Blackmon v. Hurley

Filing 10

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Chantay Godert is substituted for James Hurley as proper party respondent. IT IS FURTHER ORDERED that Derek Lamont Blackmon's petition for writ of habeas corpus 1 pursuant to 28 U.S.C. § 2 254 is denied. IT IS FURTHER ORDERED that a Certificate of Appealability will not issue in this action because petitioner has not made a substantial showing of a denial of a constitutional right. A separate Judgment is filed herewith. Signed by District Judge Catherine D. Perry on April 17, 2018. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEREK LAMONT BLACKMON,
Petitioner,
v.
CHANTAY GODERT,1
Respondent.

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) Case No. 4:15 CV 1167 CDP
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MEMORANDUM AND ORDER
This matter is before the Court on Missouri state prisoner Dereck Lamont
Blackmon’s petition for writ of habeas corpus under 28 U.S.C. § 2254. I will deny
the petition.
Procedural History
On June 14, 2011, Blackmon pled guilty in the Circuit Court of Butler
County, Missouri, to one count of Class B Arson First Degree. In accordance with
the plea agreement, the court sentenced Blackmon to a term of twelve years’
imprisonment but suspended execution of sentence and placed Blackmon on a fiveyear term of supervised probation. On June 11, 2013, the court revoked
Blackmon’s probation and ordered that the twelve-year sentence be executed.

1

Petitioner is currently incarcerated at the Northeast Correctional Center (NECC). Because
Chantay Godert is the current warden at NECC, Godert is substituted for former warden James
Hurley as the proper party respondent.

Blackmon thereafter filed a motion for post-conviction relief under Missouri
Supreme Court Rule 24.035, which the trial court denied after an evidentiary
hearing. On April 21, 2015, the Missouri Court of Appeals affirmed the trial
court’s denial of post-conviction relief.
Blackmon timely filed this habeas petition on July 28, 2015, in which he
raises one claim for relief: that plea counsel was ineffective for incorrectly
advising him that the offense to which he pled guilty was not a “dangerous” felony
as defined under Missouri law. Blackmon claims that because he pled guilty to a
dangerous felony, he is required to serve 85% of his sentence before being eligible
for parole. Blackmon argues that had he been properly advised, he would not have
pled guilty to a dangerous felony and would have insisted on going to trial.
Blackmon raised this claim in his post-conviction motion and on appeal of the
denial of the motion. Upon review of the merits of the claim, the Missouri Court
of Appeals denied relief.
For the reasons that follow, Blackmon’s claim also fails here.
Legal Standard
Where the state court adjudicated a claim on the merits, federal habeas relief
can be granted on the claim only if the state court adjudication “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,”
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28 U.S.C. § 2254(d)(1); or “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)(2). See Williams v. Taylor, 529 U.S. 362, 379 (2000). The federal law
must be clearly established at the time petitioner’s state conviction became final,
and the source of doctrine for such law is limited to the United States Supreme
Court. Id. at 380-83.
A state court’s decision is “contrary to” clearly established Supreme Court
precedent when it is opposite to the Supreme Court’s conclusion on a question of
law or different than the Supreme Court’s conclusion on a set of materially
indistinguishable facts. Williams, 529 U.S. at 412-13; Carter v. Kemna, 255 F.3d
589, 591 (8th Cir. 2001). A state court’s decision is an “unreasonable application”
of Supreme Court precedent if 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.” Williams, 529 U.S. at 413. Merely erroneous or
incorrect application of clearly established federal law does not suffice to support a
grant of habeas relief. Instead, the state court’s application of the law must be
objectively unreasonable. Id. at 409-11; Jackson v. Norris, 651 F.3d 923, 925 (8th
Cir. 2011). Finally, when reviewing whether a state court decision involves an
“unreasonable determination of the facts” in light of the evidence presented in the
state court proceedings, a federal court must presume that state court findings of
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basic, primary, or historical facts are correct unless the petitioner rebuts the
presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Rice v.
Collins, 546 U.S. 333, 338-39 (2006); Collier v. Norris, 485 F.3d 415, 423 (8th
Cir. 2007). Erroneous findings of fact do not ipso facto ensure the grant of habeas
relief. Instead, the determination of these facts must be unreasonable in light of the
evidence of record. Collier, 485 F.3d at 423; Weaver v. Bowersox, 241 F.3d 1024,
1030 (8th Cir. 2001).
The federal court is “bound by the AEDPA [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). To
obtain habeas relief from a federal court, the petitioner must show that the
challenged state court ruling “rested on ‘an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.’” Metrish v. Lancaster, 569 U.S. 351, 357-58 (2013) (quoting
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). This standard is difficult to
meet. Id.
Discussion
At the time Blackmon’s conviction became final, the law was clearly
established that the Sixth Amendment guarantees a criminal defendant the right to
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687
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(1984). In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court held that a
defendant who pled guilty upon the advice of counsel may challenge the
voluntariness of that plea through a claim of ineffective assistance of counsel. Id.
at 56-57.
To be entitled to habeas relief on his claim of ineffective assistance of plea
counsel, Blackmon must show that his attorney’s performance was not within the
range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at
56-57. The standard to be applied in assessing counsel’s performance is that set
out in Strickland. Id. at 58. Accordingly, Blackmon must demonstrate that: 1) his
counsel’s performance was deficient, and 2) the deficient performance prejudiced
his defense. Strickland, 466 U.S. at 687. To establish prejudice in the context of a
guilty plea, Blackmon must show a reasonable probability that but for counsel’s
error, he would not have pled guilty and would have insisted on going to trial.
Hill, 474 U.S. at 59.
On post-conviction appeal, the Missouri Court of Appeals summarized the
circumstances of Blackmon’s plea as follows:
Blackmon was charged in a three-count information with
committing the following crimes on July 5, 2009: the class B felony
of first-degree arson (Count I); the class B felony of first-degree
assault (Count II); and the unclassified felony of armed criminal
action (Count III). See § 569.040; §§ 565.050, 571.015 RSMo (2000).
Thereafter, a plea agreement was reached in which Blackmon
agreed to plead guilty to first-degree arson. As a class B felony, the
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range of punishment for first-degree arson is a minimum of five years
and a maximum of fifteen years in prison. See § 569.040.2; §
558.011.1(2). First-degree arson also is a “dangerous felony.” See §
556.061(8). Any offender who pleads guilty to a dangerous felony is
required to serve a minimum prison term of 85% of the sentence
imposed by the court. See § 558.019.3.
In exchange for Blackmon’s plea, the State agreed to: (1)
recommend a 12-year sentence with suspended execution and
probation; (2) dismiss charges for first-degree assault and armed
criminal action in the underlying case; (3) dismiss charges of domestic
assault, armed criminal action and unlawful use of a weapon in two
other, separate cases; and (4) dismiss Blackmon’s brother’s case,
which was based on “the same set of facts arising out of this incident.”
At the plea hearing, held in June 2011, Blackmon assured the
court that he had discussed his case with plea counsel and understood
the charge, including the range of punishment. Blackmon stated he
had no questions about the range of punishment. The court
questioned Blackmon to ascertain whether his plea was knowing,
intelligent and voluntary. After the prosecutor outlined the terms of
the plea agreement, Blackmon assured the court that he understood
the plea agreement.
(Resp. Exh. E at 2-3.)2
Blackmon and his plea counsel testified at the evidentiary hearing on
Blackmon’s motion for post-conviction relief. Blackmon testified that before
accepting the plea deal, he told counsel that he did not want to plead to “an 85
percenter” and asked if arson was such an offense. Blackmon testified that counsel
told him that he did not know but did not think so. (Resp. Exh. A at 7.) Counsel
testified that he did not recall Blackmon asking if first degree arson was considered
2

I presume these findings of fact to be correct because Blackmon has failed to present any clear
and convincing evidence to rebut the presumption. 28 U.S.C. § 2254(e)(1).
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an “85 percenter” but would have advised him if so asked that the offense was a
dangerous felony subject to the 85% condition. (Id. at 18.) Nor did counsel recall
whether Blackmon told him that he did not want to plead to an 85 percenter, but he
testified that he would not have told Blackmon that arson was not a dangerous
felony. (Id. at 20-21.)
In denying Blackmon’s motion, the trial court noted that because plea
counsel was not legally obligated to inform Blackmon that arson first degree was a
dangerous felony that would require him to serve 85% of his sentence, Blackmon
was required to show that counsel actually provided misinformation by
“inform[ing] him that arson in the first degree is not a dangerous felony requiring
the service of 85% of his sentence[.]” (Resp. Exh. B at 56.) (Emphasis added.)
The court found that Blackmon failed to make this showing. The court also found
that, because of the leniency of the plea deal, Blackmon failed to show that he
would not have pled guilty and would have insisted on going to trial. (Id. at 57.)
On appeal, the Missouri Court of Appeals determined that, although the trial
court did not make an express credibility finding in its ruling, it “obviously
disbelieved Blackmon’s testimony and believed that of [his counsel]” regarding
whether counsel told Blackmon that first degree arson was not a dangerous felony.
(Resp. Exh. E at 7.) The court of appeals found that the trial court’s factual
credibility determination was not clearly erroneous and concluded that, under
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Strickland, Blackmon failed to show that counsel’s performance was deficient.
The court of appeals therefore affirmed the trial court’s decision to deny relief on
Blackmon’s claim of ineffective assistance of counsel. (Id. at 5-8.)
Credibility determinations made for the purpose of establishing underlying
facts are left for the state courts to decide. Graham v. Solem, 728 F.2d 1533, 1540
(8th Cir. 1984). I may not substitute my judgment as to the credibility of witnesses
for that of the state court. Id. Instead, I must “accept credibility determinations
made by a state court just as any appellate court must accept the credibility
determinations of a trial court.” Id. at 1540-41; see also Marshall v. Lonberger,
459 U.S. 422, 434 (1983) (federal habeas courts may not “redetermine credibility
of witnesses whose demeanor has been observed by the state trial court, but not by
them.”); Smulls v. Roper, 535 F.3d 853, 864 (8th Cir. 2008) (deference owed to
state court under § 2254(e)(1) includes deference to its credibility determinations).
Blackmon has not provided any clear and convincing evidence that the state
court’s crediting of plea counsel’s testimony over that of Blackmon was
unreasonable based on the record.
According deference to the state court’s credibility determination, therefore,
I find that the Missouri Court of Appeals’ conclusion that Blackmon failed to show
deficient performance under Strickland because he could not establish that counsel
provided misinformation regarding parole eligibility, was not contrary to nor an
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unreasonable application of Supreme Court precedent. See Bivens v. Groose,
28 F.3d 62, 64 (8th Cir. 1994) (no attorney error under Strickland where counsel
did not misinform defendant as to consequences of guilty plea). Nor has
Blackmon demonstrated that the decision was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. Accordingly, Blackmon’s claim that ineffective assistance of counsel
rendered his guilty plea involuntary is denied.
Certificate of Appealability
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals
from the final order denying habeas relief in a § 2254 proceeding unless a circuit
justice or judge issues a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A).
To grant such a certificate, the justice or judge must find a substantial showing of
the denial of a federal constitutional right. 28 U.S.C. § 2253(c)(2); see Tiedeman
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). I find that reasonable jurists could not differ on Blackmon’s
claim of ineffective assistance of plea counsel, so I will deny a Certificate of
Appealability.
Accordingly,
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IT IS HEREBY ORDERED that Chantay Godert is substituted for James
Hurley as proper party respondent.
IT IS FURTHER ORDERED that Derek Lamont Blackmon’s petition for
writ of habeas corpus [1] pursuant to 28 U.S.C. § 2254 is denied.
IT IS FURTHER ORDERED that a Certificate of Appealability will not
issue in this action because petitioner has not made a substantial showing of a
denial of a constitutional right.
A separate Judgment is filed herewith.

_________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 17th day of April, 2018.

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