Delatejera v. Bowersox

Filing 14

MEMORANDUM AND ORDER re: 1 : IT IS HEREBY ORDERED that petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 is DISMISSED. IT IS FURTHER ORDERED that no certificate of appealability will be issued. A separate Judgment will be filed forthwith. Signed by Magistrate Judge Nannette A. Baker on 11/27/2013. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ERNESTO DELATEJERA,
Petitioner,
v.
MICHAEL BOWERSOX,
Respondent.

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No. 4:12-CV-1311 NAB

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. After reviewing the case, the Court has
determined that petitioner is not entitled to relief. As a result, the petition will be
dismissed.
Background
The Missouri Court of Appeals stated the facts of this case as follows:
[Petitioner] was charged in two separate causes. In the first, the State
charged two counts of robbery in the first degree, Section 569.020,
RSMo 2000, two counts of armed criminal action, Section 571.015, one
count of unlawful use of a weapon, Section 571.030, and one count of
resisting arrest, Section 575.150. In the second cause, the State
charged three counts of robbery in the first degree, Section 569.020,
and three counts of armed criminal action, Section 571.015.
[Petitioner] pleaded guilty on all counts and was sentenced to a total of
twenty-five years of imprisonment.
Thereafter, [petitioner] filed a Rule 24.035 motion for post-conviction
relief. [Petitioner] alleged that but for his attorney telling him the

court had said that it could “do better” than the State’s recommended
sentencing of twenty-five years if [petitioner] pleaded guilty,
[Petitioner] would not have pleaded guilty and would have insisted on a
jury trial.
The plea court subsequently issued findings of fact and conclusions of
law denying [petitioner’s] motion.
The plea court denied
[petitioner’s] request for an evidentiary hearing because it found that
the record refuted his claim that he pleaded guilty based upon a promise
from his attorney or the court that he would receive a more lenient
sentence.
Resp’t Ex. D at 2 (Per Curiam Mem. and Order Supplementing Order Affirming J.
Pursuant to Rule 84.16(b)).
On appeal, petitioner argued that plea counsel inaccurately promised him that
he would receive a sentence of less than twenty-five years if he entered a blind plea.
Id. at 3. He argues that but for counsel’s promise he would not have pled guilty but
would have insisted on a trial. Id. The Missouri Court of Appeals found that the
record disproved petitioner’s claim and showed that counsel did not make any
promises to petitioner about his sentence. Id.
In the instant petition, petitioner argues that trial counsel was ineffective for
promising him that he would receive a sentence of less than twenty-five years if he
entered a blind plea.
Standard
AIn the habeas setting, a federal court is bound by the 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
Aresulted 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 Awas 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).
A state court decision is contrary to clearly established Supreme Court
precedent if Athe 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 Acorrectly 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).
To prevail on a claim of ineffective assistance of counsel, a defendant must
show that counsel’s performance was both deficient and prejudicial. Strickland v.
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Washington, 466 U.S. 668, 687-88 (1984). In § 2254 proceedings, however,
demonstrating deficient and prejudicial conduct is not enough. To prevail on an
ineffective assistance of counsel claim in a habeas action, a 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 court] applied
Strickland to the facts of his case in an objectively unreasonable
manner.
Bell v. Cone, 535 U.S. 685, 698-99 (2002).
Discussion
During the plea and sentencing hearing, the court established that petitioner
understood the proceedings and told petitioner to speak up if he had any questions.
Resp’t Ex. A at 23-24 (Legal File, Tr.). The following colloquy took place:
The Court: Very good. Sir, so you understand there’s not an
agreement between you and the State as to what the sentence should be,
do you understand that?
The Defendant: Yes, Your Honor.
The Court: So I could sentence you to the minimum, the minimum
sentence here would be a three year sentence on the armed criminal
action, the maximum sentence would be five life sentences,
consecutive life sentences, plus unlimited, five unlimited sentences on
the armed criminal action, and another eight years on the [unlawful use
of weapon charge] and resisting arrest, do you understand that?
The Defendant: Yes, Your Honor.
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The Court: I could sentence you to the minimum or the maximum, I
could grant you probation on some causes, on armed criminal action
you have to serve three years, or I could do some combination of jail
time and probation, do you understand that?
The Defendant: Yes, Your Honor.
...
The Court: Knowing all that, do you still wish to plead guilty?
The Defendant: Yes, Your Honor.
Id. at 27.
After the court imposed the twenty-five year sentence, it asked petitioner if he
had anything to say about his attorney. Petitioner responded, “No.”
A[O]nce a person has entered a guilty plea any >subsequent presentation of
conclusory allegations unsupported by specifics is subject to summary dismissal, as
are contentions that in the face of the record are wholly incredible.=@ Tran v.
Lockhart, 849 F.2d 1064, 1068 (8th Cir. 1988) (quoting Blackledge v. Allison, 431
U.S. 63, 74 (1976)).
The Missouri Court of Appeals’ finding that petitioner’s claim of ineffective
assistance of counsel was refuted by the record is not contrary to, or an unreasonable
application of, clearly established federal law. The trial court informed petitioner
that the full range of sentencing options were available, and petitioner insisted that
he understood that. When petitioner had the opportunity to tell the sentencing court
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that his counsel had promised him a lower sentence, he told the court he had nothing
to say about counsel’s performance. Petitioner’s current assertions are contradicted
by his statement during the hearing. As a result, petitioner has failed to demonstrate
that he is entitled to relief.
Conclusion
For these reasons, 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 issue a certificate of appealability.
28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that petitioner=s petition for writ of habeas
corpus pursuant to 28 U.S.C. ' 2254 is DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability will be
issued.

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A separate Judgment will be filed forthwith.
Dated this 27th day of November, 2013.

/s/Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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