Jefferson v. Lawrence

Filing 70

MEMORANDUM AND ORDER..IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal. IT IS FINALLY ORDERED that Petitioners Motion for Reconsideration (Doc. 69) is denied.. Signed by Magistrate Judge Abbie Crites-Leoni on 1/14/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ELMER L. JEFFERSON,
Petitioner,
vs.
ELLIS McSWAIN, JR.,1
Respondents.

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Case No. 4:13CV542 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of Elmer L. Jefferson for a Writ of Habeas
Corpus under 28 U.S.C. ' 2254. Also pending is Jefferson’s Motion for Reconsideration of the
Court’s October 19, 2015 Order denying Jefferson’s Motion for Default Judgment. (Doc. 69.)
I. Procedural History
Jefferson was incarcerated at Algoa Correctional Center in Jefferson City, Missouri, when
he filed his Petition. Jefferson was paroled on June 4, 2013. (Doc. 26 at 1.) Because Jefferson
remains under the supervision of the Missouri Board of Probation and Parole, his petition for writ
of habeas corpus is not moot. See Sibron v. New York, 392 U.S. 40, 50-58 (1968).
On April 23, 2010, a jury found Jefferson guilty of two counts of sale of a controlled
substance and resisting arrest. (Respt’s Ex. J at 196-197.) The offenses were charged in three
separate cases that were consolidated for trial and sentencing.

The resisting arrest case

(07DU-CR00323-01) was for conduct that occurred on March 15, 2007, while the two drug sale

1

Jefferson named as Respondent Scott Lawrence, Warden of the Algoa Correctional Center.
Because Jefferson was released on parole after he filed his Petition, the proper respondent is “the
particular…parole official in charge of the parole agency.” Rule 2 of the Rules Governing ' 2254
Cases in the United States District Courts (Advisory Comm. Notes). Ellis McSwain, Jr., the
Chairman of the Missouri Board of Probation and Parole, is the proper Respondent in this matter.
The Court will, therefore, substitute Ellis McSwain, Jr. as Respondent.
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cases (07DU-CR00320-01 and 07DU-CR1687-01) were for conduct that occurred on May 17,
2007. See Appendix to Respt’s Ex. A at A-5 thru A-10. Jefferson was sentenced to prison terms
of 12 years on each of the drug sale charges to run concurrent to each other and a 4-year
consecutive sentence for the resisting arrest charge, for a total of 16 years imprisonment. Id.
Jefferson raised two points on direct appeal of his convictions. In his first point, Jefferson
argued that the trial court abused its discretion in overruling Jefferson’s objection to Officer Yates’
testimony that the person who was on the videotapes selling drugs to the confidential informant
was Jefferson. (Respt’s Ex. A at 10.) In his second point on appeal, Jefferson argued that the
trial court erred in trying Jefferson in absentia, in violation of his rights to due process of law, to a
fair trial, to confront the witnesses against him, to present a defense, and to testify. Id. at 12. On
May 12, 2011, the Missouri Court of Appeals affirmed Jefferson’s convictions. (Respt’s Ex. B.)
Jefferson prematurely filed his motion for post-conviction relief under Rule 29.15.
(Respt’s Ex. D.) After the appointment of counsel, Jefferson filed an amended post-conviction
relief motion and request for an evidentiary hearing. (Respt’s Ex. E.) In the amended motion,
Jefferson argued that he received ineffective assistance of appellate counsel when counsel failed to
raise on direct appeal the claim that the trial court abused its discretion in not appointing substitute
counsel after Jefferson expressed good cause or “justifiable dissatisfaction” with his appointed
attorney. (Respt’s Ex. E.) The motion court summarily entered judgment on behalf of
Respondent without holding an evidentiary hearing. (Respt’s Ex. F.)
Jefferson timely filed the instant Petition on March 1, 2013. (Doc. 1.) Jefferson raises
four grounds for relief, as follows: (1) the judgment and sentence is unconstitutional because the
Dunklin County Sheriff’s Department caused him to fail to appear in court resulting in a warrant
for his arrest; (2) he received ineffective assistance of counsel because his counsel abandoned the
issue of the warrant and detainer issued for failure to appear; (3) the sentencing court was without
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jurisdiction because Jefferson filed a 180 day writ on June 8, 2007 and the State failed to prosecute
within that time, the warrant for failure to appear was the fault of the Sheriff’s Department and was
withdrawn on December 15, 2007, and Jefferson was denied a speedy trial; and (4) he received
ineffective assistance of appellate counsel when counsel failed to raise on direct appeal the claim
that the trial court abused its discretion in not appointing Jefferson substitute trial counsel. Id.
The only ground for relief that was previously raised by Jefferson is the fourth ground; the first
three grounds for relief were not previously raised for consideration in any Missouri court.
On July 10, 2013, Respondent filed a Response to Order to Show Cause, in which he
argues that the Court should dismiss the Petition because all grounds are procedurally defaulted
and fail on their merits. (Doc. 26.) Jefferson has filed several supplemental pleadings in which
he provides further argument and documents in support of his claims. (Docs. 9, 21, 28, 29, 32.)
II. Facts
The factual summary below is taken directly from the Missouri Court of Appeals’ decision
(Respt’s Ex. B at 3-8) and relays facts that are relevant to Jefferson’s fourth ground for relief:
On April 23, 2010, during the pre-trial conference, [Jefferson] continually disrupted the
proceeding. The trial court repeatedly told [Jefferson] he had to wait his turn to speak. After the
prosecutor and [Jefferson]’s counsel finished presenting their motions to the court, the trial court
permitted [Jefferson] to present additional matters and submit written documents with respect to
those matters. After the trial court listened to [Jefferson] and received [Jefferson]’s written
documents, the trial court overruled [Jefferson]’s claims of “double jeopardy, the conflicts of
interest, and the jurisdiction.” The trial court stated: “I think the case can proceed properly here
today and we’re gonna proceed with the case here today.” The trial court’s ruling led to a tirade

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by [Jefferson].2
Initially, the trial court repeatedly told [Jefferson] to stop as he continued to assert the
proceeding was illegal and he was prejudiced by ineffective assistance of counsel. Then, the trial
court warned:
The Court:
Okay. It’s my job as the judge to make sure you get a fair trial here
today based on the evidence that’s presented.
[Jefferson]:

Um-hum.

The Court:
And that’s what I want to do. We have to make sure that justice is
done and that’s my job here today. The reason I wanted to take this up in pre-trial is so
that you understand, Mr. Jefferson, that when we’re out there in front of that jury I’m not
going to allow any outbursts by you. If you want to discuss something with your attorney,
obviously, you have that right. But I want to make sure that you understand that no
outbursts, no talking out loud, none of that’s gonna be allowed in front of that jury.
[Jefferson]:

Actual prejudice.

The Court:

There’s not gonna be any, any mistrials with regard to that.

[Jefferson]:

That’s prejudice.

The Court:

Mr. Jefferson, Mr. Jefferson, --

[Jefferson]:

That is prejudice, I’m not gonna, --

The Court:

Well, --

[Jefferson]:

You’re not gonna force me into a court proceeding.

The Court:

If you –

[Jefferson]:

That’s actual prejudice.

The Court:
If you continue I will have you removed from the courtroom, if you
have an outburst in front of the jury.
[Jefferson] continued to argue over the judge’s instructions to stop. The trial court then asked
[Jefferson]: “Do you want to be present in that courtroom today whenever we have this jury trial
2

[Jefferson]’s tirade constituted ten pages of the twenty-five pages in the pre-trial conference
transcript.
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because” - to which [Jefferson] interrupted and responded, “You cannot make me - -[.]” When
the trial court again warned [Jefferson] he would be removed from the courtroom, [Jefferson]
responded the court could not do that and he was entitled to effective assistance of counsel. The
trial court again warned [Jefferson]:
The Court:

Mr. Jefferson, I’ve warned you once already.

[Jefferson]:

No way.

Bailiff:

Do not threaten the judge.

[Jefferson]: I’m not threatenin’ it, I’m just lettin’ you know. I’m under the
authority of the United States and you [sic] not gonna sit up here and deny me my Constitutional
Rights, no way.
The Court:

I’m gonna warn you a second –

[Jefferson]:

No way.

The Court:

-- time.

[Jefferson]:

No way. No.

The Court:

If you have any more outbursts –

[Jefferson]:

Your Honor, I got a right to stand up for my rights.

The Court:

At this time, would you please, Mr. Jefferson, --

[Jefferson]:

File my papers and you do what you want to do.

Bailiff:

Mr. Jefferson.

[Jefferson]:

Just file my papers. I ain’t got time to listen to you. File my

The Court:

Mr. Jefferson, I’m gonna order –

[Jefferson]:

I don’t have an attorney.

The Court:

I’m gonna order you removed from the proceeding –

[Jefferson]:

File my papers.

papers.

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The Court:

We’re gonna proceed with the jury trial today.

[Jefferson]:

No. You ain’t gonna have no trial without me.

The Court:

Yes, we are.

[Jefferson]:

Well, go ahead then. I’m not in it, that’s not my attorney.

The Court:

This is your attorney.

[Jefferson]:

No.

The Court:

She’ll be present.

[Jefferson] continued to argue with the Court regarding his request that the papers he filed be
returned until defense counsel, Rebecca Burke, interjected and asked [Jefferson]:
Ms. Burke:
I would like for you to be present in the courtroom during the trial.
Will you remain in the courtroom?
[Jefferson]: I’m entitle [sic] to effective against, assistance of counsel. I’m
callin’ the court actual prejudice and there is no way you [sic] gonna sit up here and
overstep me from my Constitutional rights when I’m tellin’ you I’m not satisfied with my
attorney and you sittin’ up there with those lawsuits in your hand, you cannot do it. You
cannot sit over a proceeding like that. So, -The Court:

Are you asking –

[Jefferson]: I said, that’s not my attorney. She’s not representin’ me properly
and you are actual prejudice and you can’t make, you’re not gonna push all my rights in the
gutter.
The Court:

Mr. Brumley is gonna escort –

[Jefferson]: I don’t care about Mr. Brumley or nobody else. You don’t sit up
and control my life like that. When you’re wrong, you’re wrong. I’m not –
Don’t touch me.
Bailiff:

This is what I’m gonna do, --

[Jefferson]:

You ain’t gonna do nothin’. Let’s go.

Bailiff:

You’re gonna stop fightin’ –

[Jefferson]:

Do it, do it.
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Bailiff:

-- or I’ll do what I got to do –

[Jefferson]:

I don’t need to fight you.

And I’m gonna tell you somethin’, I will walk anywhere I’m not
afraid, you understand me.
Bailiff:

You come out of here, now.

[Jefferson]: You don’t stand and tell me to come out of nothin’ when I’m tellin’
you I’m standin’ for my rights.
Prosecutor:

Go get the Sheriff.

The outburst continued until [Jefferson] was escorted from the room. Following an
off-the-record conference, the trial court stated:
The Court:
We’ll go back on the record. We’re back on the record in the case
of State of Missouri verses [sic] Elmer Jefferson. I just want to make the record clear that
due to Mr. Jefferson’s unwillingness to follow the court instructions, having been given
multiple warnings here during pre-trial that outbursts were not going to be allowed, that the
Court has ordered him removed from the courtroom at this time and we will proceed with
trial today without Mr. Jefferson.
After a short recess, [Jefferson]’s counsel orally requested a continuance “to see if
[Jefferson] would participate” on another day. The trial court overruled [Jefferson]’s request for a
continuance. No other request for relief was presented to the trial court. [Jefferson] was
removed from the pre-trial conference sometime before 10:10 a.m.; jury selection, trial, jury
deliberations, and the jury’s verdicts were all completed by 3:30 p.m. that same day.
The trial court told the jurors [Jefferson] was not present in the courtroom because he “has
chosen . . . not to be here today . . .”
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:

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(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.
IV. Procedural Default
To avoid defaulting on a claim, a petitioner seeking federal habeas review must have
fairly presented the substance of the claim to the state courts, thereby affording the state courts a
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fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark
v. Iowa, 322 F.3d 1018, 1020B21 (8th Cir. 2003) (internal quotation marks and citations omitted)
(quoting Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) and Anderson v. Groose, 106
F.3d 242, 245 (8th Cir. 1997)). Specifically, a state prisoner must fairly present each of his
claims in each appropriate state court before seeking federal habeas review of the claim.
Baldwin v. Reese, 541 U.S. 27, 29 (2004). A claim has been fairly presented when a petitioner
has properly raised the same factual grounds and legal theories in the state courts that he is
attempting to raise in his federal petition. Wemark, 322 F.3d at 1021 (internal quotation marks
omitted) (quoting Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996)). Claims that are not
fairly presented to the state courts are procedurally defaulted. See id. at 1022.
Missouri requires the raising of constitutional claims at the first available opportunity.
See In re J.M.N., 134 S.W.3d 58, 73 (Mo. Ct. App. 2004); In re T.E., 35 S.W.3d 497, 504 (Mo.
Ct. App. 2001). Alleged trial errors, including constitutional claims of trial error, must be
raised on direct appeal; for “[p]ost-conviction motions cannot be used as a substitute for direct
appeal or to obtain a second appellate review.” State v. Clark, 859 S.W.2d 782, 789 (Mo. Ct.
App. 1993); accord Amrine v. State, 785 S.W.2d 531, 536 (Mo. 1990) (en banc).
Absent a showing of cause and prejudice or a miscarriage of justice, a federal habeas
court may not reach the merits of a federal constitutional claim procedurally defaulted due to a
petitioner=s failure to follow applicable state rules in raising the claim in state court. Sawyer v.
Whitley, 505 U.S. 333, 338B39 (1992). “Cause for a procedural default exists where ‘something
external to the petitioner, something that cannot fairly be attributed to him[,]…’ impeded [his]
efforts to comply with the State’s procedural rule.” Maples v. Thomas, 132 S.Ct. 912, 922
(2012) (alternations in original) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991).
Page 9 of 21

Respondent argues that Jefferson has procedurally defaulted all of his grounds for relief.
As cause for his procedural default with respect to all of his claims, Jefferson states that there
“exists a conflict of interest due to the fact that all law enforcement officials are defendants in [a]
civil action in federal court.” (Doc. 1 at 5, 7, 8, 9.) Jefferson also claims that he was
abandoned by counsel as cause for his procedural default of Grounds One, Two, and Three. Id.
at 5, 7, 8. In his response to Respondent’s Response to Order to Show Cause, Jefferson states
that his procedural default was caused by ineffective assistance of trial counsel and
post-conviction counsel. (Doc. 29 at 1-2.)
Jefferson’s claim that a conflict of interest exists due to the fact that he filed complaints
against law enforcement personnel is irrelevant to his failure to raise his grounds for relief in his
direct appeal or post-conviction proceedings. This does not provide cause to excuse his
procedural default.
Jefferson next alleges that his trial and post-conviction counsel abandoned issues that
should have been argued below. The ineffectiveness of trial or direct appeal counsel can be
used as cause to excuse a procedural default. Murray v. Carrier, 477 U.S. 478, 488-89. The
doctrine of exhaustion, however, requires that a claim of ineffective assistance be presented to
the state courts as an independent claim before it may be used to establish cause for a procedural
default. Id.
With regard to Jefferson’s claim that post-conviction counsel abandoned issues,
negligence of post-conviction counsel cannot provide cause to overcome a procedural default
because there is no constitutional right to an attorney in state post-conviction proceedings.
Coleman, 501 U.S. at 752. More recently, the Supreme Court found that, under very limited

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circumstances, the conduct of post-conviction counsel may constitute “cause” for a procedural
default. See Maples, 132 S.Ct. at 922; Martinez v. Ryan, 132 S.Ct. 1309 (2012).
In Maples, the abandonment of a petitioner by his post-conviction counsel, without
notice to the petitioner, and resulting in the petitioner’s failure to file a timely appeal in the
post-conviction proceeding, constituted cause for that failure. 132 S.Ct. at 922-24. This
decision does not aid Jefferson here because there is no indication of record that Jefferson’s
post-conviction counsel engaged in conduct that may be considered the abandonment of
Jefferson.

To the contrary, Jefferson’s post-conviction counsel filed an amended

post-conviction motion setting forth an ineffective assistance of appellate counsel claim and a
request for an evidentiary hearing.
The Court will now examine Jefferson’s grounds for relief individually to determine
whether Jefferson has alleged sufficient cause to excuse his procedural default.
a.

Ground One

In Ground One, Jefferson claims that the Dunklin County Sheriff’s Department caused
him to fail to appear in court, resulting in a warrant for his arrest. Respondent contends that
Jefferson defaulted Ground One by failing to raise this claim in state court.
Ground One alleges trial error and, as such, should have been raised in Jefferson’s direct
appeal. The ineffective assistance of trial or direct appeal counsel cannot serve as cause to
excuse the default, because such ineffectiveness was not raised in the state post-conviction
proceedings. See Murray, 477 U.S. at 488-89. Thus, Ground One is procedurally defaulted.

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b.

Ground Two

In Ground Two, Jefferson argues that he received ineffective assistance of counsel
because trial counsel abandoned the issue of the warrant and detainer issued for failure to appear.
Respondent contends that Jefferson defaulted this claim by failing to present it in state court.
Jefferson’s claim should have been raised in his post-conviction relief motion.
Jefferson argues that his default was caused by ineffective assistance of post-conviction counsel.
Because Ground Two alleges an ineffective assistance of trial counsel claim, the Court will
discuss whether Jefferson’s default can be excused under Martinez.
“Inadequate assistance of counsel at initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Martinez,
132 S.Ct. at 1315. “For ineffective assistance of post-conviction counsel to constitute cause,
petitioner must show that counsel’s assistance was ineffective under the standards of Strickland
v. Washington, 466 U.S. 668 (1984), and further demonstrate that the underlying claim of
ineffective assistance of trial counsel is a ‘substantial’ one, that is, that the claim has some
merit.” Moore v. Larkins, 2013 WL 4091652, at * 5 (E.D. Mo. Aug. 13, 2013) (citing Martinez,
132 S.Ct. at 1318).
To establish an ineffective assistance of counsel claim, a petitioner must satisfy the
two-part test set forth in Strickland. A habeas petitioner must show his counsel’s performance
fell below professional standards and that his defense suffered prejudice as a result. See
Strickland, 466 U.S. at 694. In evaluating the performance prong of the Strickland test, the
basic inquiry is “whether counsel’s assistance was reasonable considering all the
circumstances.” Id. at 688. Rather than second-guessing counsel’s actions with the benefit of
hindsight, the reviewing court must examine counsel’s conduct with a high degree of deference.
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Id. at 689. Counsel’s performance was prejudicial if “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Sherron v. Norris, 69 F.3d 285, 290 (8th Cir. 1995) (quoting Strickland, 466 U.S. at 694).
Jefferson argues that trial counsel abandoned the issue of the warrant and detainer issued
for failure to appear. Jefferson contends that he was in custody at the time the warrant was
issued. As factual support for this argument, Jefferson indicates that defense counsel Rebecca
Burke filed a Motion to Withdraw on January 23, 2008, and the Motion was granted on January
30, 2008. (Doc. 1 at 6.) Jefferson has failed to allege facts demonstrating that counsel’s
performance was deficient. The state court docket sheet confirms that Ms. Burke, an attorney
with the Public Defender’s office, filed a Motion to Withdraw on January 23, 2008, which was
granted on January 30, 2008. (Respt’s Ex. H at 6; Respt’s Ex. I at 6.) The docket entry also
indicates that Jefferson had no objection to the Motion and that Jefferson would obtain private
counsel.

Id. Ultimately, when Jefferson failed to hire private counsel, Ms. Burke was

reappointed to represent him at trial over Jefferson’s objection. Id. Ms. Burke filed a second
Motion to Withdraw prior to trial, which was also denied. (Respt’s Ex. G at 5; Respt’s Ex. H at
5; Respt’s Ex. I at 5.) The fact that Ms. Burke filed a Motion to Withdraw is immaterial to
Jefferson’s claim that she failed to object to the issuance of a warrant for failure to appear.
There is no evidence that Ms. Burke had any involvement in the issuance of such warrant.
Further, Jefferson does not allege that his trial would have been different had his attorney
objected to the issuance of the warrant or detainer. Thus, Jefferson failed to demonstrate his
post-conviction counsel failed to raise a substantial claim of ineffective assistance of trial
counsel. Jefferson is, therefore, unable to establish “cause” for his procedural default of
Ground Two.
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c.

Ground Three

In Ground Three, Jefferson argues that his right to a speedy trial was violated.
Respondent argues that Jefferson defaulted this claim by failing to raise it in state court.
Jefferson’s claim should have been raised on direct appeal, and the failure to do so
constituted a procedural default. The ineffective assistance of trial or direct appeal counsel
cannot serve as cause to excuse the default, because such ineffectiveness was not raised in the
state post-conviction proceedings. See Murray, 477 U.S. at 488-89.
c.

Ground Four

In Ground Four, Jefferson argues that direct appeal counsel was ineffective in failing to
raise the claim that the trial court abused its discretion in not appointing Jefferson substitute trial
counsel. Respondent argues that Jefferson defaulted Ground Four because he failed to “fairly
present” this claim in his state post-conviction proceeding.
In considering Jefferson’s motion attacking his conviction under Rule 29.15, the
reviewing judge indicated that Jefferson asserted “that he was denied [t]he right to effective
assistance of counsel in that his appointed appellate counsel was ineffective for failing to raise,
on direct appeal, trial court error in its failure to appoint substitute counsel to represent [him].”
(Respt’s Ex. F at 2.) The Dunklin County Circuit Court found that:
[Jefferson]’s petition is replete with allegations that [Jefferson] complained to the
trial court that there was a “conflict of interest” between himself and his trial counsel;
that he complained about miscommunication between himself and his trial counsel;
that his trial counsel had been role playing to hide professional conduct; and, that he
did not want his trial counsel to represent him at trial. However, these are conclusions, not facts. Further, Movant fails to allege anywhere in his petition how the
results of his trial would have been any different with another attorney. There is
no allegation of prejudice. If the outcome of [Jefferson]’s trial was not prejudiced
by the conduct of his trial attorney, there can be no ineffective assistance by appellate
counsel in failing, on appeal, to raise the issue of the trial court’s failure or refusal
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to replace trial counsel.
Id. at 3. Ultimately, the Dunklin County Circuit Court held:
that the petition as filed is insufficient as a matter of law and that judgment may be
summarily entered on behalf of Respondent.
Id. Based on this record, Jefferson did not sufficiently preserve the issue raised in ground four
for federal habeas review.
Jefferson cannot allege ineffective assistance of post-conviction counsel to excuse his
default because the Eighth Circuit has rejected the argument that an error by post-conviction
relief counsel served as cause to excuse a procedurally defaulted claim of ineffective appellate
counsel. See Dansby v. Hobbs, 766 F.3d 809, 833 (8th Cir. 2014) (“We…decline to extend
Martinez to claims alleging ineffective assistance of counsel on direct appeal.”).
Lastly, in order to assert the fundamental miscarriage of justice exception, a petitioner
must make a showing of actual innocence based on “new reliable evidence that he was innocent
of the crime of which he was convicted.” Storey v. Roper, 603 F.3d 507, 524 (8th Cir. 2010).
Jefferson has made no such showing of actual innocence. Accordingly, Jefferson’s claims
remain procedurally defaulted.
V. Jefferson=s Claims
The undersigned has already determined that Jefferson’s claims are procedurally
defaulted. Jefferson’s claims also fail on their merits.
1.

Ground One
Jefferson argues in his first ground for relief that his sentence and judgment is

unconstitutional because the Dunklin County Sheriff’s Department caused him to fail to appear
in court resulting in a warrant for his arrest. Jefferson offers no facts or legal authority to
support that a failure to appear warrant that allegedly caused him to miss a court appearance
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caused him to be convicted. The fact that a warrant was issued for his arrest does not
demonstrate that the sentence or judgment is unconstitutional. Jefferson has failed to show
that a decision of the state courts was contrary to or an unreasonable application of clearly
established Federal law.
Accordingly, Ground One will be denied.
2.

Ground Two
In his second ground for relief, Jefferson argues that trial counsel was ineffective

because she abandoned the issue of the warrant and detainer issued for failure to appear. The
Court has already determined in the above procedural default analysis that Ground Two lacks
merit because Jefferson failed to satisfy either prong of the Strickland analysis. Accordingly,
Ground Two will be denied.
3.

Ground Three
In his third ground for relief, Jefferson argues that the sentencing court was without

jurisdiction because he filed a 180 day writ and the State failed to prosecute within that time; the
warrant for failure to appear was the fault of the Sheriff’s Department; and Jefferson was denied
a speedy trial.

The docket sheets for the underlying cases that were provided by the

Respondent cover the events in Jefferson’s cases after they were bound over. Said docket
sheets do not reflect the issuance of a failure to appear warrant for Jefferson. Neither party has
presented any evidence related to the alleged failure to appear warrant. The undersigned
concludes that the failure to appear warrant must have been issued prior to Jefferson’s cases
being bound over. The offense conduct for the drug sale offenses occurred on March 15, 2007
while the resisting arrest offense conduct occurred on May 17, 2007. On January 30, 2008,
Jefferson waived his right to a speedy trial in two of the cases three cases.

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The Uniform Mandatory Disposition of Detainers Law, Mo.Rev.Stat. ' 217.460
(“UMDDL”) “provides that a person confined to the MDOC who has a detainer pending against
him may file a written request to dispose of that detainer.” Moore v. Steele, 4:12CV1174CDP,
2013 WL 3092186, at * 2 (E.D. Mo. June 18, 2013) (citing Mo.Rev.Stat. ' 217.450(1)). “If
that request complies with certain procedural requirements, the untried charges listed in the
detainer must be brought to trial within 180 days (or longer for good cause) or the court loses
jurisdiction over those charges.” Moore, 2013 WL 3092186, at * 2.
“A violation of Missouri’s speedy trial law, without more, is not cognizable in habeas
and does not justify relief under ' 2254.” Poe v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994).
See Crenshaw v. Larkins, 4:09CV336 JCH, 2012 WL 886823, at * 2 (E.D. Mo. Mar. 15, 2012).
The Eighth Circuit has held that “[t]he question of whether the Missouri courts had jurisdiction
to sentence [the petitioner] was one solely of state law and is therefore not properly before this
court.” Poe, 39 F.3d at 207; Moore, 2013 WL 3092186, at * 4 (“The Eighth Circuit has
characterized Missouri’s UMDDL as a ‘state speedy trial law,’…and a claim that it has been
violated may only be addressed by Missouri courts.”) (citation omitted); Crenshaw, 2012 WL
886823, at * 2 (“ a [speedy trial] claim is based only on Missouri law and actions of Missouri
officials, and it may be addressed only by Missouri courts”). Because there is no federal
habeas relief available for Jefferson’s UMDDL claim, the Court will deny this claim.
4.

Ground Four
In his fourth ground for relief, Jefferson argues that he received ineffective assistance of

appellate counsel because counsel failed to raise on direct appeal the claim that the trial court
abused its discretion in not appointing substitute counsel for Jefferson.
Jefferson alleges the following facts in support of this claim: (1) the court deposed
appellate counsel and the record was concealed; (2) trial counsel filed a motion to withdraw,
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which was granted; however, she forced Jefferson into unwanted representation; (3) trial
counsel was sued by Jefferson; and (4) trial counsel stated in open court that she was not going
to protect Jefferson’s constitutional rights.
The proper standard for evaluating a claim of ineffective assistance of appellate counsel
is that set forth in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000). Jefferson must
show that appellate attorney’s performance was below the reasonable standard of competence
and that there is a reasonable probability that the result would have been different absent this
deficient performance. See Strickland, 466 U.S. at 687; Gee v. Groose, 110 F.3d 1346, 1352
(8th Cir. 1997). With respect to the performance element, appellate counsel is expected to
winnow the issues on appeal to highlight the most meritorious issues and eliminate the sure
losers. See Jones v. Barnes, 463 U.S. 745, 751-52 (1983); Gee, 110 F.3d at 1352. An
attorney's decision not to raise an unwinnable issue on appeal is an important strategic decision
in competent appellate advocacy, and does not constitute ineffective assistance of appellate
counsel. Horne v. Trickey, 895 F.2d 497, 500 (8th Cir. 1990). For the prejudice element of
his ineffective assistance of appellate counsel claim, Jefferson “must show a reasonable
probability that, but for his counsel’s unreasonable [conduct], he would have prevailed on his
appeal.” Smith, 528 U.S. at 285.
The Sixth Amendment does not guarantee the right to a “meaningful relationship
between an accused and his counsel.” Morris v. Slappy, 461 U.S. 1, 14 (1983). Further,
“[a]ppointment of new counsel is warranted only when the defendant demonstrates justifiable
dissatisfaction with his appointed attorney.” United States v. Baisden, 713 F.3d 450, 454 (8th
Cir. 2013). “The focus of the justifiable dissatisfaction inquiry is the adequacy of counsel in
the adversarial process, not the accused’s relationship with his attorney.” Id. (quoting United
States v. Barrow, 287 F.3d 733, 738 (8th Cir. 2002)). “Justifiable dissatisfaction includes an
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irreconcilable conflict or a complete breakdown in communication.” Baisden, 713 F.3d at
454. Importantly, “it does not include a defendant’s frustration with counsel who does not
share defendant's tactical opinions but continues to provide zealous representation.”

Id.

“Thus, a defendant has no right to an attorney who will docilely do as she is told…” Id.
The trial transcript reveals that, immediately prior to trial, the trial court allowed Jefferson
to present additional matters and file documents. (Respt’s Ex. J at 13.) Among other claims,
Jefferson stated that he had not “had effective assistance of counsel.” Id. at 17, 19. When the
trial court denied Jefferson’s various motions, Jefferson started a tirade which resulted in his
removal from the courtroom during trial. With regard to trial counsel, Jefferson stated “I don’t
want her, I got a lawsuit against her. She cannot represent me.” Id. at 21. The trial court
stated, “I believe you’re incorrect…We’re gonna go forward.” Id. at 22. After Jefferson’s
removal, counsel requested a continuance to determine if Jefferson would participate in the trial
on a different day. (Respt’s Ex. J at 31.) The trial court overruled counsel’s request for a
continuance. Id. Counsel proceeded to represent Jefferson throughout the trial in his absence.
Jefferson is unable to satisfy either prong of the Strickland analysis. None of the facts
alleged by Jefferson in support of his claim demonstrates that the trial court abused its
discretion in not appointing Jefferson substitute trial counsel. Jefferson’s claim that trial
counsel stated in open court she was not going to protect his constitutional rights is not
supported by the record. The trial court reasonably found that Jefferson had not established
cause to appoint substitute counsel. Although Jefferson may have been dissatisfied with
counsel, he did not demonstrate justifiable dissatisfaction. The record reveals that counsel
continued to advocate for Jefferson after he was removed from the courtroom for his disruptive
behavior.

Appellate counsel’s decision not to raise this argument, therefore, does not

constitute ineffective assistance of appellate counsel.

Additionally, Jefferson cannot
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demonstrate prejudice because he is unable to show a reasonable probability that, but for his
counsel’s unreasonable conduct, he would have prevailed on his appeal.
Accordingly, Ground Four 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,
Jefferson 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.
VII.

Jefferson’s Motion for Reconsideration
Also pending is Jefferson’s Motion for Reconsideration of the Court’s October 19, 2015

Order denying Jefferson’s Motion for Default Judgment. (Doc. 69.) The Court denied this
Motion as frivolous.

The Court declines to reconsider this determination and will deny

Jefferson’s Motion for Reconsideration.

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.
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IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be
denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal.
IT IS FINALLY ORDERED that Petitioner’s Motion for Reconsideration (Doc. 69) is
denied.

Dated: January 14, 2016
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE

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