Cross v. Russell

Filing 15

MEMORANDUM AND 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. Signed by Magistrate Judge Abbie Crites-Leoni on 2/11/2016. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT L. CROSS,

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Petitioner,
vs.
TERRY RUSSELL,
Respondent.

Case No. 4:13CV316 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of Robert L. Cross for a Writ of Habeas
Corpus under 28 U.S.C. ' 2254.
I. Procedural History
Cross is currently incarcerated at the Eastern Reception, Diagnostic, and Correctional
Center in Bonne Terre, Missouri, pursuant to the Sentence and Judgment of the Circuit Court of St.
Louis County, Missouri. (Respt’s Ex. 2 at 16-20.)
On October 14, 2008, Cross pled guilty to one count of first-degree robbery, two counts of
armed criminal action, one count of first-degree burglary, one count of stealing $500 or more, and
one count of stealing a credit device. (Respt’s Ex. 1.) The state, pursuant to a plea agreement,
recommended a sentence of fifteen years’ imprisonment for each of the robbery and burglary
counts, five years’ imprisonment for the felony stealing and credit card theft counts, and three
years’ imprisonment for each of the armed criminal action counts, with all terms to be served
concurrently with one another and with sentences Cross was serving in two other cases. Id. at 16.
As part of the plea agreement, Cross agreed to waive his right to file a motion for post-conviction
relief under Rule 24.035 in the case, and to dismiss his post-conviction motion that he had filed in
a different case. Id. at 16-17. The court sentenced Cross pursuant to the state’s recommendation
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to concurrent terms of fifteen years’ imprisonment for the first-degree robbery and first-degree
burglary counts, three years for each of the counts of armed criminal action, and five years each for
the counts of stealing, for a total of fifteen years’ imprisonment. (Respt’s Ex. 2 at 16-20.)
Cross is currently serving these sentences. (Respt’s Ex. 1 at 16-17.)
Despite Cross’s waiver of post-conviction relief, he filed a pro se motion under Rule
24.035 on November 14, 2008. (Respt’s Ex. 2 at 25-33.) After the appointment of counsel,
Cross filed an amended motion and request for an evidentiary hearing. Id. at 50-70. Cross raised
the following claims: (1) plea counsel was ineffective for misadvising Cross regarding how much
time he would have to serve before becoming eligible for parole; (2) he was denied his rights to
due process in that plea counsel advised him to waive his rights to post-conviction relief; and (3)
plea counsel was ineffective for misadvising him as to how much jail-time credit he would receive.
Id. The motion court denied Cross’s motion and his request for an evidentiary hearing, both on
the merits and because Cross had waived his right to proceed under Rule 24.035. Id. at 74-80.
In his appeal from the denial of post-conviction relief, Cross argued that he was denied due
process and the effective assistance of conflict-free counsel in that the prosecutor and defense
counsel were both involved in a plea agreement that required Cross to waive his post-conviction
rights. (Respt’s Ex. 3 at 13.) On February 28, 2012, the Missouri Court of Appeals for the
Eastern District vacated the motion court’s judgment and remanded the cause with instructions to
dismiss Cross’s Rule 24.035 motion because Cross waived his right to seek post-conviction relief
in return for a reduced sentence. (Respt=s Ex. 4. At 9.)
Cross filed the instant Petition on February 20, 2013. (Doc. 1.) In his single ground for
relief, Cross argues that trial counsel was ineffective in that he solicited a waiver of Cross’s rights
under Rule 24.035. Id. at 5. Cross contends that counsel advised him to forego his rights to file
an ineffective assistance of counsel claim, thereby violating Rule 4-1.7, Missouri Supreme Court
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Rules. Id.
On May 9, 2013, Respondent filed a Response to Order to Show Cause, in which he
argues that Cross’s claim is not cognizable in federal habeas court and it fails on its merits.
(Doc. 7.)
II. Facts
The summary of the plea hearing below is taken directly from the decision of the Missouri
Court of Appeals. (Respt’s Ex. 4.)
At the plea hearing, the court specifically addressed the waiver of Cross’s right to seek
post-conviction relief. Cross had signed a document titled “Waiver of Right to Proceed under
Rule 24.035 for Post Conviction Relief.” In this document, Cross acknowledged that he had been
informed of his right to file a motion for post-conviction relief under Rule 24.035 to vacate, set
aside, or correct the judgment or sentence. The document then includes the following language:
Defendant understands that such a motion could be filed after judgment or sentence
to seek relief from claims that the conviction or sentence imposed violates the
constitution and laws of this state or the constitution of the United States, including
claims of:
1. Ineffective assistance of trial and appellate counsel;
2. The Court imposing the sentence was without jurisdiction to do so; or
3. The sentence imposed was in excess of the maximum sentence authorized by
Law.
The document continues:
Defendant acknowledges that [he] is aware that relief under Rule 24.035 is the
exclusive procedure by which defendant could seek relief for any of the above
claims.
Defendant hereby states that having been so informed of [his] rights to
post-conviction relief as stated above, defendant waives the right to file any such
motion in return for the State’s agreement to recommend a specific sentence to the
Court, or for such other agreement on behalf of the State. By so agreeing to waive
this right Defendant understands that [he] will be forever barred from raising any
such claims as enumerated above. Defendant also states to the Court that this
waiver is made knowingly, voluntarily, and intelligently, with a full understanding
of the above rights.
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At the bottom of the waiver appear the signatures of Cross, his attorney, the assistant
prosecuting attorney, and the trial judge. Cross acknowledged to the plea court that he
had read, understood, and signed the waiver document.
Before accepting Cross’s pleas of guilty, the court engaged Cross in an extensive
colloquy regarding his waiver of his post-conviction rights. In sum, the court reiterated
the claims that Cross could raise in seeking post-conviction relief, and repeatedly
confirmed that Cross understood those claims and the fact that he was giving up his right to
make those claims. The Court twice asked Cross if, knowing the rights and claims he was
giving up, he still wished to proceed, waive his rights, and enter pleas of guilty. The
colloquy is as follows:
THE COURT:

CROSS:
THE COURT:

CROSS:
THE COURT:

CROSS:
THE COURT:

CROSS:
THE COURT:
CROSS:
THE COURT:
CROSS:
THE COURT:
CROSS:

Do you understand part of the agreement is also that you
waive your right to proceed under Rule 24.035 or Rule
29.07, requesting post-conviction relief; do you understand
that?
Yes, sir.
And I know I went over this—or if I haven’t gone over this
with you, I’m going to go over it with you again, but you
would have a right to claim certain things when asking for
post-conviction relief; do you understand that?
Yes, sir.
You can ask that the plea be set aside for ineffective
assistance of counsel, claiming that your lawyer didn’t do
everything that he could have done; do you understand that?
Yes, sir.
You could ask that the Court, or claim that the Court didn’t
have jurisdiction to impose the sentence, or that the sentence
imposed was in excess of the maximum sentence authorized
by law; do you understand all of that?
Yes, sir.
And you are giving up that right; is that correct, is that your
understanding?
Yes, sir.
Do you still want to go forward and waive your right to file a
motion asking for post-conviction relief?
Yes, sir.
You have filled out and signed this memo; is that correct?
Yes, sir.
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THE COURT:
CROSS:
THE COURT:
CROSS:
THE COURT:
CROSS:
THE COURT:

CROSS:
THE COURT:
CROSS:
THE COURT:
CROSS:
THE COURT:

CROSS:
THE COURT:
CROSS:
THE COURT:
CROSS:
THE COURT:

CROSS:
THE COURT:
CROSS:
THE COURT:
CROSS:
THE COURT:
CROSS:
THE COURT:

CROSS:
THE COURT:
CROSS:

Have you gone over this with your attorney?
Yes, sir.
Has he explained it all to you?
Yes, sir.
Did you understand it?
Yes, sir.
Do you understand that part of this again would be to claim
that Mr. Nelson, or your attorneys, didn’t do everything that
you asked them to do?
Yes, sir.
Or that somehow they have done something wrong; do you
understand that?
Yes, sir.
You are giving up the right to claim that; is that your
understanding?
Yes, sir.
Also as part of this, do you understand that you had filed in
the two older cases that you were on probation in this court
for, you had filed a motion for post-conviction relief; is that
correct?
Yes, sir.
And you are now asking that that be dismissed as part of this
agreement; is that correct?
Yes, sir.
And you filled out a memo signing it. That it is voluntarily
dismissed; is that correct?
Yes, sir.
Again, do you understand that you are giving up the right to
claim that you were not represented properly in those two
cases; do you understand that?
Yes sir.
Knowing all of this, do you still want to go forward and enter
the pleas of guilty here today?
Yes, sir.
Do you have any questions about any of it?
No, sir.
Have you understood everything that I have said to you?
Yes, sir.
Other than that, what I have said to you here with regard to
the plea agreement, has anybody told you anything
different?
No, sir.
Are you entering pleas of guilty freely and voluntarily
because you are, in fact, guilty of each of these charges?
Yes, sir.

Cross then formally entered his pleas of guilty to the six charges.
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At the conclusion of the hearing, the plea court found a factual basis for the pleas of
guilty, and that Cross 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. The court
therefore accepted Cross’s pleas of guilty and then sentenced Cross in accord with the plea
agreement.
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
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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.
IV. Discussion
Respondent first argues that Cross’s claim is not cognizable in this federal habeas action
because it challenges only an infirmity in the post-conviction relief process, and makes no
challenge to actual confinement. Respondent also contends that Cross’s claim fails on its merits
because the waiver of his post-conviction rights was made knowingly, voluntarily, and
intelligently.
“Section 2254 only authorizes federal courts to review the constitutionality of a state
criminal conviction, not infirmities in a state post-conviction relief proceeding.” Williams-Bey
v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990). “Because there is no federal constitutional
requirement that states provide a means of post-conviction review of state convictions, an
infirmity in a state post-conviction proceeding does not raise a constitutional issue cognizable in a
federal habeas petition.” Id. Cross’s claim that plea counsel was ineffective in soliciting a
waiver of his right to post-conviction relief is not cognizable in this habeas action.
A waiver of collateral attack rights in a plea agreement is enforceable. DeRoo v. United
States, 223 F.3d 919, 923 (8th Cir. 2000). Such waivers, however, are not absolute as defendants
cannot waive the right to challenge illegal sentences or a sentence imposed in violation of the
terms of the plea agreement. Id. Also, defendants retain the right to challenge whether the
decision to enter into the plea agreement was knowing and voluntary. Id. A waiver, therefore,
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is not effective if a defendant alleges in his habeas petition that the plea was not knowing and
voluntary due to the ineffective assistance of counsel. Id. at 924. This would include the
negotiation of and entry into the plea agreement containing the waiver. Id. To the extent Cross
is arguing that plea counsel’s alleged ineffectiveness caused his plea to be unknowing or
involuntary, the Court will consider the merits of his claim.
In order to state a claim of ineffective assistance of plea counsel, Cross must meet the
Strickland standard: Cross must demonstrate that his counsel’s performance was deficient and
that he was prejudiced by that performance. Strickland v. Washington, 466 U.S. 668, 687
(1984). Deficient representation means counsel’s conduct fell below the conduct of a reasonably
competent attorney. Id. To establish prejudice, a petitioner must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. Federal habeas review of a Strickland claim is highly deferential,
because “[t]he question is not whether a federal court believes the state court’s determination
under the Strickland standard was incorrect but whether the determination was unreasonable — a
substantially higher threshold.” Knowles v. Mirzayance, 556 U.S. 111, 113 (2009) (internal
quotations and citations omitted).
Cross argues that there is a conflict of interest in advising one’s client to waive claims
regarding one’s own legal work. Cross relies on Missouri Supreme Court Rule of Professional
Conduct 4-1.7 and Advisory Committee Opinion 126 for his position that neither a prosecutor nor
a defense attorney should be a party to a plea agreement that requires a defendant to waive his
post-conviction rights.
Rule 4-1.7 addresses conflicts of interest with current clients and provides in relevant part
as follows:

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(a) Except as provided in Rule 4-1.7(b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if:
***
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyers’ responsibilities to another client, a former
client, or a third person or by a personal interest of the lawyer.
Model Rules of Prof’l Conduct Rule 1.7(a).
Formal Opinion 126, interpreting Rules 4-1.7, 4-3.8 and 4-8.4 of the Rules of Professional
Conduct, addressed the issue of whether it is a violation of the professional code of ethics for
defense counsel to advise the defendant regarding the waiver of the right to post-conviction
relief.1 The opinion reads as follows:
WAIVER OF POST-CONVICTION RELIEF
We have been asked whether it is permissible for defense counsel in a
criminal case to advise the defendant regarding waiver of their right to seek
post-conviction relief under Rule 24.035, including claims of ineffective
assistance by defense counsel. We understand that some prosecuting attorneys
have expressed intent to require such a waiver as part of a plea agreement.
It is not permissible for defense counsel to advise the defendant regarding
waiver of claims of ineffective assistance of counsel by defense counsel.
Providing such advise would violate Rule4-1.7(a)(2) because there is a significant
risk that the representation of the client would be materially limited by the
personal interest of defense counsel. Defense counsel is not a party to the
post-conviction relief proceeding but defense counsel certainly has a personal
interest related to the potential for a claim that defense counsel provided
ineffective assistance to the defendant. It is not reasonable to believe that defense
counsel will be able to provide competent and diligent representation to the
defendant regarding the effectiveness of defense counsel’s representation of the
defendant. Therefore, under Rule 4-1.7(b)(1), this conflict is not waivable.
We have also been asked whether it is permissible for a prosecuting
attorney to require waiver of all rights under Rule 24.035 when entering into a plea
agreement. We believe that it is inconsistent with the prosecutor’s duties as a
minister of justice and the duty to refrain from conduct prejudicial to the
administration of justice for a prosecutor to seek a waiver of post-conviction rights
based on ineffective assistance of counsel or prosecutorial misconduct. See,
Rules 4-3.8 and 8.4(d).

1

The Court’s summary of Formal Opinion 126 is taken from the decision of the Missouri Court of
Appeals. (Respt’s Ex. 4 at 6-7 n. 3.)
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Cross raised this claim in his post-conviction motion and in his appeal from the denial of
post-conviction relief. The Missouri Court of Appeals held as follows:
Mr. Cross argues that his plea is invalid for the single reason that it
includes a waiver of his postconviction rights. He maintains that the presence of
the waiver and the potential conflict of interest alone are enough to invalidate his
plea. Mr. Cross has not alleged an actual conflict of interest in this case. In
essence, Mr. Cross argues for us to adopt and announce a per se rule against
waivers. We decline his invitation. Mr. Cross’s argument is foreclosed by the
Missouri Supreme Court’s recent companion decisions Cooper and Krupp, which
addressed waivers of post-conviction rights. Cooper v. State__S.W.3d__, 2011
WL 6096504 (Mo. banc 2011); Krupp v. State, __S.W.3d__2011 WL 6096499
(Mo. banc 2011). The movants in those cases likewise relied on Advisory
Committee Opinion 126 to similarly argue that plea counsel’s potential conflict of
interest alone, in advising them to waive their post-conviction rights, rendered
their guilty pleas unknowing, involuntary, and unintelligent. The Court
reaffirmed the long-settled law that a movant can waive his right to seek
post-conviction relief. Cooper, 2011 WL 6096504 at *4-5; Krupp, 2011 WL
6096499 at *5. That waiver, as always, must be knowing, voluntary, and
intelligent. Krupp, 2011 WL 6096499 at *5. The Court rejected the argument
that a potential conflict of interest alone is enough to invalidate a guilty plea,
expressly holding that “allegations of only a potential conflict of interest based on
counsel’s advice concerning the waiver of post-conviction relief…do not render
an agreement unknowing, involuntary, or unintelligent.” Id.
Mr. Cross’s argument against the validity of his plea being of no avail, we
thus look to see if he made a knowing, voluntary, and intelligent waiver of his right
to seek post-conviction relief.
***
The record in this case clearly demonstrates that Mr. Cross’s waiver was made
knowingly, voluntarily, and intelligently after he was informed of the rights he
was relinquishing. We therefore hold Mr. Cross to his end of the bargain.
(Respt’s Ex. 4 at 8-9.)
Despite Cross’s claim that his attorney’s advice to waive his post-conviction rights
violated Rule 4-1.7, Missouri and federal law allow for the waiver of post-conviction rights as
long as the waiver is knowing, voluntary, and intelligent. See Cooper v. State, 356 S.W.3d 148,
154 (Mo. 2011); Krupp v. State, 356 S.W.3d 142, 147-48 (Mo. 2011); DeRoo, 223 F.3d at 923-24.
Violation of an ethical rule does not establish a constitutional violation to warrant federal habeas

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relief. Nix v. Whiteside, 475 U.S. 157, 165 (1986) (“[B]reach of an ethical standard does not
necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.”).
The court’s determination that Cross’s waiver was made knowingly, voluntarily, and
intelligently after he was informed of the rights he was relinquishing is supported by the record.
Before accepting Cross’s pleas, the court questioned Cross extensively about the waiver of his
post-conviction rights. (Respt’s Ex. 1 at 19, 24-28.) Specifically, the plea court explained to
Cross that he was giving up his right to argue that counsel was ineffective, asked Cross if he
understood he was relinquishing this right, asked Cross if he had any questions about this waiver,
and asked Cross if he still wished to proceed with the wavier of these rights. Id. The court also
explained to Cross the range of punishment in his case, and stated that, if the sentences were to
run consecutively, he could receive up to three life terms plus twenty-nine years imprisonment.
Id. at 15. At the conclusion of the plea hearing, the court found a factual basis for the pleas and
found that Cross’s pleas were made voluntarily and intelligently, with a full understanding of the
charges and the consequences of the pleas. Id. at 28. The court then sentenced Cross to a total
of fifteen years’ imprisonment in accord with the plea agreement. Id. at 29.
The state court’s determination that Cross’s waiver of his right to seek post-conviction
relief was knowing, voluntary, and intelligent is not contrary to or an unreasonable application of
clearly established federal law. Cross received a significant benefit in exchange for the waiver
of his post-conviction rights, in that he received a fifteen-year sentence rather than three life terms
plus twenty-nine years imprisonment. Cross does not argue that he would have proceeded to
trial but for his counsel’s advice regarding the plea. Thus, counsel was not ineffective in
advising Cross to waive his post-conviction rights.

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V.

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,
Cross 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
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.

_____________________________________
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 11th day of February, 2016.

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