Gooch v. Dormire

Filing 14

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Jay Cassady is SUBSTITUTED as Respondent in this federal habeas proceeding. IT IS FURTHER ORDERED that the paper exhibits of the underlying state court proceedings filed by Res pondent be RETAINED UNDER SEAL. IT IS FINALLY ORDERED that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED without further proceedings. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on 03/25/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DALE WAYNE GOOCH,
Petitioner,
v.
JAY CASSADY,1
Respondent.

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No. 4:11CV00491 TCM

MEMORANDUM AND ORDER
This matter is before the Court for review and final disposition of a petition for writ
of habeas corpus filed by Dale Wayne Gooch ("Petitioner") pursuant to 28 U.S.C. § 2254.2
After reviewing the case, the Court has determined that Petitioner is not entitled to relief
because certain parts of ground two, as well as grounds one, three, and four are procedurally
barred; and the rest of the second ground for relief lacks merit. As a result, the petition will
be denied without further proceedings.

1

The record reveals that Petitioner was incarcerated at the Jefferson City Correctional
Center ("JCCC") at the time this habeas action was filed and is still incarcerated there. Dave
Dormire, the originally named Respondent, was the Warden of the JCCC when Petitioner filed this
action, but Jay Cassady is now the JCCC's Warden and will be substituted as the proper Respondent.
See Rule 2 (a), Rules Governing Section 2254 Cases in the United States District Courts.
2

The parties consented to the jurisdiction of the undersigned magistrate judge to resolve this
proceeding. 28 U.S.C. § 636(c).

Background
By an information filed in July 2007, Petitioner was charged with three counts of
statutory sodomy in the first degree, in violation of Mo. Rev. Stat. § 566.062, for having
deviate sexual intercourse with A.M. ("Victim"),3 who was less than twelve years old,
between October 1, 2006, and December 31, 2006. (Information, Legal File, Resp't Ex. B,
at 13-14.) In the trial court proceedings on that information, Petitioner was represented by
two attorneys: first, by Derrick R. Williams, who represented Petitioner until January 11,
2008, and then by Reginald Williby,4 who represented Petitioner as of January 11, 2008.
(See January 11, 2008 entries on docket sheet for State v. Gooch, No. 07NM-CR00778,
Legal File, Resp't Ex. B, at 8.)
Pursuant to a plea agreement with the prosecutor, Petitioner pled guilty to Count III,
which specified that the offense involved Petitioner "placing [Victim's] hand on [Petitioner's]
penis." (Information, Legal File, Resp't Ex. B, at 13-14; Guilty Plea Tr., Legal File, Resp't
Ex. B, at 15-26.) Before the court accepted Petitioner's plea, Petitioner advised the court that
he understood the punishment range was from ten years to life in prison for the offense in
Count III; that he understood each of the constitutional trial rights he was waiving by
pleading guilty; and that he admitted committing the conduct charged in Count III and was

3

Some of the state court materials identify the minor victim. The Court will direct the
Clerk's Office to retain the state court materials under seal.
4

This person's last name is spelled "Wiliby," "Williby," and "Willibey" throughout the state
court record. This Court will spell it "Williby," which is how the state appellate court spelled the
name.
-2-

"in fact guilty of this crime." (Guilty Plea Tr., Legal File, Resp't Ex. B, at 18-22.) During the
plea hearing, the prosecutor advised the court that the agreement was "an open plea with the
State asking for 25 years to serve as a cap" on the sentence. (Id. at 18-19, 22-24.) The court
accepted Petitioner's plea; and, on May 13, 2008, sentenced Petitioner to twenty-five years'
imprisonment, after considering a ten-year to fifteen-year sentence recommended in a
sentencing assessment report (SAR) prepared by the state Board of Probation and Parole, a
ten-year sentence urged by Petitioner's counsel, and a twenty-five year sentence requested
by the prosecutor. (Id. at 25; Sentencing Tr., Legal File, Resp't Ex. B, at 31-32, 34; J., Legal
File, Resp't Ex. B, at 38-39; Post-conviction Mot. Ct. J., Legal File, Resp't Ex. B, at 6.)
After imposition of sentence, the court asked Petitioner about his counsel's
representation, and Petitioner acknowledged that he had been represented by Williams and
Williby; that he was satisfied with their representation; that they had done what he had asked;
and that he had had "ample opportunity [before he pled guilty] to discuss" the case with
Williby.5 (Sentencing Tr., Legal File, Resp't Ex. B, at 35-36.) Upon Petitioner's sentencing,
the other two charges were dismissed. (See Sentencing Tr., Legal File, Resp't Ex. B at 36;
J., Legal File, Resp't Ex. B, at 38.)

5

Additionally, in response to questioning by the court during the plea proceeding, Petitioner
had stated that he was "completely satisfied with the legal representation" Williby had provided and
that Williby had "done everything that [Petitioner] asked him to do as [Petitioner's] lawyer." (Plea
Tr., Legal File, Resp't Ex. B, at 21.)
-3-

While Petitioner did not file a notice of appeal,6 he did file a timely pro se motion for
post-conviction relief pursuant to Missouri Supreme Court Rule 24.035. (Pet'r Pro-Se PostConviction Mot., filed June 18, 2008, Legal File, Resp't Ex. B, at 40-45.) In that motion,
Petitioner alleged his rights to due process and the effective assistance of counsel were
violated because his attorney misled him about his plea agreement and "every fa[cet] of my
cause." (Id. at 41.)
In an amended motion filed by Petitioner's appointed attorney, Petitioner argued that
he was denied the effective assistance of counsel, in violation of the Sixth and Fourteenth
Amendments, in several respects. (Pet'r Am. Post-Conviction Mot., filed Dec. 12, 2008,
Legal File, Resp't Ex. B, at 46-51.) In particular, Petitioner contended that his attorneys
knew Petitioner had spina bifida but failed to raise Petitioner's mental status; his attorneys
failed to advise Petitioner that he had the option to pursue a not guilty by reason of insanity,
or mental disease or defect, plea (an "NGRI plea"); Petitioner's counsel failed to file a motion
"to have [Petitioner] examined by a mental health professional to determine if [Petitioner]
was competent to assist in his own defense and/or competent at the time" of the alleged
offense; Williby misled Petitioner by advising him that he would receive a term of
imprisonment of no more than fifteen years for pleading guilty to Count III; and Petitioner's

6

An appeal from a guilty plea is not the proper time to present federal constitutional claims
in state court as "[i]t is well settled that in a direct appeal from a guilty plea, th[e Missouri appellate]
court's review is restricted to the subject-matter jurisdiction of the trial court or the sufficiency of
the information or indictment." State v. Goodues, 277 S.W.3d 324, 326 (Mo. Ct. App. 2009);
accord State ex rel. Simmons v. White, 866 S.W.2d 443, 446 n.4 (Mo. 1993) (en banc).
-4-

counsel did not object when the court considered "other 'bad acts,'" rather than just conduct
relevant to the charged offense in Count III, when sentencing Petitioner. (Id. at 47-48.) On
July 24, 2009, the motion court7 denied Petitioner's amended post-conviction motion after
holding an evidentiary hearing at which Petitioner and each of Petitioner's attorneys testified.
(Mot. Hr'g Tr., Resp't Ex. A; Mot. Court's Findings of Fact, Conclusions of Law, and J.,
dated Aug. 17, 2009, Legal File, Resp't Ex. B, at 52-60 ("motion court's judgment.").) In
relevant part, the motion court concluded that Petitioner failed to provide "persuasive
evidence that he was not competent to plead guilty;" that his "attorneys considered
[Petitioner]'s mental status and correctly concluded . . . that he was competent to proceed";
and that "[t]here was no showing of a factual basis indicating the questionable nature of
[Petitioner's] mental condition that should have caused either attorney to initiate an
independent investigation . . . or move for an examination to determine his competency."
(Mot. Ct. J. at 5, Legal File, Resp't Ex. B, at 57.)
Petitioner raised only one claim in his post-conviction appeal, that his rights to due
process and the effective assistance of counsel were violated by his attorneys' failure to move
the trial court for a mental examination to determine if he was competent to proceed with the
criminal case. (Pet'r Br., Resp't Ex. C, at 7, 9.) The Missouri Court of Appeals for the
Southern District affirmed the motion court's judgment. (Gooch v. State, No. SD29981,

7

The judge presiding over Petitioner's post-conviction proceedings, the Honorable Paul
McGhee, was not the same judge who presided over Petitioner's plea proceedings, the Honorable
Fred W. Copeland.
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Opinion, dated May 6, 2010, Resp't Ex. E.) The state appellate court applied the ineffective
assistance of counsel claim standard set forth in Strickland v. Washington, 466 U.S. 668,
687 (1984), concluded that Petitioner failed to show that counsel's performance was
deficient, and, based on that conclusion, found it unnecessary to address the prejudice
element of Petitioner's ineffective assistance of counsel claim. (Gooch v. State, No.
SD29981, Opinion, dated May 6, 2010, Resp't Ex. E.) The state appellate court issued its
mandate on May 24, 2010. (See docket sheet for Gooch v. State, No. SD29981 (Mo. Ct.
App.

filed

July

31,

2009)

(docket

sheet

available

at

https://www.courts.mo.gov/casenet/cases/searchDockets.do) (last visited Mar. 24, 2014).)
In its opinion, the Missouri Court of Appeals stated the relevant facts as follows with
respect to Petitioner's guilty plea to Count III and subsequent proceedings:
[At the plea proceeding, Petitioner] informed the trial court of his intention to
plead guilty to Count III; that he had consulted his attorney about pleading
guilty; that he understood the range of punishment he was facing for that
crime; that he was waiving his right to trial as well as other rights; that he was
waiving his right to testify on his own behalf; that he understood the terms of
the plea agreement with the State; and that he was satisfied with his counsel's
representation of his interests. He then informed the plea court that he desired
to plead guilty to Count III because he was "in fact guilty of this crime." The
plea court then found [Petitioner]'s plea "has been made freely and voluntarily
and with a full understanding of the rights and of the consequences of that
plea." The plea court then accepted [Petitioner]'s plea and ordered a[n SAR].
At the sentencing hearing on May 13, 2008, the State reiterated that it
was recommending a cap of twenty-five years on [Petitioner]'s sentence as
well as recommending [Petitioner] serve the full twenty-five years. The State
then took issue "with the [SAR's finding] that [Petitioner] was at low-risk to
re-offend, for the simple fact that [Petitioner] admitted to doing this more than
10 times and admitted to being aroused by a six-year-old child . . . ."
[Petitioner]'s counsel then admitted [Petitioner]'s conduct toward [V]ictim was
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"both heinous and appalling," however, he believed [Petitioner] should be
sentenced to ten years imprisonment and asked the sentencing court to "take
into consideration that [Petitioner] is disabled, and he'll be going into a very
vicious environment . . . ." Having fully reviewed the [SAR], the sentencing
court sentenced [Petitioner] to twenty-five years in the Missouri Department
of Corrections and dismissed Counts I and II which were still pending against
[Petitioner]. Following pronouncement of the sentence, [Petitioner] informed
the sentencing court he was satisfied with his representation by [Williby and]
his previous counsel, [Williams].
On June 18, 2008, [Petitioner] filed a pro se [post-conviction motion].
The motion court appointed counsel to represent [Petitioner] and on December
12, 2008, an amended Rule 24.035 motion was filed.
An evidentiary hearing on [Petitioner's amended post-conviction]
motion was held on July 17, 2009. [Petitioner] testified at the hearing that he
has suffered from spina bifida since birth and that both of his attorneys had
been made aware of his condition. He testified that spina bifida is a physical
condition where the area between your spine and your brain "doesn't close off.
. . ." He related his spina bifida affects his ability to understand and he has
"slow learning disabilities and there[] [are] certain things . . . that [he] can't
comprehend . . . like most people can." He stated he remembered discussing
the possibility of his having a mental evaluation with both . . . Williby and . .
. . Williams, but it was never done and he was unsure why they did not request
one. He stated that when the charges and the plea agreement were explained
to him he "didn't completely understand them. . . ." With that being said, he
admitted he understood "that there were three separate counts;" that "the State
was willing to dismiss two of them in exchange for a plea on the third;" that
he understood "the range of punishment on each count was ten years to life .
. . ;" and that he knew probation or "120 days shock" incarceration was not an
option based on the charges against him. He further admitted that his mental
condition or health had "not changed at any time" between the present and the
time of his plea.
. . . Williams testified that [Petitioner]'s parents informed him about
[Petitioner]'s physical and medical condition; that they also discussed his
cognitive issues with him; and that he felt [Petitioner] had some "diminished
mental capacity." [Petitioner]'s parents told . . . Williams that [Petitioner] had
difficulty in school especially in the 8th or 9th grade such that they removed
him from school because he was not progressing with his grade level. He
related that he was aware [Petitioner] had a "shunt" to help him deal with fluid
-7-

in his spinal column and that he was aware that spina bifida can cause some
cognitive impairment; however, he related no significant cognitive
impairments manifested themselves in his conversations with [Petitioner]. He
stated that throughout his representation [Petitioner] gave [Williams] the
impression that [Petitioner] "understood the nature of the charges against him,
the range of punishment associated with those charges, and the procedural
posture of the case and the procedures that would occur. . . ." . . . Williams also
stated that [Petitioner] was able to actively and intelligently participate in
discussions about his case and appeared to understand their mutual discussions
and the evidence alleged against him. He stated he did not raise a competency
defense because he felt there was no basis for such a concern. He stated that
throughout his dealings with [Petitioner] "[t]here was nothing about his
conduct that addressed those factors under that competency standard under the
law. There was nothing about his conduct that would suggest he was
incompetent to proceed." . . . Williams likewise recited that the case law and
the statutes on competency say that "all one has to do is understand the nature
of the charges against them—and . . . [Petitioner] understood that. . . ." He
likewise related he knew [Petitioner] understood the range of punishment
against him and [Petitioner] always appeared to understand him during their
conversations. Accordingly, he felt that based on [Petitioner]'s interaction with
him there was no need to explore [Petitioner]'s competency prior to entering
the guilty plea.
. . . Williby testified that [Petitioner] led him to believe that he
understood the charges against him, the criminal procedures he was
undergoing, and the range of punishment he was facing. He related
[Petitioner] actively participated in his defense, discussed his confession at
length with . . . Williby, and seemed to understand everything that was
occurring. He related he was also aware of [Petitioner]'s school records which
indicated he had failed 8th grade four times such that "he was removed from
school." . . . Williby also stated he was aware [Petitioner] suffered from spina
bifida and he knew of the various physical and mental issues which can arise
from such a condition. . . . . Williby opined that because [Petitioner]
understood the charges against him and the legal proceedings he was
participating in, there was no reason for . . . Williby to explore the issue of
[Petitioner's] competency under the facts and the law. He stated if he had had
valid concerns he would have explored the issue of [Petitioner]'s competency.
On August 17, 2009, the motion court entered its "Judgment" and
"findings of Fact and Conclusions of Law." In its findings, the motion court
concluded "[t]here is no persuasive evidence that [Petitioner] had a mental
-8-

disease or defect that excluded him from responsibility for his criminal
conduct; neither was there persuasive evidence that he was not competent to
plead guilty." Further, it determined [Petitioner]'s attorneys "considered [his]
mental status and correctly concluded that a[n] [incompetence defense] was
not viable, and that he was competent to proceed." As a result the motion
court denied [Petitioner]'s amended Rule 24.035 motion.
Gooch v. State, No. SD29981, Opinion, dated May 6, 2010, Resp't Ex. E, at 4-7 (twentyeighth, forty-first, fifty-fourth, and fifty-seventh through fifty-ninth alterations in original).
The appellate court denied Petitioner's sole point, that his attorneys did not provide
effective assistance of counsel in that they failed to seek a mental examination of Petitioner
to determine his competency to proceed with the criminal case, as follows:
"When a [Petitioner] in a [postconviction] proceeding challenges his attorney's
failure to request a mental examination, he must show the existence of a
factual basis indicating the questionable nature of his mental condition, which
should have caused the attorney to initiate an independent investigation of it."
Porter v. State, 928 S.W.2d 1, 2 (Mo. [Ct.] App. 1996). "In the absence of
some suggestion of mental instability, there is no duty on counsel to initiate an
investigation of the mental condition of an accused" and "[t]he need for an
investigation is not indicated where the accused has the present ability to
consult rationally with counsel and to understand the proceedings." Henderson
v. State, 977 S.W.2d 508, 511 (Mo. [Ct.] App. 1998). "In addition, [a] Court
must look to the reasonableness of counsel's conduct from counsel's
perspective at the time and eliminate hindsight from consideration." Cook v.
State, 193 S.W.3d 378, 386 (Mo. [Ct.] App. 2006). Further, "'[t]he suspicion
or actual presence of some degree of mental illness or need for psychiatric
treatment does not equate with incompetency to stand trial'" and it has been
held that "'an accused may be mentally retarded in some degree and still be
competent to stand trial or enter a knowing, intelligent plea of guilty.'" Id.
(quoting Henderson, 977 S.W.2d at 511).
In his point relied on and attendant argument, [Petitioner] appears to
suggest that because his attorneys knew that he suffered from spina bifida and
that he left school without graduating, they had an affirmative obligation to
investigate his mental fitness to proceed. This Court, however, is unable to
hold that, as a matter of law, counsel is ineffective if he knew only the
-9-

foregoing facts. "The suspicion or actual presence of some degree of mental
illness or need for psychiatric treatment does not equate with incompetency to
stand trial." Baird [v. State], 906 S.W.2d [746, 749 (Mo. Ct. App. 1995)].
"Rather, the test must be 'whether a [Petitioner] has sufficient present ability
to consult with his lawyer with a reasonable degree of rational
understanding—and whether he has a rational as well as factual understanding
of the proceedings against him.'" Henderson, 977 S.W.2d at 511 (quoting
Dusky v. United States, 362 U.S. 402, 403 (1960) [(per curiam)]).
Here, [Petitioner] testified that he sometimes had difficulty
comprehending issues, but that he was able to understand matters when they
were "broke down" for him and more fully explained. He offered no other
testimony about any mental issues from which he suffered. . . . Williams
acknowledged that [Petitioner]'s parents discussed his physical conditions,
possible cognitive issues, and school record with him prior to [Petitioner]'s
plea of guilty. Yet, . . . Williams related he did not observe any significant
cognitive impairments in his dealings and conversations with [Petitioner], and
stated that [Petitioner] conversed intelligently with him when they spoke with
each other. Further, . . . Williams testified that throughout his representation
[Petitioner] gave him the impression that [Petitioner] "understood the nature
of the charges against him, the range of punishment associated with those
charges, and the procedural posture of the case and the procedures that would
occur . . .," such that [Williams] opined that under the applicable statutory and
case law he had no reason to be concerned about [Petitioner]'s competency to
plead guilty. Similarly, . . . Williby testified he was aware [Petitioner] suffered
from spina bifida and that there were possible mental issues which could arise
from such a disease; however, he felt [Petitioner] understood the proceedings
against him and participated in his defense to such an extent that . . . Williby
had no reason to explore the issue of [Petitioner]'s competency. [Petitioner]
has not proven that "but for the conduct of his [attorneys] about which he
complains, he would not have pleaded guilty but would have insisted on going
to trial." Cupp [v. State], 935 S.W.2d [367, 368 (Mo. Ct. App. 1996)]. Having
found against [Petitioner] on the first element of his ineffective assistance of
counsel claim, we are not required to consider the prejudice element of his
claim. Johnson [v. State], 5 S.W.3d [588, 590 (Mo. Ct. App. 1999) (per
curiam)]. We cannot say the motion court clearly erred. [Petitioner]'s point
is denied.
Gooch v. State, No. SD29981, Opinion, dated May 6, 2010, Resp't Ex. E, at 8-11 (second,
fourth, eighth, and twenty-seventh alterations in original).
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Petitioner then timely filed his federal habeas petition in which he presents four
grounds for relief. First, Petitioner argues that the trial court erred in sentencing him to a
term of imprisonment beyond the Board of Probation and Parole's recommendation of ten to
fifteen years because Victim was not beaten and did not have any injuries. (Pet'r Pet. at 5
[Doc. 1].) Next, Petitioner maintains that his counsel was ineffective for failing to have his
competency assessed, and that the sentencing court knew of his health problems but
proceeded against him with malice. (Id. at 7.) Third, Petitioner contends his rights were
violated because his confession was written by the police and he did not know what was
written in his confession when he signed it. (Id. at 8.) Fourth, Petitioner claims that there
was no evidence that Victim was touched. (Id. at 10.)
Respondent replies that grounds one, three, and four are procedurally barred and may
not be considered on their merits because Petitioner did not present them to the state courts
in his amended post-conviction motion or in his post-conviction appeal, and has not
demonstrated cause and prejudice, or a miscarriage of justice, to avoid that procedural
default. With respect to ground two, Respondent counters that, as to the part of this claim
that is based on the allegedly ineffective assistance of Petitioner's counsel in failing to raise
Petitioner's competency to proceed, the Court may address the merits of this ground, because
Petitioner presented that claim in his amended post-conviction motion and his appeal from
the denial of that motion. Respondent argues that this ground should be denied on the merits,
because the Missouri Court of Appeals correctly applied the standard set forth in Strickland,
466 U.S. 668, and Petitioner failed to present any evidence that he was unable to understand
-11-

the charges against him. To the extent ground two presents other claims, such as a claim that
the sentencing court acted with malice or that Petitioner's counsel provided ineffective
assistance of counsel by failing to raise Petitioner's competency at the time of the offense,
Respondent contends those claims are procedurally barred because Petitioner failed to
present those claims in his amended post-conviction motion and his post-conviction appeal.
The Court will first address Respondent's procedural argument regarding all of
Petitioner's grounds, and then will address the merits of any ground that the Court may
consider on the merits.
Discussion
Procedural Default. To avoid defaulting on a claim, a Petitioner seeking habeas
review must have fairly presented the substance of the claim to the state courts, thereby
affording the state courts a fair opportunity to apply controlling legal principles to the facts
bearing on the claim. Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (internal
quotation marks and citations omitted) (citing, in part, to Anderson v. Harless, 459 U.S. 4,
6 (1982) (per curiam)); accord Baldwin v. Reese, 541 U.S. 27, 29 (2004). "A claim has been
fairly presented when a petitioner has properly raised the same factual grounds and legal
theories in the state courts which he is attempting to raise in his federal habeas petition."
Wemark, 322 F.3d at 1021 (quoting Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996)
(internal quotation marks and citations omitted). Claims that have not been fairly presented
to the state courts are procedurally defaulted. Id. at 1022 (quoting Gray v. Netherland, 518
U.S. 152, 161-62 (1996)).
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Missouri requires the raising of constitutional claims at the first available opportunity.
See In re J.M.N., 134 S.W.3d 58, 73 (Mo. Ct. App. 2004); In re T. E., 35 S.W.3d 497, 504
(Mo. Ct. App. 2001). Due to the limited scope of a direct appeal after a guilty plea, see note
6, supra, constitutional challenges to the conduct of a state court or an attorney after a guilty
plea may be presented to the state court through a post-conviction proceeding under Missouri
Supreme Court Rule 24.035. See Wilder v. State, 301 S.W.3d 122, 127-30 Mo. Ct. App.
2010) (considering merits of a double jeopardy claim in a post-conviction proceeding under
Rule 24.035). Specifically, that Rule provides the "exclusive procedure" for presentation to
state court of "claims that the conviction or sentence imposed violates the . . . constitution
of the United States, including claims of ineffective assistance of . . . counsel." Rule
24.035(b). Claims that should have been but were not presented in an amended postconviction motion or on appeal from a denial of a post-conviction motion are procedurally
defaulted and may not be considered in a federal habeas proceeding. See, e.g., Interiano v.
Dormire, 471 F.3d 854, 856 (8th Cir. 2006) (finding that claims not presented in an amended
post-conviction motion under Mo. S. Ct. R. 29.15 or in the appeal from the denial of that
motion are procedurally defaulted).
The allegations in grounds one and four, as well as the part of ground two in which
Petitioner contends the sentencing court acted with malice toward Petitioner in light of
Petitioner's health issues, are challenges to certain actions of the plea court. These plea court
errors were not pursued in Petitioner's post-conviction motion proceeding, either in
Petitioner's amended post-conviction motion or in his post-conviction appeal, and are
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procedurally defaulted. Additionally, Petitioner did not present the state courts, either in his
amended post-conviction motion or in his post-conviction appeal, with the part of ground two
in which Petitioner may be asserting an ineffective assistance of counsel claim based on his
attorneys failure to raise Petitioner's competency at the time of the offenses. Therefore, that
aspect of ground two is also procedurally defaulted. To the extent ground three presents a
cognizable claim, that claim also was not pursued in Petitioner's amended post-conviction
motion and appeal, and is therefore procedurally defaulted.
Absent a showing of either cause and prejudice or a miscarriage of justice, a federal
habeas court may not reach the merits of a federal constitutional claim procedurally defaulted
due to a petitioner's failure to follow applicable state rules in raising the claim in state court.
Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992); accord Skillicorn v. Luebbers, 475 F.3d
965, 976-77 (8th Cir. 2007) ("Unless a habeas petitioner shows cause and prejudice or that
he is actually innocent of the charges, a [federal habeas] court may not reach the merits of
procedurally defaulted claims in which the petitioner failed to follow applicable state
procedural rules in raising the claims"). "Cause for a procedural default exists where
'something external to the petitioner, something that cannot fairly be attributed to him[,] ..
. 'impeded [his] efforts to comply with the State's procedural rule.'" Maples v. Thomas, 132
S. Ct. 912, 922 (2012) (alterations in original) (quoting Coleman v. Thompson, 501 U.S. 722,
753 (1991)). There is no exhaustive catalog of the objective impediments, and the precise
contours of the cause requirement have not been clearly defined. Ivy v. Caspari, 173 F.3d
1136, 1140 (8th Cir. 1999). Petitioner has not attempted to demonstrate cause for the default
-14-

of the claims in grounds one, three, and four, and the defaulted portion of ground two. No
cause having been established, the Court does not need to address the prejudice element.
Abdullah v. Groose, 75 F.3d 408, 413 (8th Cir. 1996) (en banc). Under the circumstances,
no cause and prejudice exists to allow consideration of the merits of Petitioner's procedurally
defaulted claims.
To the extent a "miscarriage of justice" may allow a federal habeas court to address
the merits of a procedurally defaulted claim, Petitioner has not demonstrated the applicability
of that exception either. "Procedurally barring a claim that establishes actual innocence is
considered a fundamental miscarriage of justice." Cox v. Burger, 398 F.3d 1025, 1031 (8th
Cir. 2005). To establish actual innocence, Petitioner must provide new evidence and a
"show[ing] that 'it is more likely than not that no reasonable juror would have convicted him
in light of th[at] new evidence.'" Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005)
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accord House v. Bell, 547 U.S. 518,
536-39 (2006) (Schlup standard applies to determine whether defaulted claims in a first
federal habeas petition should be considered based on actual innocence). "'Without any new
evidence of innocence, even the existence of a concededly meritorious constitutional
violation is not in itself sufficient to establish a miscarriage of justice that would allow a
habeas court to reach the merits of a barred claim.'" Cagle v. Norris, 474 F.3d 1090, 1099
(8th Cir. 2007) (quoting Schlup, 513 U.S. at 316). Here, Petitioner has not shown or referred
to any new evidence of his actual innocence. Therefore, Petitioner has not shown a

-15-

miscarriage of justice supporting consideration of the merits of any of his procedurally
defaulted claims.
Under the circumstances, the Court will not further consider the merits of the
procedurally barred claims in grounds one through four. In his post-conviction appeal,
Petitioner presented the portion of ground two alleging that his attorneys were ineffective for
failing to move for a mental examination to determine his competence to participate in the
litigation. Accordingly, only that portion of ground two is not procedurally barred, and will
be considered on the merits.8
Ineffective Assistance of Counsel - Failure to Raise Competence to Proceed in Court
(Ground Two).
Standard of Review. "In the habeas setting, a federal court is bound by the
[Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")] to exercise only limited
and deferential review of underlying state court decisions." Lomholt v. Iowa, 327 F.3d 748,
751 (8th Cir. 2003). Under this standard, a federal court may not grant relief to a state
prisoner unless the state court's adjudication of a claim "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 "was based on an unreasonable

8

The state appellate court expressly limited Petitioner's appeal "to the question of his
[attorneys'] failure to request a mental examination to determine his competency to proceed in his
litigation." See Opinion in Gooch v. State, No. SD29981 (filed May 6, 2010), Resp't Ex. E, at 7 n.3.
Therefore, that is the only claim that will be considered on the merits by this Court with respect to
Petitioner's ground two.
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determination of the facts in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d).
A state court decision is contrary to clearly established Supreme Court precedent if
"the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on
a question of law or . . . decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). If the
state court's decision is not "contrary to" clearly established law, then the standard of
"unreasonableness" applies and is "meant to be difficult to meet, and 'even a strong case for
relief does not mean the state court's contrary conclusion was unreasonable.'" Williams v.
Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Harrington v. Richter, 131 S. Ct. 770, 786
(2011)), cert. denied, 134 S. Ct. 85 (2013). A state court decision is an unreasonable
application of clearly established federal law if it "correctly identifies the governing legal
rule but applies it unreasonably to the facts of a particular prisoner's case." Taylor, 529 U.S.
at 407-08; see also id. at 413. "The unreasonable application inquiry is an objective one."
de la Garza v. Fabian, 574 F.3d 998, 1001 (8th Cir. 2009).
In reviewing state court proceedings to ascertain whether they are contrary to or
involve an unreasonable application of clearly established federal law, this Court "is limited
to the record that was before the state court that adjudicated the claim on the merits." Cullen
v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (quoting Harrington, 131 S. Ct. at 784, 786).
Additionally, this Court's review is limited to consideration of the United States Supreme
Court precedents at the time the state court issues its decision on the merits. Greene v.
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Fisher, 132 S. Ct. 38 (2011) (relying on Cullen, supra); accord Losh v. Fabian, 592 F.3d
820, 823 (8th Cir. 2010) ("[o]nly rulings in [United States] Supreme Court decisions issued
before the state court acts are considered clearly established federal law, for a state court does
not act contrary to or unreasonably apply clearly established federal law if there is no
controlling [United States] Supreme Court holding on the point" (citations omitted)). The
state court does not need to cite to Supreme Court cases, "'so long as neither the reasoning
nor the result of the state-court decision contradicts them.'" Revels v. Sanders, 519 F.3d
734, 739 (8th Cir. 2008)) (quoting Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)).
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." Ryan v. Clarke,
387 F.3d 785, 790 (8th Cir. 2004) (internal quotation marks omitted) (quoting Jones v.
Luebbers, 359 F.3d 1005, 1011-12 (8th Cir. 2004)). Importantly, "a determination of a
factual issue made by a State court shall be presumed to be correct" unless rebutted by the
petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The deference owed
by a federal habeas court to a state court's findings of fact includes deference to state court
credibility determinations, Smulls v. Roper, 535 F.3d 853, 864 (8th Cir. 2008) (en banc),
and to "[a] state court's findings of fact made in the course of deciding" an ineffective
assistance of counsel claim, Odem v. Hopkins, 382 F.3d 846, 849 (8th Cir. 2004).
Moreover, the presumption of correctness of findings of fact applies to the factual

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determinations made by a state court at either the trial or appellate levels. Smulls, 535 F.3d
at 864-65.
A petitioner has a heavy burden to overcome admissions the petitioner made at a plea
hearing. A "defendant's representations during the plea-taking carry a strong presumption
of verity and pose a 'formidable barrier in any subsequent collateral proceedings.'" Nguyen
v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (quoting Voytik v. United States, 778
F.2d 1306, 1308 (8th Cir. 1985)); Bramlett v. Lockhart, 876 F.2d 644, 648 (8th Cir. 1989)
(quoting Voytik, 778 F.2d at 1308); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977)
("Solemn declarations in open court carry a strong presumption of verity" and representations
of the defendant at the plea hearing "constitute a formidable barrier in any subsequent
collateral proceedings").
Elements of an Ineffective Assistance of Counsel Claim. An accused's Sixth
Amendment right to the assistance of counsel is a right to the effective assistance of counsel.
Marcrum v. Luebbers, 509 F.3d 489, 502 (8th Cir. 2007) (citing Kimmelman v. Morrison,
477 U.S. 365, 377 (1986)). In Strickland, supra, the Supreme Court established a two-part
test for determining whether or not an attorney provided effective assistance of counsel. The
petitioner must establish both deficient performance, i.e., that "counsel's representation fell
below an objective standard of reasonableness," and prejudice, i.e., that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 687-88, 694. This same two-part standard
"applies to challenges to guilty pleas based on [the] ineffective assistance of counsel." Hill
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v. Lockhart, 474 U.S. 52, 57-59 (1985); Gumangan v. United States, 254 F.3d 701, 705
(8th Cir. 2001); Wilcox v. Hopkins, 249 F.3d 720, 722 (8th Cir. 2001).
For the performance prong of an ineffective assistance of counsel claim, a petitioner
must demonstrate that "counsel's performance was so deficient as to fall below an objective
standard of the customary skill and diligence displayed by a reasonably competent attorney."
Armstrong v. Kemna, 534 F.3d 857, 863 (8th Cir. 2008) ("Armstrong") (citing Strickland,
466 U.S. at 687-89). "Only reasonable competence, the sort expected of the 'ordinary fallible
lawyer,' is demanded by the Sixth Amendment." White v. Helling, 194 F.3d 937, 941 (8th
Cir. 1999) (quoting Nolan v. Armontrout, 973 F.2d 615, 618 (8th Cir. 1992)). The court is
highly deferential in analyzing counsel's conduct and "'indulg[es] a strong presumption that
counsel's conduct falls within the wide range of professional judgment.'" Armstrong, 534
F.3d at 863 (quoting Middleton v. Roper, 455 F.3d 838, 846 (8th Cir. 2006)); accord
Nguyen, 114 F.3d at 704 (addressing a claim that counsel provided ineffective assistance
with respect to a guilty plea and stating that "[i]n determining whether counsel's conduct was
objectively reasonable, there is a 'strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance'" (quoting Strickland, 466 U.S. at 689)).
To establish prejudice, there must be a showing of "a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694; Armstrong v. Kemna, 590 F.3d 592, 595-96 (8th Cir. 2010)
("Kemna") (quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1105 (8th Cir. 1996)). "'A
reasonable probability is [a probability] sufficient to undermine confidence in the outcome.'"
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Kemna, 590 F.3d at 596 (quoting McCauley-Bey, 97 F.3d at 1105); accord Carroll v.
Schriro, 243 F.3d 1097, 1100 (8th Cir. 2001) (quoting Strickland, 466 U.S. at 694). The
petitioner bears the burden of showing such a reasonable probability. Lawrence v.
Armontrout, 961 F.2d 113, 115 (8th Cir. 1992).
When a petitioner has pleaded guilty,
[t]he second, or "prejudice," requirement . . . focuses on whether counsel's
constitutionally ineffective performance affected the outcome of the plea
process. In other words, in order to satisfy the "prejudice" requirement, the
defendant must show that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have insisted on
going to trial.
Hill, 474 U.S. at 59; accord Premo v. Moore, 131 S. Ct. 733, 743 (2011) (to prevail on the
prejudice element of an ineffective assistance of counsel claim related to a guilty plea, the
petitioner had to demonstrate "'a reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to trial.' Hill," 474 U.S. at
59).

The assessment of prejudice resulting from an attorney's allegedly deficient

performance pertaining to a guilty plea, depends "in large part on a prediction whether" plea
negotiations or a trial would have turned out differently. Cf. Hill, 474 U.S. at 59. Such a
prediction must "be made objectively." Id. at 59-60.
The question of prejudice from counsel's performance need not be reached if the
performance was not deficient. See Parkus v. Bowersox, 157 F.3d 1136, 1140 (8th Cir.
1998). Conversely, the question of counsel's allegedly deficient performance need not be

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reached if a petitioner has failed to show prejudice. See Strickland, 466 U.S. at 697;
Williams v. Locke, 403 F.3d 1022, 1025 (8th Cir. 2005).
To prevail on an ineffective assistance of counsel claim in a § 2254 habeas case,
Petitioner
must do more than show that he would have satisfied Strickland's test if his
claim were being analyzed in the first instance, because under § 2254(d)(1),
it is not enough to convince a federal habeas court that, in its independent
judgment, the state-court decision applied Strickland incorrectly. Rather, he
must show that the [state appellate court] applied Strickland to the facts of his
case in an objectively unreasonable manner.
Bell v. Cone, 535 U.S. 685, 698-99 (2002); Underdahl v. Carlson, 381 F.3d at 742 (8th Cir.
2004).
Merits of Ground Two. In ground two, Petitioner argues that his counsel was
ineffective for failing to have his competency to participate in the litigation assessed.
Respondent argues that Petitioner did not present any evidence showing he did not
understand the charges against him or that he could not aid in his defense. Without such
evidence, Respondent asserts, counsel is not ineffective for failing to raise Petitioner's
competence to proceed in court.
The motion court concluded that Petitioner failed to provide "persuasive evidence that
he was not competent to plead guilty;" that his "attorneys considered [Petitioner]'s mental
status and correctly concluded . . . that he was competent to proceed"; and that "[t]here was
no showing of a factual basis indicating the questionable nature of [Petitioner's] mental
condition that should have caused either attorney to initiate an independent investigation .

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. . or move for an examination to determine his competency." (Mot. Ct. J. at 5, Legal File,
Resp't Ex. B, at 57.)
In affirming the motion court, the state appellate court reviewed Petitioner's and his
two attorneys' relevant testimony and concluded that, under the circumstances here, the fact
that Petitioner's attorneys knew that Petitioner suffered from spina bifida and "left school
without graduating" did not impose on the attorneys an affirmative duty to investigate
Petitioner's mental fitness to proceed with his criminal case. (Gooch v. State, No. SD 29981,
Opinion, dated May 6, 2010, Resp't Ex. E, at 10-11.) Furthermore, the Missouri Court of
Appeals found that that knowledge also did not support a determination that the attorneys'
failure to present Petitioner's competence to proceed constituted the ineffective assistance of
counsel under the circumstances. (Id.)
Petitioner has not shown that the record fails to support the state court's factual
determinations, and the available record supports those factual findings; therefore, the state
court's decision did not involve an unreasonable determination of the facts and the Court will
defer to the presumptively correct factual findings, including the credibility findings, of the
state court. Because the state appellate court applied the correct law, the two-part test for
ineffective assistance of counsel under Strickland, supra, and Hill, supra, the issue now
before the Court is whether the state appellate court's decision applied that law to the facts
of Petitioner's case in an objectively unreasonable manner.
The failure of an attorney "to request a competency hearing where there was evidence
raising a substantial doubt about a petitioner's competence to stand trial may constitute
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ineffective assistance of counsel." Speedy v. Wyrick, 702 F.2d 723, 726 (8th Cir.1983).
An attorney's failure to request a competency hearing constitutes deficient performance under
Strickland "if evidence raised substantial doubt about [the petitioner's] mental competence"
to participate in the state court proceedings. Ford v. Bowersox, 256 F.3d 783, 786 (8th Cir.
2001).

The test for competence to participate in court proceedings is well settled.
"A defendant may not be put to trial unless he has sufficient present ability to consult

with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as
well as factual understanding of the proceedings against him." Cooper v. Oklahoma, 517
U.S. 348, 354 (1996) (quoting Dusky, 362 U.S. at 402 (quotation marks omitted)) (alteration
in original). This competency standard also applies to one who is pleading guilty. Godinez
v. Moran, 509 U.S. 389, 398 (1993). Notably, the Supreme Court of the United States has
recognized that "defense counsel will often have the best-informed view of the defendant's
ability to participate in his defense." Medina v. California, 505 U.S. 437, 450 (1992)
(discussing state statute imposing on the defendant the burden of proof to establish
incompetency to stand trial).
Here, both of Petitioner's attorneys, who were aware of Petitioner's spina bifida and
limited education, testified that Petitioner appeared to understand the proceedings, the
procedural posture of the case, the nature of the charges, and the range of punishment.
Throughout their discussions with Petitioner and their representation of him, neither attorney
questioned Petitioner's ability to consult with them and to understand the proceedings.
Nothing of record counters either the state court's determination that Petitioner's counsel did
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not provide ineffective assistance by failing to raise Petitioner's competence to participate in
the state court proceedings, or the state court's related factual and credibility findings. The
state court did not apply the pertinent law to the facts of Petitioner's case in an objectively
unreasonable manner.
The Missouri Court of Appeals' decision affirming the motion court's denial of this
ineffective assistance of counsel claim is not contrary to or an unreasonable application of
clearly established federal law. Furthermore, the state appellate court's decision to consider
only one element, rather than both elements, of Strickland's standard for considering an
ineffective assistance of counsel claim is not contrary to or an unreasonable application of
clearly established federal law. See Parkus, 157 F.3d at 1140.
The ineffective assistance of counsel claim in ground two, which focuses on counsel's
failure to raise Petitioner's competency to participate in the state court proceedings, is without
merit and is denied.
Conclusion
The Court concludes the petition should be denied. Grounds one, three, and four, as
well as ground two, other than the claim in ground two that Petitioner's counsel failed to raise
Petitioner's competency to participate in the state court proceedings, are procedurally
defaulted. Petitioner has failed to establish either cause and prejudice or a miscarriage of
justice sufficient to avoid that procedural default and to permit this Court's consideration of
the merits of those claims. The remaining claim in ground two, that Petitioner's counsel

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provided ineffective assistance by failing to raise Petitioner's competency to proceed in state
court, is without merit.
Accordingly, after careful consideration,
IT IS HEREBY ORDERED that Jay Cassady is SUBSTITUTED as Respondent
in this federal habeas proceeding.
IT IS FURTHER ORDERED that the paper exhibits of the underlying state court
proceedings filed by Respondent be RETAINED UNDER SEAL.
IT IS FINALLY ORDERED that Petitioner's petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED without further proceedings.
A separate Judgment shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 25th day of March, 2014.

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