Gilliam v. Minor

Filing 10

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner Leonard C. Gilliam's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 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.. Signed by Magistrate Judge Shirley Padmore Mensah on 9/28/2017. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LEONARD C. GILLIAM,

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Petitioner,

v.
DEAN MINOR,
Respondent.

Case No. 4:14-CV-1496-SPM

MEMORANDUM AND ORDER
This matter is before the undersigned on the petition of Missouri state prisoner Leonard
C. Gilliam (“Petitioner”) 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. 6). For the following reasons, the petition will be
denied.
I.

FACTUAL BACKGROUND
In November 2009, Petitioner was charged as a prior and persistent offender with one

count of robbery in the first degree pursuant to Mo. Rev. Stat. § 569.020 and one count of armed
criminal action pursuant to Mo. Rev. Stat. § 571.015. Resp’t Ex. A, at 8. 1 The information was
later amended to charge Petitioner as a prior and persistent offender. Id. at 10-11. Petitioner
pleaded guilty to both offenses. Id. at 21. At the plea hearing, the prosecutor stated, inter alia,
that the state would prove beyond a reasonable doubt the following. On November 13, 2009,
1

Unless otherwise specified, page numbers refer to the numbering of the electronically filed
document.
1

Petitioner approached a vehicle and asked about a cigarette. Transcript of Guilty Plea and
Sentencing Proceedings (“Guilty Plea Tr.”), at 6. 2 One of the three men in the vehicle gave him a
cigarette, and Petitioner asked for a light for it. Id. Petitioner then stuck his hand in his pocket,
which the men said contained some sort of object, and Petitioner ordered the men to get out of
the car or he would shoot them. Id. at 7. The three men exited the vehicle. Id. Petitioner then got
in the vehicle and drove away. Id. Petitioner was arrested driving the vehicle a day later. Id. The
three men identified Petitioner’s photo in a lineup. Id. Petitioner testified that the evidence as
stated by the prosecutor was substantially correct. Id.
Petitioner testified that he understood that the range of punishment was 10 to 30 years or
a sentence of life for the robbery charge and three years to life for the armed criminal action
charge; that he had time to discuss this range thoroughly with his plea counsel; that he had no
questions about it; and that he and his plea counsel had reached an agreement with the prosecutor
as to the sentence to be imposed in his case. Id. at 7-8. Petitioner confirmed that the agreed-upon
sentence was fifteen years for the robbery charge and three years for the armed criminal action
charge, to be served concurrently. Id. at 9. Petitioner testified that no one had made any promises
or threats to him or his family to induce him to plead guilty; that his attorney had answered all of
his questions; and that he had been given enough time to discuss his case with his attorney. Id. at
10-11. Petitioner had some complaints about his plea counsel’s performance, testifying that she
could have “put enough time and effort into fighting the case as a whole,” that she could have
filed a motion to dismiss the case based on a speedy trial violation (which he filed pro se), and
that she could have done further investigation into the fact that the victims were found in

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The Transcript of Guilty Plea and Sentencing Proceedings is found at pages 12 through 20 of
Respondent’s Exhibit A. The page numbers cited in the text of the opinion refer to the
numbering in the hearing transcript.
2

possession of marijuana. Id. at 11-17. However, he also testified that his plea counsel had
obtained discovery on his behalf, including a deposition at which facts were discovered about the
victims’ drug possession; that she had argued his pro se motion to dismiss on the record; that he
was not aware of any witnesses that she did not contact; that he had talked with her about the
evidence he had that he wanted to bring to the court’s attention in his defense; and that she had
answered all of his questions about the defenses he talked to her about. Id. at 12-17. Petitioner
also testified that his attorney had advised him of his legal rights and of the consequences of
pleading guilty. Id. at 18. Upon questioning by the court, Petitioner testified that he understood
that he was waiving several specific rights, including the right to have a jury trial, the right to
require the state to prove his guilt beyond a reasonable doubt, and the right to appeal. Id. at 1820. Petitioner told the court that he wanted to plead guilty to the charges against him and that he
was guilty as charged, and the court accepted his plea. Id. at 22-23.
After accepting Petitioner’s plea, the court sentenced Petitioner to a term of
imprisonment of fifteen years on the count of robbery in the first degree and three years on the
count of armed criminal action, to run concurrently. Id. at 23-24. At that time, the court again
asked Petitioner about his view of his counsel’s assistance in his case. Petitioner stated that his
counsel “could have gave [sic] the case overall more effort” and that “she failed to thoroughly
investigate the case and inform me.” Id. at 26-28. However, he also testified that he had
sufficient opportunity to discuss his case with his counsel before he entered his plea of guilty;
that his counsel did the things he asked her to do before he entered his plea of guilty; and that she
had not communicated any threats or promises to him to induce him to enter his plea of guilty.
Id. at 26-29. The court found there was no probable cause to suggest that Petitioner had received
ineffective assistance of counsel. Id. at 29.

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Petitioner filed a pro se motion for post-conviction relief pursuant to Missouri Supreme
Court Rule 24.035. Resp’t Ex. A, at 30-34. He also filed an amended motion, through appointed
counsel, in which he raised one claim: ineffective assistance of plea counsel that caused an
involuntary guilty plea. Id. at 44-53. Petitioner alleged that he had only pleaded guilty because
his plea counsel pressured him to accept the plea or likely face a harsher sentence, and he stated
that he did not feel comfortable proceeding to trial because his counsel “seemed unprepared and
uninterested.” Id. at 48-49. The motion court denied the motion. Id. at 57-64. Petitioner raised
the same claim in his appeal, Resp’t Ex. B, at 10-12, and the Missouri Court of Appeals affirmed
the denial of the motion, Resp’t Ex. D.
In the instant pro se petition, Petitioner asserts three grounds for relief: (1) that his guilty
plea was involuntary because it was based on ineffective assistance of counsel; (2) that he was
denied his right to a speedy trial under Mo. Rev. Stat. § 217.460, Missouri’s Uniform Mandatory
Disposition of Detainers Law (“UMDDL”); and (3) that his plea counsel had a “conflict of
interest” in that she moved for a continuance against Petitioner’s wishes.
II.

LEGAL STANDARDS
A. Legal Standard for Reviewing Claims on the Merits
Federal habeas review exists only “as ‘a guard against extreme malfunctions in the state

criminal justice systems, not a substitute for ordinary error correction through appeal.’” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86,
102-03 (2011)). Accordingly, “[i]n the habeas setting, a federal court is bound by the AEDPA
[the Antiterrorism and Effective Death Penalty Act] to exercise only limited and deferential
review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003)
(citing 28 U.S.C. § 2254). Under AEDPA, a federal court may not grant habeas relief to a state

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prisoner with respect to any claim that was adjudicated on the merits in the state court
proceedings unless the state court’s adjudication of a 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). A state court decision is “contrary to” clearly
established Supreme Court precedents “if the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of
facts that are materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [the Supreme Court’s] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000); see also Brown v. Payton, 544 U.S. 133, 141 (2005). A
state court decision involves an “unreasonable application” of clearly established federal law if it
“correctly identifies the governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.” Williams, 529 U.S. at 407-08; see also Bell v. Cone, 535 U.S. 685,
694 (2002). “Finally, a state court decision involves an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings only if it is shown that the state
court’s presumptively correct factual findings do not enjoy support in the record.” Jones v.
Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004) (citations and internal quotation marks omitted);
see also Rice v. Collins, 546 U.S. 333, 338-39 (2006) (noting that state court factual findings are
presumed correct unless the habeas petitioner rebuts them through clear and convincing
evidence) (citing 28 U.S.C. § 2254(e)(1)).

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B. Legal Standard for Procedurally Defaulted Claims
To preserve a claim for federal habeas review, “a state habeas petitioner must present that
claim to the state court and allow that court an 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)). “Where a petitioner fails to follow applicable state procedural rules, any claims not
properly raised before the state court are procedurally defaulted.” Id. The federal habeas court
will consider a procedurally defaulted claim “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.” Id. (citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992)). 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). To establish prejudice, a petitioner must demonstrate that the claimed errors
“worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); accord Ivy v.
Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999). Lastly, in order 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)).
III.

DISCUSSION
As a preliminary matter, the Court will address Respondent’s contention that Petitioner

cannot challenge his armed criminal action conviction because he does not satisfy the “in
custody” requirement of 28 U.S.C. § 2254(a) with respect to that conviction. The Court agrees
with Respondent. “The federal habeas statute gives the United States district courts jurisdiction

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to entertain petitions for habeas relief only from persons who are ‘in custody in violation of the
Constitution or laws or treaties of the United States.’” Maleng v. Cook, 490 U.S. 488, 490 (1989)
(quoting 28 U.S.C. § 2241(c)(3) and citing 28 U.S.C. § 2254(a)). The Supreme Court has
interpreted the statute “as requiring that the habeas petitioner be ‘in custody’ under the
conviction or sentence under attack at the time his petition is filed.” Id. at 490-91.
Here, Petitioner’s three-year sentence for armed criminal action was set to run
concurrently with his fifteen-year sentence for robbery. He completed his armed criminal action
sentence in December 2012—nearly two years before he filed the instant habeas petition. Resp’t
Ex. E, at 3. Thus, it appears that he does not satisfy the “in custody” requirement with respect to
any challenge to his armed criminal action conviction, and this Court lacks jurisdiction to
consider a challenge to that conviction. See Beckwith v. Koster, No.4:16-CV-1098-CDP, 2016
WL 3924187, at *1-*2 (E.D. Mo. July 21, 2016) (finding court had no jurisdiction over habeas
claim challenging state sentence that had already expired and that been running concurrent to his
longer federal sentence; stating, “Where, as is the case here, the sentence under challenge has
fully expired, the custody requirement is not met.”) (citing Mays v. Dinwiddle, 580 F.3d 1136,
1140-41 (10th Cir. 2009)). However, it is undisputed that Petitioner satisfies the “in custody”
requirement with regard to his robbery conviction. It does not appear that any of Petitioner’s
three claims is directed specifically to the armed criminal action conviction. Thus, the Court will
address each of the three claims.
A. Ground One: Involuntary Guilty Plea Due to Ineffective Assistance of
Counsel
In Ground One, Petitioner asserts that his guilty plea was involuntary because his plea
counsel told him that if he did not take a fifteen-year plea agreement, he would probably end up
with a sentence of twenty-five to thirty years. Petitioner argues that his plea was made “out of

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fear rather than guilt.” Pet’n, Doc. 1, at 5. Although his petition contains no additional detail
regarding the nature of this claim, Petitioner’s state court filings indicate that he felt pressured to
enter a plea of guilty rather than proceeding to trial because his attorney informed him it was
likely he would be convicted and would receive a long sentence, and also because his attorney
seemed “unprepared and uninterested” in his case and thus he felt he had no choice other than to
plead guilty. Resp’t Ex. B, at 15-16. Petitioner also asserted that he did not have sufficient time
to consider the consequences of pleading guilty before entering his plea. Id. at 16. The motion
court denied the motion on the merits, Resp’t Ex. A, at 57-64, and the Missouri Court of Appeals
affirmed the denial of the motion, Resp’t Ex. D.
After a guilty plea, collateral review of the plea “is ordinarily confined to whether the
guilty plea was both counseled and voluntary.” Pennington v. United States, 374 F. Supp. 2d
813, 816 (E.D. Mo. 2005) (citing United States v. Broce, 488 U.S. 563, 569 (1989)). A plea is
voluntary if it “represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina
v. Alford, 400 U.S. 25, 31 (1970)). In the context of a guilty plea, a defendant who pleaded guilty
upon the advice of counsel may challenge the voluntariness of that plea through a claim of
ineffective assistance of counsel. Hill, 474 U.S. at 56-57. The Supreme Court has held that the
two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 689 (1984), applies to
ineffective assistance claims in the guilty plea context. Hill, 474 U.S. at 57-59. To satisfy the
first prong, sometimes known as the “deficient performance” prong, the petitioner must show
“that counsel’s representation fell below an objective standard of reasonableness.” Id. at 57.
“Judicial scrutiny of counsel’s performance must be highly deferential,” and the petitioner bears
a heavy burden in overcoming “a strong presumption that counsel’s conduct falls within the wide

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range of reasonable professional assistance” and might be considered sound trial strategy.
Strickland, 466 U.S. at 689 (citation and internal quotation marks omitted). To satisfy the second
prong in the guilty plea context, the petitioner must show “that there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” Hill, 474 U.S. at 59.
When an ineffective assistance claim has been addressed by the state court, this Court
must bear in mind that “[t]aken together, AEDPA and Strickland establish a ‘doubly deferential
standard’ of review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v.
Pinholster, 563 U.S. 170, 190 (2011)). In the context of a habeas claim, it is not sufficient for a
petitioner to “show that he would have satisfied Strickland’s test if his claim were being
analyzed in the first instance.” Bell, 535 U.S. at 698-99. “Rather, he must show that the [state
court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Id. at
699.
In evaluating this claim, the motion court found that in advising Petitioner regarding his
potential punishment, Petitioner’s plea counsel had exercised the customary skill and diligence a
reasonably competent attorney would exercise under similar circumstances. Id. at 61-62. The
motion court noted that plea counsel “gave correct punishment information to movant,” and
“offered her opinion as to the likely outcome of a trial.” Resp’t Ex. A, at 61. The motion court
found that Petitioner’s claim that he felt uncomfortable proceeding to trial with his attorney
because she seemed unprepared and uninterested was refuted by the record, which showed that
plea counsel had appropriately requested and followed up on discovery, appropriately sought a
continuance so she could follow up on information in a late-disclosed police report, filed a
motion to suppress identification, argued Petitioner’s motion to dismiss the case based on speedy

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trial issues, advised Petitioner throughout the case, and negotiated a favorable sentence for him.
Id. at 61-62. The motion court found that although Petitioner “certainly felt pressure” to plead
guilty, that pressure was created by the facts of the case and the possible range of punishment
and was “not created by ineffective or unprepared counsel.” Id. at 62. The motion court further
stated:
The court file and the transcript of the plea proceeding evidences a person
who, on June 20, 2011, was fully informed about the charges against him, about
what the state’s evidence would be at trial, about his possible defenses at trial,
about the range of punishment, and about his attorney’s opinion that there was a
substantial likelihood he would be found guilty. He had no additional witnesses
for his attorney to contact. There were no defenses he had not reviewed with his
attorney. Knowing all this, Movant told the court he did not want to go to trial and
told the court he was pleading guilty because he was guilty as charged. Movant
made a knowing, intelligent and voluntary plea of guilty to the charges against
him.
Id. at 63.
Similarly, in evaluating this claim on appeal, the Missouri Court of Appeals stated:
[A]t the plea hearing, Movant testified repeatedly that he had enough time to
discuss the plea with his counsel. Movant further testified he discussed with his
counsel all the defenses Movant thought were relevant, and his counsel answered
all of his questions about those defenses. In addition, Movant testified he was not
pleading guilty because he had been promised something or had been threatened.
Eventually, Movant stated he was not satisfied with his counsel and that she
should have investigated more. However, earlier in the proceeding, Movant had
stated he had no complaints or criticisms of his counsel. Moreover, Movant’s
complaint that his counsel was not prepared was a conclusory assertion
unsupported by the factual record. The motion court found that there was no
probable cause to support the conclusion that movant received ineffective
assistance of counsel. Based on the record, we find the motion court did not
clearly err in finding Movant’s claim was refuted by the record.
Resp’t Ex. D, at 5.
The Missouri courts’ determination that Plaintiff’s plea counsel was not ineffective and
that he made a knowing, intelligent, and voluntary plea was reasonable and supported by the
record. The first prong of Hill is not satisfied here, because Petitioner cannot not show that his

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counsel’s performance was deficient. The motion court found that plea counsel accurately
advised Petitioner about the length of the potential sentence he faced (a matter of Missouri law),
and this Court may not “second-guess the decision of a Missouri state court on Missouri law.”
See Arnold v. Dormire, 675 F.3d 1082, 1086 (8th Cir. 2012). Petitioner also offers no facts or
arguments to suggest that his counsel’s advice that he was likely to be convicted at trial was
erroneous or unreasonable. It was not deficient performance for plea counsel to accurately
inform Petitioner of his potential sentence or of her opinion of the likelihood that he would be
convicted. In addition, the state courts reasonably found that the record refuted Petitioner’s
contention that his plea counsel was unprepared, was uninterested in his case, failed to
investigate his case, or coerced him into making a plea. The transcript of the plea hearing shows
that Petitioner testified that his plea counsel had answered all of this questions; that his plea
counsel had discussed all defenses, discovery, and witnesses with him; that his plea counsel had
argued his pro se motion to dismiss based on an alleged speedy trial violation; that his plea
counsel had investigated the case and conducted a deposition; that his plea counsel had not
threatened him or offered him promises to induce him to accept the plea; that he had read and
understood the plea agreement and gone over it with his attorney, who answered all of his
questions about it; and that he wanted to plead guilty to the agreed-upon sentence. “While a
guilty plea taken in open court is not invulnerable to collateral attack in a post conviction
proceeding, the defendant’s representations during the plea-taking carry a strong presumption of
verity and pose a formidable barrier in any subsequent collateral proceedings.” Nguyen v. United
States, 114 F.3d 699, 703 (8th Cir. 1997) (quoting Voytik v. United States, 778 F.2d 1306, 1308
(8th Cir. 1985)). The state courts’ findings that Petitioner’s counsel was not ineffective and that

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Petitioner made a voluntary and intelligent choice to plead guilty are well-supported by
Petitioner’s own statements and the record as a whole.
For all of the above reasons, the Missouri courts’ finding that Petitioner’s guilty plea was
not involuntary due to ineffective assistance of plea counsel was reasonable and supported by the
record, and Ground One will be denied.
B. Ground Two: Violation of Right to Speedy Trial Under Missouri Law
In Ground Two, Petitioner argues he was denied his right to a speedy trial under Mo.
Rev. Stat. Section 217.460, the Uniform Mandatory Disposition of Detainers Law (“UMDDL”).
Petitioner asserts that he submitted a request for final disposition on September 13, 2010, and
that he was therefore entitled to final disposition of his case within 180 days of filing his request.
He asserts that his request was ignored and his trial date was continued, against his wishes, to
June 20, 2011.
Petitioner’s assertion that his rights under the UMDDL were violated is not cognizable
for purposes of federal habeas review. “In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”
Estelle v. McGuire, 502 U.S. 62, 68 (1991). Thus, “[v]iolation by state officials of a state speedy
trial law, taken alone, does not present a federal claim reviewable on habeas petition.” Poe v.
Caspari, 39 F.3d 204, 207 (8th Cir. 1994). See also Crenshaw v. Larkins, No. 4:09-CV-336JCH, 2012 WL 886823, at *2 (E.D. Mo. Mar. 15, 2012) (holding that the petitioner’s claim that
the state failed to bring his case to trial pursuant to the UMDDL was “not cognizable in a federal
habeas petition”). Because Ground Two is not cognizable, it must be denied.
Petitioner does not appear to be alleging a violation of his right to a speedy trial under the
Sixth Amendment to the United States Constitution. To the extent that he does intend to allege

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such a claim, he waived that claim by pleading guilty. The Eighth Circuit has held that a guilty
plea, knowingly and voluntarily entered, constitutes a waiver of all non-jurisdictional effects,
including the right to a speedy trial. Cox v. Lockhart, 970 F.2d 448, 453 (8th Cir. 1992) (citing
Becker v. Nebraska, 435 F.2d 157 (8th Cir. 1970)). See also Barnes v. Dormire, No.
4:10CV0443 JAR, 2013 WL 530907, at *2 (E.D. Mo. Feb. 12, 2013) (holding that a habeas
petitioner had waived a speedy trial claim by knowingly and voluntarily pleading guilty). The
Missouri state courts found that Petitioner’s guilty plea was entered knowingly, intelligently, and
voluntarily. Petitioner’s only challenge to that finding was addressed and rejected in Ground
One. Thus, even assuming that Petitioner is alleging a violation of his right to a speedy trial
under the Sixth Amendment, that claim must be denied.
For the above reasons, Ground Two will be denied.
C. Ground Three: Conflict of Interest—Pre-Trial Continuance Against
Petitioner’s Expressed Wishes
In Ground Three, Petitioner alleges that his plea counsel had a “conflict of interest”
because his plea counsel requested and received a continuance of Petitioner’s original February
14, 2011 trial date, despite the fact that Petitioner did not want a continuance. Pet’n, Doc. 1, at 8.
The Court construes this as an ineffective assistance of counsel claim. Petitioner raised this
argument in his pro se motion for post-conviction relief, Resp’t Ex. A, at 31, but it was not
included in his amended motion filed by appointed counsel, Resp’t Ex. A, at 44-53. Thus,
Petitioner’s claim is procedurally defaulted based on Petitioner’s failure to properly present the
claim to the motion court. See Interiano v. Dormire, 471 F.3d 854, 856-57 (8th Cir. 2006)
(claims included in pro se motion for post-conviction relief under Rule 29.15, but not included in
amended motion by appointed counsel or in an appeal from denial of that motion, are
procedurally defaulted); Wills v. State, 321 S.W.3d 375, 386-87 (Mo. Ct. App. 2010) (under

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Missouri law, claims included in a pro se motion for post-conviction relief but not in a
subsequent amended motion were “not properly before the motion court because they were a
nullity”). Petitioner does not argue that there is cause to excuse this procedural default, nor does
he assert that a fundamental miscarriage of justice would occur if the Court did not address the
claim. Thus, this Court is barred from granting relief to Petitioner on this claim.
Even assuming, arguendo, that this claim was not procedurally defaulted, it would be
denied because it is without merit. Even assuming that Petitioner could show deficient
performance, Petitioner has not offered any facts or argument to support a finding of prejudice
from the alleged error—that is, “that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474
U.S. at 59. Petitioner does not offer, and the record does not reveal, any basis for a finding that
Petitioner would not have pleaded guilty had his trial date not been delayed by approximately
four months from the originally scheduled trial date. The court notes that when Plaintiff was
asked about his plea counsel’s performance during the plea hearing, Petitioner did not argue that
he was displeased about plea counsel’s request for a continuance; to the contrary, he stated that
he wished his plea counsel could have “just spent more time” on the case and had done “further
investigation.” Guilty Plea Tr. 11, 16.
For all of the above reasons, Petitioner is not entitled to relief on Ground Three, and
Ground Three is denied.
IV.

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

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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.” § 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) (citation
omitted). The Court finds that reasonable jurists could not differ on Petitioner’s claims, so the
Court will not issue a certificate of appealability. Accordingly,
IT IS HEREBY ORDERED that Petitioner Leonard C. Gilliam’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.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of September, 2017.

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