Burnett v. State of Missouri

Filing 19

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Petition of Sherman Burnett, Jr. 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 constitutional right. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Henry E. Autrey on 12/12/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SHERMAN BURNETT, JR.,
Petitioner,
v.
JEFF NORMAN,
Respondent.

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Case No. 4:10CV1149 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the Report and Recommendation, of
Magistrate Judge Nannette A. Baker that Sherman Burnett, Jr.’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
Petitioner objects to the Report and Recommendation based on the same
grounds that he presented in his Petition.
The Procedural History and Factual Background are set forth in the Report
and Recommendation. Petitioner argues that his sentence violates due process,
equal protection and freedom from cruel and unusual punishment on the grounds
that a sixty year sentence is excessive for a thirteen year old and disproportionate
to the offenses. Judge Baker’s Report and Recommendation thoroughly discusses
Petitioner’s arguments and the law applicable to them. Petitioner has failed to
present the Court with any misstated law and/or facts and fails to establish how
Judge Baker’s recommendation is contrary to the applicable standards in habeas
petitions.
Likewise, with respect to Petitioner’s argument that counsel was ineffective
because he was pressured into pleading guilty, that he failed to fully understand
the consequences of his “blind” plea and that he was misinformed that he would
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receive dual jurisdiction, Petitioner cannot satisfy the Strickland two pronged
standard of counsel’s representation falling below an objective standard of
reasonableness and prejudice. Judge Baker carefully details the basis for her
recommendation that the Petition be denied. As Judge Baker reports, the state
court determined that the record refuted Petitioner’s assertion that trial counsel’s
performance fell below an objective standard of reasonableness, or that Petitioner
was prejudiced. Burnett v. State, 311 S.W.3d 810, 817 (Mo. Ct. App. 2009).
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
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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
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).
Judge Baker’s discussion of the applicable state law is very thorough and
correct. 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
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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
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
Baker 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 Sherman Burnett, Jr. for
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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
constitutional right.
A separate judgment in accordance with this Memorandum and Order is
entered this same date.
Dated this 11th day of December, 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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