Flint v. State of Missouri

Filing 14

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Petitioners Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and his claims are DISMISSED with prejudice. A separate Order of Dismissal w ill accompany this Memorandum and Order. IT IS FURTHER ORDERED that because Petitioner cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. 1 Signed by District Judge Jean C. Hamilton on 4/25/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANTHONY H. FLINT,
Petitioner,
vs.
PENNY MILBURN,
Respondent.

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Case No. 4:11CV1977 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Missouri State prisoner Anthony H. Flint’s pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready for
disposition.
On September 23, 2008, Petitioner pled guilty in the 34th Judicial Circuit Court of New
Madrid County, Missouri, to one count of robbery in the first degree, one count of armed criminal
action, and one count of assault in the second degree. (Resp. Exh. B, PP. 31-32). Petitioner was
sentenced to concurrent terms of thirty years imprisonment on the robbery and armed criminal action
convictions, and an additional concurrent term of seven years on the assault conviction. (Id.).
Petitioner did not appeal his convictions or sentence. Petitioner thereafter filed a motion for postconviction relief pursuant to Missouri Supreme Court Rule 24.035, which was denied following an
evidentiary hearing. (Id., PP. 44-52). The Missouri Court of Appeals affirmed the denial of
Petitioner’s post-conviction motion. Flint v. State, 341 S.W.3d 688 (Mo. App. 2011).
Petitioner is currently incarcerated at the Southeast Correctional Center in Charleston,
Missouri. In the instant petition for writ of habeas corpus, Petitioner raises the following three
claims for relief:

(1)

That Petitioner’s guilty pleas were not voluntary and intelligent, in that they
were coerced by defense trial counsel;

(2)

That the trial court erred in accepting Petitioner’s guilty pleas without a
sufficient factual basis; and

(3)

That Petitioner received ineffective assistance of counsel, in that trial counsel
failed to investigate potential defense witnesses, failed to pursue Petitioner’s
claim of involuntary intoxication, and failed to investigate Petitioner’s mental
status at the time of the crimes.

(§ 2254 Petition, PP. 6-11).
DISCUSSION
I.

Procedural Default
As stated above, in Grounds 1 and 3 of his petition, Petitioner asserts that he was coerced by

counsel to accept a guilty plea (Ground 1), and that he received ineffective assistance of counsel, in
that trial counsel: (1) failed to investigate potential defense witnesses; (2) failed to contact mental
health persons and obtain records and information as to Petitioner’s mental status when he
committed the crimes; and (3) failed to investigate Petitioner’s claim of involuntary intoxication
(Ground 3). (§ 2254 Petition, PP. 6-11). Although Petitioner raised the claims asserted in Grounds
1 and 3 in his post-conviction motion, a review of the record reveals he failed to pursue the claims
on appeal of the denial of the motion.
A claim must be presented at each step of the judicial process in state court to avoid
procedural default. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.), cert. denied, 513 U.S. 983 (1994).
“Failure to raise a claim on appeal from the denial of a post-conviction motion erects a procedural
bar to federal habeas review.” Id. (citation omitted). Because Petitioner failed to raise the claims
stated in Grounds 1 and 3 of the instant petition on appeal of the denial of his post-conviction
motion, the federal court cannot reach the merits of the claims absent a showing of cause and
prejudice, or a demonstration “that failure to consider the claims will result in a fundamental
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miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); Forest v. Delo, 52 F.3d
716, 719 (8th Cir. 1995); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.), cert. denied, 515 U.S.
1163 (1995). Petitioner has not shown cause for his failure to raise the claims in state court.1 In
addition, because Petitioner makes no claim of actual innocence, he cannot satisfy the narrow
“fundamental miscarriage of justice” exception to the required showing of cause and prejudice.
Schlup v. Delo, 513 U.S. 298, 314-15 (1995); Washington v. Delo, 51 F.3d 756, 760-61 (8th Cir.),
cert. denied, 516 U.S. 876 (1995) (the “fundamental miscarriage of justice” exception is narrow,
“reserved for extraordinary circumstances and explicitly tied to a petitioner’s actual innocence.”).
The claims raised in Grounds 1 and 3 of the instant petition thus are procedurally barred and must
be denied.
II.

Claim Addressed on the Merits
As stated above, in Ground 2 of his petition Petitioner asserts that the trial court erred in

accepting his guilty pleas without a sufficient factual basis. (§ 2254 Petition, PP. 8-9). Petitioner
raised this claim before the 24.035 post-conviction motion court, and the court denied the claim as
follows:
Rule 24.02(e) provides that the court shall not enter a judgment upon a plea
of guilty unless it determines that there is a factual basis for the guilty plea. “The
purpose of establishing a factual basis for a guilty plea is to aid in determining
whether a plea of guilty has been entered voluntarily and intelligently.” Hamilton

1

Petitioner attempts to establish cause for the procedural default by asserting that his postconviction appellate counsel erroneously abandoned the issues on appeal of the denial of his Rule
24.035 motion. (§ 2254 Petition, PP. 6-7, 10-11). There is no constitutional right to effective
assistance of post-conviction counsel, however. Coleman, 501 U.S. at 752; Jolly, 28 F.3d at 54.
Further, under Eighth Circuit law, “it is well-established that any alleged ineffective assistance of
post-conviction counsel in failing to raise a claim is insufficient as a matter of law to serve as
cause for procedural default.” Battle v. Dormire, 2007 WL 803624, at *4 (E.D. Mo. Mar. 13,
2007) (citing Clay v. Bowersox, 367 F.3d 993, 1005-06 (8th Cir. 2004)). Therefore, to the extent
Petitioner asserts the errors of his post-conviction attorney constitute cause to excuse his
procedural default, the argument fails.
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v. State, 300 S.W.3d 538, 540 (Mo.App. S.D. 2009). The Rule is not constitutionally
based; its purpose is to aid in the constitutionally required determination that a
defendant entered the guilty plea intelligently and voluntarily. Orr v. State, 179
S.W.3d 328, 329 (Mo.App. S.D. 2005).
“There is no particular ritual in establishing a factual basis for a guilty plea
as required by Rule 24.02(e).” Chipman v. State, 274 S.W.3d 468, 472 (Mo.App.
S.D. 2008). The focus is not whether a particular procedure was followed or details
explained, but on whether the guilty plea was, in fact, made intelligently and
voluntarily. Huntley v. State, 204 S.W.3d 668, 673 (Mo.App. S.D. 2006). Absent
an abuse of discretion, a reviewing court will defer to the trial court’s determination
of whether a plea of guilty was voluntary. Willoughby v. State, 81 S.W.3d 676, 679
(Mo.App. S.D. 2002). Relief under the Rule is limited to errors of law that are
jurisdictional, constitutional, or constitute a fundamental defect that inherently causes
a complete miscarriage of justice. Myers v. State, 223 S.W.3d 165, 167 (Mo.App.
S.D. 2006). The transcript clearly shows a factual basis for the guilty pleas, and
movant2 is not entitled to relief on this claim.
(Resp. Exh. B, PP. 51-52). Petitioner advanced the claim on appeal of the denial of his Rule 24.035
motion, and the Missouri Court of Appeals denied his claim as follows:
A court taking a guilty plea must find “a factual basis for the plea.” Rule
24.02(e). This requires no particular ritual and is not a constitutional or jurisdictional
rule. Rather, it aids in the constitutionally-required determination that a guilty plea
be made intelligently and voluntarily. Chipman v. State, 274 S.W.3d 468, 472
(Mo.App. 2008). A plea is knowing and voluntary, for these purposes, if the
defendant is informed of the elements of the offense at or before the plea hearing and
understands them. Cole [v. State], 327 S.W.3d [589, 590 (Mo. App. 2010)].
If--as in this case--the information clearly charges the defendant with all
elements of the crime, the nature of the charge is explained to the defendant, and the
defendant admits guilt, a factual basis is established. Browder v. State, 326 S.W.3d
33, 35 (Mo.App. 2010). The focus is “not on whether a particular ritual was
followed or every detail was explained,” but “whether the defendant understood the
nature of the charge against him.” Wagoner v. State, 240 S.W.3d 159, 165 (Mo.App.
2007)....
At the plea hearing, Flint3 expressly and unequivocally admitted that he
committed the offenses charged, the essential elements of each charge, and that he
was pleading guilty because he actually was guilty. Per Cole, Browder, and
Wagoner, the motion court did not clearly err in finding no basis for relief.
2

Petitioner is referred to as “movant” by the post-conviction motion court.

3

Petitioner is referred to as “Flint” by the Missouri Court of Appeals.

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Moreover, after carefully and fully examining Flint under oath, the plea court
found, inter alia, “that each of [Flint’s] three separate pleas of guilty have each been
made freely and voluntarily and with a full understanding of his rights and of the
consequences of each of these three pleas of guilty.” Flint does not challenge these
findings, so his non-jurisdictional Rule 24.02(e) complaint is of no moment. See
Cole, 327 S.W.3d at 591.
Flint, 341 S.W.3d at 689-90.
With respect to federal court review of state court conclusions, 28 U.S.C. § 2254 states in
pertinent part as follows:
(d)
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim –
(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).
Upon consideration, the Court finds that the decision of the Missouri Court of Appeals is
entitled to deference. “There is no federal constitutional requirement that a state defendant’s guilty
plea have a factual basis, unless the defendant pleading guilty claims he is innocent of the relevant
charge.” Mosby v. Russell, 2011 WL 4501042, at *11 (E.D. Mo. Sept. 28, 2011) (citations omitted).
The Missouri Court of Appeals found that Petitioner, at the plea hearing, “expressly and
unequivocally admitted … that he was pleading guilty because he actually was guilty.” Flint, 341
S.W.3d at 690. The record of the plea proceeding supports that finding. For each of the three guilty
pleas, the judge asked Petitioner whether by pleading to the charge, he was admitting that he actually
committed each act. (Resp. Exh. B, PP. 21-23). The judge also asked Petitioner whether “by

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pleading guilty to this charge, [he was] telling the Court that [he was] in fact guilty of this crime.”
(Id., PP. 21-24). Petitioner answered affirmatively to each question asked. (Id.).
The Missouri Court of Appeals further found that the guilty pleas were knowing and
voluntary. Flint, 341 S.W.3d at 689. “A guilty plea is invalid only if it does not represent a
voluntary and intelligent choice among the alternative courses of action open to the defendant ….
It is sufficient if the defendant is given notice of the charge or if he in fact knows of and understands
that charge.” Easter v. Norris, 100 F.3d 523, 525 (8th Cir. 1996) (citations omitted), cert. denied,
520 U.S. 1148 (1997). The Court of Appeals found that the information conveyed to Petitioner by
the plea judge was sufficient for this purpose. Flint, 341 S.W.3d at 690 (“[Petitioner] expressly and
unequivocally admitted that he committed the offenses charged, the essential elements of each
charge, and that he was pleading guilty because he actually was guilty.”). That finding is supported
by the record. The plea judge advised Petitioner of the rights he was giving up by pleading guilty,
the facts establishing the essential elements of each offense, and the possible sentence for each
offense. (Resp. Exh. B, PP. 17-23). Petitioner affirmed that he understood everything the judge
stated. (Id.).
“Solemn declarations in open court carry a strong presumption of verity.” Blackledge v.
Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977). Therefore, “while a guilty
plea taken in open court is subject to collateral attack, the defendant’s representations during the
plea-taking carry a strong presumption of verity and pose a formidable barrier in any subsequent
collateral proceedings.” Bramlett v. Lockhart, 876 F.2d 644, 648 (8th Cir.) (internal quotation marks
and citations omitted), cert. denied, 493 U.S. 941 (1989). Under these circumstances, the finding
of the Missouri Court of Appeals that Petitioner adequately was advised of the charges against him,
and sufficiently understood those charges in order to make a constitutionally valid plea, was not

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unreasonable in light of the evidence presented. Petitioner’s request for habeas relief on this basis
must therefore be denied.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and his claims are
DISMISSED with prejudice. A separate Order of Dismissal will accompany this Memorandum and
Order.
IT IS FURTHER ORDERED that because Petitioner cannot 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), cert. denied, 525 U.S. 834 (1998).

Dated this 25th day of April, 2013.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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