Hall v. Hurley

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for a Writ of Habeas Corpus under 28 U.S.C. ' 2254 be denied and be dismissed with prejudice by separate judgment entered this date. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal. Signed by Magistrate Judge Abbie Crites-Leoni on 11/16/2017. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARK HALL,

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Petitioner,
vs.
JAMES HURLEY,
Respondent.

Case No. 4:15 CV 239 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of Mark Hall for a Writ of Habeas Corpus
under 28 U.S.C. ' 2254.
I. Procedural History
Hall is currently incarcerated at Northeast Correctional Center in Bowling Green,
Missouri, pursuant to the sentences and judgments of the Circuit Court of the City of St. Louis,
Missouri. (Doc. 12-1 at 23-27.)
The State charged Hall as a prior and persistent offender with unlawful possession of a
firearm, unlawful use of a weapon, resisting arrest, and third-degree assault of a law enforcement
officer. Id. at 14-15. On April 7, 2011, Hall pleaded guilty to all charges.1 Id. at 21. In
exchange for Hall’s guilty plea, the State recommended concurrent sentences of 11 years
imprisonment for the unlawful possession of a firearm charge, seven years for the unlawful use
of a weapon charge, seven years for the resisting arrest charge, and one year2 for the

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Hall also pleaded guilty to two counts of possession of a controlled substance in a separate case,
which Hall does not challenge in this current action.
2
Because Hall has now completed the one-year sentence for the misdemeanor assault charge, he
cannot challenge this conviction in the instant action. See Maleng v. Cook, 490 U.S. 488, 490-91
(1989).
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misdemeanor assault charge. Id. at 20. Additionally, Hall acknowledged that he had a Federal
gun charge pending, for which he could be sentenced to 20 years. Id. Hall testified that it was
his understanding that the United States would dismiss that charge if he pleaded guilty to the
State charges. Id. The court sentenced Hall in accordance with his plea agreement to a total
term of imprisonment of 11 years. Id. at 21.
On August 3, 2011, Hall filed a pro se Motion to Vacate, Set Aside or Correct the
Judgment or Sentence pursuant to Missouri Supreme Court Rule 24.035. Id. at 31-36. After
appointment of counsel, Hall filed an Amended Motion and request for evidentiary hearing. Hall
argued that he received ineffective assistance of counsel in that trial counsel incorrectly advised
him that he would only be required to serve 40% of his sentences. Id. at 41-48. He argued that,
but for this advice, he would not have pleaded guilty. Id.
Prior to the evidentiary hearing on his post-conviction motion, Hall filed a Motion for
Change of Judge for cause. Id. at 49. Hall alleged that the assigned judge, the Honorable
Margaret M. Neill, had prejudged the merits of Hall’s case before hearing evidence. Id. at 49-52.
Specifically, Hall alleged that Judge Neill made remarks during an in-chambers scheduling
conference indicating that her intent was to deny Hall’s post-conviction relief motion after the
evidentiary hearing because Hall had a “snowball’s chance in hell” at success. Id. Hall’s Motion
for Change of Judge was denied. Id. at 53-55. The court found that Judge Neill’s comments
were based on the record in the underlying case and the plausibility of Hall’s claim, which were
not grounds for a change of judge. Id. at 55.
On May 13, 2013, the motion court denied Hall’s motion after holding an evidentiary
hearing. Id. at 65-73.

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In his single point on appeal, Hall argued that the motion court erred in overruling his
Motion for Change of Judge for cause because Judge Neill’s comments indicated that she had
pre-judged Hall’s case and relied on extrajudicial information. (Doc. 12-3.) On April 8, 2014,
the Missouri Court of Appeals affirmed the decision of the motion court. (Doc. 12-5.)
Hall timely filed the instant Petition on February 2, 2015. (Doc. 1). Hall raises the
following grounds for relief: (1) he received ineffective assistance of counsel because plea
counsel told him he would only have to serve 40% of his sentence when he was in fact required
to serve 80%, which rendered his guilty plea unknowing and involuntary; and (2) the motion
court erred in overruling his Motion for Change of Judge because the judge’s comments
indicated that that the court had pre-judged the issues and relied in part on extrajudicial
information.
On July 9, 2015, Respondent filed a Response to the Order to Show Cause, in which he
argues that Hall’s first ground for relief is procedurally defaulted and fails on the merits; and
Hall’s second ground for relief is not cognizable in federal habeas proceedings. (Doc. 12.)
Hall has filed a Traverse, in which he presents further argument in support of his grounds
for relief. (Doc. 19).
II. Facts
At the evidentiary hearing held in connection with Hall’s post-conviction motion, Hall
and his mother, Celeste Hall, testified on behalf of Hall. Plea counsel, Kristi Ridings and Jeremy
Farishon; and Hall’s Federal Public Defender, Nanci McCarthy, testified on behalf of the State.
(Doc. 12-2.)
Hall testified that, two days prior to his guilty plea hearing, another inmate told him that
he would have to serve 80% of his State sentence. Id. at 9-10. Hall stated that when he asked

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Ms. Ridings about this, she responded that it was incorrect, and that he would only have to serve
42% of his sentence. Id. at 10. He testified that he asked Ms. Ridings if she could put this
information in writing. Id. Hall testified that Mr. Farishon appeared with him at his guilty plea
hearing. Id. at 12. He indicated that Mr. Farishon handed Hall a “piece of paper that had
unlawful use of a weapon with 42 percent circled on it,” which he showed to his mother. Id.
Hall testified that this piece of paper was “the very reason why I took—I plead guilty to the 11
years.” Id.
Ms. Hall testified that she was present at Hall’s plea hearing, and that Hall told her in
court that he would have to serve four years and four months. Id. at 20. Ms. Hall testified that
she was not present during the conversation Hall had with plea counsel. Id. at 21.
Ms. Ridings testified as follows regarding Hall’s allegations concerning his parole
eligibility:
A. I don’t recall any conversations about that. I know in Federal prison
that’s a definite no parole. With regards to the State’s charge and parole, what
I’m sure I told him is what I tell every client, and that is, The parole Board
establishes their own rules, there’s nothing that I, Judge Neill, nor the prosecuting
attorney’s office can do to negotiate percentages; that would be determined when
you get there by a face sheet.
Q. And what is that face sheet you’re talking about?
A. A face sheet? When they’re delivered to the Missouri Department of
Corrections they’re given a face sheet that gives estimated release dates, and dates
of that nature. And, unfortunately, Defense attorneys have no control over how
they set those dates and what they do.
Q. Did you make any documentation or give Jeremy Farishon any
documentation regarding percentages for Mr. Hall if he pled guilty to his State
charges?
A. No, I don’t know that—I heard Mr. Hall’s testimony; I don’t know
what that would have been.
Id. at 29. Ms. Ridings further testified that she did not consult a parole analyst to determine the
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percentage of the sentence Hall would serve based on his record because “it was never an issue.
The issue was: Was he going to take the Federal time or the State time?” Id. at 35. She stated
that she believed Hall was facing a minimum sentence of 15 years on the Federal charge because
he was an Armed Career Offender. Id.
Mr. Farishon testified as follows when asked whether he discussed with Hall his parole
eligibility:
A. I don’t recall.
Q. In your practice, have you ever spoken with clients about the percentage they
would serve on any given charge?
A. I give an estimation; but I always say, It’s up to the parole board and they can
do anything they want to do.
Q. Did you tell the Defendant, Mark Hall, that he was going to serve somewhere
between 40 and 42 percent on these charges?
A. I would never give a solid number, no, unless it was an 85-percent statutory
crime.
Q. Did you give Mark Hall—what did you call it—a solid number?
**
A. I don’t recall.
Q. Did you give him a piece of paper with 42 percent circled on it at any time—
A. I don’t recall.
Q. –in your dealings with him?
A. Sorry. I don’t recall doing that.
Q. You say you don’t recall doing that, does that mean you could have done it
and you don’t remember, or you did not do that?
A. I could have done it and I don’t remember.
Q. Okay. In your practice is that something you normally would have done, give
a piece of paper with a solid number circled on it?
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A. It wouldn’t be a solid number. It would be an estimated percentage.
***
Q. Okay. Did you yourself figure out what his—what you believed his
percentage of time would be that he would serve?
A. No.
Q. Okay. So if you did not yourself come in that day, plead him, figure out the
percentage of time he would serve, would you have written down any number on
a piece of paper and given it to him with regards to the sentencing?
A. I would not have written down a number, no.
Id. at 38-40.
Ms. McCarthy testified that she represented Hall in 2010 and 2011 on a Federal charge of
felon in possession of a firearm stemming from the same incident as the State charges. Id. at 4243. Ms. McCarthy testified that she had been in regular contact with Ms. Ridings because the
U.S. Attorney indicated that he would dismiss the Federal charge if Hall received a sentence of
greater than 10 years in State court. Id. at 44. She testified that she advised Hall that he would
be required to serve 85% of his Federal sentence pursuant to statute. Id. at 45. Ms. McCarthy
stated that she did not discuss with Hall the percentage of the State sentence he would be
required to serve. Id. Ms. McCarthy stated that the U.S. Attorney’s office dismissed the Federal
charge after Hill was sentenced to 11 years on the State charges. Id. at 44.
III. Standard of Review
A federal court’s power to grant a writ of habeas corpus is governed by 28 U.S.C. '
2254(d), which provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim-

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. ' 2254(d).
The Supreme Court construed Section 2254(d) in Williams v. Taylor, 529 U.S. 362
(2000). With respect to the “contrary to” language, a majority of the Court held that a state
court decision is contrary to clearly established federal law “if the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a question of law” or if the state
court “decides a case differently than [the] Court has on a set of materially indistinguishable
facts.” Id. at 405. Under the “unreasonable application” prong of ' 2254(d)(1), a writ may
issue if “the state court identifies the correct governing legal rule from [the Supreme Court=s]
cases but unreasonably applies [the principle] to the facts of the particular state prisoner’s
case.” Id. Thus, “a federal habeas court making the ‘unreasonable application’ inquiry should
ask whether the state court’s application of clearly established federal law was objectively
unreasonable.” Id. at 410. Although the Court failed to specifically define “objectively
unreasonable,” it observed that “an unreasonable application of federal law is different from an
incorrect application of federal law.” Id. at 410.

IV. Procedural Default
Respondent argues that Hall’s first ground for relief is procedurally defaulted because
Hall did not raise this claim in his post-conviction appeal.
To avoid defaulting on a claim, a petitioner seeking federal habeas review must have
fairly presented the substance of the claim to the state courts, thereby affording the state courts a
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fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v.
Iowa, 332 F.3d 1018, 1020-21 (8th Cir. 2003) (internal quotation marks and citations omitted)
Specifically, a state prisoner must fairly present each of his claims in each appropriate state court
before seeking federal habeas corpus review of the claim. Baldwin v. Reese, 541 U.S. 27, 29
(2004). A claim has been fairly presented when a petitioner has properly raised the same factual
grounds and legal theories in the state courts that he is attempting to raise in his federal petition.
Wemark, 322 F.3d at 1021 (internal quotation marks omitted). Claims that are not fairly
presented to the state courts are procedurally defaulted. See id. at 1022.
Here, Hall raised the claim contained in Ground One in his post-conviction motion but
did not include it in his appeal from the denial of post-conviction relief. The failure to prosecute
this claim in his post-conviction appeal has resulted in the procedural default of Ground One.
See Lowe-Bey v. Groose, 28 F.3d 816, 818 (8th Cir. 1994); Jolly v. Gammon, 28 F.3d 51, 53 (8th
Cir. 1994); Sweet v. Delo, 125 F.3d 144, 149 (8th Cir. 1996); Osborne v. Purkett, 411 F.3d 911,
919 (8th Cir. 2005); see also Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012) (failure to
raise claim in appeal from denial of post-conviction motion is a bar that cannot be overcome by
cause and prejudice).
Claims that have not been fairly presented to the state courts are procedurally defaulted
and may not give rise to federal habeas relief unless the petitioner establishes “cause for not
presenting the claim on post-conviction appeal and prejudice from the failure, or a fundamental
miscarriage of justice-meaning that he is actually innocent.” Storey v. Roper, 603 F.3d 507, 52324 (8th Cir. 2010) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)).
Hall appears to argue that his appellate counsel was ineffective in failing to raise Ground
One in his post-conviction appeal. Ineffective assistance of post-conviction counsel does not

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constitute cause to excuse a procedural default. Arnold v. Dormire, 675 F.3d 1082, 1087 (8th
Cir. 2012). Hall has, therefore, failed to demonstrate cause to excuse his procedural default of
Ground One. Additionally, Hall does not present evidence of actual innocence.
Thus, Hall’s claim asserted in Ground One is procedurally defaulted.
V. Hall’s Claims
Hall asserts two grounds for relief. The undersigned will discuss Hall’s grounds for relief
in turn.
1.

Ground One
In his first ground for relief, Hall argues that he received ineffective assistance of counsel

because plea counsel incorrectly advised him that he would only be required to serve 40% of his
sentence rather than 80%, which rendered his guilty plea unknowing and involuntary. Hall
contends that he would not have accepted the State’s offer but for the incorrect advice. The
Court has already found this claim to be procedurally defaulted. As will be briefly discussed
below, it fails on its merits as well.
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

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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
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.
Here, the motion court rejected Hall’s claim, finding that Hall did not present sufficient
evidence to show that his counsel misinformed him regarding his parole eligibility, and that his
claim was not reasonable based on his past criminal record. (Doc. 12-1 at 72-73.) The court
held as follows, in relevant part:
In the instant case the Court finds that Movant has not shown by a
preponderance of the evidence that his counsel told him that he would only have
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to serve 40% of his sentence. Further, the Court notes that Movant benefitted
from the plea in that the federal charges against him, which carried a minimum of
fifteen years of which 85% would have to be served, were not brought. The Court
does not believe that Movant’s alleged belief was reasonable or that such alleged
belief had a reasonable basis in the record. Additionally, Movant had a significant
past criminal record. Movant has not shown by credible evidence that counsel
made an affirmative misrepresentation to him or that he would have insisted on
going to trial. This allegation is accordingly without merit and denied.
Id.
The motion court reasonably applied Strickland. Both plea counsel testified at the
evidentiary hearing that they did not recall making any representations to Hall that he would
serve only 40 or 42% of his sentence, and that it was not their general practice to make such
representations regarding parole eligibility. The motion court determined after hearing testimony
from Hall and counsel that Hall had not shown that counsel misinformed him regarding his
parole eligibility. A state court’s factual findings are presumed correct. 28 U.S.C. § 2254(e)(1);
Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003). Hall has not produced any evidence
to rebut this presumption.
The motion court’s determination that Hall had shown no credible evidence that he would
have gone to trial absent counsel’s alleged misrepresentation was also reasonable. Plea counsel
testified that she believed Hall would have been required to serve at least 15 years with no option
for parole on his pending Federal charge. Hall’s Federal Public Defender testified that Hall
would be required to serve 85% of his Federal sentence pursuant to statute. She further testified
that the United States had agreed to dismiss the Federal charge against Hall if he received a
sentence of greater than 10 years in State court. Given Hall’s choice of pleading guilty to 11
years on the State charges, or going to trial on those charges and facing the Federal charge
carrying a longer sentence, it is not reasonable that he would have instead insisted on going to
trial.
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The State court decision was not contrary to or an unreasonable application of clearly
established law, nor was it an unreasonable application of the facts. Accordingly, Ground One
will be denied.
2.

Ground Two
In his second ground for relief, Hall argues that the motion court erred in overruling his

Motion for Change of Judge.
Hall’s claim is not cognizable in federal habeas corpus review. Federal habeas courts are
only authorized to review the constitutionality of a state criminal conviction, not infirmities in a
state post-conviction relief proceeding. “Because there is no federal constitutional requirement
that states provide a means of post-conviction review of state convictions, an infirmity in a state
post-conviction proceeding does not raise a constitutional issue cognizable in a federal habeas
petition.” Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990). See Prince v. Bowersox,
No. 14-0134-CV-W-HFS-P, 2014 WL 4954084, at *16 (W.D. Mo. Oct. 2, 2014) (claim that
post-conviction motion court erred in denying motion for change of judge was not cognizable in
federal habeas corpus review); Rulo v. Prudden, No. 4:10-CV-416 (CEJ), 2013 WL 363219, at
*3 (E.D. Mo. Jan. 30, 2013) (petitioner’s argument that he was entitled to a change of judge “is a
state law claim and may not be reviewed by a federal habeas court”).
Accordingly, Hall’s second ground for relief will be denied.
VI. Certificate of Appealability
To grant a certificate of appealability, a federal habeas court must find a substantial
showing of the denial of a federal constitutional right. See 28 U.S.C. ' 2253(c)(2); Hunter v.
Bowersox, 172 F.3d 1016, 1020 (8th Cir. 1999). A substantial showing is established if the
issues are debatable among reasonable jurists, a court could resolve the issues differently, or the

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issues deserve further proceedings. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). In this
case, Hall has failed to make a substantial showing of the denial of a constitutional right. The
undersigned is not persuaded that the issues raised in his Petition are debatable among reasonable
jurists, that a court could resolve the issues differently, or that the issues deserve further
proceedings.
Accordingly, no Certificate of Appealability shall be issued.

ORDER
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for
a Writ of Habeas Corpus under 28 U.S.C. ' 2254 be denied and be dismissed with prejudice by
separate judgment entered this date.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be
denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal.
Dated this 16th day of November, 2017.

_____________________________________
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE

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