Sago v. Steele

Filing 17

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that petitioner Kevin Sagos petition for habeas corpus relief is DENIED. Signed by District Judge Rodney W. Sippel on 11/9/17. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN L. SAGO,
Plaintiff,
v.
TROY STEELE,
Defendant.

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Case No. 4:17 CV 1097 RWS

MEMORANDUM AND ORDER
Petitioner Kevin Sago petitions for habeas corpus relief pursuant to 28
U.S.C. § 2254. Sago is an inmate at Algoa Correctional Center, in Jefferson City,
Missouri. He is serving time for a first-degree assault. Sago pleaded guilty to the
first degree assault charge in 2011 and was sentenced to ten years and six months’
imprisonment. After serving a portion of his sentence, the state court suspended
Sago’s sentence and placed him on five years’ probation. In 2014, Sago was
arrested for second-degree robbery, which would violate the terms of his probation.
After a hearing on November, 5, 2014, the court revoked Sago’s probation.
Sago argues that he is entitled to habeas corpus relief because, in revoking
his probation, the state court violated federal due process requirements outlined in
Morrissey v. Brewer, 408 U.S. 471, 486-86 (1972). He also argues that he suffered

ineffective assistance of counsel. The state argues (1) that Sago failed to exhaust
his state court claims. I will deny Sago’s petition because he does not demonstrate
that the state court’s actions are contrary to clearly established federal law or based
on an unreasonable determination of the facts.
BACKGROUND
In June 2014, Kevin Sago was arrested for second-degree robbery, which
would violate his probation. After Sago’s arrest, the New Madrid County
Prosecutor moved to revoke Sago’s probation. During his revocation proceedings
and proceedings for the new criminal charge, Sago was represented by Amanda
Altman of the Missouri Public Defender’s Office. The New Madrid Circuit Court
scheduled an initial revocation hearing for July 22, 2014. At Sago’s request, the
state court granted continuances for the hearing four separate times, finally holding
the hearing on November 5, 2014.
During the November 5 hearing, Altman examined witnesses, crossexamined the state’s two witnesses, and made arguments on Sago’s behalf. Id. In
his own testimony, Sago contended that he had not been involved in any robbery or
attempted robbery, and he disputed evidence presented by the prosecution. After
considering “the credibility of the witnesses” and summarizing their conflicting
testimony, Missouri State Circuit Judge Copeland found that Sago was in violation
of his probation at “the very least by being an accessory… for this attempted
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robbery....”1 Id. at 44. The court issued a judgment on the same day, finding Sago
“in violation of probation, and after considering the alternatives” revoked
probation. (ECF No. 1-8, p. 2.)
On August 14, 2015, Sago filed a petition for writ of habeas corpus in the
Circuit Court of St. Francois County, Missouri. (ECF No. 1-9.) In a memorandum,
order, and judgment, the circuit court denied his petition. (ECF No. 1-13.) Sago
appealed to the Missouri Court of Appeals, which also denied his petition in an
order issued on February 1, 2016. (ECF No. 1-14.) Sago declined to seek
discretionary review from the Missouri Supreme Court. Instead, he filed a petition
for habeas corpus in this court on March 24, 2017.
LEGAL STANDARD
Habeas petitions attacking custody in state courts can be granted only if they
are (1) contrary to clearly established federal law or (2) based on an unreasonable
determination of the facts in light of the evidence presented in the state court. 28
U.S.C. § 2254(d). “[F]ederal habeas corpus relief does not lie for errors of state
law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Instead, a federal court is limited
to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States. 28 U.S.C. § 2241; Estelle v. Maguire, 502 U.S. 62, 67–68 (1991). In
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During the hearing, Judge Copeland incorrectly stated a witness, Bradley Johsnon’s, name
when finding that Sago had been an accessory for attempted robbery. Johnson was not before
the court as a defendant in this proceeding, and the context of the statements makes it clear that
Judge Copeland found that Sago had been an accessory for attempted robbery.
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his petition, Sago alleges violations of state and federal procedural requirements.
Pursuant to 28 U.S.C. § 2254(d), I only consider allegations that the state court
acted contrary to federal law or made an unreasonable determination of facts.
ANALYSIS
I.

Exhaustion
When petitioning for habeas corpus relief, “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.” Randolph
v. Kemna, 276 F.3d 401, 403 (8th Cir. 2002). In meeting this requirement “state
prisoners [must] file petitions for discretionary review,” with the state’s highest
court. O’Sullivan v. Boerckel, 526 U.S. 838, 847 (1999). This requirement only
applies “when that review is part of the ordinary appellate review procedure….”
Id. In contrast, when there is “a clear indication that the standard process is
complete,” then a petitioner need not file a petition for discretionary review. Dixon
v. Dormire, 263 F.3d 774 at 780 (8th Cir. 2001) (quoting Ford v. Georgia, 498 U.S.
411, 423-24, (1991)).
The state argues that Sago failed to exhaust his claims because he did not
petition the Missouri Supreme Court for habeas corpus relief. In Missouri, a party
has two opportunities to petition for a transfer of his case to the Missouri Supreme
Court. First, a party can petition the Missouri Court of Appeals to transfer his case
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to the state’s highest court. Missouri Supreme Court Rule 83.02. If that petition is
denied, a party can petition the Missouri Supreme Court to transfer the case by its
own action. Missouri Supreme Court Rule 83.04. Rule 83.04, however, contains
the explicit disclaimer that “[t]ransfer by this Court is an extraordinary remedy that
is not part of the standard review process for purposes of federal habeas corpus
review.” Based on this provision, the United States Court of Appeals for the Eighth
Circuit has held that a petitioner need not petition for transfer to the Missouri
Supreme Court to have exhausted his state court remedies. Randolph v. Kemna,
276 F.3d 401, 404-05 (8th Cir. 2002). This holding is written broadly to suggest
that it addresses Rule 83.04 and 83.02: “Missouri law” does not require “prisoners
to pursue discretionary review by petitioning for transfer to the Missouri Supreme
Court.” Id. As a result, Sago need not petition for transfer to the Supreme Court in
order to exhaust his state court claims. Accordingly, I will consider his petition on
the merits.
II.

Due Process
After carefully reviewing Sago’s claims, I will dismiss his claim because the

state has not acted contrary to federal law or made an unreasonable determination
of facts. Sago’s federal allegations primarily concern due process requirements for
revocation proceedings as outlined by the United States Supreme Court in
Morrissey v. Brewer, 408 U.S. 471, 486-86 (1972). The Court in Morrissey
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identified “two important stages” in revocation proceedings: a “preliminary
hearing” and a “revocation hearing.” Id. at 485-90.
With respect to the preliminary hearing before this officer, the parolee
should be given notice that the hearing will take place and that its
purpose is to determine whether there is probable cause to believe he
has committed a parole violation. The notice should state what parole
violations have been alleged. At the hearing the parolee may appear
and speak in his own behalf; he may bring letters, documents, or
individuals who can give relevant information to the hearing officer.
Id. at 487-88. With respect to the revocation hearing, the minimum requirements of
due process include
(a) written notice of the claimed violations of parole; (b) disclosure to
the parolee of evidence against him; (c) opportunity to be heard in
person and to present witnesses and documentary evidence; (d) the
right to confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing
confrontation); (e) a ‘neutral and detached’ hearing body such as a
traditional parole board, members of which need not be judicial
officers or lawyers; and (f) a written statement by the factfinders as to
the evidence relied on and reasons for revoking parole.
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Id. at 488-89.
In his petition, Sago alleges that the state (1) provided insufficient notice that
the court would hold a dual hearing for his probation revocation and new charges;
(2) failed to hold a preliminary hearing on his probation revocation; (3) failed to
consider alternatives to incarceration; and (4) failed to provide a written statement
explaining the reason for the revocation. I reject these claims based on the
evidence in the record.
First, Sago does not dispute that he received notice that the two hearings
would occur on the same day. Instead, he claims that he did not receive notice that
the two hearings would be held simultaneously. (See ECF No. 1-9.) He argues that
the dual hearing format prejudiced him, because it prevented him from calling a
witness, Deputy Dustin Crawford, who was not present when the hearing started.
(See ECF No. 15, p. 4.) The state correctly notes that petitioner consented through
his lawyer to holding the hearings simultaneously. (See ECF No. 14.) The state
also correctly notes that the subpoena duces tucem issued for Deputy Crawford
listed the correct start time and location of the hearings. Id. Accordingly, the dual
aspect of the hearings did not cause Deputy Crawford’s absence. Sago otherwise
presented witnesses and had all the rights and opportunities required by Morrissey.
As a result, I find that he had adequate notice of the hearing.

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Second, Sago argues that he was not afforded a preliminary revocation
hearing in a prompt manner, as required by Morrissey. Due process requires,
“some minimal inquiry,” for determining probable cause or reasonable grounds.
Morrissey at 485. Such an inquiry must be conducted “as promptly as convenient
after arrest while information is fresh and sources are available.” Id. “There is no
federal law,” however, “that requires Missouri to provide Sago with two separate
hearings before revoking his probation.” (See ECF No. 14.) In Sago’s case, a
hearing was scheduled on July 22, 2014, eleven days after a warrant was served on
Sago for his probation violation. (See ECF No. 1-2.) By Sago’s successive
requests, the hearing was continued four separate times and finally held on
November 5, 2014. Id. Sago cannot seek a series of continuances and then
successfully argue that, in granting his requests, the state violated his right to a
timely hearing. The state has not violated his right to a prompt preliminary
revocation hearing.
Third, Sago argues that the sentencing judge for his probation revocation
failed to consider alternatives in sentencing him to imprisonment. It is true that a
court must consider alternatives to incarceration when revoking probation for
failure to pay a fine. Bearden v. Georgia, 461 U.S. 660, 668-69 (1983). However,
“nothing ... requires a sentencing court to state explicitly why it rejected
alternatives to incarceration,” when revoking probation. Black v. Romano, 471
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U.S. 606, 611 (1985). Instead, “when other procedural safeguards have minimized
the risk of unfairness, there is a diminished justification for requiring a judge to
explain his rulings.” Id. In Sago’s case, the court issued a written statement
expressly stating that it had considered alternatives to incarceration. No evaluation
of alternatives to revocation is otherwise required. Id.
Fourth, Sago argues that the state failed to issue a written statement as to the
evidence relied on and reason for revoking his probation. Sago correctly states that
due process in revocation proceedings requires “a written statement by the
factfinders as to the evidence relied on and reasons for revoking parole.” Morrissey
at 488-89. One reason for this requirement is to create a record sufficient to permit
a meaningful review. See, e.g., United States v. Dortch, 923 F.2d 629, 633 (8th
Cir.1991). Several United States Courts of Appeals hold that “transcribed oral
findings of a district court can satisfy the requirement of a written statement.”
United States v. Blackshear, 1 F.3d 1242 (Table), 1993 WL 288297, *7(6th Cir.
1993) (and cases cited therein). Eighth Circuit precedence is less clear on the
ability of transcribed oral findings to satisfy the written statement requirement.2

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Compare United States v. Smith, 767 F.2d 521, 524 (8th Cir. 1985) (holding that a revocation
hearing transcript alone was insufficient to fulfill the written statement requirement) with United
States v. Patterson, 946 F.2d 1371, 1372 (8th Cir.1991) (per curiam) (rejecting criminal
defendant’s claim that the district court failed to make specific findings on his request for an
acceptance of responsibility reduction, “when, as here, the record is clearly sufficient to permit a
meaningful review by an appellate court.”).
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Three federal cases suggest that a conclusory written statement, when
accompanied by a fact-finding hearing transcript can satisfy the written statement
requirement. In Black v. Romano, 471 U.S. 606 (1985), the United States Supreme
Court held that “[t]he memorandum prepared by the sentencing court and the
transcript of the hearing provided the necessary written statement….” Id. at 616.
As a result, the sentencing court had met the due process requirements laid out in
Morrissey. Id. In United States v. Smith, the Eighth Circuit considered both the
hearing transcript and a conclusory judgment in reaching its holding. 767 F.2d at
524. Because the petitioner in Smith had challenged two grounds for his
revocation, however, the United States Court of Appeals was “unable to determine
the basis of the district court’s decision to revoke probation.” The Western District
of Missouri discussed this aspect of Smith in Dunlap v. Ledbetter, No. 05-0258CV-W-FJG-P, 2005 WL 2138242 (Aug. 31, 2005, W.D. Mo.), holding that a
conclusory order and hearing transcript together can meet the written statement
requirement. Id. at *5-6. Accordingly, I will consider both the written judgment
and the hearing transcript in this case.
Here, Sago’s revocation judgment states the following, in relevant part:
05-Nov-2014

Defendant Sentenced

… Motion for revocation of probation taken up and hearing held. The
Court finds the defendant to be in violation of probation, and after
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considering the alternatives, the Court hereby orders, probation
revoked. Previous sentence imposed. Defendant to be given credit for
any jail time served. Defendant advised of his rights under
24.035/29.15 and the Court finds no probable cause to believe that the
defendant has received ineffective assistance of counsel. FWC
(ECF No. 1-8, p. 2.) The hearing transcript provides more detail, including
the following findings:
[Sago’s] recollection… of what occurred… doesn’t jive with the
recollection [and] statements of the other [witnesses].
It's the Court's responsibility to determine the credibility of the
witnesses and the testimony they give. And, having considered the,
the credibility of the witnesses, the Court finds this [sic] Mr. Johnson
is in violation of the conditions of his probation by [sic] the very least
by being an accessory, as an accessory for this attempted robbery that
took place down in Portageville on the date in question.
(ECF No. 1-12, p. 44.)
Together, the judgment and transcript create a record sufficient to
permit a meaningful review on appeal. Unlike in United States v. Smith, 767
F.2d 521, only one ground exists for revoking probation, and the reason for
revoking probation is therefore unambiguous. Accordingly, I find that the
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state court provided a sufficient written statement “as to the evidence relied
on and reasons for revoking parole.” Morrissey at 488-89.
III.

Ineffective Assistance of Counsel

In addition to his due process claims, Sago alleges that he suffered
ineffective assistance of counsel. To prevail on this claim, Sago must also show
that his counsel’s performance fell below an objective standard of reasonableness
and that he was prejudiced by counsel’s deficient representation. Strickland v.
Washington, 466 U.S. 668, 687 (1984). When scrutinizing counsel's performance, I
“must be highly deferential.” Id. at 689. “It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the proceeding.” Id.
at 694. “The defendant must show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been
different.” Id. Sago claims that his attorney (1) failed to make objections to the
dual hearing format, (2) failed to object to “false charges added to [his] file,” and
(3) failed to present the sentencing court with alternatives to revocation.
Without considering whether Altman performed at or above an objective
standard of reasonableness, I find that her performance had no prejudicial effect on
Sago. First, as explained above, the dual hearing format did not prejudice Sago.
Deputy Crawford’s absence was not caused by the dual hearing format, and Sago
presented witnesses, cross-examined the state’s witnesses, and had all the rights
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and opportunities required by Morrissey. Second, I do not find any evidence that
false charges were added to Sago’s file. The transcript and judgment clearly show
that Sago’s probation was revoked because he was, at the very least, an accessory
for attempted robbery. (ECF No. 1-12, p. 44.) Sago cannot show that the Judge’s
summary of charges against Sago at the beginning of the hearing, (see ECF No. 112, p. 2; ECF No. 1-9, p. 8.), whether accurate or inaccurate, had any effect on the
final judgment. Third, I find that Altman sought a specific alternative to
incarceration. She recommended that “the underlying charge be settled prior to
[probation] being revoked…” Id. at 42. There is no evidence to suggest that
Altman would have successfully avoided revocation for her client had she made a
different recommendation or presented different evidence. Accordingly, I find that
Sago did not suffer ineffective assistance of counsel.
CONCLUSION
I find that the state did not act contrary to federal law or make an
unreasonable determination of facts when it revoked Sago’s probation. As a result,
Sago’s petition for habeas corpus is denied.
Accordingly,

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IT IS HEREBY ORDERED that petitioner Kevin Sago’s petition for
habeas corpus relief is DENIED.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 9th day of November, 2017.

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