Charron v. Prudden

Filing 41

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Petition of Kenneth G. Charron 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 federalconstitutional right.A separate judgment in accordance with this Memorandum and Order isentered this same date.. Signed by District Judge Henry E. Autrey on 10/23/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENNETH G. CHARRON,
Petitioner,
v.
JAMES HURLEY,
Respondent.

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Case No. 4:10CV1487 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the Report and Recommendation, of
Magistrate Judge Terri I. Adelman that Kenneth G. Charron’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
Initially, Petitioner objects to the recommendation on page 7 of the Report
and Recommendation that “Jimmy Taylor’s petition...be dismissed...” as untimely.
While the Recommendation does so state, it is clear that this was an inadvertent
mistake and has no bearing on the substance of Judge Adelman’s Report.
Petitioner’s objection is overruled.
The Procedural History and Factual Background are set forth in the Report
and Recommendation.1 Petitioner objects to Judge Adelman’s statement that he
was sentenced as a prior and persistent offender, and attaches a state court Order
wherein Judge Thomas C. Grady finds the sentence and judgment for did not state
that Petitioner was being sentenced as a prior and persistent offender for the
forcible rape charge. As Judge Adelman observes, Petitioner was sentenced as a

1

Respondent argued that Petitioner’s Petition should be denied as untimely for failure to
be filed within one year pursuant to the one year limitations period set forth in 28 U.S.C. §
2244(d). Judge Adelman chose to address the merits of Petitioner’s claim, thus any objections
regarding the timeliness of Petitioner’s filing are overruled as moot.
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prior and persistent offender on each robbery conviction. Petitioner was
sentenced to a life sentence for the forcible rape conviction, said sentences to be
served consecutively. Petitioner’s claim of error on this fact is overruled in this
regard.
Petitioner argues that there was never any evidentiary hearings held in the
state court nor in the United States District Court. Although Petitioner urges that
Judge Adelman is attempting to mislead this Court that the record of the state
courts contained fact findings. Nowhere in Judge Adelman’s Report and
Recommendation does Judge Adelman mislead this Court in anyway about
anything which has occurred regarding this Petition. Petitioner’s supposition and
speculation is completely meritless. Petitioner’s objection is overruled.
Petitioner continues to argue that the Department of Corrections is applying
Section 558.011 to Petitioner. However, as Judge Adelman correctly concluded,
the Missouri Supreme Court rejected Petitioner’s argument finding that “[a]ny
modification of the conditional term cannot affect the sentence term originally
imposed against” Petitioner. This decision is not contrary to nor an unreasonable
application of clearly established Federal law because in deferring to the state
court’s interpretation of state law, Judge Adelman concluded that the ex post facto
clause is not violated by a statutory amendment that neither retroactively alters the
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definition of the crime nor increases the punishment therefore. Weaver v. Graham,
450 U.S. 24, 28 (1981).
Petitioner was sentence on the rape to life imprisonment, which is within the
range of punishment for forcible rape without any enhancement, therefore there
was no application of Section 558.001. Petitioner’s argument that his “conditional
release” was taken away has no merit.
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
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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 Adelman’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
trial record, the Missouri court rulings, opinions and decisions. It has further
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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
Adelman 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 Kenneth G. Charron for
Writ of Habeas Corpus, [Doc. No. 1], pursuant to 28 U.S.C. § 2254 is denied.
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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 23rd day of October, 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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