Reeves v. Koster, et al

Filing 41

MEMORANDUM AND ORDER re: 2 PETITION for Writ of Habeas Corpus filed by Steven Mark Reeves. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for a Writ of Habeas Corpus under 28 U.S.C. 2254 be denied and be dismissed with preju dice by separate judgment entered this date. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal. Signed by Magistrate Judge Abbie Crites-Leoni on 3/2/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEVEN REEVES,

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Petitioner,
vs.
ELLIS McSWAIN,
Respondent.

Case No. 4:12CV2185 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of Steven Reeves for a Writ of Habeas
Corpus under 28 U.S.C. ' 2254.
I. Procedural History
On November 3, 2011, Reeves pled guilty to two counts of possession of child
pornography.

(Doc. 40-1.)

The Circuit Court of St. Louis County sentenced Reeves to

concurrent terms of thirty-six months imprisonment. The court ordered that Reeves serve his
state sentence concurrently with his thirty-seven-month federal sentence stemming from an
October 25, 2011 guilty plea to two federal counts of possession of child pornography in Case
Number 4:10CR00662CDP (“Federal Case”). Id. at 11.
At the time this habeas action was filed, Reeves was an inmate at the Forrest City Federal
Correctional Institution in Forrest City, Arkansas. Reeves has since been released from custody.
Because Reeves is under the supervision of the Missouri Board of Probation and Parole, the proper
respondent in this action is Ellis McSwain, the Chairman of the Board of Probation and Parole.
Reeves filed the instant Petition on November 13, 2012. (Doc. 2.) Reeves raises the
following grounds for relief: (1) counsel was ineffective in failing to properly investigate his
case; (2) counsel was ineffective in failing to recognize a conflict between the narrative report of
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the search warrant and the return/inventory list; (3) counsel was ineffective in failing to recognize
an irregularity in the search warrant return/inventory list; (4) police violated his Fourth
Amendment rights in seizing his guns; (5) police illegally executed the search warrant; (6)
prosecutorial misconduct, due to the State’s failure to conduct their own investigation and reliance
on the Federal investigation; and (7) the investigation that led to his conviction was a “precursor
investigation.” Id. at 17-21.
On February 20, 2013, Respondent filed a Response to Order to Show Cause, in which he
argues that Reeves has not yet exhausted his state remedies. (Doc. 20.) Respondent further
argues that all of Reeves’ claims fail on their merits.
Reeves has filed a Traverse, in which he provided further argument in support of his
claims. (Doc. 2.)
II.

Facts

At the plea and sentencing hearing, Reeves testified that he had sufficient time to discuss
his case with his attorney, and that he was satisfied with his attorney’s services. (Doc. 40-1 at
4.) The court advised Reeves of his right to a jury trial, including the State’s obligation to prove
his guilt beyond a reasonable doubt. Id. at 4-6. Reeves testified that he understood his rights
and wished to waive them and plead guilty. Id.
The prosecutor stated that the evidence against Reeves would be as follows if the case
went to trial:
Our evidence would show on both counts to the charge of possession of
child pornography, a Class C felony, that on May the 13th of 2009, at
approximately 7:30 p.m. here in St. Louis County, the defendant, knowing of its
content and character, possessed obscene material consisting of images on a
computer of prepubescent children engaged in sexual acts with adults that has a
person under the age of 14 years old as one of its participants. Count II, our
evidence would also show that the defendant possessed—on the same date, time,
place, and location as to Count I, the defendant, knowing of its content and
character, possessed obscene material consisting of images of prepubescent
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children engaged in sexual acts with adults that has a person under the age of 14
years old as one of its participants.
Specifically, police executed a search warrant at the defendant’s house and
located a computer. The computer was the defendant’s computer.
Id. at 7. When asked by the court if the prosecutor’s statements were “substantially true and
correct,” Reeves responded, “Yes, they are. They are correct.” Id. at 7-8.
Reeves testified that no threats or promises had been made to induce him to plead guilty.
Id. at 8. He testified that he was pleading guilty because he was, in fact, guilty and admitted that
he committed the offenses as charged. Id. at 10. Reeves also requested permission to make a
statement prior to the court accepting his plea. Id. Reeves stated that he would turn himself in
pursuant to the plea agreement because “I got to stand up for what I did, and I’m going to take
responsibility.” Id.
The plea court found a factual basis for the pleas of guilty, and that Reeves had made his
pleas voluntarily and intelligently, with a full understanding of the charges, the consequences of
the pleas, an understanding of the rights attending a jury trial and the effect of the pleas of guilty on
those rights. Id. at 11. The court therefore accepted Reeves’ pleas of guilty and then sentenced
Reeves in accord with the plea agreement.
The plea court then questioned Reeves regarding the assistance of counsel. Id. at 14.
Reeves testified that he had sufficient time to discuss his case with his attorney, his attorney did
everything he asked him to do prior to entering his plea, his attorney did not do anything contrary
to his instructions, his attorney did not threaten him or induce him to plead guilty, and he was
satisfied with the services rendered by his attorney. Id. at 14-15. When asked by the plea court if
there was anything he wished to add, Reeves stated “He did everything I wanted him to do…My
counsel was excellent.” Id. at 15-16. The court found there was no probable cause that Reeves
received ineffective assistance of counsel. Id. at 16.
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III. Standard of Review
A federal court=s power to grant a writ of habeas corpus is governed by 28 U.S.C. '
2254(d), which provides:
(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).
The Supreme Court construed Section 2254(d) in Williams v. Taylor, 529 U.S. 362
(2000). With respect to the Acontrary to@ language, a majority of the Court held that a state court
decision is contrary to clearly established federal law Aif the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question of law@ or if the state court Adecides
a case differently than [the] Court has on a set of materially indistinguishable facts.@ Id. at 405.
Under the Aunreasonable application@ prong of ' 2254(d)(1), a writ may issue if Athe state court
identifies the correct governing legal rule from [the Supreme Court=s] cases but unreasonably
applies [the principle] to the facts of the particular state prisoner=s case.@ Id. Thus, Aa federal
habeas court making the >unreasonable application= inquiry should ask whether the state court=s
application of clearly established federal law was objectively unreasonable.@

Id. at 410.

Although the Court failed to specifically define Aobjectively unreasonable,@ it observed that Aan
unreasonable application of federal law is different from an incorrect application of federal law.@
Id. at 410.
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IV. Exhaustion
A petitioner must exhaust his state law remedies before the federal court can address the
merits of his claims in a habeas petition. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526
U.S. 838, 842 (1999). The Court must first look to see whether the federal constitutional
dimensions of the petitioner’s claims have been fairly presented to the state court. Picard v.
Connor, 404 U.S. 270, 275-76 (1971); Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988); see
also Boerckel, 526 U.S. at 848. If not, the petitioner may still meet the exhaustion requirement if
there are no currently available non-futile state remedies by which he could present his claims to
the state court. Smittie, 843 F.2d at 296. When the petitioner’s claims are deemed exhausted
because he has no available state court remedy, the federal court still cannot reach the merits of
the claims unless the petitioner demonstrates adequate cause to excuse his state court default and
actual prejudice resulting from the default. Coleman v. Thompson, 501 U.S. 722 (1991);
Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.
1995); Stokes v. Armontrout, 893 F.2d 152, 155 (8th Cir. 1989). Before reviewing any claims
raised in a habeas petition, the Court may require that every ground advanced by the petitioner
survive this exhaustion analysis. Rhines v. Weber, 544 U.S. 269 (2005).
In this cause, Respondent contends that Reeves has not presented any of his claims to a
Missouri court for review. Specifically, Respondent argues that Reeves “has not yet been
delivered to the custody of the Missouri Department of Corrections, thus he has been unable to
file a Rule 24.035 motion for post-conviction relief.” (Doc. 20 at 5.) Respondent notes that
Reeves is able to file a Rule 91 petition for writ of habeas corpus in Cole County, Missouri.
Reeves argues that he has attempted to exhaust his state remedies by filing habeas petitions in St.
Louis County, Missouri, and in St. Francis, Arkansas, where he was detained. (Doc. 22 at 4-5.)

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Under § 2254(b)(1)(B)(ii), a habeas petitioner may be excused from the exhaustion
requirement if “circumstances exist that render such [State corrective process] ineffective to
protect the rights of the applicant.” The determination of whether such special circumstances
exist is a factual one for this Court. Chitwood v. Dowd, 889 F.2d 781, 784-85 (8th Cir. 1989).
A person must be in the physical custody of the Department of Corrections in order to file
a Rule 24.035 motion. Barna v. State, 918 S.W.2d 417, 418 (Mo. Ct. App. 1996). Reeves was
never in the physical custody of the Missouri Department of Corrections on the instant
convictions. Instead, he completed his state sentence in a federal institution in Arkansas. As
such, it appears that Reeves was never eligible to file a Rule 24.035 motion to exhaust his state
court remedies. Respondent acknowledges that Reeves has been unable to file a Rule 24.035
motion.
On the information before the Court, it appears that Reeves’ state court remedies are
ineffective in securing his rights in this cause. Reeves made efforts to exhaust his state remedies
by filing Rule 91 petitions. The Court will therefore excuse Reeves’ failure to exhaust state
remedies in the unique circumstances of this case and proceed to determine the merits of his
claims.
V.

Discussion

As previously noted, Reeves raises seven grounds for relief. The Court will discuss these
claims in turn.
A.

Ineffective Assistance of Counsel Claims: Grounds One, Two, and Three

In order to succeed on his ineffective assistance of counsel claims, Reeves must show not
only that his counsel’s performance fell below an objective standard of reasonableness, but that
he was prejudiced by his counsel’s incompetence. Nelson v. Hvass, 392 F.3d 320, 323 (8th Cir.
2004) (citing Strickland v. Washington, 466 U.S. 668 (1984)). With respect to the first
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Strickland prong, there exists a strong presumption that counsel’s conduct falls within the wide
range of professionally reasonable assistance. Strickland, 466 U.S. at 689. To show prejudice,
there must be a reasonable probability that, but for his attorney’s errors, the result of the
proceeding would have been different. Id.; Hill v. Lockhart, 474 U.S. 52, 58–59 (1985)
(two-part Strickland test applies to ineffective-assistance claims arising out of the plea process).
Following a conviction by guilty plea, this means a “reasonable probability that, but for counsel's
errors, [he] would not have pleaded guilty and would have insisted on going to trial.” Hill, 474
U.S. at 59.
Ground One
In Ground One, Reeves argues that he received ineffective assistance of counsel because
trial counsel failed to properly investigate his case and attack the sufficiency of the State’s case.
Reeves contends that, if counsel had conducted an independent investigation, he would have
discovered Reeves was innocent.
Reeves fails both prongs of the Strickland test. First, the Court finds Reeves fails to
demonstrate his attorney’s performance was constitutionally deficient. Rather, at the plea and
sentencing hearing, Reeves stated that he had sufficient time to discuss his case with his attorney,
that his attorney advised him as to all aspects of the case, that his attorney did everything he asked
him to do, and that he was satisfied with his attorney’s services. (Doc. 40-1 at 4, 14-15).
Reeves even added that his attorney did everything he wanted him to do, and that “counsel was
excellent.” Id. at 15-16. The Eighth Circuit has held that, “’[s]olemn declarations in open court
carry a strong presumption of verity.’” Smith v. Lockhart, 921 F.2d 154, 157 (8th Cir. 1990)
(quoting Blackledge v. Allison, 431 U.S. 63, 74).

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The Court further finds that with his claims in Ground One, Reeves cannot demonstrate
the requisite prejudice. Specifically, the Court notes that during his guilty plea proceeding,
Reeves testified that he committed the acts underlying the charges, and that he was pleading
guilty to those charges because he was guilty. Id. at 7-8. Reeves further expressed that he
wished to take responsibility for his actions. Id. at 10. In the instant Petition, Reeves offers no
evidence tending to demonstrate that he was not guilty of the charges, or that absent his counsel’s
allegedly deficient performance, he would have proceeded to trial on the charges. The record
shows that Reeves voluntarily pled guilty, and that he received effective assistance of counsel.
Smith, 921 F.2d at 157. Thus, Ground One will be denied.
Grounds Two and Three
In Grounds Two and Three, Reeves argues that he received ineffective assistance of
counsel because trial counsel failed to recognize various discrepancies in the police
investigations. Specifically, Reeves argues that the execution date provided on the warrant was
one-day different from the date the police provided on the narrative report, and that the police did
not follow established procedures in completing and filing the search inventory form.
First, as discussed above, Reeves’ claim that counsel was ineffective is contrary to his
sworn statements at the plea and sentencing hearing. Second, Reeves is unable to demonstrate
prejudice resulting from counsel’s failure to recognize the discrepancies in the police
investigations. Reeves does not argue that, but for counsel’s failure to recognize these alleged
errors, he would not have pleaded guilty. Furthermore, the Eighth Circuit has held that a
typographical error does not generally warrant the suppression of evidence, as it may be saved by
the good-faith exception. United States v. White, 356 F.3d 865, 869 (8th Cir. 2004) (upholding a
search based on a warrant with an incorrect date). Accordingly, Grounds Two and Three will be
denied.
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B.

Fourth Amendment Claims: Grounds Four and Five

In Ground Four, Reeves argues that police exceeded the scope of the search warrant and
violated his Fourth Amendment rights in seizing his guns. In Ground Five, Reeves argues that
the search warrant was executed illegally because detectives failed to identify themselves and
inform him a search was going to be conducted prior to the search. He also claims that police
seized items not included in the warrant.
“As a general rule, [a] defendant’s knowing and intelligent guilty plea forecloses
‘independent claims relating to the deprivation of constitutional rights that occurred prior to the
entry of the guilty plea.’” Weisberg v. Minnesota, 29 F.3d 1271, 1279 (8th Cir. 1994) (quoting
United States v. Vaughan, 13 F.3d 1186, 1187 (8th Cir. 1994). Although there are exceptions to
this rule, a guilty plea waives all non-jurisdictional issues. See Vaughan, 13 F.3d at 1188. A
guilty plea forecloses a Fourth Amendment claim. Weisberg, 29 F.3d at 1280 (citing Smith v.
United States, 876 F.2d 655, 657 (8th Cir. 1989).
Reeves does not raise any jurisdictional issues. By entering his guilty plea, he has
waived his search and seizure claims. Thus, Grounds Four and Five are not properly before the
Court in this habeas action, and will be denied.
C.

Prosecutorial Misconduct: Ground Six

In Ground Six, titled “prosecutorial misconduct,” Reeves argues that the State did not
conduct its own investigation and, instead relied on the Federal Government’s evidence. Reeves
contends that the Federal Government’s investigation did not support the finding that he
possessed the pornographic images.
Reeves fails to allege any facts supporting prosecutorial misconduct. Rather, Reeves
appears to argue that the evidence relied on by the State was insufficient to support his
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convictions. As previously discussed, Reeves knowingly and voluntarily pled guilty to these
charges and to the factual bases supporting the charges at his plea hearing. As such, he waived
all nonjurisdictional challenges to the prosecution of his case, including the sufficiency of the
State’s evidence. Thus, Ground Six will be denied.
D.

“Precursor Investigation”: Ground Seven

In Ground Seven, Reeves argues that the underlying investigation that led to his
conviction was a “precursor investigation.” (Doc. 2 at 21.) Reeves claims that the investigation
was not a St. Louis County operation initially, but was initiated by other agencies.
Reeves fails to allege a violation of his constitutional rights. Federal habeas relief is
available to a state prisoner only on the ground that he is in custody in violation of a constitutional
or federal statutory right. Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990); 28 U.S.C.
§ 2254(a). Claims that do not reach constitutional magnitude cannot be addressed in a petition
for writ of habeas corpus. Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir. 1991). Reeves’
claim is not cognizable in this federal habeas action. Thus, Ground Seven will be denied.
VI.

Certificate of Appealability

To grant a certificate of appealability, a federal habeas court must find a substantial
showing of the denial of a federal constitutional right. See 28 U.S.C. ' 2253(c)(2); Hunter v.
Bowersox, 172 F.3d 1016, 1020 (8th Cir. 1999). A substantial showing is established if the issues
are debatable among reasonable jurists, a court could resolve the issues differently, or the issues
deserve further proceedings. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). In this case,
Reeves has failed to make a substantial showing of the denial of a constitutional right. The
undersigned is not persuaded that the issues raised in his Petition are debatable among reasonable

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jurists, that a court could resolve the issues differently, or that the issues deserve further
proceedings.
Accordingly, no Certificate of Appealability shall be issued.
ORDER
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for
a Writ of Habeas Corpus under 28 U.S.C. ' 2254 be denied and be dismissed with prejudice by
separate judgment entered this date.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be
denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal.

s/Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 2nd day of March, 2016.

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