Lemons v. Cassady

Filing 14

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is DENIED.IT IS FURTHER ORDERED that this case is DISMISSED. IT IS FURTHER ORDERED that no certificate of appealability shall issue because Petitioner has failed to make a substantial showing that he has been denied a constitutional right. 28 U.S.C. § 2253. A separate Judgment shall accompany this Memorandum and Order.Signed by Magistrate Judge Shirley Padmore Mensah on 7/14/16. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL A. LEMONS,
Petitioner,
v.
JAY CASSADY,
Respondent.

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No. 4:13-CV-1494-SPM

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Michael A. Lemons’s (“Petitioner’s”) pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The parties have
consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c)(1). (Doc. 10). For the following reasons, the petition for a writ of habeas corpus
will be denied.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On December 20, 2011, Petitioner was charged with first-degree assault. Pet’r Ex. G,

Doc. 1-1, at p. 13. The charges were subsequently amended to second-degree assault and to
include prior and persistent offender status. Pet’r Ex. I, Doc. 1-1, at p. 17. The Amended
Information charged Petitioner with committing the class C felony of assault in the second
degree, “in that on or about December 20, 2011, in the County of Dunklin, State of Missouri, the
defendant recklessly caused serious physical injury to [the victim] by striking her.” Id. It also
stated that Petitioner was a prior offender, “in that he has pleaded guilty to or has been found
guilty of a felony,” and that he was a persistent offender, “in that he has pleaded guilty or has
been found guilty of two or more felonies committed at different times.” Id. On July 25, 2012,

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Petitioner entered a guilty plea, the plea was accepted, and Petitioner was sentenced to 10 years.
Pet’r Ex. E, Doc. 1-1, at p. 10; Pet’r Ex. J, Doc. 1-1, at pp. 19-20. Petitioner did not file a direct
appeal, nor did he file a motion for post-conviction relief.
On July 12, 2013, Petitioner filed the instant petition. Doc. 1. Petitioner asserts twelve
grounds for relief, each entitled something similar to “Violations of Due Process of Law 14th
and 4th, 5th, and 8th Amendments [to the] U.S. Constitution [and various provisions of the
Missouri Constitution].” 1 The precise nature of the claims is very difficult to discern, because
each claim consists of a long list of facts that do not always obviously correspond to any distinct
constitutional claim. It appears that he is alleging the following claims: (1) he could not have
committed the crimes listed on the Probable Cause Affidavit because he was in jail on that date;
(2) the felony complaint did not set out the evidence against him; (3) the warrant for his arrest
was date-stamped with the date before the date the crime was committed and did not describe a
domestic assault; (4) the associate court docket sheet shows that Petitioner was arrested more
than 24 hours before a warrant was served; (5) the warrant for Petitioner’s arrest was not in the
proper form; (6) there is no evidence that Petitioner waived a preliminary hearing, and his
counsel was ineffective with respect to telling Petitioner about the charges against him, waiving
a formal arraignment, and requesting discovery; (7) the information was deficient in various
ways; (8) the first amended information was deficient in various ways; (9) the second amended
information was deficient in various ways; (10) the felony of second-degree assault only carries a
sentence of up to seven years; (11) his counsel was ineffective based on, among other things,
counsel’s failure to “allow” the judge to do the formal arraignment and explain to Petitioner his
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Respondent appears to have believed that Petitioner asserted only four grounds for relief.
However, the Court’s reading indicates that Petitioner presented four claims on the typed habeas
petition form, and another eight claims in the attached handwritten pages.
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rights; and (12) his counsel was ineffective based on, among other things, counsel’s failure to file
a motion for discovery or other motions before the preliminary hearing.
II.

DISCUSSION
Respondent argues that all of Petitioner’s claims have been procedurally defaulted because

he failed to present them to the state courts in accordance with Missouri’s procedural rules. The
Court agrees.
To preserve a claim for federal habeas review, “a state habeas petitioner must present that
claim to the state court and allow that court the opportunity to address his claim.” Moore-El v.
Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32
(1991)). See also Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012) (“Ordinarily, a
federal court reviewing a state conviction in a 28 U.S.C. § 2254 proceeding may consider only
those claims which the petitioner has presented to the state court in accordance with state
procedural rules.”) (quotation marks omitted). “Claims that have not been presented to the state
courts, and for which there are no remaining state remedies, are procedurally defaulted.”
Skillicorn v. Luebbers, 475 F.3d 965, 976 (8th Cir. 2007).
Petitioner’s claims are procedurally defaulted, because he has not presented them to the
Missouri state courts and he has no remaining state remedies. First, he did not file a direct appeal
following his guilty plea. A direct appeal must be filed within ten days of the entry of a sentence.
See Mo. Sup. Ct. R. 30.01(a) (in criminal cases, appeals may be taken as provided in Rule
81.04); Mo. Sup.Ct. R. 81.04(a) (appeal must be filed “not later than 10 days after the judgment
or order appealed from becomes final”); Stevens v. State, 208 S.W.3d 893, 894 (Mo. 2006) (“In
criminal cases, a judgment becomes final when a sentence is entered.”). Petitioner was sentenced
on July 25, 2012, and he has filed no direct appeal. Thus, assuming, arguendo, that any of his

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claims fall within the limited scope of a direct appeal following a guilty plea, 2 he did not
properly present them to the state court through a direct appeal and cannot now do so. Second,
Petitioner did not file a motion for post-conviction relief under Missouri Supreme Court Rule
24.035. Under Rule 24.035, “A person convicted of a felony on a plea of guilty and delivered to
the custody of the department of corrections who 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 ineffective assistance of trial and appellate counsel, that the court imposing the
sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the
maximum sentence authorized by law may seek relief in the sentencing court.” Mo. Sup. Ct. R.
24.035. If no appeal of the judgment or sentence is taken, a motion under Rule 24.035 must be
filed within 180 days of the defendant’s delivery to the custody of the department of corrections.
Mo. Sup.Ct. Rule 24.035(b). Failure to file a motion within the time provided by Rule 24.035
results in a “complete waiver” of “any claim that could be raised in a motion filed pursuant to”
the rule. Id. Petitioner was delivered to the department of corrections no later than July 12, 2013,
when he filed the instant petition, and he has not filed a motion under Rule 24.035. Thus, he did
not properly present his claims to the state court through a post-conviction motion, and he cannot
now do so.
Because Petitioner failed to present his claims to the state courts through either a direct
appeal or post-conviction motion under Rule 24.035 and he cannot now do so, all of his claims
are procedurally defaulted. The federal habeas court will consider a procedurally defaulted claim

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“In Missouri, the general rule is that a guilty plea waives all nonjurisdictional defects, including
statutory and constitutional guarantees.” Garris v. State, 389 S.W.3d 648, 651 (Mo. 2012). Thus,
following a guilty plea, review of a direct appeal is “restricted to [claims involving] the subjectmatter jurisdiction of the trial court and the sufficiency of the information or indictment.” State v.
Hopkins, 432 S.W.3d 208, 211 (Mo. Ct. App. 2014) (quotation marks omitted).
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only “where the petitioner can establish either cause for the default and actual prejudice, or that
the default will result in a fundamental miscarriage of justice.” Moore-El, 446 F.3d at 896 (citing
Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992)).
The Court first considers whether Petitioner has shown cause for the default. To
demonstrate cause, a petitioner must show that “some objective factor external to the defense
impeded [the petitioner’s] efforts to comply with the State’s procedural rule.” Murray v. Carrier,
477 U.S. 478, 488 (1986). Petitioner argues that he did not present his claims to the state courts
because “state courts do not have jurisdiction over U.S. Constitutional Amendments and Rights.”
However, that statement is plainly incorrect and cannot constitute cause for the default. State
courts, like federal courts, may consider federal constitutional claims. Indeed, the Supreme Court
has noted that the requirement that federal habeas petitioners first present their claims to the state
court “is designed to give the state courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to the federal courts.” See O’Sullivan v.
Boerckel, 526 U.S. 838, 844 (1999). To the extent that Petitioner might suggest that cause for the
procedural default exists because he is a pro se petitioner with limited education who
misunderstood this law, that would also not constitute legally sufficient cause to excuse a
procedural default. See Stanley v. Lockhart, 941 F.2d 707, 710 (8th Cir. 1991) (“Stanley’s pro se
status and his limited educational background do not constitute sufficient cause to excuse his
procedural default.”); Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir. 1988) (stating that “pro se
status,” limited “educational background,” and “procedural ignorance” do not constitute cause
for a procedural default). Because Petitioner has failed to show that some objective factor
external to his defense impeded his efforts to comply with Missouri’s procedural rules, he has

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failed to show sufficient cause to overcome the procedural default. The Court need not address
whether he has shown prejudice from the default.
The Court next considers whether the fundamental miscarriage of justice exception
applies. Although Petitioner does not expressly argue that this exception applies, Petitioner does
appear to be asserting in the first ground of the petition that he is actually innocent of the crime
of which he was convicted. To assert the fundamental miscarriage of justice exception, a
petitioner must “‘present new evidence that affirmatively demonstrates that he is innocent of the
crime for which he was convicted.’” Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011) (quoting
Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)). The petitioner must come forward with “new,
reliable evidence which was not available at trial through the exercise of due diligence.” Kidd v.
Norman, 651 F.3d 947, 953 (8th Cir. 2011). The petitioner must also show “that ‘it is more likely
than not that no reasonable juror would have convicted him in light of the new evidence.’”
Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005) (quoting Schlup v. Delo, 513 U.S. 298,
327 (1995)). “‘Without any new evidence of innocence, even the existence of a concededly
meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice
that would allow a habeas court to reach the merits of a barred claim.’” Cagle v. Norris, 474 F.3d
1090, 1099 (8th Cir. 2007) (quoting Schlup, 513 U.S. at 316).
Petitioner does not provide any new, reliable, previously unavailable evidence that makes
it more likely than not that no reasonable juror would have convicted him. Petitioner argues that
he could not have committed the crime of which he was convicted, because the Probable Cause
Affidavit states that he committed the alleged crime on December 20, 2011, and Petitioner was
already in custody on that date for crimes committed on December 19, 2011. However,
Petitioner provides the Court with no evidence showing that he was already in custody on

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December 20, 2011 for another crime. Moreover, he offers the Court no basis for finding that the
Probable Cause Affidavit on which he bases his innocence claim was unavailable to him before
he made his guilty plea. Therefore, Petitioner cannot establish that the fundamental miscarriage
of justice exception applies to permit the Court to consider his defaulted claims.
Because all of Petitioner’s claims are procedurally defaulted and he has shown no legally
sufficient basis to overcome procedural default, the Court is barred from reviewing his claims.
III.

CONCLUSION
For all of the above reasons, Petitioner is not entitled to federal habeas relief. Under 28

U.S.C. § 2253, an appeal may not be taken to the court of appeals from the final order in a 28
U.S.C. § 2254 proceeding unless a circuit judge or district judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a certificate, the judge must find that the
petitioner “has made a substantial showing of the denial of a constitutional right.” Id. §
2253(c)(2); Tiedman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). “A substantial showing is a
showing that issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997). The Court finds that reasonable jurists could not differ on Petitioner’s claim, so the Court
will not issue a certificate of appealability. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (Doc. 1) is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability shall issue because
Petitioner has failed to make a substantial showing that he has been denied a constitutional right.
28 U.S.C. § 2253.

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A separate Judgment shall accompany this Memorandum and Order.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 14th day of July, 2016.

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