McKenzie v. Steele

Filing 45

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Magistrate Judges Report and Recommendation is adopted and incorporated except as modified herein. Doc. No. 40 . IT IS FURTHER ORDERED that Petitioners objections to the Magistrate Judges Report a nd Recommendation are overruled. Doc. No. 43 .IT IS FURTHER ORDERED that the petition of Dale W. McKenzie for a writ of habeas corpus is DENIED. IT IS FURTHER ORDERED that a Certificate of Appealability shall not issue in this case. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 9/30/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DALE MCKENZIE,
Petitioner,
v.
TROY STEELE and CHRIS KOSTER,
Respondents.

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Case No. 4:10CV01494 AGF/TCM

MEMORANDUM AND ORDER
This matter is before the Court on the petition of Missouri state prisoner Dale W.
McKenzie for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court referred
this matter to United States Magistrate Judge Thomas C. Mummert, III for a Report and
Recommendation on all dispositive matters pursuant to 28 U.S.C. §636(b). On August
28, 2013, Magistrate Judge Mummert filed his recommendation that Petitioner’s habeas
petition should be denied. (Doc. 40.) Petitioner timely filed objections to the Magistrate
Judge’s Order and Report and Recommendation.
For the reasons set forth below, this Court hereby sustains, adopts, and
incorporates the Magistrate Judge’s Report and Recommendation, except as to the
Magistrate Judge’s recommendation that Ground One and Ground Three in Petitioner’s
amended petition should be denied as moot because one of the grounds asserted (Ground
Two) did not relate back to the original petition and was thus time-barred. Ground One
asserted ineffective assistance of defense counsel for misinforming Petitioner about the

maximum sentence he would receive if found guilty, and Ground Three challenged
Petitioner’s status as a prior and persistent offender because it was based in part on an
invalid Georgia state conviction. The Court concludes that it must consider whether
Grounds One and Three of the amended petition relate back, and if so, whether they
warrant habeas relief. See, e.g., Dodd v. United States, 614 F.3d 512, 516-17 (8th Cir.
2010) (treating claims in an amended habeas petition separately in considering whether
they related back to the original petition, and remanding the one claim that did relate back
for consideration on the merits).
Ultimately the Court concludes that these two grounds do relate back to the
original petition, but that Ground One is without merit; and Ground Three is procedurally
defaulted, and Petitioner has not shown a basis to excuse the default. Accordingly,
Petitioner’s request for habeas relief shall be denied.
BACKGROUND
In July 2006, a jury found Petitioner guilty of first degree burglary, first degree
assault, and third degree assault. Prior to trial, the court found Petitioner to be a prior and
persistent offender based on (1) a prior conviction in California for the felony of sexual
battery, and (2) a prior conviction in Georgia in August 1998 for the felony of sodomy.
With respect to the Georgia conviction, Petitioner had been charged with rape,
aggravated sodomy, and possession of a firearm by a felon, but he entered into a plea
agreement whereby he pled guilty to sodomy, and the original charges were dismissed.
(Doc. No. 1-2.) Under Georgia law, sodomy did not involve the element of force,
whereas aggravated sodomy did.
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In December 1998, the Georgia Supreme Court held in Powell v. State, 510 S.E.2d
18, 26 (Ga.), that the Georgia sodomy law “insofar as it criminalizes the performance of
private unforced noncommercial acts of sexual intimacy between persons legally able to
consent” was unconstitutional.
Following the jury verdict of guilty in the case underlying the present habeas
petition, Petitioner was sentenced as a prior and persistent offender to consecutive terms
of imprisonment of 30 years (first degree burglary), life (first degree assault), and one
year (third degree assault). Under Missouri law, a “prior offender” is one who has
pleaded guilty to or has been found guilty of one felony, Mo. Rev. Stat. § 558.016.2; a
“persistent offender” is one who has pleaded guilty to or has been found guilty of two or
more felonies committed at different times,” id. § 558.016.3. Had Petitioner been
sentenced merely as a prior offender, the maximum sentence for each of the convictions
would have been 15 years. Id. §§ 558.011.1(2), 558.016.7(2).
On the day of sentencing, September 22, 2006, Petitioner challenged his status as
a prior and persistent offender on the ground that the Georgia sodomy statute, as it had
been applied to him, had been declared invalid. Petitioner requested a two-week
continuance to seek to overturn the Georgia conviction. The trial court denied the request
for a continuance, refused to amend the determination that Petitioner was a prior and
persistent offender, and sentenced Petitioner as noted above.
In April 2007, the Eleventh Circuit Court of Appeals held in Mauk v. Lanier, 484
F.3d 1352, 1355 (11th Cir. 2007), that Powell applied retroactively to cases on collateral
review. Petitioner’s direct appeal in the present case was filed on September 26, 2007.
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One of the grounds Petitioner raised was that the trial court abused its discretion in
denying the continuance he had requested. The Missouri Court of Appeals rejected this
argument, noting that Petitioner had had adequate time since the Georgia statute had been
declared unconstitutional, and since his current Missouri convictions, to investigate the
validity of his sodomy conviction. The appellate court stated, incorrectly, that though
the aggravated sodomy charge had been reduced to sodomy, Petitioner had still been
convicted of rape. The appellate court stated that it was therefore reasonable to assume
that Petitioner’s acts in Georgia involved force, and thus his sodomy conviction would
not be void under Powell.
DISCUSSION
Ground One of Amended Petition: Ineffective Assistance of Counsel for
Misinforming Petitioner that the Maximum Sentence He Would Receive if Found
Guilty Would Not Exceed the Concurrent Sentence of 25 Years Offered by the State
if He Pled Guilty
The Court concludes that Ground One of the amended petition relates back to
Ground Eleven of the original petition. See McKay v. Purkett, 255 F.3d 660, 661 (8th
Cir. 2001) (stating that claims in an amended habeas petition relate back “if the claims
asserted arose out of the same conduct, transaction, or occurrence” as the original claims)
(citation omitted). The Magistrate Judge held that Ground Eleven was procedurally
defaulted because Petitioner did not present it to the state court on appeal in the
postconviction proceedings. The Magistrate Judge further held that Petitioner did not
show cause and prejudice, nor a miscarriage of justice, to excuse the default.
Petitioner objected to the Magistrate Judge’s recommendation on this ground.

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Citing Martinez v. Ryan, 132 S. Ct. 1309 (2012), Petitioner asserts in his amended
petition that initial post-conviction counsel was ineffective by failing to amend his claim
of ineffectiveness of trial counsel with regard to the alleged sentencing misinformation.
Petitioner maintains that this provides the requisite cause to overcome his “procedural
default” with respect to this claim.
The claim that trial counsel was ineffective for misinforming Petitioner about the
sentence he faced was considered by the state postconviction court on its merits and
rejected because Petitioner merely stated that with correct information he would have
“more seriously considered” the plea offer, rather than that he would have definitely
accepted it. (Resp. Ex. F.) Petitioner cannot obtain federal habeas relief on a claim that
postconviction counsel was ineffective for failing to amend his pro se pleading by
changing “more seriously considered” to “definitely would have.” See Martinez, 132 S.
Ct. at 1315, 1320 (stating that state criminal defendants have no constitutional right to
counsel in state postconviction proceedings).
Even if the question is construed in the context of procedural default and initial
postconviction counsel’s ineffectiveness is offered by Petitioner, under Martinez, as
cause to excuse the default, Petitioner cannot prevail. Petitioner attested to the truth of
the matters set forth in his pro se motion (Resp. Ex. F at 7-8), and of course, Petitioner’s
own state of mind is something he was in a unique position to know. Postconviction
counsel was entitled to rely on Petitioner’s statement therein that he would have “more
seriously considered” the plea. Petitioner does not assert that he asked postconviction
counsel to amend the pro se motion for postconviction relief to change his factual
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assertions to different factual assertions, or that he told her he would have pleaded guilty
had he known he faced more than 25 years. Thus he has not established that initial
postconviction counsel was ineffective under the standards of Strickland v. Washington,
466 U.S. 668 (1984). See Martinez, 132 S. Ct. at 1318.
Ground Three: Challenging Petitioner’s Status as a Persistent Offender
The Court concludes that Ground Three of the amended petition relates back to
Ground Ten in the original petition. As Petitioner acknowledges, the Magistrate Judge
correctly held that Ground Ten was procedurally defaulted because Petitioner did not
present it to the state court on direct appeal (or in the postconviction proceedings). The
Magistrate Judge further held that Petitioner did not show cause or manifest injustice to
excuse the default. In his amended petition, Petitioner argued that he was “actually
innocent” of being a persistent offender because the trial court’s determination of his
status as a persistent offender was based on a void sodomy conviction in Georgia.
Therefore, Petitioner argued, failure to consider the merits of this claim would result in a
fundamental miscarriage of justice.
Traditionally, the “actual innocence” exception to a procedural default was limited
to situations where the petitioner claimed that he was actually innocent of committing the
acts with which he was charged. The actual innocence exception has been extended to
claims of constitutional error in capital sentencing. Sawyer v. Whitley, 505 U.S. 333, 349
(1992). There is a circuit split over whether the actual innocence exception extends to
sentencing in the non-capital context. Compare Haley v. Cockrell, 306 F.3d 257 (5th Cir.
2002) (holding that the actual innocence exception applies to noncapital sentencing
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where the issue is eligibility for career or habitual offender status), and United States v.
Mikalajunas, 186 F.3d 490 (4th Cir. 1999) (same), with Embrey v. Hershberger, 131 F.3d
739 (8th Cir. 1997) (holding that, in the sentencing context, the actual innocence
exception only applies in capital cases), Hope v. United States, 108 F.3d 119 (7th Cir.
1997) (same), and Reid v. Oklahoma, 101 F.3d 628 (10th Cir. 1996) (same).
The Eighth Circuit has reaffirmed its holding in Embrey more recently in Sun Bear
v. United States, 644 F.3d 700 (8th Cir. 2011), and Lindsey v. United States, 615 F.3d
998, 1001 (8th Cir. 2010) (“[T]he actual innocence exception to the procedural default
rule is not available to remedy errors in noncapital sentencing”). Therefore, the Court
rejects Petitioner’s argument that the procedural default with respect to Ground Ten in
the original habeas petition, as amended by Ground Three of the amended habeas petition,
should be excused.
CONCLUSION
The Court concludes that Petitioner is not entitled to federal habeas relief.
Furthermore, the Court does not believe that reasonable jurists might find the Court’s
assessment of the procedural or substantive issues presented in this case debatable or
wrong, for purposes of issuing a Certificate of Appealability under 28 U.S.C.
§2254(d)(2). See Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) (standard for issuing a
Certificate of Appealability) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Accordingly,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and
Recommendation is adopted and incorporated except as modified herein. [Doc. No. 40.]
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IT IS FURTHER ORDERED that Petitioner’s objections to the Magistrate
Judge’s Report and Recommendation are overruled. [Doc. No. 43.]
IT IS FURTHER ORDERED that the petition of Dale W. McKenzie for a writ
of habeas corpus is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability shall not issue
in this case.
A separate Judgment shall accompany this Memorandum and Order.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 30th day of September, 2013.

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