Ledermann v. Villmer

Filing 14

MEMORANDUM For the reasons set forth above, the court dismisses the petition of Paul D. Ledermann for a writ of habeas corpus under 28 U.S.C. § 2254. Because there has been no substantial showing of the deprivation of a federal constitutional right, a certificate of appeal is not issued. 28 U.S.C. § 2253(c)(2). An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 12/08/14. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PAUL D. LEDERMANN,
Petitioner,
v.
TOM VILLMER,
Respondent.

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No. 4:13 CV 310 DDN

MEMORANDUM
This action is before the court upon the petition of Missouri state prisoner Paul
Ledermann for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 4.) The parties have
consented to the exercise of plenary authority by the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). (Doc. 8.) For the reasons set forth below, the case is dismissed.

I. BACKGROUND
On January 15, 2010, following a bench trial, the Circuit Court of Cape Girardeau
County found petitioner Paul Ledermann guilty of eight counts of child molestation in the first
degree.1 (Doc. 13, Ex. A at 69, Ex. B at 46.) On March 8, 2010, the trial court sentenced
petitioner to eight years imprisonment for each count of child molestation to be served
concurrently. (Id., Ex. A at 75, Ex. B at 47-52.) Further, the trial court ordered that petitioner be
placed in the Sexual Offender Assessment Unit pursuant to Mo. Rev. Stat. § 559.115. (Id.) On
March 22, 2011, the Missouri Court of Appeals affirmed the judgment on direct appeal. (Doc
13, Ex. E); State v. Ledermann, 334 S.W.3d 916 (Mo. Ct. App. 2011).
On April 4, 2011, petitioner filed a pro se motion under Mo. Sup. Ct. R. 29.15 for postconviction relief. (Doc. 13, Ex. F at 4-8.) On July 12, 2011, petitioner, with the assistance of
appointed counsel, filed an amended motion for post-conviction relief. (Id. at 15-39.) On

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Petitioner originally pled guilty to two counts of child molestation in the second degree but
later withdrew his plea. (Doc. 13, Ex. B at 37-38.)

October 26, 2011, following an evidentiary hearing, the motion court denied the motion. (Id. at
41-43.) On December 4, 2012, the Missouri Court of Appeals affirmed the motion court’s denial
of the motion. (Doc. 13, Ex. J).
On February 19, 2013, petitioner filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254. (Doc. 1.) On March 11, 2013, he amended his petition. (Doc. 4.)

II. PETITIONER’S GROUNDS FOR FEDERAL HABEAS RELIEF
Petitioner alleges two grounds for relief in this habeas action:
(1)

His trial counsel rendered constitutionally ineffective assistance by failing
to call petitioner’s wife and daughter to testify at his trial.

(2)

The trial court deprived petitioner of his due process rights by denying
him probation without a hearing following his time in the Sexual Offender
Assessment Unit.

(Doc. 4 at 5.)
III. EXHAUSTION AND PROCEDURAL BAR
Congress requires that state prisoners exhaust their state law remedies for claims made in
federal habeas corpus petitions. 28 U.S.C. § 2254(b)(1)(A). A state prisoner has not exhausted
his remedies “if he has the right under the law of the State to raise, by any available procedure,
the question presented.” 28 U.S.C. § 2254(c).

In his amended Rule 29.15 motion, petitioner raised federal Grounds 1 and 2. (Doc. 13,

Ex. F at 15-39.) The motion court denied Ground 1 on the merits but did not address Ground 2.
(Id. at 41-43.) Petitioner also raised these grounds on appeal. (Id., Ex. H.) The appellate court
affirmed the motion court’s decision on Ground 1 and rejected Ground 2 on procedural grounds,
holding that the petitioner’s objection to the trial court’s denial of probation without a hearing
was not cognizable under Rule 29.15. (Doc. 13, Ex. J at 7.)
Under Missouri law, petitioner’s objection to the trial court’s probation determination is
not cognizable in a motion for post-conviction relief. See Counts v. State, 341 S.W.3d 911, 91415 (Mo. Ct. App. 2011). Rather, to exhaust his remedies for Ground 2, petitioner must present
his claim in a petition for a writ of mandamus. See e.g., State ex rel. Mertens v. Brown, 198
S.W.3d 616, 618 (Mo. 2006); State ex rel. Norwood v. Sheffield, 380 S.W.3d 666, 668 (Mo. Ct.
App. 2012). Based on the record, petitioner has not petitioned for a writ of mandamus in state
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court. Therefore, although petitioner has exhausted his remedies for federal Ground 1, he has not
properly exhausted his state court remedies as to Ground 2.
Federal habeas courts must dismiss habeas petitions that contain a ground on which the
petitioner has exhausted his available state court remedies and a ground on which he has not
exhausted such remedies. See Rose v. Lundy, 455 U.S. 509 (1982); Pliler v. Ford, 542 U.S. 225
(2004). Such is this case. Petitioner's Ground 2 has not been presented to the Missouri Court of
Appeals in a petition for a writ of mandamus. State ex rel. Norwood v. Sheffield, 380 S.W.3d
666, 668 (Mo. Ct. App. 2012).

CONCLUSION
For the reasons set forth above, the court dismisses the petition of Paul D. Ledermann for
a writ of habeas corpus under 28 U.S.C. § 2254. Because there has been no substantial showing
of the deprivation of a federal constitutional right, a certificate of appeal is not issued. 28 U.S.C.
§ 2253(c)(2). An appropriate Judgment Order is issued herewith.

/S/ David D. Noce
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UNITED STATES MAGISTRATE JUDGE
Signed on December 8, 2014.

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