Mercardo v. Russell

Filing 14

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus, [Doc. No. 1 ], is denied. IT IS FURTHER ORDERED that no certificate of appealability shall issue. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 6/27/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONALD MERCADO,

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) Case No: 4:13CV794 HEA
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Petitioner,
vs.
TERRY RUSSELL,
Respondent.

OPINION, MEMORANDUM AND ORDER
Introduction
Petitioner filed a pro se petition for writ of habeas corpus under 28 U.S.C. §
2254 [Doc. 1]. Respondent filed his Response to the Court’s Order to Show Cause
Why Relief Should Not be Granted [Doc. 10]. Pursuant to Rule 8 of the Rules
Governing Section 2254 Cases in the United States District Courts, this Court has
determined that there are no issues asserted that give rise to an evidentiary hearing
and therefore one is not warranted. For the reasons explained below, Respondent’s'
Response is well taken and the petition will be denied.
Procedural Background
On November 13, 2008, Petitioner pled guilty to seven counts of assault of a
law enforcement officer in the second degree and one count of resisting or
interfering with arrest, detention or stop. Petitioner was sentenced, execution being

suspended, by the Circuit Court of the City of St. Louis, to 5 years imprisonment
on the first count of assault of a law enforcement officer in the second degree and
placed on probation for two years. The court suspended imposition of sentence for
the remaining six counts of assault of a law enforcement officer in the second
degree and one count of resisting or interfering with arrest, detention or stop and
placed Petitioner on probation for three years. On April 1, 2011, Petitioner pled
guilty to one count of theft/stealing of property valued at more than $500, but less
than $25,000, one count of resisting or interfering with arrest, detention or stop and
one count of first-degree trespass. The Circuit Court of the City of St. Louis
sentenced Petitioner to consecutive terms of imprisonment of seven years for the
theft/stealing and resisting or interfering with arrest, detention or stop count and 60
days for the first degree trespass. The probationary period on the 2008 convictions
was revoked. The Court ordered the sentences from the 2008 guilty pleas to be
executed and served concurrently with the 2011 sentence. Petitioner is currently
within the custody of the Missouri Department of Corrections under the previously
referenced sentences.
Petitioner filed his motion for post-conviction relief relative both cases on
August 29, 2011. A timely amended motion for post-conviction was filed on
September 27, 2011. On December 26, 2011 another amended motion for postconviction relief was filed which asserted an insufficient basis for the guilty plea as

a basis for relief. On January 6, 2012 the Missouri state trial court entered findings
of fact and conclusions of law denying the post-conviction relief motion of Mr.
Mercado. Mercado, thereafter, filed a timely notice of appeal to the Missouri
Court of Appeals. The Missouri Court of Appeals, ED98066 (November 20,
2012), affirmed the ruling of the trial court and rejected Petitioner’s claim.
Petitioner filed this Petition for Writ of Habeas Corpus against Respondent
on April 22, 201. Petitioner alleges that his Due Process rights under the Fifth and
Fourteenth Amendments were violated because there was an insufficient factual
basis upon which to accept his guilty pleas for seven counts of second-degree
assault of a law enforcement officer.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §
2254 (“AEDPA”) applies to all petitions for habeas relief filed by state prisoners
after the statute’s effective date of April 24, 1996. When reviewing a claim that has
been decided on the merits by a state court, AEDPA limits the scope of judicial
review in a habeas proceeding as follows:
An application for 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).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, held that:
Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
529 U.S. 362, 412–13 (2000). Furthermore, the Williams Court held that “a federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” 529 U.S. at 409.
A state court decision must be left undisturbed unless the decision was
contrary to or involved an unreasonable application of clearly established federal
law as determined by the Supreme Court of the United States, or the decision was
based on an unreasonable determination of the facts in light of the evidence
presented in state court. Colvin v. Taylor, 324 F.3d 583, 586-87 (8th Cir. 2003).

A decision is contrary to United States Supreme Court precedent if it
decides a case based on a different rule of law than the rule dictated by United
States Supreme Court precedent, or it decides a case differently than the United
States Supreme Court did on materially indistinguishable facts. Id. A decision may
only be overturned, as an unreasonable application of clearly established United
States Supreme Court precedent, if the decision is both wrong and an objectively
unreasonable interpretation or application of United States Supreme Court
precedent. Id. A federal habeas court may not disturb an objectively reasonable
state court decision on a question of federal law even if the decision is, in the
federal court’s view, wrong under Eighth Circuit precedent, and even if the habeas
court would have decided the case differently on a clean slate. Id. State court
factual determinations are presumed to be correct and this presumption can only be
rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1).
Discussion
Petitioner, here, alleges that his Due Process rights under the Fifth and
Fourteenth Amendments were violated because there was an insufficient factual
basis upon which to accept his guilty pleas for seven counts of second-degree
assault of a law enforcement officer. Petitioner’s claim specifically challenges the
factual basis and/or sufficiency of evidence that the law enforcement officers were
“in apprehension of immediate serious physical injury” as required to prove

second-degree assault of a law enforcement officer. Both Missouri state law and
federal law require a factual basis in order for a trial court to enter a judgment on a
plea. This is not a Constitutional requirement. See Missouri Rule 24.02(e) and
FRCP 11(b) (3) . If there were to be a finding that the court failed to adhere to the
state rule requiring a factual basis for a guilty plea, Petitioner would not have been
denied due process because it was his voluntary act of pleading guilty that resulted
in his deprivation of liberty and not the rule violation itself. See Cranford v. A.L.
Lockhart, 975 F.2d 1347, 1349 (8th Cir. 1992).
In its November 20, 2012 Memorandum, the Missouri Court of Appeals held
that “[t]he motion court’s finding that the State’s recitation of the evidence
provided a sufficient factual basis for the office of second-degree assault upon the
officers is not clearly erroneous.” At the colloquy of the plea the State set forth
the facts which satisfied the elements of the seven counts of second-degree assault
on a law enforcement officer as they would be established according to the
information filed in lieu of superseding indictment. Petitioner admitted at his plea
hearing that the “nature of the charge” had been explained to him and he admitted
guilt. The Missouri Court of Appeals, Eastern District of Missouri, found that
“[t]he information in this case clearly charged [Petitioner] with all of the elements
of second-degree assault”.

The decision of the Missouri Court of Appeals rejecting Petitioner’s claim
that his Due Process rights under the Fifth and Fourteenth Amendments were
violated because there was an insufficient factual basis upon which to accept his
guilty pleas was objectively reasonable and consistent with a reasonable
application of Cranford v. A.L. Lockhart, 975 F.2d 1347 (8th Cir. 1992) and
Jackson v. Virginia, 443 U.S. 307 (1979).
Conclusion
The state courts’ rulings with respect to Ground One were neither contrary
to, nor unreasonable applications of, clearly established federal law. Thus,
Petitioner is not entitled to any relief.

Certificate of Appealability
When a district court issues an order under § 2254 adverse to the applicant it
“must issue or deny a certificate of appealability.” R. Governing Section 2254
Cases in the U.S. Dist. Cts., R. 11. If a federal court denies a habeas application on
procedural grounds without reaching the underlying constitutional claims, the court
should issue a certificate of appealability if the prisoner has shown “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Id.; see also Khaimov v. Crist,
297 F.3d 783, 786 (8th Cir. 2002) (interpreting Slack in the following manner: “1)
if the claim is clearly procedurally defaulted, the certificate should not be issued;
2) even if the procedural default is not clear, if there is no merit to the substantive
constitutional claims, the certificate should not be issued; but, 3) if the procedural
default is not clear and the substantive constitutional claims are debatable among
jurists of reason, the certificate should be granted”). Petitioner’s federal habeas
petition is clearly time-barred under AEDPA, and no reasonable jurist could that
find this case is timely filed. See Slack, 529 U.S. at 484; Khaimov, 297 F.3d at 786.
Hence, no certificate of appealability will be issued.

Conclusion
Accordingly,
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus,
[Doc. No. 1], is denied.

IT IS FURTHER ORDERED that no certificate of appealability shall
issue.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 27th day of June, 2016.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE