Lynn v. Lombardi

Filing 13

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the petition of Darril Lynn for writ of habeas corpus pursuant to 28 U.S.C. Section 2254 is denied. A separate judgment in accordance with the memorandum and opinion is entered this same date. Signed by District Judge Catherine D. Perry on November 16, 2015. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARRIL LYNN,
Petitioner,
v.
GEORGE LOMBARDI,
Respondent.

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Case No. 4:14 CV 428 CDP

MEMORANDUM AND ORDER
This case is before this Court on the petition of Darril Lynn for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. He pleaded guilty to kidnapping and
was sentenced to 10 years imprisonment in the Missouri Department of
Corrections. In his petition for habeas corpus relief, Lynn asserts five grounds.
His claim that the trial court erred in accepting an open Alford plea or that plea
counsel was ineffective for not interviewing Jackie Moss and Robert Allen are
procedurally barred. The Missouri Court of Appeals addressed the rest of his
claims and denied them on the merits. The appellate court’s decision was not
contrary to clearly established Federal law, nor was it based on an unreasonable
determination of the facts. Therefore, this Court will deny Lynn’s petition for writ
of habeas corpus.

Background
On December 6, 2011, Lynn entered an Alford plea for the class B felony of
kidnapping. At the plea hearing, the following exchange occurred:
[COURT]: Mr. Lynn, then it’s my understanding that you wish to
enter what’s referred to as an Alford plea, meaning that you do not
believe you’re guilty of the class B felony charge of kidnapping that
you are charged with but that the State’s evidence is such that if the
case were tried you do believe you would be found guilty, is that
correct?
[MOVANT]: Yes, Sir.
[COURT]: All right. And do you understand that if I do accept this
as an Alford plea that the same possibilities as to punishment,
penitentiary sentence is the only possibility on this charge?
[MOVANT]: Yes, sir.
Lynn informed the court that he had been given sufficient time to discuss his
case with his attorney and had no complaints about his attorney’s handling of the
case. Lynn testified that he understood that by entering a plea he was waiving the
right to be tried by a jury and the presumption of innocence. Lynn also understood
that he was waiving the right to confront his accusers and to call witness in his
defense.
Lynn stated that no threats or promises had been made to cause him to plead
guilty. No one had made any promise on the sentence he would receive. The court
asked Lynn: “Do you understand that no one can promise what your sentence will
be and I can impose any sentence within the range of punishment permitted by law

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and the range of punishment on this charge is a minimum of five up to a maximum
of fifteen years in the penitentiary?” Lynn responded, “Yes, sir.”
The prosecutor informed the court of the facts as follows. On or about
December 15th, 2009, Chester Harvey telephoned Lynn and asked him to remove
James McNeely (“Victim”) from Harvey’s home. On the night of December 17th,
Lynn, along with Jackie Moss and Robert Allen entered Harvey’s home,
“removed” Victim and took Victim to Lynn’s home. Victim remained at Lynn’s
home until Harvey and several of his family members arrived at Lynn’s home the
next day. Lynn showed Harvey how to place duct tape on Victim’s hands. Harvey
bound Victim, removed him from Lynn’s home, and drove him to the Harvey’s
residence. Over the next several days, the Harvey family tortured and killed
Victim.
The court asked: “ Mr. Lynn, do you agree that’s what the State’s evidence
would be if the case were tried?” Lynn answered, “Yes, sir.” The court found
there was a factual basis for Lynn’s Alford plea, that Lynn understood the nature of
the charge and the plea was at least as voluntary and unequivocal as an Alford plea
could be. The court accepted the plea.
At the sentencing hearing, the court sentenced Lynn to ten years’
imprisonment. Lynn stated that plea counsel had done everything he had asked of
him. Lynn said he was satisfied with counsel’s services and did not have any

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complaints. Lynn was able to review the police reports and evidence with counsel,
and counsel had spoken with witnesses as instructed by Lynn.
On June 25, 2012, Lynn filed a Rule 24.035 motion for post-conviction
relief. The motion court denied his motion after an evidentiary hearing. The
motion court found that Lynn was not a credible witness and that counsel and the
prosecutor were credible as to the facts they remembered. Lynn appealed. The
Missouri Court of Appeals affirmed the denial of post-conviction relief.
Discussion
In his petition for writ of habeas corpus, Lynn asserts five claims, containing
a total of seven allegations:
(1) The trial court erred by (a) accepting an open Alford plea; and (b) failing
to make an explicit finding on the record that Lynn’s plea was a voluntary
and intelligent choice among his alternative courses of action;
(2) Counsel was ineffective for advising Lynn to enter an open Alford plea
because it provided no benefit over a trial;
(3) Counsel was ineffective for failing to conduct adequate pre-trial
investigation by (a) not reading all the discovery the State provided, and (b)
not interviewing or deposing Jackie Moss, Robert Allen, and Scott Trower;
(4) Counsel was ineffective for telling Lynn that he stood a “good chance”
of receiving probation since two less culpable defendant each received
several years in prison from negotiated pleas; and
(5) Counsel was ineffective for failing to file and litigate a motion to
suppress Lynn’s statements to police that he assisted Chester Harvey by
providing duct tape and explaining how to wrap Victim’s hands so he could
not escape.

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I.

Procedural Bar
Lynn raised all the above claims in his appeal from the denial of his post-

conviction motion. (Resp. Exh. A and E). The Missouri Court of Appeals
declined to address claim 1(a) because Lynn had failed to present this argument to
the motion court. Lynn v. State, 417 S.W.3d 789, 797 (Mo. Ct. App. 2013) (Resp.
Exh. D. at 6). The Court of Appeals did not decide Lynn’s claim that counsel was
ineffective for not investigating and interviewing Moss and Allen because Lynn
failed to furnish the court with the record necessary to address the claim. (Resp.
Exh. D. at 16-17).
To preserve issues for federal habeas corpus review, a state prisoner must
fairly present his or her claims to state courts during direct appeal or in postconviction proceedings. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997). If a
state prisoner fails to raise the claims following applicable state procedural rules,
then the prisoner is procedurally barred from raising them in a federal habeas
corpus action. Id. at 1151.
Federal habeas review of a claim is barred where a prisoner has defaulted his
federal claims in a state court under an independent and adequate state procedural
rule. Coleman v. Thompson, 501 U.S. 722, 750 (1991). State procedural rules are
adequate and independent when they are “firmly established and regularly
followed.” Oxford v. Delo, 59 F.3d 741, 746 (8th Cir. 1995). If “the last state

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court rendering a judgment in the case ‘clearly and expressly’ states that its
judgment rests on a state procedural bar,” a federal habeas court is precluded from
reviewing the claim. Harris v. Reed, 489 U.S. 255, 263 (1989).
The Missouri Court of Appeals is the “last state court rendering a judgment
in this case.” Its ruling clearly and expressly stated its denial of the two claims was
based solely on state procedural bars.
Lynn’s claim of trial court error for accepting an open Alford plea was
defaulted because Lynn failed to present the same claim to the motion court. (Resp.
Exh. D. at 6). In the post-conviction motion, Lynn argued that it was error to
accept an Alford plea without making an explicit finding that the plea was a
voluntary and intelligent choice among alternatives, (which is claim 1(b)), but he
did not argue, as he does here and he did on appeal, that open Alford pleas were
per se invalid.
Lynn’s claim of ineffective assistance of counsel for not interviewing and
deposing Moss and Allen was rejected because Lynn failed to provide that court
with an adequate record to review the claim.1 Lynn introduced depositions of
Moss and Allen at the post-conviction evidentiary hearing, but he failed to include
these depositions on appeal. (Resp. Exh. D. at 16). Missouri Supreme Court Rule
81.12 (a) provides that “[t]he record on appeal shall contain all of the record,

1

This does not apply to the claim as it relates to potential witness Trower.

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proceedings and evidence necessary to the determination of all questions to be
presented, by either appellant of respondent, to the appellate court for decision.” It
is the appellant’s duty to “prepare and file a record on appeal that incorporates the
proceedings showing that the motion court erred.” Garris v. State, 389 S.W.3d
648, 652 (Mo. banc 2012); see State v. Cella, 32 S.W.3d 114, 117 (Mo. 2000);
Rhodes v. Zhang, 7 S.W.3d 7, 8 (Mo. Ct. App. 1999); State v. Dunn, 817 S.W.2d
241, 244 (Mo. banc 1991) (“It is the appellant’s duty to prepare a complete record
on appeal.”). Lynn failed to comply with Missouri Supreme Court Rule 81.12 and
so he procedurally defaulted this claim.
A state prisoner can overcome a procedural default only if he can
“demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. To
demonstrate cause, a petitioner must show that “some objective factor external to
the defense impeded counsel’s efforts to comply with the State’s procedural rule.”
Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice, a petitioner
must demonstrate that the errors “worked to his actual and substantial
disadvantage, infecting the entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982). Alternatively, to use the
fundamental miscarriage of justice exception, a petitioner must present new

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evidence that “affirmatively demonstrates that he is innocent of the crime for
which he was convicted.” Abdi v. Hatch, 450 F.3d 324, 338 (8th Cir. 2006).
Lynn cannot overcome these defaults. First, he fails to show cause because
he did not allege any external factor impeded his efforts to comply with the state
procedural requirements. Second, he fails to present any new evidence to
demonstrate his actual innocence.
Therefore, claim 1(a) and claim 3(b) to the extent it raises counsel’s failure
to interview Moss and Allen are procedurally barred.
II.

Merits of Remaining Claims
A petitioner is entitled to federal habeas relief only if the state court’s

adjudication resulted in a decision, (1) “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) “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 Shafer v. Bowersox, 329 F.3d 637, 646-47 (8th Cir. 2003), the Eighth
Circuit articulated the standards for subsection (1) as follows:
The “contrary to” clause is satisfied if a state court has arrived “at a
conclusion opposite to that reached by [the Supreme Court] on a
question of law” or “confronts facts that are materially
indistinguishable from relevant Supreme Court precedent” but arrives
at the opposite result. Williams v. Taylor, 529 U.S. 362, 405, 411, 413
(2000). A state court “unreasonably applies” clearly established
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federal law when it “identifies the correct governing legal principle
from [the Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case.” Id. at 413. A case cannot
be overturned merely because it incorrectly applies federal law, for
the application must also be “unreasonable.” See id. at 411.
Under subsection (2), “a state court decision involves ‘an unreasonable
determination of the facts in light of the evidence presented in state court
proceedings,’ only if it is shown by a clear and convincing evidence that the state
court's presumptively correct factual findings do not enjoy support in the record.”
Lomholt v. Iowa, 327 F.3d 748, 752 (2003) (quoting 28 U.S.C. § 2254(d)(2) and
citing 28 U.S.C. § 2254(e)(1)).
A. Lynn’s Alford plea is valid because it was both knowing and voluntary.
In his first claim, Lynn alleges that the trial court failed to follow the
procedures required for an Alford plea because the court failed to make an explicit
finding on the record that Lynn made a voluntary and intelligent choice among his
alternative courses of action. The Missouri Court of Appeals addressed the claims
by first looking into Alford:
In Alford, the Supreme Court held a criminal defendant “may
voluntarily, knowingly, and understandingly consent to the imposition
of a prison sentence [by way of a guilty plea] even if he is unwilling
or unable to admit his participation in the acts constituting the crime.”
400 U.S. at 37. The Court stated that the standard for determining the
validity of a guilty plea is “whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to
the defendant.” Id. at 31.

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(Resp. Exh. D at 6). The Missouri Court of appeals noted the Alford
footnote, relied on by petitioner here, stating that “pleas coupled with claims
of innocence should not be accepted unless there is a factual basis for the
plea and until the judge taking the plea has inquired into and sought to
resolve the conflict between the waiver of trial and the claim of innocence.”
(Resp. Exh. D at 6).
The Court of Appeals found that the trial court had inquired into and
sought to resolve the conflict between Lynn’s waiver of trial and his
innocence claim. Lynn informed the trial court that he did not believe he
was guilty of the crime, but that he believed the State’s evidence was such
that if the case had been tried he would have been found guilty. Lynn also
confirmed that he understood penitentiary sentence was the only possibility
if the court accepted his Alford plea. Lynn informed the court that, he
understood by entering an Alford plea, he was giving up his rights to a trial
by jury, to confront his accusers, to call his own witnesses, and to the
presumption of innocence at trial. He agreed that the State’s evidence would
show that he, acting knowingly with others, unlawfully confined Victim
without his consent for a substantial period for the purpose of terrorizing
Victim. Finally, Lynn understood that the trial court could impose any

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sentence within the range of punishment permitted by law. (Resp. Exh. D at
7).
The Court of Appeals determined that the trial court’s dialogue with
Lynn at the plea hearing was “more than sufficient to establish that [Lynn]
made a voluntary and intelligent choice among options available to him.”
(Resp. Exh. D. at 8). Although the trial court did not expressly ask Lynn
whether he believed entering an Alford plea was better than a trial, it had
enough information to draw that conclusion, and so the Alford plea was
valid. (Resp. Exh. D. at 8).
The Court of Appeals properly identified and applied the test set forth
in Alford. The record establishes that Lynn, by his statements and answers
at the plea hearing, entered the Alford plea knowingly voluntarily and
intelligently. Its decision was reasonable and entitled to deference under
§2254(d). Lynn has not shown that the determination of Missouri Court of
Appeals was unreasonable and not entitled to deference, so this claim for
habeas relief fails. 28 U.S.C. §2254(e)(1).
B. Lynn’s ineffective assistance of counsel claim fails on the merits.
The rest of Lynn’s claims are based on the effectiveness of plea counsel’s
assistance. Lynn asserts plea counsel was ineffective for (1) advising Lynn to
enter an open Alford plea because it provided no benefit over a trial; (2) failing to

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read all the discovery the state provided; (3) failing to interview Scott Trower; (4)
telling Lynn that he stood a “good chance” of receiving probation, and (5) failing
to file and litigate a motion to suppress Lynn’s statements to police. The Missouri
Court of Appeals rejected all these claims on the merits. (Resp. Exh. D).
To prevail on a claim of ineffective assistance of trial counsel, a petitioner
must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, the defendant must show that counsel’s performance was deficient. Second,
the defendant must show that the deficient performance prejudiced the defense. Id.
To show deficiency, the petitioner must prove counsel’s assistance fell below an
“objective standard of reasonableness… under prevailing professional norms.” Id.
at 688. In considering whether this showing is met, “[j]udicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689. There is a “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. In the context of guilty pleas, to show prejudice, a
petitioner must show that there was “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
(1) Advice about Open Alford Plea
Lynn contends that plea counsel was inefficient for advising him to enter an
open Alford plea because the plea offered no benefit over a trial. Lynn asserts that

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had he known that the state promised no benefit in exchange for the plea, he would
not have entered it. The State responded that Lynn had received a benefit because
the State did not charge him with second-degree felony murder.
The Court of Appeals determined “the record of the evidentiary hearing
supports a finding that the State did promise a benefit.” (Resp. Exh. D. at 11). The
court found:
The prosecutor testified, as he continued to find evidence in the case
and as the other defendants began to enter guilty pleas, he determined
that the State would be able to prove that Movant was guilty of felony
murder as well as kidnapping. Movant’s guilty plea was pursuant to a
plea agreement in which the State would not charge Movant with
felony murder if he pleaded guilty to kidnapping. Likewise, counsel
testified that after he and prosecutor “went back and forth constantly”
in discussions about the plea, the prosecutor ultimately decided to
accept an Alford plea in exchange for the State not charging Movant
with felony murder. Counsel stated he advised Movant that he
believed entering an Alford plea was in Movant’s best interest given
the discovery in the case and the potential for a felony murder charge.
Movant acknowledged that counsel told him the State would charge
him with murder if he did not plead guilty to kidnapping. Thus, the
record refutes Movant’s assertion that the State promised no benefit in
exchange for the plea.
(Resp. Exh. D. at 11-12).
Lynn further asserts that the State’s threat of a felony murder charge was
unreasonable. Lynn argues that the State lacked the ability to prove beyond a
reasonable doubt that he was guilty of felony murder. To decide this contention,
this Court would be required to resolve matters of state law. “It is not the province
of a federal habeas court to reexamine state-court determinations on state-law
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questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Accordingly, this
Court will not address this argument and concurs with the determination of the
Missouri Court of Appeals.
(2) Discovery
Lynn asserts that his plea counsel was ineffective because he failed to
conduct an adequate pretrial investigation; specifically, Lynn alleges that plea
counsel did not fully review the discovery. Lynn contends that had he known
counsel failed to conduct adequate pretrial investigation, he would not have
entered an Alford plea but would have insisted on going to trial. The Court of
Appeals determined that this claim was not supported by the record. (Resp. Exh. D.
at 15). The Court of Appeals reasoned:
At the evidentiary hearing, counsel testified that he did not recall how
many pages of discovery he reviewed but that he generally reviewed
all of the discovery he received from the State and listened to recorded
witness interviews. The prosecutor testified that Movant’s counsel
came to his office to view certain DVDs provided in discovery and
discussed with him the contents of specific items of discovery,
including witness statements. Thus, the motion court properly
concluded that counsel reviewed the discovery provided by the States.
(Resp. Exh. D. at 15-16).
This decision that counsel was not ineffective was reasonable and entitled to
deference under §2254(d). It is further supported by the prosecutor’s testimony at
the evidentiary hearing that plea counsel complained to him because he did not
receive something referred to in the discovery responses, that plea counsel
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privately viewed DVDs at the prosecutor’s office, and that plea counsel spoke with
him about the contents of specific items of discovery. (Pet. Ex. 3 at 78). Because
this claim is refuted by the record, it is meritless.
(3) Trower’s Testimony
Lynn contends that his plea counsel was ineffective because he failed to
conduct an adequate pretrial investigation, specifically, he did not interview and
depose Scott Trower. The Court of Appeals held this claim failed because Lynn
did not prove that counsel failed to discover Trower’s expected testimony. (Resp.
Exh. D. at 17). The Court of Appeals found that, though counsel admitted he never
spoke to Trower, the record showed that counsel was familiar with the statement
Trower gave to the police about the incident and concluded that his testimony
would not be helpful. Trower admitted at the evidentiary hearing that he did not
accompany Lynn, Moss, and Allen whey they removed Victim from the Harveys’
house, nor was he present when the Harveys arrived and removed Victim from
Lynn’s house. Trower would have been “unable to testify as to anything that
occurred during those two crucial periods of time” and “unable to confirm or deny
that Movant participated in placing duct tape on Victim’s hands.” (Resp. Exh. D.
at 17).
The decision of the Court of Appeals is reasonable and has support in the
record. Trower testified at the evidentiary hearing about how Victim was treated at

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Lynn’s home. He stated Victim appeared “fine.” Victim was not bruised or
frightened, no one intimated him, and “everybody went out of their way to make
him feel at ease and make him feel at home.” (Suppl. to Pet. Doc. #3 at 93-94).
The motion court, however, found him “not credible.” (Pet. Exh. 1 at 51).
Meanwhile, Trower’s testimony would not have been helpful to Lynn.
Trower was not present when the Harveys picked Victim up the next day. (Suppl.
to Pet. Doc. #3 at 93-94). Trower also testified that Victim had communicated fear
of what would happen to him if he was turned back over to the Harveys. (Suppl. to
Pet. Doc. #3 at 99).
A federal habeas court owes deference to a state court’s findings of facts,
including its credibility determinations. Smulls v. Roper, 535 F.3d 853, 864 (8th
Cir. 2008) (en banc). This presumption of correctness applies to the factual
determinations made by a state court at either the trial or appellate levels. Id. at
864-65. Lynn fails to meet his burden of demonstrating that the state court’s
decision was contrary to, or was an unreasonable application of, clearly established
Federal law, or was based on an unreasonable determination of facts.
(4) Promises of Probation
Lynn alleges that his plea counsel was ineffective for representing to him
that he had a “good chance” of receiving probation, and had Lynn known he did
not stand a “good chance” of probation, he would not have entered his Alford plea

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but insisted on going to trial. The Court of Appeals analyzed this claim and found
it meritless. The Court of Appeals found the record of the evidentiary hearing
demonstrated that counsel made no promise on Lynn’s probation:
Counsel stated that he advised Movant: “They may think you were a
little more important… but at the same time I think you have a heck of
a nice background.” Counsel testified that he believed Movant’s
“good employment at the penitentiary” and his “pretty good
background” might aid him in getting a lesser sentence but that he did
not assure Movant that he would receive probation. Counsel stated: “
I told him there’s no promises here and I’m not assured of anything
but I’m just telling you that you have a good opportunity.” Counsel
testified that he told Movant that with a blind plea the court could
impose any sentence within the range of punishment. The motion
court found counsel was a credible witness. Although Movant
testified that counsel promised him that he would receive probation if
he pleaded guilty, the motion court found that Movant’s testimony in
that regard was not credible. “We defer to the motion court’s
credibility determinations.” Waller v. State, 403 S.W.3d 698, 709
(Mo. App. W.D. 2013) (quotation omitted).
(Resp. Exh. D. at 13-14).
The Court of Appeals decided that counsel’s advice at most constituted “a
mere prediction” of Lynn’s sentence based on Lynn’s employment history and lack
of a serious criminal background. (Resp. Exh. D. at 14). The court further stated
that, even if Lynn had established that “counsel made misleading statements that
caused him to have a mistaken belief about his sentence, he would be entitled to
relief only if his belief was reasonable.” (Resp. Exh. D. at 14). The court decided
Lynn’s mistaken belief was unreasonable because during the plea hearing, Lynn
answered affirmatively when the court asked him whether he understood that no
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one could promise what his sentence would be, and the court could impose any
sentence within the range of punishment permitted by law, and the range of
punishment was a minimum of five up to a maximum of fifteen years in the
penitentiary. (Resp. Exh. D. at 14).
The Court of Appeal’s decision was reasonable and entitled to deference.
This claim is also meritless and is refuted by the record.
At the plea hearing, Lynn told the trial court that he wished to enter an
Alford plea and no threats or promises had been made to cause him to plead guilty
and no promise had been made to him about what sentence he would receive. (Pet.
Exh. 2 at 7). He stated that he understood that if the plea was accepted, a
penitentiary sentence was the only possibility on his charge and the trial court
could impose any sentence within the range of punishment from five to fifteen
years. (Pet. Exh. 2 at 4, 7). At the evidentiary hearing, plea counsel testified that
he told Lynn there was no promise of probation, but only that he had a good
opportunity to receive probation based on his “favorable background.” (Suppl. to
Pet. Doc. #4 at 32). Even after sentencing, Lynn told the trial court that he had no
complaints about his counsel’s performance. (Pet. Exh. 2. at 27).
Lynn fails to show the incorrectness or unreasonableness of the Missouri
Court of Appeals’ determination that counsel was ineffective in telling him that he
stood a good chance of probation. Where counsel informs a defendant of the range

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of punishment, and defendant told the court he understood the range of
punishment, the Eighth Circuit has held that defendant cannot establish either that
counsel was ineffective or that he was prejudiced by the alleged error. See Long v.
Armontrout, 938 F.2d 106, 107 (8th Cir. 1991). Under federal law, an attorney’s
prediction of a sentence does not necessarily render a guilty plea involuntary.
Therefore, the state appellate court’s decision is not contrary to Federal law or
unreasonable determination of facts. Lynn’s argument fails.
(5) Motion to Suppress
Lynn claims that plea counsel should have filed a motion to suppress Lynn’s
statements that he provided Harvey with duct tape and demonstrated how to bind
Victim’s hands. He asserts that he was intoxicated and sleep-deprived that he had
no memory of that interrogation and that the statements were the only significant
evidence against him. Lynn claims that had he known that plea counsel did not file
a motion to suppress that statement, he would not have entered his Alford plea but
would have insisted on going to trial.
The Court of Appeals pointed out that under Missouri law where a movant
pleaded guilty voluntarily, the movant is not entitled to relief on a claim that
counsel was ineffective for failing to file and pursue a motion to suppress
evidence. (Resp. Exh. D. at 18). The court found Lynn entered the plea voluntarily
and thereby waived this claim. (Resp. Exh. D. at 18).

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This Court considers this argument on the merits and concludes Lynn fails to
show that the evidence would have been suppressed. See Freeman v. United
States, 611 Fed. Appx. 886, 886 (8th Cir. 2015) (where ineffective-assistance
allegation is that counsel failed to file a motion to suppress before guilty plea, to
demonstrate deficient performance by counsel and prejudice, a petitioner must
show the evidence would have been suppressed).
At the evidentiary hearing, Officers Curtis Wirths testified about the
interview with Lynn on December 23, 2009, at about three or four in the afternoon.
Lynn drove to the Sheriff’s office by himself because the Highway Patrol officers
asked him to come as a witness of the death of Victim. (Suppl. to Pet. Doc. #3 at
123-24, 129). The interview was recorded and provided to the motion court as
Exhibit F. (Suppl. to Pet. Doc. #3 at 124, 127). Initially, Lynn was not considered
as a suspect, he had not been arrested or detained, and he was free to leave at any
time. The conversation lasted about thirty to forty-five minutes. Lynn appeared to
understand everything discussed. Lynn never asked to stop, to take a break, or to
leave. Lynn seemed lucid and never indicated or appeared to be tired or
intoxicated during the conversation. (Suppl. to Pet. Doc. #3 at 124-126, 131).
Officer Rice interviewed Lynn after Officer Wirth and read Lynn his
Miranda rights. Lynn stated he understood and signed a document stating that he
understood his Miranda rights. (Suppl. to Pet. Doc. #3 at 139-40). This interview

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was recorded and provided to the motion court as Exhibit G. (Suppl. to Pet. Doc.
#3 at 140-41). Lynn did not ask for any attorney, ask to stop the interview, or ask
to leave. (Suppl. to Pet. Doc. #3 at 140). Office Rice testified that Lynn told him
“he assisted [Harvey] by providing duct tape, explained how to wrap his hands and
demonstrating how to wrap his hands so he’d be secure and go [sic] not get away.”
Lynn further advised that he told Victim to get off the couch, to get on the floor,
and to put his hands behind his back. Lynn also admitted he witnessed the
Harveys hitting Victim. (Suppl. to Pet. Doc. #3 at 141-42). During the interview,
Lynn appeared lucid and understood the severity of the questions and the situation.
He never suggested or seemed to be tired or intoxicated. He did not ask for a
break. He left and returned home after the interview. (Suppl. to Pet. Doc. #3 at
143-44).
The motion court reviewed the taped interviews and found the records did
not show any indication of intoxication or exhaustion precluding a voluntary
confession. In addition, the motion court found there were no improper threats or
promises made to Lynn during the interviews. It made clear to Lynn that he was
free to end the interviews and leave at any time. Lynn never requested to leave,
asked to stop, or requested counsel during the interviews. (Pet. Ex. 1 at 56). The
motion court concluded even if plea counsel had filed a motion to suppress, there
was no reasonable probability that such a motion would have succeeded. (Pet. Ex.

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1 at 73). These factual determinations are entitled to deference and Lynn presents
no clear and convincing evidence to overcome them.
As such, Lynn fails show that had the motion to suppress been filed, the
evidence would have been suppressed. Lynn’s claim that counsel was ineffective
for failing to file a motion to suppress will be denied.
Certificate of Appealability
Under 28 U.S.C. § 2253, a petitioner may not appeal a lower court’s
decision under 28 U.S.C. § 2254 to the appellate court unless granted a Certificate
of Appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a certificate, a judge
must find a substantial showing of the denial of a federal constitutional right. Id. at
§ 2253(c)(2); see Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A
substantial showing indicates 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). I find that reasonable jurists
could not differ on any of Lynn’s claims, so I will deny a Certificate of
Appealability on all claims.

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Accordingly,
IT IS HEREBY ORDERED that the petition of Darril Lynn for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is denied.
A separate judgment in accordance with the memorandum and opinion is
entered this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 16th day of November, 2015.

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