mo. Rev. Stat. § 558.046.
To the extent that Mugler’s claim in Ground 3 is liberally construed as one that his
constitutional rights were violated because the evidence in support of his
conviction was insufficient to have led a rational trier of fact to find guilt beyond a
reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), that claim is
procedurally defaulted.
To preserve a claim for federal habeas review, a state prisoner must properly
raise the claim in the state courts. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir.
1997). A claim is fairly presented to the state courts if the state court was alerted
to the federal nature of the claim. Baldwin v. Reese, 541 U.S. 27, 32 (2004). A
failure to present a claim before the state court according to state procedural rules
results in a procedural default of that claim. Sweet, 125 F.3d at 1151 (citing
Sawyer v. Whitley, 505 U.S. 333, 338 (1992)). In Missouri, default occurs if a
claim is not raised on appeal. Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996)
(finding ineffective assistance of counsel claim abandoned when not advanced on
appeal from denial of post-conviction motion); Jolly v. Gammon, 28 F.3d 51, 53
(8th Cir. 1994).
A petitioner can avoid the procedural bar if he can show cause and prejudice
or a fundamental miscarriage of justice. “[T]he existence of cause for a procedural
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default must ordinarily turn on whether the prisoner can show that some objective
factor external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Coleman v. Thompson, 501 U.S. 722, 753 (1991) (internal
citation and quotation marks omitted). Examples of an external “objective factor”
include a “showing that the factual or legal basis for a claim was not reasonably
available to counsel” or that interference by officials “made compliance
impracticable.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Even without a
claim of cause and actual prejudice, a federal court may grant a writ of habeas
corpus if necessary to prevent a “fundamental miscarriage of justice.” Coleman,
501 U.S. at 750. “This exception requires a habeas petitioner to present new
evidence that affirmatively demonstrates that he is innocent of the crime for which
he was convicted.” Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006); Oglesby v.
Bowersox, 592 F.3d 922, 926 (8th Cir. 2010) (finding no miscarriage of justice
when petitioner did not assert claim of actual innocence).
Here, the only claim Mugler raised on direct appeal related to the trial court
denying a Frye5 hearing and permitting law enforcement officers to conduct and
opine on a handwriting comparison. He did not challenge the sufficiency of the
5

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), requires that the results of a
scientific procedure be admitted only if the procedure is sufficiently established such that it has
gained general acceptance in its field, and Missouri trial courts make this determination in a Frye
hearing. See State v. Daniels, 179 S.W.3d 273, 281 (Mo. Ct. App. 2005).
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evidence. Mugler has not shown cause and prejudice or a fundamental miscarriage
of justice that would excuse his procedural default. His third claim is therefore
procedurally barred and I will not consider it on the merits.
Mugler’s ineffective assistance of counsel claim is also procedurally
defaulted. “Missouri law requires that a habeas petitioner bring any claim that a
conviction violates the federal or state constitution, including a claim of ineffective
assistance of counsel, in a motion for post-conviction relief under Rule 29.15.”
Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006); see also Mo. Sup. Ct. R.
29.15(a). Here, Mugler did not file a post-conviction motion under Rule 29.15, so
any ineffective assistance of counsel claims are procedurally defaulted. Because
Mugler has not shown cause and prejudice or a fundamental miscarriage of justice
that would excuse his procedural default, his claim is precluded from federal
habeas review and will not be considered on the merits. Ground 2 is therefore
denied.
I have also considered whether to issue a certificate of appealability. As
Mugler has not made a substantial showing of the denial of a federal constitutional
right, this Court will not issue a certificate of appealability. 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) (substantial showing must be debatable among reasonable jurists, reasonably
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subject to a different outcome on appeal or otherwise deserving of further
proceedings).
Accordingly,
IT IS HEREBY ORDERED that Michael Mugler’s petition [#1] and
amended petition [#6] for writ of habeas corpus under 28 U.S.C. § 2254 are denied.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
A separate Judgment in accord with this Memorandum and Order is entered
this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 8th day of June, 2011.

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