Rousan v. Cassady et al

Filing 55

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Rousan's amended petition for writ of habeas corpus pursuant to 28 U.S.C.A. § 2254 (Doc. 47 ) is DENIED. IT IS FURTHER ORDERED that this case is DISMISSED. IT IS FURTHER ORD ERED that no certificate of appealability shall issue because Petitioner has failed to make a substantial showing that he has been denied a constitutional right. 28 U.S.C.A. § 2253. Signed by Magistrate Judge Shirley Padmore Mensah on 1/23/2024. (JEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM BRENT ROUSAN,
Petitioner,
v.
JAY CASSADY,
Respondent.

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Case No. 4:16-CV-01502-SPM

MEMORANDUM AND ORDER
This matter is before the undersigned on the petition of Missouri state prisoner William
Brent Rousan (“Petitioner”) for a writ of habeas corpus pursuant to 28 U.S.C.A. § 2254. (Doc. 47).
The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge
pursuant to 28 U.S.C.A. § 636(c)(1). (Doc. 23). For the following reasons, the petition will be
denied.
I.

FACTUAL BACKGROUND
Rousan is currently an inmate at the Jefferson City Correctional Center in Jefferson City,

Missouri. On March 4, 1996, after pleading guilty in exchange for a waiver of the death penalty,
Rousan was sentenced to two consecutive terms of life imprisonment without eligibility for parole
on two counts of first-degree murder. Rousan was sixteen years old at the time he committed the
offenses.
Rousan filed a motion for post-conviction relief pursuant to Mo. Sup. Ct. R. 24.035, in
which he alleged ineffective assistance of counsel and attempted to withdraw his guilty plea. (Doc.
47 at 3). That motion was denied without a hearing, and the motion court's ruling was affirmed on

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appeal. Id. Subsequently, Rousan filed a pro se direct appeal in 2005, seeking to withdraw his
guilty plea, which was dismissed as untimely on February 6, 2006. Id. at 2. He then filed a motion
for a writ of habeas corpus in 2012, in the Circuit Court of Cole County, which was denied on
April 23, 2012. (Doc. 48 at 3).
On June 25, 2012, the United States Supreme Court issued its opinion in Miller v. Alabama,
567 U.S. 460 (2012). In Miller, the Supreme Court held that the Eighth Amendment prohibits a
sentencing scheme that mandates life in prison without the possibility of parole for juvenile
homicide offenders. Id. at 479. The Court reasoned that “[m]andatory life without parole for a
juvenile precludes consideration of his chronological age and its hallmark features—among them,
immaturity, impetuosity, and failure to appreciate risks and consequences,” the “family and home
environment that surrounds him—and from which he cannot usually extricate himself—no matter
how brutal or dysfunctional,” the “circumstances of the homicide offense,” and “the possibility of
rehabilitation[.]” Id. at 477-78.
On March 12, 2013, Rousan filed a petition for writ of habeas corpus in the Missouri
Supreme Court, alleging that his sentence was unconstitutional in light of Miller. On January 27,
2016, while Rousan's petition was still pending, the United States Supreme Court decided the case
of Montgomery v. Louisiana, 577 U.S. 190 (2016), holding that the rule of Miller must be
retroactively applied in collateral cases to juveniles sentenced to mandatory life without parole
before Miller was decided. Id. at 205. The Court clarified, however, that this retroactive application
“does not require States to relitigate sentences, let alone convictions, in every case where a juvenile
offender received mandatory life without parole.” Id. Rather, “[a] State may remedy a Miller
violation by permitting juvenile homicide offenders to be considered for parole, rather than by
resentencing them.” Id. Regarding this remedy, the Court cited a Wyoming statute that allows a

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juvenile convicted of homicide to be eligible for parole after 25 years of incarceration. Id. (citing
Wyo. Stat. Ann. § 6-10-301(c)). The Court specifically held that “allowing those offenders to be
considered for parole ensures that juveniles whose crimes reflected only transient immaturity—
and who have since matured—will not be forced to serve a disproportionate sentence in violation
of the Eighth Amendment.” Id.
On March 15, 2016, the Missouri Supreme Court issued an order in Rousan’s habeas case,
as well as all other similarly situated cases, stating that the Missouri General Assembly had yet to
enact a constitutionally valid sentencing provision in accordance with Miller and Montgomery.
Therefore, the Missouri Supreme Court granted Rousan's petition in part and ordered that he (and
those similarly situated) would be eligible to apply for parole after 25 years’ imprisonment on their
sentences of life without parole unless their sentences were otherwise brought into conformity with
Miller and Montgomery by action of the governor or enactment of the legislature.
On July 13, 2016, the Governor signed into law Missouri Senate Bill (“S.B.’) No. 590, 98th
General Assembly, which states, in relevant part:
1. (1) Any person sentenced to a term of imprisonment for life without eligibility for parole
before August 28, 2016, who was under eighteen years of age at the time of the commission of the
offense or offenses, may submit to the parole board a petition for a review of his or her sentence
... after serving twenty-five years of incarceration.
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4. The parole board shall hold a hearing and determine if the defendant shall be granted
parole.
(codified at Mo. Ann. Stat. § 558.047 ).

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In light of Mo. Ann. Stat. § 558.047, the Missouri Supreme Court issued an order on July
19, 2016, vacating its March 15 order, overruling as moot the motions for rehearing or resentencing
filed by Rousan and others similarly situated, and denying the pending petitions for state habeas
corpus.
On October 14, 2016, Rousan filed a pro se petition for writ of habeas corpus in this Court,
raising one ground for relief: that Mo. Ann. Stat. § 558.047 is unconstitutional as applied to him
because the statute creates an “arbitrary and unfair distinction between youth convicted before and
after August 28, 2016,” when the statute was put into effect. (Doc. 1). Subsequently, this Court
appointed counsel to represent Rousan, after which he submitted an amended petition asserting
that Mo. Ann. Stat. § 558.047 is unconstitutional as applied to him because he will be 67 years old
before he is eligible for parole. (Doc. 24-1 at 10). In the response filed on August 17, 2018,
Respondent asserted that Rousan's sole ground for relief is not properly before the Court because
it has not been exhausted in state court. (Doc. 36).
On August 19, 2019, the Court concluded that Rousan's claim had not been properly raised
before the state courts, and that Rousan still had non-futile state court remedies he may pursue.
(Doc. 37). Accordingly, the Court entered an order staying this action, so that Petitioner could
pursue his unexhausted claim in state court.
Rousan subsequently filed a petition for state writ of habeas corpus in the Circuit Court of
Cole County. (Doc 50-1). On July 13, 2020, Cole County Circuit Judge Daniel Green entered an
Order denying Rousan's state petition for writ of habeas corpus with prejudice. (Doc. 50-2 at 411). On September 3, 2020, Rousan filed a petition for writ of habeas corpus in the Missouri Court
of Appeals, Western District. (Doc 50-3). On October 8, 2020, the appellate court denied the

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petition. (Doc. 50-4). Rousan subsequently filed a motion to lift the stay issued by this Court. (Doc.
40). This Court granted Rousan’s motion and appointed counsel on November 23, 2020. (Doc 43).
In the instant petition, Rousan requests this Court resentence him. He argues that Mo. Ann.
Stat. § 558.047 violates his rights “under the Eighth and Fourteenth Amendment … as he is
ineligible for even a parole hearing for fifty (50) years, or in 2044.” (Doc 48 at 2).
II.

LEGAL STANDARDS
A. LEGAL STANDARD FOR REVIEWING CLAIMS ON THE MERITS
A district court “shall entertain an application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court 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.A. § 2254(a).
Federal habeas review exists only “as a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction through appeal. Woods v. Donald,
575 U.S. 312, 316 (2015) (internal citations and quotations omitted). Accordingly, “[i]n the habeas
setting, a federal court is bound by the AEDPA [the 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) (internal citation omitted). Under AEDPA, a federal
court may not grant habeas relief to a state prisoner with respect to any claim that was adjudicated
on the merits in the state court proceedings unless the state court’s adjudication of a 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.A. § 2254(d)(1) and (2). A state court decision
is “contrary to” clearly established Supreme Court precedent “if the state court applies a rule that

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contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state court
confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a result different from [the Supreme Court’s] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000); see also Brown v. Payton, 544 U.S. 133, 141 (2005). A state
court decision involves an “unreasonable application” of clearly established federal law if it
“correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular
prisoner’s case.” Williams, 529 U.S. at 407-08; see also Bell v. Cone, 535 U.S. 685, 694 (2002).
“Finally, a state court decision involves an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings only if it is shown that the state courts
presumptively correct factual findings do not enjoy support in the record.” Jones v. Luebbers, 359
F.3d 1005, 1011 (8th Cir. 2004) (citation and internal quotation marks omitted); see also Rice v.
Collins, 546 U.S. 333, 338-39 (2006) (noting that state court factual findings are presumed correct
unless the habeas petitioner rebuts them through clear and convincing evidence).
B. LEGAL STANDARD FOR PROCEDURALLY DEFAULTED CLAIMS
To preserve a claim for federal habeas review, “a state habeas petitioner must present that
claim to the state court and allow that court an opportunity to address his claim.” Moore-El v.
Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32
(1991)). “Where a petitioner fails to follow applicable state procedural rules, any claims not
properly raised before the state court are procedurally defaulted.” Id. The federal habeas court will
consider a procedurally defaulted claim “only where the petitioner can establish either cause for
the default and actual prejudice, or that the default will result in a fundamental miscarriage of
justice.” Id. (citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992)). To demonstrate cause, a
petitioner must show that “some objective factor external to the defense impeded [the petitioner’s]

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efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
To establish prejudice, a petitioner must demonstrate that the claimed errors “worked to his actual
and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982); accord Ivy v. Caspari, 173 F.3d 1136, 1141 (8th
Cir. 1999). Lastly, in order to assert the fundamental miscarriage of justice exception, a petitioner
must “present new evidence that affirmatively demonstrates that he is innocent of the crime for
which he was convicted.” Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011) (quoting Abdi v.
Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).
III.

DISCUSSION

Petitioner Rousan’s sole ground for relief is that, under Miller, Mo. Ann. Stat. § 558.047
violates his Eighth and Fourteenth Amendment rights because, at a parole eligibility age of 67
years old, he is serving a de facto life without parole sentence. (Doc. 48 at 13). He argues that
under Miller, Mo. Ann. Stat. § 558.047 violates his Eighth and Fourteenth Amendment rights
because he is entitled to a “meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” Id. He contends that the statute provides no relief or opportunity for
“any judge, or jury to hear any of the facts now required to be considered” as detailed in Miller
and Graham. Id. To remedy the purported error, Rousan requests a resentencing hearing, “so that
for the first time since the date of the crime, he [will] have a meaningful opportunity to present
attendant circumstances to a court.” Id. at 25.
A.

FOURTEENTH AMENDMENT VIOLATION

As noted above, Rousan’s sole ground for relief is that Mo. Ann. Stat. §558.057 violates
both the Eighth and Fourteenth Amendments. This Court recognizes that Rousan’s reference to
the Fourteenth Amendment may have been nothing more than an acknowledgement that the Eighth

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Amendment’s protection against cruel and unusual punishment applies to state governments only
through the due process clause of the Fourteenth Amendment. See Robinson v. California, 370
U.S. 660 (1962). However, to the extent that Rousan is attempting to raise a separate Fourteenth
Amendment claim, the Court finds his claim is procedurally defaulted because it was not raised at
the state level. Moore-El 446 F.3d at 896. As discussed above, a state prisoner can overcome such
a procedural default only if he 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, 501 U.S. at 750. Rousan has failed to
provide any evidence justifying the cause for his default, actual prejudice, or that the default would
result in a fundamental miscarriage of justice. Moore-El 446 F.3d at 896. Therefore, any separate
Fourteenth Amendment claim is denied as procedurally defaulted.
Even if Rousan had a separate cognizable Fourteenth Amendment claim, Respondent
argues such a claim would fail because Rousan cited no authority differentiating between his
Eighth Amendment and Fourteenth Amendment claims. (See Doc. 50 at 4). After a review of
Rousan’s state habeas petition, the Court cannot ascertain a Fourteenth Amendment claim that is
distinct and separate from Rousan’s Eighth Amendment claim. As such, Rousan’s purported
Fourteenth Amendment claim will be denied for the reasons discussed below regarding his Eighth
Amendment claim.
B.

EIGHTH AMENDMENT VIOLATION

Rousan has failed to show that the Cole County Circuit Court’s 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 that the circuit court’s ruling was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.

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28 U.S.C.A. § 2254(d)(1) and (2). In deciding Rousan’s state habeas petition, the Cole County
Circuit Court carefully considered Supreme Court precedent and found that “[n]either Miller nor
Montgomery dealt with minimum parole eligibility terms for consecutive sentences,” and reasoned
that to accept Rousan’s argument, the court would have to expand Supreme Court precedent
beyond the four corners of the opinions. (Doc. 50-2 at 10-11). The court declined to do so, finding
that as applied, Rousan had no right to resentencing, and that Mo. Ann. Stat. § 558.047 provides
no more relief than Miller and Montgomery require. Id. at 4. The court cited analogous state and
federal denials of habeas relief to bolster its decision, and reasonably applied Supreme Court
precedent. See id. at 4-8.
To be sure, this Court does not address whether Rousan, who will be age 67 before
becoming parole eligible, is effectively serving a de facto life sentence. Furthermore, it is not this
Court's role to independently assess the constitutionality of S.B. 590. Instead, pursuant to the
AEDPA, this Court may only grant Rousan habeas relief if it determines that the state court
adjudication “was contrary to, or involved an unreasonable application of, clearly established
federal law.” 28 U.S.C. § 2254(d)(1). Such review is “highly deferential.” Ali v. Roy, 950 F.3d
572, 574 (8th Cir. 2020) (internal citations omitted). Furthermore, courts in this circuit have denied
various similar requests for habeas relief, even where the state court adjudication included no
substantive analysis. Hack v. Cassady, No. 16-04089-CV-W-ODS, 2019 WL 320586 (W.D. Mo.
Jan. 24, 2019); Saddler v. Pash, No. 4:16-CV-00363-AGF, 2018 WL 999979 (E.D. Mo. Feb. 21,
2018); see also Wolf v. Cassady, No. 16-3334-CV-S-MDH, 2019 WL 1089125 (W.D. Mo. Mar.
7, 2019). Notably, the Missouri Supreme Court has now weighed in on the issue and upheld the
constitutionality of S.B. 590, holding that “Missouri's General Assembly can accept the Supreme

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Court's invitation to remedy Miller-affected sentences by supplying parole eligibility.” Hicklin v.
Schmitt, 613 S.W.3d 780, 787 (Mo. banc 2020).
There is no basis for this Court to conclude that the state court unreasonably applied federal
law. The Cole County Circuit Court appropriately relied on language in Montgomery suggesting
that remedies like S.B. 590 are a permissible legislative response to Miller. The state's adjudication
of Rousan’s claim on the merits “gets the benefit of the doubt” unless he showed that its decision
“was so lacking in justification that there [is] an error well understood and comprehended in
existing law beyond any possibility for fair minded disagreement.” Ali, 950 F.3d at 574 (internal
citation omitted). Rousan has failed to show the court’s reasoning is lacking in justification. Thus,
he has not demonstrated that the Missouri courts unreasonably applied federal law in denying his
state habeas petition.
IV.

CONCLUSION

For all the above reasons, Petitioner is not entitled to federal habeas relief. Under 28
U.S.C.A. § 2253 , an appeal may not be taken to the court of appeals from the final order in a 28
U.S.C.A. § 2254 proceeding unless a circuit judge or district judge issues a certificate of
appealability. 28 U.S.C.A. § 2253(c)(1)(A). To grant such a certificate, the judge must find that
the Petitioner “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2);
Tiedman 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) (internal
citation omitted). The Court finds that Rousan has not made a substantial showing of the denial of
a constitutional right, so the Court will not issue a certificate of appealability.
Accordingly,

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IT IS HEREBY ORDERED that Rousan’s amended petition for writ of habeas corpus
pursuant to 28 U.S.C.A. § 2254 (Doc. 47) is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability shall issue because
Petitioner has failed to make a substantial showing that he has been denied a constitutional right.
28 U.S.C.A. § 2253.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 23rd day of January, 2024

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