Baron v. Mesmer

Filing 14

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that petitioner's petition for writ of habeas corpus under 28 U.S.C. § 225455 1 is denied. IT IS FURTHER ORDERED that this Court will not issue a certificate of appealability, as petitioner has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Catherine D. Perry on 11/19/18. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JACQUELINE BARON,
Petitioner,
vs.
ANGELA MESMER,
Respondent.

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Case No. 4:16 CV 720 CDP

MEMORANDUM AND ORDER
Petitioner is an inmate at the Women’s Eastern, Reception, Diagnostic and
Correctional Center in Vandalia, Missouri. In 2013, petitioner pleaded guilty to
second-degree murder, first-degree attempted robbery, and two counts of armed
criminal action. Petitioner was sentenced to fifteen years’ imprisonment on all
counts, to be served concurrently. Petitioner did not file a direct appeal. Petitioner
later filed a pro se post-conviction motion to vacate, set aside, or correct her
judgment and sentence under Missouri’s Criminal Rule 24.035. Counsel was
appointed to represent her, and petitioner filed an amended Rule 24.035 motion
alleging that her plea was not knowing and voluntary because plea counsel was
ineffective for forcing her to plead guilty. Petitioner argued that her attorney said
she had to plead guilty because her family had not paid enough money to go to trial.
After an evidentiary hearing, the trial court denied the motion and held that
petitioner’s guilty plea was knowing and voluntary and she did not receive

ineffective assistance of counsel.
Petitioner appealed the denial of her Rule 24.035 motion. The Missouri
Court of Appeals affirmed the denial of post-conviction relief in an unpublished
opinion dated March 15, 2016, finding that the motion court did not clearly err in
finding petitioner’s testimony not credible and concluding that her plea was
knowing and voluntary and not coerced by counsel. [11-5].
In her petition for writ of habeas corpus under 28 U.S.C. § 2254, petitioner
raises the following three grounds for relief:
1) her convictions for robbery and armed criminal action violate the Double
Jeopardy Clause of the Fifth Amendment;
2) her convictions for two counts of armed criminal action violate Missouri’s
statutory limitations on convictions for multiple offenses; and
3) she received ineffective assistance of trial counsel because her attorney
told her to plead guilty after her family could no longer afford to pay his legal
fees.
Petitioner is not entitled to relief on any grounds raised in her § 2254 petition
for the reasons set out below.
Standard of Review
Under the Antiterrorism and Effective Death Penalty Act, federal habeas
relief is available to a state prisoner “only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
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2254(a); see also Williams–Bey v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990).
“‘Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. §
2254 proceeding may consider only those claims which the petitioner has presented
to the state court in accordance with state procedural rules.’” Beaulieu v.
Minnesota, 583 F.3d 570, 573 (8th Cir. 2009) (quoting Gilmore v. Armontrout, 861
F.2d 1061, 1065 (8th Cir. 1988)). If the petitioner failed to properly present the
claim in state court, and no adequate non-futile remedy is currently available by
which she may bring the claim in that forum, the claim is deemed procedurally
defaulted and cannot be reviewed by the federal habeas court “unless the
[petitioner] 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 (1991); see also Martinez v. Ryan, 566 U.S. 1, 10–11 (2012).
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,”
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. §
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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.” Carter v. Kemna, 255 F.3d 589, 591 (8th Cir. 2001)
(citing Williams, 529 U.S. at 412–13). “A federal court may grant relief under the
‘unreasonable application’ clause if the state court correctly identified the
governing legal principle, but unreasonably applied it to the facts of the particular
case.” Jackson v. Norris, 651 F.3d 923, 925 (8th Cir. 2011) (citing Bell v. Cone,
535 U.S. 685, 694 (2002)). “A state court’s application of clearly established
federal law must be objectively unreasonable, and not merely incorrect, to warrant
the granting of a writ of habeas corpus.” Jackson, 651 F.3d at 925 (citing Bell, 535
U.S. at 694).
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, state court findings of basic, primary, or historical facts are
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presumed correct unless the petitioner rebuts the presumption with clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Collier v. Norris, 485 F.3d 415, 423
(8th Cir. 2007). “[E]ven erroneous fact-finding by the [state] courts will not justify
granting a writ if those courts erred ‘reasonably.’” Weaver v. Bowersox, 241 F.3d
1024, 1030 (8th Cir. 2001).
The federal court is “bound by the AEDPA 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, 358 (2013)
(quoting Harrington v. Richter, 562 U.S. 86, 102–03 (2011)). This standard is
difficult to meet. Metrish, 569 U.S. at 357-58.
Discussion
Ground 1 and 2 of petitioner’s habeas petition will be summarily denied as
they were not raised on appeal, and petitioner has made no attempt to avoid the
resulting procedural default of these claims. Accordingly, Grounds 1 and 2 of
petitioner’s habeas petition are denied.
In Ground 3, petitioner argues that she received ineffective assistance of
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counsel because her attorney told her she had to plead guilty after her family could
no longer afford to pay counsel’s legal fees. Petitioner raised this claim in her Rule
24.035 motion and on appeal of its denial to the Missouri Court of Appeals, which
rejected it as follows:
On appeal, Movant claims the motion court clearly erred in denying her Rule
24.035 motion after an evidentiary hearing, because [counsel] was ineffective
for inducing Movant to plead guilty by telling her she had not paid enough
money for [counsel] to try the case. Movant further claimed that if she had
known failing to fully pay [counsel] was not a bar to trying her case, she
would not have pleaded guilty but would have proceeded to trial. Movant’s
claim is without merit.
Our review of the denial of Rule 24.035 motion is “limited to a determination
of whether the findings and conclusions of the trial court are clearly
erroneous.” Rule 24.035(k); Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc.
2004). This court will find error only if, after review of the entire record, we
have a definite and firm belief that a mistake has been made. Weeks, 140
S.W.3d at 44. On review, the motion court’s findings and conclusions are
presumptively correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc
1991).
After a guilty plea, our review is limited to a determination as to whether the
underlying plea was knowing and voluntary, and counsel’s ineffectiveness is
only relevant to the extent it affects the voluntariness of the movant’s plea.
Wilkins v. State, 802 S.W.2d 491, 497 (Mo. banc 1991); Loudermilk v.
State, 973 S.W.2d 551, 553 (Mo. App. E.D. 1998). The movant bears the
burden of proving her post-conviction claims by a preponderance of the
evidence, and to prove ineffective assistance of counsel, the movant must
show both that counsel’s representation fell below an objective standard of
reasonableness and that the movant was prejudiced as a result. Ervin v.
State, 423 S.W.3d 789, 793 (Mo. App. E.D. 2013). To show prejudice after
a guilty plea, the movant must show that but for her counsel’s alleged
unreasonable conduct, there is a reasonable probability she would not have
pleaded guilty but would have insisted on going to trial. Id.
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Here, contrary to movant’s claims, [counsel] testified she “absolutely” did
not tell Movant that Movant would have to either pay more money or plead
guilty, and she “absolutely” did not refuse to investigate a witness until she
had received money under the retainer agreement. The motion court found
Movant’s testimony not credible and accepted [counsel’s] testimony as true.
“The motion court is free to believe or disbelieve any evidence, whether
contradicted or undisputed, including a movant’s testimony.” Simmons v.
State, 429 S.W.3d 464, 466 (Mo. App. E.D. 2014). Deferring, as we must, to
the motion court’s findings of credibility, we see no error in the motion
court’s findings and conclusions. See Wilson, 813 S.W.2d at 835; Simmons,
429 S.W.3d at 466.
Moreover, Movant’s claim that [counsel] coerced her is explicitly refuted by
Movant’s own statement at the plea hearing that [counsel] had not
“communicated any threats or promises to [Movant] to get [her] to plead
guilty.” See Eberspacher v. State, 915 S.W.2d 384, 386-87 (Mo. App. E.D.
1996) (movant’s own testimony at plea hearing can be used to “conclusively
refute” his claim on appeal.) Thus, the motion court did not clearly err in
denying Movant’s request for post-conviction relief after an evidentiary
hearing. Rule 24.035(h); Weeks, 140 S.W.3d at 44.
[Doc. # 11-5]. The Sixth Amendment establishes the right of the criminally
accused to the effective assistance of counsel. Strickland v. Washington, 466 U.S.
668, 686 (1984). To state a claim for ineffective assistance of counsel, petitioner
must prove two elements of her claim. First, she “must show that counsel’s
performance was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the counsel guaranteed the defendant by
the Sixth Amendment.” Id. at 687. In considering whether this showing has been
accomplished, “judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. The courts seek to “eliminate the distorting effects of
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hindsight” by examining counsel’s performance from counsel’s perspective at the
time of the alleged error. Id. Second, petitioner “must show that the deficient
performance prejudiced the defense.” Id. at 687. This requires her to demonstrate
“a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. The court need not address
both components if petitioner makes an insufficient showing on one of the prongs.
Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995).
Under these standards, the state court’s determination that petitioner did not
receive ineffective assistance of counsel is entitled to deference as the decision was
not contrary to, or an unreasonable application of, clearly established federal law,
and it was not based on an unreasonable determination of the facts in light of the
evidence presented at the Rule 24.035 hearing. See 28 U.S.C. § 2254(d)(1) and (2);
Williams, 529 U.S. at 379. As such, Ground 3 of petitioner’s habeas petition is
denied.
Petitioner’s request for evidentiary hearing will be denied. Generally, an
evidentiary hearing is within a habeas court’s discretion, as limited by statutory
restrictions set forth in the AEDPA. See Schriro v. Landrigan, 550 U.S. 465, 473–
75 (2007); 28 U.S.C. § 2254(e)(2). “In deciding whether to grant an evidentiary
hearing, a federal court must consider whether such a hearing could enable an
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applicant to prove the petition’s factual allegations, which, if true, would entitle the
applicant to federal habeas relief.” Schriro, 550 U.S. at 474. In addition, a federal
habeas court must take into account “the deferential standards” under the AEDPA
that “control whether to grant habeas relief.” Id. A habeas court need not hold an
evidentiary hearing “if the record refutes the applicant’s factual allegations or
otherwise precludes habeas relief.” Id. (internal quotation marks and citation
omitted). As petitioner’s claims are conclusively refuted by the record, the Court
denies petitioner’s request for an evidentiary hearing. See Crawford v. Norris, 363
Fed. Appx. 428, at *2 (8th Cir. 2010) (“If the factual allegations a petitioner seeks
to prove would not entitled him to relief under the relevant standard, then an
evidentiary hearing is not required.”).
As petitioner has not made a substantial showing of the denial of a federal
constitutional right, this Court will not issue a certificate of appealability. See Cox
v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878,
882-83 (8th Cir. 1994)) (substantial showing must be debatable among reasonable
jurists, reasonably subject to a different outcome on appeal or otherwise deserving
of further proceedings).
Accordingly,

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IT IS HEREBY ORDERED that petitioner’s petition for writ of habeas
corpus under 28 U.S.C. § 225455 [1] is denied.
IT IS FURTHER ORDERED that this Court will not issue a certificate of
appealability, as petitioner has not made a substantial showing of the denial of a
federal constitutional right.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 19th day of November, 2018.

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