Darrow v. Mesmer

Filing 23

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus, [Doc. No. 1 ], is dismissed. IT IS FURTHER ORDERED that no certificate of appealability shall issue. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 9/13/18. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NANCY V. DARROW,
Petitioner,
vs.
ANGELA MESMER,
Respondent.

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) Case No: 4:15CV01468 HEA
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OPINION, MEMORANDUM AND ORDER
Petitioner filed a pro se petition for writ of habeas corpus under 28 U.S.C. §
2254 [Doc. No.1] on September 23, 2015. Respondent filed a Response to the
Court’s Order to Show Cause Why Relief Should Not be Granted [Doc. No. 13] on
January 8, 2016. Pursuant to Rule 8 of the Rules Governing Section 2254 Cases in
the United States District Courts, this Court has determined that there are no issues
asserted that give rise to an evidentiary hearing and therefore one is not warranted.
For the reasons set forth below, the Response to the Order to Show Cause Why
Relief Should not be Granted is well taken and the petition will be dismissed.
Procedural Background
On May 4, 2010, Petitioner pleaded guilty to the class B felony of identity
theft in the St. Charles County Circuit Court, Eleventh Judicial Circuit. Petitioner

received a suspended imposition of sentence and was placed on probation for a
period of five years.
On December 7, 2012 Petitioner appeared in the Circuit Court for St.
Charles County, Eleventh Judicial Circuit for a probation revocation hearing.
Petitioner waived her right to a hearing and admitted violating the conditions of her
probation. As a consequence, her period of probation was revoked. Petitioner was
then sentenced to ten years in the Missouri Department of Corrections.
Petitioner timely filed, on May 7, 2013, a motion for post-conviction relief
pursuant to Rule 24.035, Missouri Rules of Criminal Procedure. Post-conviction
relief counsel requested additional time to file an amended motion on May 28,
2013, which was granted. On January 17, 2014 the amended Rule 24.035 motion
was filed amending paragraph 8 of the pro se motion filed by Petitioner.
On April 23, 2014 Hon. Ted House, Eleventh Judicial Circuit, St. Charles
County Circuit Court denied the request for evidentiary hearing and denied the
motion for post-conviction relief. The sole claim raised in the state plea court was
that the court erred in accepting her plea because she never admitted she
appropriated more than $5000 worth of credit, money, goods, service, or other
property.
On June 22, 2014 Petitioner timely filed her notice of appeal to the Missouri
Appeals Court, Eastern District of Missouri. In a Per Curiam opinion rendered by
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the Missouri Appeals Court on March 17, 2015 the judgment of the plea court was
affirmed. The Missouri Appeals Court noted the plea transcript fully satisfied the
requirements of the law in the State of Missouri that Petitioner was aware of the
nature and elements of the charge, there was a factual basis for the plea, and
petitioner accepted as accurate that she appropriated over $8,000 in goods and
services.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §
2254 (“AEDPA”) applies to all petitions for habeas relief filed by state prisoners
after the statute’s effective date of April 24, 1996. When reviewing a claim that
has been decided on the merits by a state court, AEDPA limits the scope of judicial
review in a habeas proceeding as follows:
An application for 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 —
(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).
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In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, held that:
Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
529 U.S. 362, 412–13 (2000). Furthermore, the Williams Court held that “a federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” 529 U.S. at 409.
A state court decision must be left undisturbed unless the decision was
contrary to or involved an unreasonable application of clearly established federal
law as determined by the Supreme Court of the United States, or the decision was
based on an unreasonable determination of the facts in light of the evidence
presented in state court. Colvin v. Taylor, 324 F.3d 583, 586-87 (8th Cir. 2003).
A decision is contrary to United States Supreme Court precedent if it
decides a case based on a different rule of law than the rule dictated by United
States Supreme Court precedent, or it decides a case differently than the United
States Supreme Court did on materially indistinguishable facts. Id. A decision may
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only be overturned, as an unreasonable application of clearly established United
States Supreme Court precedent, if the decision is both wrong and an objectively
unreasonable interpretation or application of United States Supreme Court
precedent. Id. A federal habeas court may not disturb an objectively reasonable
state court decision on a question of federal law even if the decision is, in the
federal court’s view, wrong under Eighth Circuit precedent, and even if the habeas
court would have decided the case differently on a clean slate. Id. State court
factual determinations are presumed to be correct and this presumption can only be
rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1).
Statute of Limitations
Congress provides a one-year window in which a habeas applicant can file a
petition for writ of habeas corpus. That window opens at the conclusion of direct
review. The window closes a year later. Failure to file within that one year
window requires the court to dismiss the petition for writ of habeas corpus. 28
U.S.C. §2244(d) (1) (A); See Cross-Bey v. Gammon, 322 F.3d 1012 (8th Cir.),
cert. denied, 540 U.S. 971 (2003). If an inmate does not seek a writ of certiorari on
direct review, direct review concludes when the time limit for seeking further
review expires. Gonzales v. Thaler, 132 S. Ct. 641, 653-54 (2012). Under Missouri
Supreme Court Rule 30.01, Rule 30.03, Rule 81.04, and Rule 81.08, the time limit
for filing a notice of appeal is ten days after sentencing.
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Procedural Bar
One who pursues relief under 28 U.S.C. §2254(b)(1)(A) must have
exhausted the remedies available in the courts of the State. In order to effectuate
the fulfillment of this requirement, “state prisoners must give the state courts one
full opportunity to resolve any constitutional issues by invoking one complete
round of the State’s established appellate review process” before presenting those
issues as application for federal habeas relief in federal court. O’Sullivan v.
Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). “A federal
habeas petitioner’s claims must rely on the same factual and legal bases relied on
in state court”; otherwise, they are defaulted. Winfield v. Roper, 460 F.3d 1026,
1034 (8th Cir. 2006).
Exhaustion “refers only to remedies still available at the time of the federal
petition.” Engle v. Isaac, 456 U.S. 107, 125 n.28, 102 S. Ct. 1558, 71 L. Ed. 2d
783 (1982). Thus, “if it is clear that [the habeas petitioner’s] claims are now
procedurally barred under [state] law,” the exhaustion requirement is satisfied.
Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056, 103 L. Ed. 2d 380 (1989).
“[T]he procedural bar that gives rise to exhaustion provides an independent and
adequate state-law ground for the conviction and sentence, and thus prevents
federal habeas corpus review of the defaulted claim, unless the petitioner can

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demonstrate cause and prejudice for the default.” Gray v. Netherland, 518 U.S.
152, 161-62, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996).
In Missouri, “habeas corpus is not a substitute for appeal or post-conviction
proceedings.” State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc
1993). “Missouri law requires that a habeas petitioner bring any claim that a
conviction violates the federal or state constitution, including a claim of ineffective
assistance of counsel, in a motion for post-conviction relief.” Moore-El v.
Luebbers, 446 F.3d 890, 896 (8th Cir. 2006). Accordingly, an offender who fails to
raise his claims on direct appeal or in post-conviction proceedings has procedurally
defaulted those claims “and cannot raise [the waived claims] in a subsequent
petition for habeas corpus.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo.
banc 2001).
There are circumstances where a court may nonetheless reach the merits of a
procedurally barred claim, but only if “the prisoner 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 v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546,
115 L. Ed. 2d 640 (1991). In order to satisfy the “cause” requirement, Petitioner
must show that an “external” impediment prevented him from presenting his claim
to the state court in a procedurally proper manner. Id. at 753.
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Discussion
Review under 28 U.S.C. § 2254 is a review to determine whether a person
“is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Here, Petitioner’s allegations are set forth in Ground
One: she received ineffective assistance of counsel at her probation revocation and
in Ground Two: There was an in sufficient factual basis for her guilty plea because
she did not steal $5000. The claim of ineffective assistance of probation revocation
counsel was not presented in state court.
The ineffective assistance of probation revocation counsel claim not raised
in her Rule 24.035 motion. As Respondent points out, it was not a cognizable
claim under Missouri law. Wood v. State, 853 S.W.2d 369, 370 (Mo. App. E.D.
1993). However, there is/was a remedy available and cognizable in a Missouri
state habeas proceeding. See Abel v. Wyrick, 574 S.W.2d 411 (Mo. banc 1978);
Brandt v. Percich, 507 S.W.2d 951 (Mo. App. 1974). Petitioner concedes in her
filing that she has not exhausted state remedies for this claim.
The second Ground for relief alleged by Petitioner is one wherein she asserts
there was an insufficient factual basis for her guilty plea. She contends that she did
not steal enough money to be charged with identity theft. This claim was
addressed in her Missouri Rule 24.035 motion and by the Missouri Appeals Court.
Petitioner therefore has exhausted all remedies as to this claim in the State courts.
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In this case, Petitioner is presenting a mixed petition of exhausted and
unexhausted claims to this Court. Pursuant to Rose v. Lundy, 455 U.S. 509 (1982),
the claims contained in the Petition are not within the ambit of reviewable
applications for writ of habeas corpus and must be dismissed. (a federal district
court must “dismiss a petition for a writ of habeas corpus containing any claims
that have not been exhausted in the state courts. Because a rule requiring
exhaustion of all claims furthers the purposes underlying the habeas statute, we
hold that a district court must dismiss such “mixed petitions,” leaving the prisoner
with the choice of returning to state court to exhaust his claims or of amending or
resubmitting the habeas petition to present only exhausted claims to the district
court.” Id. at 510).
Conclusion
Based upon the foregoing discussion and analysis the Petition for Writ of
Habeas Corpus must be dismissed.
Certificate of Appealability
When a district court issues an order under § 2254 adverse to the applicant it
“must issue or deny a certificate of appealability.” R. Governing Section 2254
Cases in the U.S. Dist. Cts., R. 11. If a federal court denies a habeas application on
procedural grounds without reaching the underlying constitutional claims, the court

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should issue a certificate of appealability if the prisoner has shown “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Id.; see also Khaimov v. Crist,
297 F.3d 783, 786 (8th Cir. 2002) (interpreting Slack in the following manner: “1)
if the claim is clearly procedurally defaulted, the certificate should not be issued;
2) even if the procedural default is not clear, if there is no merit to the substantive
constitutional claims, the certificate should not be issued; but, 3) if the procedural
default is not clear and the substantive constitutional claims are debatable among
jurists of reason, the certificate should be granted”). Petitioner’s federal habeas
petition is clearly time-barred under AEDPA, and no reasonable jurist could that
find this case is timely filed. See Slack, 529 U.S. at 484; Khaimov, 297 F.3d at 786
Hence, no certificate of appealability will be issued.
Accordingly
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus,
[Doc. No. 1], is dismissed.
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IT IS FURTHER ORDERED that no certificate of appealability shall issue.
A separate judgment in accordance with this Opinion, Memorandum and Order
is entered this same date.
Dated this 13th day of September, 2018.

______________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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