Washington v. Norman

Filing 38

MEMORANDUM AND ORDER HEREBY ORDERED that Petitioner's Petition under 28 U.S.C. § 2254 forWrit of Habeas Corpus by a Person in State Custody(ECF No. 1 ) is DENIED, and his claims are DISMISSED with prejudice. A separate Order of Dismissal will accompany this Memorandum and Order. FURTHER ORDERED that because Petitioner cannot 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 Jean C. Hamilton on 05/28/2013. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GARY T. WASHINGTON, SR.,
Petitioner(s),
vs.
JEFF NORMAN,
Respondent(s).

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Case No. 4:10CV1099 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Missouri State prisoner Gary Washington, Sr.’s pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready
for disposition.
On January 15, 2008, in the Circuit Court of the County of St. Louis, Missouri, Petitioner
pled guilty to forcible rape and first-degree robbery. (Resp. Ex. A, p. 33). Petitioner was sentenced
to fifteen years and ten years imprisonment, with his sentences to run consecutively. (Id., p. 35).
Petitioner filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15.
Petitioner was subsequently assigned counsel, who filed an amended Rule 29.15 motion on
Petitioner’s behalf. Petitioner’s Rule 29.15 motion was denied without an evidentiary hearing. The
motion court’s denial of Petitioner’s Rule 29.15 motion was affirmed on appeal.
Petitioner is currently incarcerated at the Eastern Reception Diagnostic and Correctional
Center in Bonne Terre, Missouri. In his petition for writ of habeas corpus, Petitioner raises the
following five claims for relief1:

1

Petitioner’s initial Petition contained seven claims for relief. Pursuant to Petitioner’s
Motion to Amend the Petitioner’s Writ 28 U.S.C. § 2254 Striking the Unexhausted Claims
(“Second Motion to Amend,” ECF No. 36), Petitioner sought to strike his sixth and seventh

(1)
Petitioner’s plea counsel was ineffective by waiving Petitioner’s valid request for
disposition of detainers under the Uniform Mandatory Disposition of Detainers Law (“UMDDL”)2;
(2)
Petitioner’s plea counsel was ineffective by requesting a continuance that continued
Petitioner’s trial so that Petitioner was not brought to trial within 180 days of Petitioner’s request
under the UMDDL;
(3)
Petitioner’s plea counsel was ineffective by failing to properly advise Petitioner
regarding his parole eligibility;
(4)

There was no factual basis for Petitioner’s robbery conviction; and

(5)
Petitioner’s plea counsel was ineffective by failing to inform Petitioner that the
minimum sentence for rape was five years.
(Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus By a Person in State Custody
(“Petition”), ECF No. 1, p. 3).
DISCUSSION
I.

Procedural Default
A claim must be presented at each step of the judicial process in state court to avoid

procedural default. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994) (citing Benson v. State, 611

claims for relief. The Court granted Petitioner’s Second Motion to Amend on November 20,
2012, leaving only Petitioner’s first, second, third, fourth, and fifth claims for relief.
2

Petitioner’s first claim for relief in his initial Petition alleged Petitioner’s appeal counsel
was ineffective by “omitting important facts” in Petitioner’s amended Rule 29.15 motion.
Pursuant to Petitioner’s Motion to Amend (“First Motion to Amend,” ECF No. 20), Petitioner
sought to amend this claim to “ineffective assistant [sic] of trial counsel,” which Petitioner
asserts he raised in his amended Rule 29.15 motion. The Court granted Petitioner’s First Motion
to Amend on July 26, 2011. While Petitioner’s First Motion to Amend did not specify how
Petitioner’s plea counsel was ineffective, Petitioner’s amended Rule 29.15 motion contained
three claims for ineffective assistance of counsel: improper waiver of request for disposition of
detainers (i.e., wrongfully voiding Petitioner’s request to be brought to trial within 180 days after
the filing of his request under the UMDDL), failure to advise of range of punishment, and failure
to properly advise of parole eligibility. Since the Petition already alleges the second and third
claims for ineffective assistance of counsel contained in Petitioner’s amended Rule 29.15 motion,
the Court will treat the first ground for relief in the Petition as alleging that plea counsel was
ineffective for improperly waiving Petitioner’s valid request for disposition of detainers.
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S.W.2d 538, 541 (Mo. Ct. App. 1980)). “Failure to raise a claim on appeal from the denial of a postconviction motion erects a procedural bar to federal habeas review.” Id. (citing Gilmore v.
Armontrout, 861 F.2d 1061, 1065 (8th Cir. 1988)). “[A] habeas petitioner who has failed to meet
the State’s procedural requirements for presenting his federal claims has deprived the state courts
of an opportunity to address those claims in the first instance.” Coleman v. Thompson, 501 U.S.
722, 732 (1991).
A federal court cannot reach the merits of a claim that is procedurally defaulted absent a
showing of cause and prejudice or a demonstration “that failure to consider the federal claim will
result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750 (internal quotations and
citations omitted); Forest v. Delo, 52 F.3d 716, 719 (8th Cir. 1995); Keithley v. Hopkins, 43 F.3d
1216, 1217 (8th Cir. 1995). A petitioner who makes no claim of actual innocence cannot satisfy the
“fundamental miscarriage of justice” exception to the required showing of cause and prejudice.
Schlup v. Delo, 513 U.S. 298, 315 (1995); Washington v. Delo, 51 F.3d 756, 760-761 (8th Cir.
1995).
In Ground 1, Petitioner asserts his plea counsel was ineffective by waiving Petitioner’s valid
request for disposition of detainers under the UMDDL.
In Ground 2, Petitioner asserts his plea counsel was ineffective by requesting a continuance
that continued Petitioner’s trial so that Petitioner was not brought to trial within 180 days of
Petitioner’s request under the UMDDL.
The Missouri Court of Appeals, Eastern District, found that Petitioner failed to allege facts
sufficient to show he was entitled to the protections of the UMDDL in his amended Rule 29.15
motion, and the Court refused to address Petitioner’s UMDDL claims. Thus, Petitioner’s UMDDL

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claims are procedurally defaulted.3 Petitioner has not established cause for his failure to properly
plead his UMDDL claims. Additionally, Petitioner has also not established that he would not have
pled guilty absent his plea counsel’s alleged errors, so Petitioner has not established any prejudice.
Finally, Petitioner has made no claim of actual innocence so as to satisfy the “fundamental
miscarriage of justice” exception to the required showing of both cause and prejudice. Therefore,
the claims raised in Grounds 1 and 2 of the Petition are procedurally barred and must be denied.
II.

Non-Cognizable Claims
Federal habeas relief is available to a state prisoner only on the ground that he is in custody

in violation of a constitutional or federal statutory right. Williams-Bey v. Trickey, 894 F.2d 314, 317
(8th Cir. 1990); 28 U.S.C. § 2254(a). Claims that do not reach constitutional magnitude cannot be
addressed in a petition for habeas corpus. Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir.
1991).
In Ground 4, Petitioner asserts there was no factual basis for his robbery conviction.
Objections to the nature of the evidence obtained by and available to the prosecution will not survive
a plea of guilty and are not available on an application for a writ of habeas corpus. U.S. ex rel.
Mendez v. Fish, 259 F.Supp. 146, 148 (D.C.N.Y. 1965). A prisoner whose conviction rests upon
a plea of guilty and not upon allegedly incompetent evidence is not entitled to any relief in habeas
corpus on such ground. Montgomery v. Peyton, 299 F.Supp. 514, 516-17 (D.C. Va. 1969). “A plea
of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is

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The Court also notes that any claim that Petitioner’s UMDDL rights were violated by the
trial court is not cognizable in a federal habeas proceeding. “Violation by state officials of a state
speedy trial law, taken alone, does not present a federal claim reviewable on habeas petition.”
Poe v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994). Such a claim is based only on Missouri law
and actions of Missouri officials, and it may be addressed only by Missouri courts. Id. “A
violation of Missouri’s speedy trial law, without more, is not cognizable in habeas and does not
justify relief under § 2254.” Id.
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itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has
nothing to do but give judgment and sentence.” Id. at 516 (quoting Kercheval v. United States, 274
U.S. 220, 223 (1927)).
Therefore, Petitioner’s claim that there was no factual basis for his robbery conviction is not
cognizable in a federal habeas petition. Ground 4 is denied.
III.

Claims Addressed On the Merits
1.

Ground 3

In Ground 3, Petitioner asserts plea counsel was ineffective by failing to properly advise
Petitioner regarding his parole eligibility. The Rule 29.15 post-conviction motion court denied the
claim as follows:
Movant has not alleged nor is there anything in the record to support any
finding that trial counsel affirmatively misinformed Movant of his parole eligibility.
Even if Movant’s allegation were true that his trial counsel informed him that there
were no programs or hurdles besides MOSOP that he would be required to complete
before coming eligible for parole, this was not affirmative misinformation about
Movant having to serve 85% of his sentence. The percentage of time a prisoner has
to serve is a collateral consequence of the guilty plea and only comes into play if trial
counsel affirmatively misinforms Movant. There is nothing in the record of the
pleadings in this Motion to support such a finding. There is nothing in the record to
support a findings that trial counsel failed to exercise the care and skill of a
reasonably competent lawyer rendering services under the same or similar
circumstances or that Movant was prejudiced by any affirmative misinformation.
This claim is without merit and is denied.
(Resp. Ex. A, pp. 101-02).
After the motion court found his claim of ineffective assistance of counsel to be without
merit, Petitioner advanced the claim on appeal of the denial of his Rule 29.15 motion. The Court
of Appeals denied the claim as follows:
Neither the court nor plea counsel is obligated to inform a defendant about
parole eligibility, but erroneous advice about it can affect the voluntariness of a guilty
plea. Hao v. State, 67 S.W.3d 661, 663 (Mo. App. E.D. 2002)....

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...
The movant did not allege that he asked counsel how much time he would
have to serve before becoming eligible for parole....Rather, the movant maintained
that he asked counsel, in the context of discussing the completion of the prison’s sexoffender treatment program, what other Department of Corrections programs or
hurdles he would have to complete. We do not construe plea counsel’s response, that
there were no others, as erroneous information about the requirement that the movant
serve 85 percent of his sentence.
...
Here,...the movant did not ask how much of his sentence he had to serve.
Indeed, he was not even discussing this issue with plea counsel; he was discussing
prison programs that he would have to complete. When he asked counsel about
Department of Corrections programs he had to complete, plea counsel correctly
answered the question asked. Under these circumstances, we will not find counsel
ineffective for giving erroneous advice because he failed to volunteer information
about general parole ineligibility when discussing prison programs.
(Resp. Ex. E, pp. 8-11).
With respect to federal court review of state court conclusions, 28 U.S.C. § 2254 states as
follows:
(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).
Under federal law, in order to prevail on his ineffective assistance of counsel claims,
Petitioner must show that his attorney’s performance was “deficient” and that the deficient
performance was “prejudicial.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel is

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“strongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. at 690. To overcome this presumption, Petitioner
must prove that, “in light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance.” Id.
Even if Petitioner satisfies the performance component of the analysis, he is not entitled to
relief unless he can prove sufficient prejudice. Id. at 694. To do so, Petitioner must prove that “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
Upon consideration, the Court finds the Missouri court’s ruling is subject to deference.
Petitioner fails to show that trial counsel’s performance was “deficient” under the first prong of the
test in Strickland. Petitioner asserts that he asked plea counsel what he had to do in order to be
eligible for parole, and plea counsel allegedly responded that Petitioner had only to successfully
complete sex offender treatment. Petitioner faults plea counsel for allegedly failing to volunteer that
Petitioner would have to serve 85% of his sentence before being eligible for parole. Plea counsel
answered Petitioner’s question truthfully, and Petitioner has not shown that plea counsel gave him
erroneous advice. Petitioner’s trial counsel’s actions were not objectively unreasonable, but rather
fell within the wide range of professionally competent assistance sanctioned by Strickland, 466 U.S.
at 690. Thus, the Missouri court’s finding that plea counsel was not ineffective because he failed to
volunteer information about general parole ineligibility when discussing prison programs was not
an unreasonable application of clearly established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented. Ground 3 of the Petition must therefore
be denied.

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2.

Ground 5

In Ground 5, Petitioner asserts plea counsel was ineffective by failing to inform Petitioner
that the minimum sentence for rape was five years. The Rule 29.15 post-conviction motion court
denied the claim as follows:
During the entry of the guilty plea, the Court, with assistance of the
prosecutor, advised Movant that the penalty range for forcible rape, as charged, was
“a minimum of five up to thirty years or life imprisonment”. Even after he was
advised of this fact, he still entered a guilty plea. Even if trial counsel had earlier
misadvised Movant as to the range of punishment, the trial court rectified that alleged
error. At that point Movant still had the option to withdraw his guilty plea but he
persisted in entering his guilty plea. There is nothing in the record to reflect that trial
counsel, in the respect alleged, did not exercise the care and skill of a reasonably
competent lawyer rendering services under the same or similar circumstances. It is
also important to note that initially Movant was charged with Forcible Rape with the
allegation that the Movant “displayed a dangerous instrument in a threatening
manner.” Such an allegation would make the minimum sentence 10 years. When
that allegation was removed in the Amended Information, the five year minimum
applied rather than the 10 year minimum. Additionally, even had trial counsel
misinformed Movant of the penalty range, the Movant was not prejudiced by any
such error because the alleged erroneous information was corrected during the guilty
plea process before the Movant entered his guilty plea. The scheduled trial date was
subsequent to the date of the guilty plea. Movant also alleges that he thought he was
to get the “minimum on the sex charge”. During the plea processes the Court was
confronted with the Movant’s claim that he would receive “a minimum on the sex
charge, the rape was ten years.” The court corrected Movant’s misunderstanding to
note that the plea agreement was that he was to receive of a sentence of 15 years for
the rape charge. Not only was that higher than the minimum for the sex charge but
it was also five years higher than what Movant now claims was told to him by his
trial counsel to be the minimum penalty for the rape charge. Movant agreed that was
the plea agreement. Movant was not prejudiced by any misinformation provided to
him by his trial attorney, if any. This claim is without merit and is denied.
(Resp. Ex. A, pp. 100-01).
After the motion court found his claim of ineffective assistance of counsel to be without
merit, Petitioner advanced the claim on appeal of the denial of his Rule 29.15 motion. The Court
of Appeals denied the claim as follows:
The record refutes the movant’s claim. Even assuming, arguendo, that plea
counsel told the movant an incorrect minimum sentence, the record shows that the
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movant was correctly advised three times, on two different dates, that the minimum
sentence was five years for forcible rape as charged in the information in lieu of
indictment. If the movant persisted in believing that the minimum sentence was ten
years, despite being advised repeatedly that the minimum sentence was five years,
then such belief was unreasonable, and he is not entitled to relief.
(Resp. Ex. E, p. 7).
As noted above, with respect to federal court review of state court conclusions, 28 U.S.C. §
2254 states as follows:
(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).
Again, in order to prevail on his ineffective assistance of counsel claim, Petitioner must show
that his attorney’s performance was “deficient,” and that the deficient performance was “prejudicial.”
Strickland, 466 U.S. at 687. Counsel is “strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.
To overcome this presumption, Petitioner must prove that, “in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent assistance.”
Id.
Upon consideration, the Court finds the Missouri court’s ruling is subject to deference. The
Court holds it need not consider whether Petitioner’s trial counsel’s performance was deficient under
the first prong of the Strickland test since Petitioner fails to establish that he would not have pled

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guilty absent his plea counsel’s alleged error so as to show the requisite prejudice under the second
prong of the Strickland test. As noted by the Court of Appeals, the record shows that Petitioner was
advised three times, on two different dates, that the minimum sentence was five years for forcible
rape as charged in the information in lieu of indictment. Petitioner nonetheless entered a guilty plea
as to this charge. There is nothing to suggest that Petitioner would not have pled guilty in the
absence of his plea counsel’s alleged mistake. Thus, the Missouri court’s finding that plea counsel
was not ineffective for improperly advising Petitioner as to the minimum sentence for rape was not
an unreasonable application of clearly established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented. Ground 5 of the Petition must therefore
be denied.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and his claims are
DISMISSED with prejudice. A separate Order of Dismissal will accompany this Memorandum and
Order.
IT IS FURTHER ORDERED that because Petitioner cannot 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).

Dated this 28th day of May, 2013.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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