Cotton v. Steele

Filing 12

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the petition of Tatizes Cotton for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. IT IS FURTHER ORDERED that a Certificate of Appealability shall not be issued in this case. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 6/18/2018. (AFC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TATIZES COTTON,
Petitioner,
v.
TROY STEELE,
Respondent.

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Case No. 4:15CV00806 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the petition of Missouri state prisoner Tatizes Cotton
for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. In 2012, Petitioner pleaded guilty in
Missouri state court to one count of first-degree robbery, one count of first-degree burglary,
and two counts of armed criminal action. The court sentenced Petitioner to a total of 20 years
imprisonment. In his sole ground for habeas relief, Petitioner claims that his plea counsel
provided ineffective assistance by promising Petitioner he would receive a ten year sentence
without being subjected to an 85% mandatory minimum term before parole eligibility. For
the reasons set forth below, federal habeas relief will be denied.
BACKGROUND
Petitioner was charged with the above-noted crimes, which involved a robbery and
burglary committed with his brother and another individual; during the course of the crimes,
the other individual shot and seriously wounded a victim. At the guilty plea hearing,
Petitioner confirmed that he understood the charges against him. The prosecutor outlined a
factual basis for the pleas and Petitioner affirmed that the facts as set forth by the prosecutor

were true. Petitioner’s counsel then reviewed the range of punishment for each crime, as
follows:
Count I [for robbery] is a Class A felony punishable by 10 years to 30 years
or life imprisonment . . . . Counts II and IV [for armed criminal action] are
unclassified felonies punishable by a minimum of three years . . . up to an
infinite or uncountable number of years as a maximun. Count III [for
burglary] is a Class B felony, punishable by 5 or 15 years . . . for a total
incarceration period possible if the court would run the sentences
consecutively to one life sentence plus an infinite number of years.
ECF No. 8-3 at 18.
The court ascertained that the shooter was sentenced to life imprisonment plus a
consecutive sentence of 30 years, and that Petitioner’s brother, who pleaded guilty to the same
four crimes with which Petitioner was charged, and agreed to cooperate with the state, was
sentenced to a total of 20 years’ imprisonment. Petitioner confirmed that he was aware of
these sentencing possibilities. He also confirmed that he understood no sentence had been
agreed to in his own case, and that he had no “secret anticipation of some particular sentence.”
Id. Petitioner represented that he discussed the police report with his attorney and whether or
not to go to trial or plead guilty; that he spoke to his attorney about his legal rights and “what
could happen if” he pleaded guilty; and that he understood the rights he was giving up by
pleading guilty. Petitioner then pleaded guilty to the four charged offenses and the court
accepted the pleas as voluntarily and intelligently made with a full understanding of the
charges and consequences of the pleas.
At the sentencing hearing, Petitioner’s attorney asked for a total sentence of 15 years’
imprisonment, “[k]eeping in mind that the sentence of the robbery in the first degree carried an
85% required minimum, as well as the armed criminal action charges three flat years before
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consideration of any parole in the Department of Corrections.” Id. at 20. 1 The state argued
for a total sentence of 30 years’ imprisonment. The court sentenced Petitioner to 20 years for
the robbery, 20 years for the related armed criminal action, 15 years for the burglary, and 15
years for the other armed criminal action, with all sentences to run concurrently. The court
next asked Petitioner whether his counsel did anything against Petitioner’s wishes and whether
Petitioner had anything to tell the court about his representation. Petitioner responded in the
negative, and the court stated that it found no basis to find ineffective assistance of counsel.
Id. at 23.
State Post-Conviction Proceedings
For state post-conviction relief, Petitioner raised the same claim he now presents for
federal habeas relief, namely, that his plea counsel provided ineffective assistance by
promising Petitioner he would receive a ten year sentence without being subjected to an 85%
mandatory minimum term before parole eligibility. He asserted that this ineffective
assistance of counsel rendered his guilty plea involuntary, because without this promise, he
would have chosen to go to trial rather than plead guilty. The motion court rejected the claim,
without holding an evidentiary hearing, and the Missouri Court of Appeals affirmed the
motion court’s ruling.

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Mo. Rev. Stat. § 558.019.3 provides as follows:
Other provisions of the law to the contrary notwithstanding, any offender
who has pleaded guilty to or has been found guilty of a dangerous felony as
defined in section 556.061 and is committed to the department of corrections
shall be required to serve a minimum prison term of eighty-five percent of
the sentence imposed by the court or until the offender attains seventy years
of age, and has served at least forty percent of the sentence imposed,
whichever occurs first.
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The appellate court summarized the plea and sentencing hearings and held that
Petitioner’s claim was unsupported by the record. The court reasoned as follows:
[T]he [trial] court was very explicit in its questioning as to whether Appellant
had been made any sort of promises, including as to sentencing. The court
also asked Appellant whether he had any secret anticipation as to the
sentence he was going to receive. Appellant responded in the negative.
Furthermore, Appellant’s counsel at sentencing made an oral request on the
record to the court that Appellant be sentenced to fifteen years, asking the
court to keep in mind Appellant would have to serve at least 85% of any
sentence handed down by the court for the first-degree robbery conviction.
At this point Appellant should have been alerted to the fact that his own
counsel was stating for the record that Appellant had to serve 85% of his
sentence, if he had been under the mistaken impression his counsel had
promised him he would not have to serve 85% of his sentence. However,
Appellant never voiced any dissatisfaction with his counsel for having
promised something, ostensibly not delivered, in order to induce him to
plead guilty, despite having ample opportunity and encouragement by the
court to do so. On the contrary, he repeatedly expressed complete
satisfaction with his counsel. Therefore, Appellant’s claim that counsel
promised him a sentence of ten years without the 85% requirement is
unsupported by the facts in the record and, in fact, refuted by the facts in the
record.
ECF No. 8-4 at 7.
Federal Habeas Claim
Petitioner argues that the state courts’ fact-finding was not supported by the record and
that he was wrongly denied an evidentiary hearing at which he could have “adduce[d] the
relevant facts or legal claims.” He requests an evidentiary hearing before this Court.
Respondent argues that habeas relief should be denied because the state courts reasonably
adjudicated Petitioner’s claim.
DISCUSSION
Where a claim has been adjudicated on the merits in state court, the Antiterrorism and
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Effective Death Penalty Act (“AEDPA”) provides that application for a writ of habeas corpus
cannot be granted unless the state court’s adjudication:
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 proceedings.
28 U.S.C. § 2254(d).
The Sixth Amendment guarantees a criminal defendant the right to effective assistance
of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). 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 v.
Lockhart, 474 U.S. 52, 56-57 (1985). “The longstanding test 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. “Where . . . a defendant is
represented by counsel during the plea process and enters his plea upon the advice of counsel,
the voluntariness of the plea depends on whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases.” Id. (citation omitted); see also Padilla
v. Kentucky, 559 U.S. 356, 364 (2010) (holding that plea counsel rendered deficient
performance by failing to advise the defendant that his plea of guilty made him subject to
automatic deportation).
To show ineffective assistance of counsel, a habeas petitioner must show both that
“[his] counsel’s performance was deficient” and that “the deficient performance prejudiced
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[his] defense.” Strickland, 466 U.S. at 687. To establish prejudice in the context of a guilty
plea, a habeas 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, as here, 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.” See Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012)
(citation omitted). 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 v. Cone, 535 U.S.
685, 698-99 (2002). “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, this Court’s review of the record confirms that the state appellate court’s decision
rejecting Petitioner’s claim is not contrary to clearly established federal law, nor based on an
unreasonable determination of the facts in light of the evidence presented in the state court
proceedings. As set forth above, at the plea hearing, Petitioner testified on the record that he
understood the range of punishment for first-degree robbery to be between ten and 30 years, or
life imprisonment. He also stated on the record that he did not anticipate a particular sentence
if he pleaded guilty. “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.” Drake v. Steele, No. 4:15-CV-00391-JAR, 2018 WL 950212, at *4 (E.D. Mo.
Feb. 20, 2018) (citation omitted); see also Dawson v. Wallace, No. 4:14 CV 1235 CDP, 2017
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WL 3421503, at *4 (E.D. Mo. Aug. 9, 2017). Here, Petitioner has presented no reason to
override the presumption, and none appears on the record. Petitioner’s representations at the
plea hearing defeat his claim that counsel told him he would receive a ten year sentence
without being subject to the 85% rule.
Moreover, as the state appellate court noted, at the sentencing hearing, Petitioner’s
counsel stated on the record that the robbery charge carried an 85% mandatory minimum and
asked that the judge impose a 15-year rather than a 20-year sentence in consideration of this
statutory mandate. Thereafter, Petitioner represented that counsel did not do anything against
Petitioner’s wishes and that he did not have anything to tell the court about his representation.
Petitioner is not entitled to an evidentiary hearing. “Eighth Circuit precedent permits
district courts to deny evidentiary hearings attacking a guilty plea where the knowing and
voluntary nature of the plea is established by the record.” Roberts v. Griffith, No. 4:16 CV
241 RWS, 2018 WL 2364295, at *3 (E.D. Mo. May 24, 2018) (citing Tran v. Lockhart, 849
F.2d 1064, 1068 (8th Cir. 1998)). Such is the case here. See id.
CONCLUSION
The Court concludes that Petitioner is not entitled to federal habeas relief.
Furthermore, the Court does not believe that reasonable jurists might find the Court=s
assessment of Petitioner=s claims for habeas relief debatable or wrong, for purposes of issuing
a Certificate of Appealability under 28 U.S.C. '2254(d)(2). See Miller-El v. Cockrell, 537
U.S. 322, 338 (2003) (standard for issuing a Certificate of Appealability) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).
Accordingly,
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IT IS HEREBY ORDERED that the petition of Tatizes Cotton for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability shall not be issued in
this case.
A separate Judgment shall accompany this Memorandum and Order.

_________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 18th day of June, 2018

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