Rebstock v. Russell

Filing 46

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the petition of Richard Dale Rebstock for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. IT IS FURTHER ORDERED that a Certificate of Appealability shall not be issued in this case. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 4/24/2014. (NCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICHARD DALE REBSTOCK,
Petitioner,
v.
TERRY RUSSELL,
Respondent.

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Case No. 4:11CV1688 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the petition of Missouri state prisoner Richard Dale
Rebstock for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. For the reasons set forth
below, federal habeas relief will be denied.
BACKGROUND
On December 22, 2005, Petitioner pled guilty in Missouri state court to one count of
child molestation in the first degree. His guilty plea was pursuant to an agreement that he
would be sentenced to a 15-year suspended sentence with five years of probation. After
ascertaining that there was a factual basis for the plea, that Petitioner understood the rights he
was giving up by pleading guilty, and that he was satisfied with the services of his attorney, the
court accepted the plea and sentenced Petitioner in accordance with the plea agreement.
Subsequently, Petitioner violated the conditions of his probation, and on June 30, 2006, the
trial court revoked probation and executed the 15-year sentence.

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Petitioner sought post-conviction relief in state court, claiming in an amended
complaint filed with the assistance of counsel, that plea counsel failed to explain to him the
rights he would be giving up by pleading guilty and failed to investigate whether the victim
had recanted her story; and that the plea court failed to inform him of the possible range of
punishment before he pled guilty. Following an evidentiary hearing at which only Petitioner
testified, the trial court denied the motion. On appeal, Petitioner reasserted that the plea court
did not advise him of the range of punishment and faulted the motion court for not making
findings of fact on that claim. The Missouri Court of Appeals remanded the matter for the
motion court to make findings of fact and conclusions of law on this claim.
On October 3, 2011, the motion court issued a new opinion, denying Petitioner’s
motion based on Petitioner’s testimony at the plea hearing, and the transcript of the
arraignment hearing that showed that Petitioner had been advised at that time that the
sentencing range for the charged crime was five to 15 years. The court also noted that at the
plea hearing, Petitioner made no suggestion that there might be exculpatory evidence in the
form of a statement from the victim. Petitioner did not file an appeal.
In his federal habeas petition, Petitioner asserts the following grounds for relief:
1. The police illegally questioned the minor victim before a representative from
Children’s Services arrived, threatened the witness to falsely accuse Petitioner, and
fabricated evidence in the police report resulting in Petitioner’s unlawful arrest;
2. After he was booked, the Wayne County Sheriff’s Department failed to take reasonable
precautions to protect him from other inmates, which resulted in a civil rights violation
when other inmates assaulted him so severely that he required hospitalization;
3. The Sherriff’s Department illegally removed Petitioner from the Veterans
Administration hospital (where he was taken after the assault) without a federal court
order, in violation of Petitioner’s civil rights; and
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4. After being released from the hospital before being treated for his injuries, the
Sherriff’s Department confined him again with no medical attention, and the state
prison system will not give him the medications he had been taking and still needed for
service-related disabilities.
With respect to the first ground, Petitioner asserted that he did not raise it in state court
because the evidence supporting the claim was suppressed for over five years and the matter
was a federal issue, not a state issue. (Doc. No. 1.) In a subsequent filing (Doc. No. 14),
treated by the Court as a supplement to the habeas petition, Petitioner asserts that the transcript
of the arraignment hearing, relied upon by the state court to find that he had been informed of
the sentencing range, was fabricated. He asserted his innocence of the crime to which he pled
guilty, and listed numerous complaints in summary fashion, including ineffective assistance of
counsel; misconduct by the prosecution, counsel, the trial judge, and other court officials;
attorney abandonment in post-conviction proceedings; and suppression of evidence.
Respondent argues that habeas relief should be denied because Petitioner procedurally
defaulted the first ground in his habeas petition, and in any event, that the claim is without
merit; and the remaining three grounds are not cognizable in federal habeas proceedings
because they do not challenge the legality of Petitioner’s state custody.
DISCUSSION
As Respondent argues, the doctrine of procedural default precludes consideration by
this Court of the first ground for habeas relief in the petition because Petitioner did not present
this claim to the state courts at any point, and the record shows no excuse for this default, such
as ineffective assistance of post-conviction counsel. See Martinez v. Ryan, 132 S. Ct. 1309,
1320 (2012) (Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012) (holding that “attorney errors in
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initial-review collateral proceedings may qualify as cause for a procedural default”).
Petitioner’s assertions of innocence do not meet the demanding standard for such an assertion
to excuse a procedural default. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1935 (2013);
Gooch v. Cassady, No. 4:11CV00491 TCM, 2014 WL 1228759, at *8-9 (E.D. Mo. March 25,
2014). Further, to the extent Petitioner is asserting that his arrest was unlawful or that
evidence against him was obtained illegally, the claim is foreclosed by Stone v. Powell, 428
U.S. 465, 494 (1976). See Smith v. Minor, No. 4:13CV1987 DDN, 2013 WL 5587995, at *2
(E.D. Mo. Oct. 10, 2013) (applying Stone v. Powell in guilty plea context to habeas claims
challenging constitutionality of search and accuracy of police reports).
The other challenges to his conviction that Petitioner mentions in filings with this Court
are conclusory statements with no factual or legal basis, and as such do not warrant habeas
relief. The Court’s review of the state court records does not call into question the validity of
Petitioner’s guilty plea or sentence.
The three remaining claims in the habeas petition are not cognizable in this proceeding
because they do not challenge the validity of Petitioner’s conviction or sentence. See, e.g.,
Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996).
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 Petitioner=s claims for habeas relief 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, 338 (2003) (standard for issuing a Certificate of Appealability) (quoting Slack v.
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McDaniel, 529 U.S. 473, 484 (2000)).
Accordingly,
IT IS HEREBY ORDERED that the petition of Richard Dale Rebstock for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability shall not be issued in
this case.
A separate Judgment shall accompany this Memorandum and Order.

_________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this

24th

day of April, 2014.

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