Griffin v. Pearl

Filing 13

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the § 2254 Petition filed by Petitioner Carolyn Griffin is DENIED, with prejudice (Doc. 1). IT IS FURTHER ORDERED that a separate judgment be entered incorporating this Memorandum and Order. IT IS FINALLY ORDERED that a certificate of appealability and in forma pauperis on appeal will not be issued. Signed by Magistrate Judge Noelle C. Collins on 9/2/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CAROLYN GRIFFIN,

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Petitioner,

ANGELA PEARL,
Respondent,

No. 4:11CV951 NCC

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the undersigned United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 12). After reviewing the case, the
court has determined that Petitioner is not entitled to relief. As a result, the petition will be
dismissed.
I.
BACKGROUND
Petitioner was charged with murder in the first degree, Mo. Rev. Stat. § 656.020, in that,
on November 29, 2007, after deliberation, she knowingly caused the death of Kemeko Black, by
shooting her, and with armed criminal action related to the murder, Mo. Rev. Stat. § 571.015.
(Resp. Ex. 1 at 7-11). Pursuant to a plea agreement, Petitioner was charged, by substitute
information in lieu of indictment, with second degree murder, Mo. Rev. Stat. § 656.021, and
armed criminal action related to the murder, Mo. Rev. Stat. § 571.015. Petitioner plead guilty to
these charges. (Resp. Ex. 1 at 113-23).
At Petitioner’s plea hearing the prosecutor stated that if the matter had gone to trial the
State would prove beyond a reasonable doubt as follows: On November 29, 2007, in the City of
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St. Louis, Petitioner knowingly caused Kemeko Black’s death by shooting her in the head, and
she used a weapon to commit the murder, thus committing armed criminal action. Specifically,
Detective Heather Slater would testify that Petitioner admitted to her that, on November 29,
2007, after an argument, Petitioner went to her bedroom, retrieved a .38 caliber pistol, and
walked up behind Ms. Black and shot her twice in the head, causing her death. Medical
personnel would testify that Ms. Black’s death was, in fact, caused by the shots to the head.
(Resp. Ex. 1 at 19).
In response to the court’s asking her if she heard what the prosecutor had said and if that
was what she was admitting as the basis for her guilty plea, Petitioner answered both questions in
the affirmative. (Resp. Ex. 1 at 19).
Pursuant to the plea agreement, the court sentenced Petitioner to concurrent terms of life
in prison on each count. (Resp. Ex. 1 at 24-17). Petitioner sought post-conviction relief under
Missouri Rule 24.035. Counsel was appointed and filed an amended Rule 24.035 motion.
(Resp. Ex. 1 at 37-59). The motion court denied Petitioner post-conviction relief. (Resp. Ex. 1
at 60-64). Petitioner then appealed the motion court’s decision to the Missouri appellate court,
which affirmed the judgment against her, on January 11, 2011. (Resp. Ex. 2; Resp. Ex. 4).
On May 24, 2011, Petitioner filed her § 2254 Petitioner, in which she makes the
following claims:
(1)

Petitioner was denied effective assistance of counsel;

(2)
The trial court’s imposing sentences for both second degree murder and
armed criminal action violated the rule against double jeopardy; and
(3)
The sentence imposed by the trial court was illegal because it was in
excess of the maximum sentence.
(Doc. 1).

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II.
PROCEDURAL DEFAULT and TIMLINESS STANDARD
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) (quotation marks omitted). A claim has been
fairly presented when a petitioner has properly raised the same factual grounds and legal theories
in the state courts that he is attempting to raise in his federal petition. Id. at 1021. 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)). Claims that have been procedurally defaulted
may not give rise to federal habeas relief unless the petitioner can demonstrate cause and
prejudice for the default. Id. “[T]he existence of cause for a procedural default must ordinarily
turn on whether the prisoner can show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,
488 (1986).
Additionally, ' 2244(d)(1) establishes a 1-year limitation period on petitions filed
pursuant to ' 2254.
The only issue which Petitioner raised in her appeal of the motion court’s decision was
that counsel was ineffective for failing to advise her that the range of punishment for second
degree murder included the maximum punishment of life in prison. (Resp. Ex. 2). As such, she
has procedurally defaulted Ground 1, to the extent she intends to raise other claims of ineffective
assistance of counsel in that claim, and Grounds 2 and 3 in their entirety. Petitioner has not
suggested a basis upon which this court should consider whether her procedural default should
be excused. As such, the court finds that Ground 1, to the extent Petitioner intends to allege
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ineffective-assistance for reasons other than that counsel failed to inform her of the maximum
range of punishment, and Grounds 21 and 32 are procedurally defaulted, and that, therefore,
habeas relief on their basis should be denied.
III.
MERITS STANDARD
“In the habeas setting, a federal court is bound by the AEDPA3 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 determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

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Although Petitioner claims a violation of the right against double jeopardy for her to be
sentenced for both second degree murder and armed criminal action related to the murder, the
Supreme Court has rejected such a claim. See Missouri v. Hunter, 459 U.S. 359, 368 (1983)
(defendant's being sentenced for both robbery in first degree and armed criminal action related to
the robbery did not violate double jeopardy, given Missouri legislature’s intent that punishment
for violations of statutes proscribing first-degree robbery and armed criminal action be
cumulative).
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Petitioner claims her sentence was illegal because it was in excess of the maximum sentence
authorized for her crimes. She argues that the trial court did not make a sufficient record of her
prior convictions and that it enhanced her sentence based on her prior convictions. However, the
judgment of Petitioner’s conviction demonstrates that her sentence was not enhanced based on
prior convictions; in the section for “enhancements,” the sentencing court checked the “not
applicable” box. (Resp. Ex. 1 at 25). Notably, Petitioner was not charged as a prior offender.
(Resp. Ex. 1 at 10-11). Also, second degree murder is a Class A felony under Missouri law, and
Class A felonies are punishable by “a term of not less than ten years and not to exceed thirty
years, or life imprisonment.” See Mo. Rev. Stat. §§ 565.021, 558.011.1(1) (emphasis added).
Armed criminal action may be punished by any term of imprisonment not less than three years.
See Mo. Rev. Stat. § 571.015. Thus, Petitioner’s sentence of concurrent life sentences did not
exceed the sentences authorized by Missouri law.
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The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. ' 2254.
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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] Court on a question of law or .
. . decides a case differently than [the] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). 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.” Id. at 407-08. Finally, 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).
IV.
INEFFECTIVE ASSISTANE OF COUNSEL STANDARD
Federal law provides that to prove ineffective assistance of counsel, a habeas petitioner
must show that: A(1) his counsel so grievously erred as to not function as the counsel guaranteed
by the Sixth Amendment; and (2) his counsel=s deficient performance prejudiced his defense.@
Auman v. United States, 67 F.3d 157, 162 (8th Cir. 1995) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)).

The "performance" prong of Strickland requires a showing that

"counsel's representation fell below an objective standard of reasonableness." Strickland, 466
U.S. at 688. Counsel is Astrongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.@ Id. at 690. To
overcome this presumption, a petitioner must prove that, Ain light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent assistance.@
Id.

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Even if a petitioner satisfies the performance component of the analysis, he is not entitled
to relief unless he can prove sufficient prejudice. Id. at 697. To do so, a petitioner must prove
that Athere is a reasonable probability that, but for counsel=s unprofessional errors, the result of
the proceeding would have been different.@ Id. at 669. The court is not required to Aaddress both
components of the [effective assistance of counsel] inquiry if [a petitioner] makes an insufficient
showing on one [component].@ Id. at 697.
Additionally, the court notes that the Court stated in Strickland, 466 U.S. at 688-89, that:
In any case presenting an ineffectiveness claim, the performance inquiry
must be whether counsel=s assistance was reasonable considering all the
circumstances. Prevailing norms of practice as reflected in the American Bar
Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1
to 4-8.6 (2d ed. 1980) (AThe Defense Function@), are guides to determining what
is reasonable, but they are only guides. No particular set of detailed rules for
counsel=s conduct can satisfactorily take account of the variety of circumstances
faced by defense counsel or the range of legitimate decisions regarding how best
to represent a criminal defendant. Any such set of rules would interfere with the
constitutionally protected independence of counsel and restrict the wide latitude
counsel must have in making tactical decisions. (citation omitted). . . . .
Judicial scrutiny of counsel=s performance must be highly deferential. It is
all too tempting for a defendant to second-guess counsel=s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining
counsel=s defense after it has proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable. (citation omitted). A fair assessment
of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel=s
challenged conduct, and to evaluate the conduct from counsel=s perspective at the
time. Because of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel=s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action Amight be
considered sound trial strategy.@ (citation omitted). There are countless ways to
provide effective assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way. (citation omitted).
The Supreme Court has emphasized that the standard to be applied by a federal court
when reviewing a Strickland claim of a state prisoner pursuant to ' 2254 is Adoubly deferential

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judicial review.@ Knowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009). The Court further
explained that Abecause the Strickland standard is a general standard, a state court has even more
latitude to reasonably determine that a defendant has not satisfied that standard.@ Id. (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
V.
DISCUSSION
The only issue not procedurally defaulted is Petitioner’s claim (giving her the benefit of
the doubt that she intended to raise such a claim) that she received ineffective assistance of
counsel because counsel failed to advise her that the range of punishment for second degree
murder included the maximum punishment of life imprisonment. On appeal, Petitioner argued
that, when she plead guilty, she believed she would only receive a thirty-year sentence. She
further argued that she would not have plead guilty if she realized she would be sentenced to life
imprisonment.
Upon addressing Petitioner’s claim, the Missouri appellate court specifically cited
Strickland, noting that to establish ineffective assistance of counsel Petitioner was required to
establish both that counsel’s performance was unreasonable and resulting prejudice.

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Missouri appellate court further considered, again specifically citing federal law, that in the
guilty plea context, to establish ineffective assistance of counsel, a claimant must show that she
would not have plead guilty but for counsel’s unreasonable performance. (Resp. Ex. 4 at 3)
(citing Hill v. Lockhart, 474 U.S. 52, 59 (1985) (when claiming ineffective-assistance, habeas
petitioner who has plead guilty must establish that he Awould not have [plead] guilty and would
have insisted on going to trial,@ absent his attorney=s misrepresentations about the sentence he
would receive if he plead guilty).

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The Missouri appellate court then considered testimony at Petitioner’s sentencing
hearing. Specifically, the appellate court considered that the prosecutor stated that the State was
recommending life imprisonment on each count of the information in lieu of the indictment.
When the court asked Petitioner if she understood what the prosecutor had said – that the State’s
recommendation was “two concurrent life sentences” – Petitioner responded that she understood.
Also, in response to the court’s questioning, Petitioner acknowledged that her lawyer had
explained the sentences to her; that the plea agreement was that she would “receive two life
sentences”; and that she understood there would “be no probation.” Further, in response to the
court’s questioning her, Petitioner testified that nobody, including her lawyer, had promised her
anything other than what was stated in the courtroom; nobody promised her she was going to get
probation; and nobody “led her to believe anything other than what the [prosecutor] ha[d] just
said.” Finally, the Missouri appellate court considered that Petitioner testified, at the plea
hearing, that she was satisfied with her counsel and again testified that, “other than the plea
bargain agreement, her counsel did not promise her anything else at all.” (Resp. Ex. 4 at 4-5).
The court notes that the trial court also asked Petitioner if anybody had promised her she would
“be released at a certain time,” such as that by “Christmas of 2015 [she would] be back home,”
and Petitioner responded that nobody had made such a statement to her. (Resp. Ex. 1 at 19-20).
The Missouri appellate court concluded that Petitioner’s testimony demonstrated that she
understood that she would receive a sentence of life imprisonment. (Resp. Ex. 4 at 5).
This court finds that the decision of the Missouri appellate court in regard to Petitioner’s
claim that counsel did not inform her that the crime of second degree murder carries a maximum
penalty of life imprisonment is not contrary to clearly established federal law, as determined by
the Supreme Court, or an unreasonable application of federal law, because the Missouri appellate

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court properly applied the governing legal rules from Strickland, 466 U.S. at 687, and Hill, 474
U.S. at 59. Additionally, the Missouri appellate court did not render a decision “based on an
unreasonable determination of the facts,” given that the transcript of Petitioner’s guilty plea
hearing belies her claim that her lawyer did not tell her that the maximum penalty for murder in
the second degree is life imprisonment. See 28 U.S.C. ' 2254(d); Tran v. Lockhart, 849 F.2d
1064, 1068 (8th Cir. 1988) (denying habeas relief where record before court showed petitioner’s
allegations where “either wholly incredible or merely bare contradictions of statements he made
when he pled guilty”). Moreover, even if Petitioner’s lawyer did not inform her of the maximum
penalty, the plea transcript makes it clear that she understood that the prosecutor was
recommending concurrent life sentences; thus, she cannot establish that she suffered Strickland
prejudice as a result of counsel’s alleged failure. The court finds, therefore, that Petitioner’s
claim that she received ineffective assistance of counsel because counsel did not tell her that the
maximum penalty for murder in the second degree was life in prison is without merit, and that
habeas relief on this basis will be denied.
VI.
CONCLUSION
For the reasons stated above, the court finds that Petitioner is not entitled to federal
habeas relief. Furthermore, Petitioner has failed to make a substantial showing of the denial of a
constitutional right, which requires a demonstration “that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right.” Khaimov v.
Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quotation omitted). Thus, the Court will not grant a
certificate of appealability, and will not grant her in forma pauperis on appeal. 28 U.S.C. '
2253(c).
Accordingly,
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IT IS HEREBY ORDERED that the § 2254 Petition filed by Petitioner Carolyn Griffin
is DENIED, with prejudice (Doc. 1).
IT IS FURTHER ORDERED that a separate judgment be entered incorporating this
Memorandum and Order.
IT IS FINALLY ORDERED that a certificate of appealability and in forma pauperis on
appeal will not be issued.

Dated this 2nd day of September, 2014.

/s/Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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