Wilder v. Dormire

Filing 11

MEMORANDUM AND ORDER : re: 1 ; Judgment denying the petition will be entered separately.. Signed by District Judge Carol E. Jackson on 10/18/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GARLAND WILDER,

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Petitioner,
vs.
DAVE DORMIRE,
Respondent.

Case No. 4:10-CV-2100 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the petition of Garland Wilder for a writ of
habeas corpus pursuant to 28 U.S.C. §2254. Respondent has filed a response in
opposition, and the issues are fully briefed.
I.

Procedural Background

Petitioner Garland Wilder is currently incarcerated in Jefferson City Correctional
Center in Jefferson City, Missouri, pursuant to a judgment of the St. Louis County
Circuit Court. On January 7, 2008, petitioner entered an Alford plea to the charges of
burglary in the first degree (Count I), assault in the first degree (Count II), and
attempted forcible rape (Count III)1.

On April 4, 2008, the trial court sentenced

petitioner to concurrent 15-year terms of imprisonment on Counts I and II, to be
served consecutively to a 30-year term of imprisonment on Count III. Resp. Ex. A.
On June 30, 2008, petitioner filed a pro se motion for post-conviction relief
under Missouri Supreme Court Rule 24.035. On December 3, 2008, petitioner, through
counsel, filed an amended motion under Rule 24.035. The motion was denied without

1

Alford v. North Carolina, 400 U.S. 25 (1970).

an evidentiary hearing on April 2, 2009. Resp. Ex. A. Petitioner appealed, and the
Missouri Court of Appeals affirmed. Resp. Ex. E and F.
In the instant § 2254 petition, petitioner asserts three grounds for relief:
(1) that the trial court erred in refusing to allow him to withdraw his Alford plea; (2)
that he was subjected to double jeopardy by being charged with assault and rape; and
(3) that the prosecution failed to disclose exculpatory evidence as required by Brady
v. Maryland, 373 U.S. 83 (1963).
II.

Factual Background

On Friday, May 26, 2005, fifteen year old S.E. awoke at approximately 2:00 a.m.
to find petitioner, her neighbor and the father of her best friend, in her bedroom. S.E.
asked petitioner what he was doing in her room, and petitioner told S.E. that he had
feelings for her. When S.E. told petitioner to leave, petitioner attacked her. He choked
her and punched her face numerous times. S.E. may have lost consciousness during
the struggle. S.E.’s sister heard the struggle and went to S.E.’s room, where she saw
petitioner leaning over S.E., who was lying on the floor. Petitioner started to attack
S.E.’s sister, and then he fled. S.E.’s sister called the police. She noticed that S.E.
was disrobed from the waist down. S.E. was taken to the hospital, where medical
examination found scratching on her vagina, bruises on her clavicle, neck, a fracture
to her orbital socket, and hematomas on her face.
Petitioner was picked out of a photo lineup, and both sisters were sure that
petitioner was the man who attacked S.E. Petitioner was arrested at his place of
employment, approximately seven hours after the attack. He had blood on his hands
and shirt, and injuries to his knuckles and neck. S.E.’s DNA profile was found on
swabs from petitioner’s hand and boxer shorts.

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III.

Legal Standard

Federal courts may not grant habeas relief on a claim that has been decided on
the merits in state court unless that adjudication:
(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)(1)-(2).
A state court's decision is "contrary to" clearly established law if "it applies a rule
that contradicts the governing law set forth in [the Supreme Court's] cases, or if it
confronts a set of facts that is materially indistinguishable from a decision of [the
Supreme Court] but reaches a different result." Brown v. Payton, 544 U.S. 133, 141
(2005). "The state court need not cite or even be aware of the governing Supreme
Court cases, ‘so long as neither the reasoning nor the result of the state-court decision
contradicts them.'" Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir. 2004) (citing Early
v. Packer, 537 U.S. 3, 8 (2002)). "In the ‘contrary to' analysis of the state court's
decision, [the federal court's] focus is on the result and any reasoning that the court
may have given; the absence of reasoning is not a barrier to a denial of relief." Id.
A decision involves an "unreasonable application" of clearly established law if
"the state court applies [the Supreme Court's] precedents to the facts in an objectively
unreasonable manner," Payton, 125 S. Ct. at 1439; Williams v. Taylor, 529 U.S. 362,
405 (2000), or "if the state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply."

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Id. at 406. "Federal habeas relief is warranted only when the refusal was ‘objectively
unreasonable,' not when it was merely erroneous or incorrect." Carter v. Kemna, 255
F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529 U.S. at 410-11).
A state court decision involves an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings only if it is shown that
the state court's presumptively correct factual findings do not enjoy support in the
record. 28 U.S.C. § 2254(e)(1); Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir.2004).
“[T]he prisoner has the burden of rebutting the presumption of correctness by clear
and convincing evidence.” Barnett v. Roper, 541 F.3d 804, 811 (8th Cir. 2008).
IV.

Discussion

A.

Ground One

Petitioner argues that the trial court erred in not allowing him to withdraw his
Alford plea. The

trial court denied petitioner post-conviction relief on this ground,

finding that “[t]here is no absolute right to withdraw a guilty plea” and petitioner had
not come forward with any facts warranting such relief. Resp. Ex. A. On appeal, the
state court did not reach the merits of this claim. Instead, the Missouri Court of
Appeals found that, under Missouri law, an order denying a defendant’s motion to
withdraw a guilty plea is an appealable order, and therefore, petitioner had defaulted
this claim by failing to raise it on direct appeal. Resp. Ex. E; Hamilton v. State, 865
S.W.2d 374, 376 (Mo. Ct. App. 1993) (citing Belcher v. State, 801 S.W.2d 372, 374
(Mo. Ct. App. 1991)). Because the last state court to which petitioner presented this
claim rested its decision on an independent and adequate state ground, this claim is
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 729 (1991); Caldwell v.
Mississippi, 472 U.S. 320, 327 (1985).

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Petitioner has not shown cause and prejudice to excuse default, nor can he
demonstrate actual innocence as a gateway to this defaulted claim. To use innocence
as a gateway, petitioner must establish that, in light of new evidence, “it is more likely
than not that no reasonable juror would have convicted him.” Schlup v. Delo, 513 U.S.
298, 329 (1995). Considering the eyewitness identifications, physical evidence, and
overall strength of the state’s case against him, petitioner can make no such showing.
Accordingly, this claim is defaulted pursuant to an independent and adequate
state rule, and federal habeas review of this claim is barred.
B.

Ground Two

Petitioner next argues that his convictions for assault in the first degree and
attempted forcible rape violate his constitutional right not to be subjected to double
jeopardy, because the convictions are for greater and lesser included offenses and
were premised on a single act of force.
Under Missouri law, the offenses of assault and attempted rape each require
proof of facts that the other does not. Assault requires proof of an attempt to kill or
knowingly cause or attempt to cause serious physical injury, which is not required for
the offense of attempted forcible rape. Mo. Rev. Stat. § 565.050. Attempted forcible
rape, on the other hand, requires proof of a substantial step towards “sexual
intercourse with another person by the use of forcible compulsion.” Mo. Rev. Stat. §
566.030.

Proof of forcible compulsion is not required for an assault conviction.

Because each statute requires proof of a fact that the other does not, petitioner’s
convictions for both offenses do not offend the Double Jeopardy Clause. Blockburger
v. United States, 284 U.S. 299, 304 (1932).

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The Missouri Court of Appeals reviewing petitioner’s double jeopardy claim
likewise concluded that the two offenses were not “included offenses,” and found
petitioner’s convictions for both offenses to be in accordance with the intent of the
Missouri legislature. Resp. Ex. E. As the Supreme Court has held, “[w]ith respect to
cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no
more than prevent the sentencing court from prescribing greater punishment than the
legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). “[I]n the doublejeopardy context... whether a state legislature intends cumulative punishment for two
offenses is an issue of state law, over which state courts have final authority.” Dodge
v. Robinson, 625 F.3d 1014, 1018 (8th Cir. 2010). The findings of the Missouri Court
of Appeals regarding the state legislature’s intent are binding on this Court. Lupien v.
Clarke, 403 F.3d 615, 619 (8th Cir. 2005). Accordingly, petitioner is not entitled to
relief on this ground.
C.

Ground Three

Petitioner did not present his claim of a Brady violation to the state courts in his
motion for post-conviction relief. Nevertheless, because this claim is clearly unavailing,
the Court will address the merits of the claim despite the apparent procedural default.
See Nance v. Norris, 392 F.3d 284, 291 (8th Cir. 2004) (allowing federal habeas courts
to bypass a procedural default issue and proceed to the merits when relief is denied).
Under Brady, the prosecution has a duty to disclose evidence favorable to the
defense. Brady v. Maryland, 373 U.S. 83, 87 (1963). Failure to do so constitutes a
violation of due process. Id. The focus of petitioner’s Brady claim is a supplemental
lab report showing that tests conducted on semen found on S.E.’s bedding excluded
petitioner as a possible contributor. However, the prosecution disclosed this evidence

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to the defense approximately one year before petitioner entered his Alford plea. [Doc.
#1; Pet’r Ex. A]. Accordingly, this claim is without merit.
IV.

Conclusion

For the reasons discussed above, the Court finds that petitioner has failed to
establish that he is entitled to relief based on state court proceedings that were
contrary to, or an unreasonable application of, clearly established federal law, or based
upon an unreasonable determination of the facts in light of the evidence presented in
state court proceedings. 28 U.S.C. § 2254(d). Because petitioner has failed to 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).
Judgment denying the petition will be entered separately.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 18th day of October, 2013.

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