McCaleb v. Prudden

Filing 7

MEMORANDUM AND ORDER - For the reasons discussed above, the Court finds that petitioner has failed to establish that he is entitled to relief based on state court proceedings that were contrary to, or an unreasonable application of, clearly establ ished federal law or based upon an unreasonable determination of the facts in light of the evidence presented in state court proceedings. 28 U.S.C. § 2254(d). Because petitioner has failed to make a substantial showing of the denial of a constit utional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). A separate judgment in accordance with this Memorandum will be entered this same date. Signed by District Judge Carol E. Jackson on 5/14/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PHILANDER H. MCCALEB,

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Petitioner,
vs.
DOUGLAS PRUDDEN,
Respondent.

No. 4:12-CV-629 (CEJ)

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

Procedural History

Petitioner Philander McCaleb is currently incarcerated in the Tipton Correctional
Center, pursuant to the judgment of the Circuit Court of the City of St. Louis, Missouri.
On August 7, 2009, petitioner pled guilty, without a plea agreement, to assault in the
second degree and driving with a revoked license. Resp. Ex. A at 10-24. On October
16, 2009, petitioner was sentenced to seven years imprisonment on the assault
conviction and one year imprisonment on the driving with a revoked license conviction,
with the two sentences to be served concurrently. Id. at 25-28.
On November 25, 2009, petitioner filed a motion for post-conviction relief under
Missouri Rule 24.035. Id. at 34-42. An amended motion with request for an evidentiary
hearing was filed by appointed counsel on August 24, 2010. The trial court denied
petitioner’s Rule 24.035 motion without a hearing. Id. at 60-64.
On September 13, 2011, the Missouri Court of Appeals of the Eastern District
summarily affirmed the denial of post-conviction relief in a per curiam opinion. McCaleb

v. State, 353 S.W.3d 53 (Mo. App. E.D. 2011) (Resp. Ex. D). Along with its opinion,
the appeals court issued to the parties a non-precedential addendum explaining the
basis for its decision. Id.
In the instant § 2254 petition, petitioner alleges ineffective assistance of
counsel.
II.

Legal Standard

Federal courts may not grant habeas relief on a claim that has been decided on
the merits in state court unless that adjudication:
(1)

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.

28 U.S.C. § 2254 (d)(1)-(2).
A state court's decision is "contrary to" clearly established law if "it applies a rule
that contradicts the governing law set forth in [the Supreme Court's] cases, or if it
confronts a set of facts that is materially indistinguishable from a decision of [the
Supreme Court] but reaches a different result." Brown v. Payton, 544 U.S. 133, 141
(2005). "The state court need not cite or even be aware of the governing Supreme
Court cases, ‘so long as neither the reasoning nor the result of the state-court decision
contradicts them.'" Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir. 2004) (citing Early
v. Packer, 537 U.S. 3, 8 (2002)). "In the ‘contrary to' analysis of the state court's
decision, [the federal court's] focus is on the result and any reasoning that the court
may have given; the absence of reasoning is not a barrier to a denial of relief." Id.
A decision involves an "unreasonable application" of clearly established law if
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"the state court applies [the Supreme Court's] precedents to the facts in an objectively
unreasonable manner," Payton, 125 S. Ct. at 1439; Williams v. Taylor, 529 U.S. 362,
405 (2000), or "if the state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply."
Id. at 406. "Federal habeas relief is warranted only when the refusal was ‘objectively
unreasonable,' not when it was merely erroneous or incorrect." Carter v. Kemna, 255
F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529 U.S. at 410-11).
A state court decision involves an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings only if it is shown that
the state court's presumptively correct factual findings do not enjoy support in the
record. 28 U.S.C. § 2254(e)(1); Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir.2004).
“[T]he prisoner has the burden of rebutting the presumption of correctness by clear
and convincing evidence.” Barnett v. Roper, 541 F.3d 804, 811 (8th Cir. 2008).
III. Discussion
Petitioner argues that his attorney was ineffective because he: (1) failed to
inform petitioner that his character witnesses would be unable to testify at the
sentencing hearing; (2) coerced petitioner to testify that he had no complaints
concerning counsel’s performance; and (3) misled petitioner about the sentence he
would receive if he pled guilty.
Claims (2) and (3) were not raised on appeal and are, therefore, inappropriate
for review by this Court. “A habeas petitioner must have raised both the factual and
legal bases for each ineffectiveness of counsel claim in the state courts in order to
preserve the claim for federal review.” Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir.

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2005). “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 those claims.” Skillicorn v. Luebbers, 475 F.3d 965, 976-77
(8th Cir. 2007). Petitioner has not adequately shown cause, prejudice, or actual

innocence.
However, even if the Court could reach the merits of these arguments, they
would fail. Petitioner testified that no promises were made to him about the outcome
of the sentencing hearing and that he was satisfied with counsel’s performance. Resp.
Ex. A at 23-24. The Eighth Circuit has held that “[s]olemn declarations in open court
carry a strong presumption of veracity.” Smith v. Lockhart, 921 F.2d 154, 157 (8th Cir.
1990). Petitioner did not present any evidence showing that counsel coerced or misled
the petitioner during the representation in order to overcome that presumption.
Petitioner’s claim that counsel was ineffective because he failed to inform
petitioner that his character witnesses would be unable to testify at the sentencing
hearing was fairly presented to the state courts and is appropriate for review. In order
to obtain an evidentiary hearing on a claim of ineffective assistance of counsel or to
prevail on such a claim, petitioner must first show that his attorney’s performance fell
below an objective standard of reasonableness and second that the deficient
performance prejudiced the defense. Strickland v. Washington, 446 U.S. 668, 687
(1984). To prove prejudice when a guilty plea is entered petitioner 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.” Gumangan v. United States,
254 F.3d 701, 705 (8th Cir. 2001). “Further, after entry of a guilty plea, the
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effectiveness of counsel is relevant only to the extent that it affects the voluntariness
of the plea.” Williams v. Bowesox, 2011 WL 3880539, *6 (E.D. Mo. Aug 31, 2011)
(citing Porter v. State, 678 S.W.2d 2, 3 (Mo. App. 1984)).
The appeals court found that petitioner failed to satisfy the first prong of
Strickland. At the sentencing hearing, petitioner expressed that he was unaware that
his character witnesses would be unable to speak on his behalf. Resp. Ex. at 23-24.
Petitioner’s counsel clarified for the trial court that he had previously told petitioner
that his character witnesses “might be able to speak.” Id. Petitioner argues that he
understood “might” to mean “may,” in that he was guaranteed to have the witnesses
speak at his sentencing hearing. Petitioner’s misinterpretation of the word “might” is
not sufficient to prove that counsel’s performance fell below an objective standard of
reasonableness. Defense counsel did not mislead petitioner because a trial court has
discretion to permit any individual to testify at a sentencing hearing. See Adams v.
State, 951 S.W.2d 722, 725 (Mo. Ct. App. 1997) (citing Figgins v. State, 858 S.W.2d
853, 856 (Mo. Ct. App. 1993) (“[T]he trial court retains broad discretion to receive any
information from any source it deems relevant to the sentencing process, including
recommendations as to the appropriate sentence to be imposed.”). Accordingly, it was
not error for counsel to advice petitioner that his witnesses might be able to testify.
Furthermore, even if counsel’s advice was inappropriate, the prejudice prong of
Strickland cannot be satisfied. At the time of the sentencing, petitioner had already
entered a guilty plea. Any ineffective assistance claim is relevant only to the extent
that it affects the voluntariness of petitioner’s plea. See Williams v. Bowesox, 2011 WL
3880539, at *6. Whether petitioner’s character witnesses would be permitted to testify
at the sentencing hearing has no conceivable bearing on whether petitioner voluntarily
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pled guilty at his earlier plea hearing. Furthermore, as the appeals court stated: (1)
petitioner did not contest the voluntariness of his guilty plea at sentencing, he only
expressed that he wished his character witnesses would have written letters to the
court instead; and (2) even if he had gone to trial and was convicted, his character
witnesses would still not have been able to testify at sentencing.
Having reviewed the record, the Court cannot say that the appeals court
misconstrued the facts, misapplied federal law, or overlooked important facts in
denying petitioner’s Rule 24.035 motion for post-conviction relief without an
evidentiary hearing. The record reflects that petitioner voluntarily pled guilty and
received effective assistance of counsel. Petitioner’s claim is denied.
Lastly, petitioner attempts to raise two new, but related, arguments in his reply.
Petitioner contends that plea counsel was ineffective for failing to call his character
witnesses at the sentencing hearing and the trial court erred by not permitting the
witnesses to testify. Petitioner did not present these claims to the state courts and he
does not show cause to excuse the procedural default, prejudice, or innocence.
Therefore, federal review is inappropriate. See Osborne, 411 F.3d at 919; Skillicorn,
475 F.3d at 976-77.

However, even if the Court could reach the merits of these arguments, they
would fail. As the appeals court noted:
At the sentencing hearing, the court assured movant that it had read all
materials submitted on his behalf, including information on the non-profit
founded by movant, documentation of his employment, and a letter from
his pastor. Both movant and movant’s counsel requested leniency and
discussed movant’s efforts to improve his life, obtain employment, and
become involved in community outreach initiatives. Before he was
sentenced, movant was able to tell the court who the character witnesses
were and what they were going to say. The court stated that it had
considered all this information in determining movant’s sentence. Movant
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has not alleged that the testimony from the character witnesses would
have presented any new or different evidence.
Resp. Ex. D. at 7 (emphasis added).
Therefore, even if plea counsel ineffectively failed to call the witnesses or the trial court
erred by not permitting the testimony, petitioner was not prejudiced. There is no
evidence in the record and petitioner has not adequately shown how their testimony
would have been any different from what was already presented to the court or how
it would have changed the outcome of his sentencing hearing since the court did allow
petitioner to summarize the content of the proposed testimony. See Winfield v. Roper,
460 F.3d 1026, 1033 (8th Cir. 2006) (Under federal law, counsel is not ineffective for
not calling a witness whose testimony would have been cumulative).
IV.

Conclusion

For the reasons discussed above, the Court finds that petitioner has failed to
establish that he is entitled to relief based on state court proceedings that were
contrary to, or an unreasonable application of, clearly established federal law or based
upon an unreasonable determination of the facts in light of the evidence presented in
state court proceedings. 28 U.S.C. § 2254(d). Because petitioner has failed to make
a substantial showing of the denial of a constitutional right, the Court will not issue a
certificate of appealability.

See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).

A separate judgment in accordance with this Memorandum will be entered this
same date.
____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 14th day of May, 2014.
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