Keys v. Steele

Filing 15

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner's amended Petition for Writ of Habeas Corpus [ECF No. 7 ] is DENIED. IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Patricia L. Cohen on 3/31/21. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JERMAINE A. KEYS,
Petitioner,
v.
DAVID VANDERGRIFF, 1
Respondent.

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Case no. 4:17cv01374 PLC

MEMORANDUM AND ORDER
Petitioner Jermaine A. Keys seeks federal habeas corpus relief from Missouri state court
judgments entered after guilty pleas. See 28 U.S.C. § 2254. Respondent David Vandergriff filed
a response to the amended petition, 2 along with exhibits consisting of copies of the materials from
the underlying state court proceedings. After careful consideration, the Court denies the amended
petition on its merits. 3
I. Background

The Court substitutes as the Respondent David Vandergriff, the present Warden of the Eastern Reception
Diagnostic and Correctional Center (“ERDCC”) where Petitioner is incarcerated, in lieu of the person who was the
Warden of the ERDCC and named as a Respondent at the time Petitioner filed this habeas proceeding. Fed. R. Civ.
P. 25(d).
1

Additionally, Petitioner mentioned the Attorney General of the State of Missouri as a possible Respondent
in the caption of his amended petition [ECF No. 7]. Petitioner challenges a judgment that imposes only concurrent
sentences. Therefore, the Attorney General of the State of Missouri is not a proper Respondent. See, e.g., Rule 2(b)
of the Rules Governing Section 2254 Cases in the United States District Courts.
Petitioner submitted an unsigned petition as his original petition [ECF No. 1]. The Court returned that
petition to Petitioner and directed him to sign and return it [ECF No. 6]. When Petitioner filed the signed petition, it
was docketed as an amended petition [ECF No. 7]. The original unsigned petition is not now before the Court for
resolution.
2

The parties consented to the exercise of authority by a United States Magistrate Judge pursuant to 28 U.S.C.
Section 636(c).
3

In May 2011 Petitioner engaged in conduct resulting in the State of Missouri filing criminal
charges against him in three cases: one in the City of St. Louis, State v. Keys, Case No. 1122CR02610 (filed May 17, 2011) (“the 2610 case”), and two in St. Louis County, State v. Keys, Case
No. 12SL-CR00379 (filed Jan. 17, 2012) (“the 379 case”), and State v. Keys, Case No. 12SLCR01541 (filed Feb. 8, 2012) (“the 1541 case”). 4 As reflected on the docket sheet for the 2610
case, the State charged Petitioner with two counts of first-degree assault or attempted assault of a
law enforcement officer in violation of Missouri Revised Statutes Section 565.081 (Counts 1 and
3) and two related counts of armed criminal action in violation of Missouri Revised Statutes
Section 565.081 (Counts 2 and 4) for conduct occurring on May 17, 2011. Petitioner was detained
at the City of St. Louis Justice Center until he was transferred to the Missouri Department of
Corrections (“MoDOC”) after his sentencing on October 3, 2013. See, e.g., entries on docket
sheets for State v. Keys, Nos. 1122-CR02610 (City of St. Louis Cir. Ct. filed May 17, 2011) and
1122-CR02610-01 (City of St. Louis Cir. Ct. filed June 16, 2011 (available at
https://www.courts.mo.gov/casenet/cases/searchDockets.do (last visited Mar. 26, 2021)).
In this habeas proceeding, Petitioner does not challenge the 2013 conviction and judgment
in the City case (the 2610 case). Instead, Petitioner challenges the March 2015 convictions and
judgments in the two County cases (the 379 case and the 1541 case). In the 379 case, the State
4
With respect to Petitioner’s May 2011 conduct, the record in this habeas proceeding includes copies of
various materials (including docket sheets) from the County cases (the 379 and 1541 cases), but no materials from the
City case (the 2610 case), although the latter case is mentioned in the two County cases and, in part, is relevant to the
issue presented for resolution by this Court in this case. Courts may take judicial notice of judicial opinions and public
records. Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005). In Missouri, “court records are public records.”
Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007). Under the circumstances and for purposes of resolving this habeas
proceeding, the Court takes judicial notice of information about the 2610 case that is available on Missouri’s Case.net,
“Missouri’s online docketing system.” See Smith v. Satterfield, 1:19-CV-107-ACL, 2019 WL 4452282, at *2 (E.D.
Mo. Sept. 17, 2019) (taking “judicial notice of the Missouri State Court record . . . as obtained through the public
records published on Missouri Case.net”), aff’d, 19-3132, 2020 WL 1528180 (8th Cir. Jan. 8, 2020); Martin v. Cape
Girardeau Cnty. Sheriff’s Dep’t, 1:17-CV-110-RLW, 2017 WL 5151351, at *3 n.1 (E.D. Mo. Nov. 3, 2017) (same),
aff’d, 18-1120, 2018 WL 3491723 (8th Cir. June 13, 2018); see also S.E.C. v. Shanahan, 600 F. Supp. 2d 1054, 1058
(E.D. Mo. 2009) (taking judicial notice in a Securities Exchange Commission civil enforcement action “of the terms
of” a plea agreement in the defendant’s related federal criminal case).

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charged Petitioner with robbery in the first degree in violation of Missouri Revised Statutes Section
569.020 (Count 1) and a related charge of armed criminal action in violation of Missouri Revised
Statutes Section 571.015 (Count 2) for conduct Petitioner engaged in on May 14, 2011. 5 In the
1541 case, the State charged Petitioner with six counts of robbery in the first degree in violation
of Missouri Revised Statutes Section 569.020 (Counts 1, 3, 5, 7, 9, and 11), six related counts of
armed criminal action in violation of Missouri Revised Statutes Section 571.015 (Counts 2, 4, 6,
8, 10, and 12) and one count of unlawful use of a weapon (by discharging a firearm at a dwelling)
in violation of Missouri Revised Statutes Section 571.030 (Count 13) for conduct occurring on
May 6, 2011 (Counts 1 through 4), May 7, 2011 (Counts 5 through 8), and May 15, 2011 (Counts
9 through 13).
Plea court proceedings
The 379 case was scheduled for a two-day jury trial beginning on March 2, 2015. 6 On
March 3, 2015, before trial concluded, Petitioner pleaded guilty to each offense charged in the 379
case and the 1541 case. 7 The guilty pleas resulted from an agreement with the State.
In response to the plea court’s questioning of Petitioner, who was placed under oath,
Petitioner stated he was twenty-two years old, had completed junior year, could read and write,
and had read and understood the “plea form” he had signed for each of the two cases. He further

All statutory citations for the charged offenses are to the versions of the statutes in effect in May 2011,
when Petitioner’s offenses occurred.
5

See, e.g., Feb. 2, 2015, entry on the docket sheet for the 379 case, Legal File – Vol. 1, Resp’t Ex. A, at 7
[ECF No. 14-1]; Plea Hr’g Tr. at 2, id. at 41 (plea court states at the start of the plea hearing, “we . . . – were in the
middle of the trial”) and id. at 55 (plea court states “we were in the middle of a trial on one of the case numbers” when
explaining Petitioner’s entitlement to a trial in lieu of a guilty plea).
6

See, e.g., Plea Hr’g Tr. at 2, Legal File – Vol. 1, Resp’t Ex. A at 41 [ECF No. 14-1] (plea court states at
the start of the plea hearing, “we . . . – were in the middle of the trial”).
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averred he had not recently taken and was not under the influence of any drugs, alcohol,
medication, or controlled substance; and had no problems with his mental health. After the plea
court reviewed the charges, the prosecutor stated the evidence he would present with respect to
each count in each case and Petitioner acknowledged (1) that his attorneys had explained to him
the nature and elements of the pending charges, as well as “possible defenses” and (2) the
prosecutor’s statements regarding the evidence were “substantially true and correct.” Petitioner
also stated under oath that no one had made any threats or promises to him to get him to plead
guilty to the offenses.
Additionally, Petitioner acknowledged that he understood the range of punishment on all
of the offenses as summarized by the prosecutor: (1) from ten to thirty years or life imprisonment
in the MoDOC for each of the seven first-degree robbery offenses, with Petitioner having “to serve
a minimum of 85 percent of any such sentence”; (2) fifteen years in the MoDOC for the unlawfuluse-of-a-weapon offense; and (3) from three years to an unspecified number of years in the
MoDOC for each of the seven armed-criminal-action offenses, with Petitioner only eligible for
parole after he served at least three years of the sentence imposed. The State recommended terms
of imprisonment of twenty-two years in the MoDOC on the first-degree robbery and armedcriminal-action offenses, to run concurrently with each other and with the sentence imposed in the
City of St. Louis case (the 2610 case), plus fifteen years in the MoDOC on the unlawful-use-of-aweapon charge, “concurrent with all counts in other cases.” Petitioner testified that he understood
the State’s recommendation, and again stated that no one had “made any promises or threats to
[him] or to [his] family to induce [him] to plead guilty to the[] offenses.”
Petitioner affirmed the plea court’s statements that (1) he was entitled to the services of his
attorneys throughout a trial and to a trial by a jury of twelve individuals, who would be instructed

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that he is “presumed innocent” and that presumption “would stay with [him] throughout the trial
until and if the jury found [him] guilty”; (2) the State would be required to prove his guilt beyond
a reasonable doubt “and the jury would be so instructed”; (3) he had the right to testify or not, “as
[he] ch[o]se,” and no comment could be made about his failure to testify, if that is what he chose
to do; (4) all twelve jurors “would have to agree as to [his] guilt or [he] would not be found guilty”;
(5) the “State [was] required to produce in open court its witnesses against [Petitioner] and
[Petitioner’s] attorney would have the right to cross-examine those witnesses”; (6) he “could
present evidence and witnesses in [his] defense if [he] so ch[o]se and . . . could have persons
subpoenaed to testify on [his] behalf”; and (7) he “would have the right to appeal any guilty
verdict.” When the plea court inquired whether Petitioner understood “that by pleading guilty . . .
[he was] waiving or giving up all of those rights . . . and that there will not be a trial,” Petitioner
stated he understood and wanted to do that, and told the plea court he “waiv[ed] or g[a]v[e] up
[his] right to a sentencing assessment report.”
Before accepting Petitioner’s guilty pleas, the plea court asked Petitioner a series of
questions regarding his attorneys’ representation, all of which Petitioner answered affirmatively.
Through his responses, Petitioner stated that he had a sufficient opportunity to speak with his
attorneys about the cases before deciding to plead guilty; that he had informed them of all the facts
and circumstances surrounding the crimes with which he was charged; that he was satisfied that
his attorneys were in possession of all the facts necessary to advise him; and that his attorneys
adequately explained the nature and elements of, as well as any possible defenses to, the charged
offenses.

Petitioner further testified that: he had enough time to discuss his cases with his

attorneys; he had no complaints or criticisms of his attorneys’ representation; he did not know of
anything they could have done but did not do for him; his attorneys answered his questions and

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did everything he asked of them; his attorneys contacted witnesses he requested them to contact;
he was completely satisfied with the extent to which his attorneys prepared and investigated his
cases; he believed that he was fully advised by his attorneys as to all aspects of his cases, including
his rights and possible consequences of his pleas; he believed his attorneys adequately, completely,
and effectively represented him in defense of the charges; and he was satisfied with his attorneys’
services. When the plea court asked Petitioner if he had any questions for the court, Petitioner
responded, “No.”
Petitioner then pleaded guilty to each count in the 379 case and the 1541 case,
acknowledging that he was freely and voluntarily pleading guilty because he was “guilty as
charged on all counts.” The plea court found Petitioner’s guilty pleas “intelligently and voluntarily
made with the full understanding of the charges and the consequences of his pleas, and with an
understanding of his rights attendant to a jury trial and the effect of the pleas of guilty on those
rights.” Finding there was a factual basis for the pleas, the plea court accepted the pleas and found
Petitioner guilty of each offense charged in the 379 case and the 1541 case. The plea court
sentenced Petitioner to a twenty-two-year term of imprisonment on each first-degree robbery
offense and each armed criminal action offense, and to a fifteen-year term of imprisonment on the
unlawful use of a weapon (for discharging a firearm at a dwelling) offense, with each sentence
concurrent with the sentences on “all counts” and with the sentences in the other cases, including
the 2610 case.
After the plea court sentenced Petitioner, Petitioner’s counsel made “one additional
request.” Petitioner’s counsel asked the plea court, “pursuant to [Missouri Revised Statutes]
Section 558.031, as it[ is] interpreted by Dykes v. MoDOC, 325 S.W.3d 556 [(Mo. Ct. App. 2010)]
and as it cites Mi[kel] v. McGuire 264 S.W.3d 689 [(Mo. Ct. App. 2008)]” to give Petitioner:

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credit from May 17th of 2011 [the date of Petitioner’s arrest in the 2610 case] to
October 9th of 2013 [during] which [time Petitioner] was an inmate at the [City of]
St. Louis . . . Justice Center. He was returned to the [MoDOC] on October 9, 2013
[after he was sentenced in the 2610 case].
… [W]e contend that under [Missouri Revised Statutes Section] 558.031 . . . he
is entitled to the credit of those approximately two and a half years by the [MoDOC]
and we’re asking the [plea court] to find that pursuant to [Section] 558.031 he [is]]
entitled to the credit because he was detained and on warrant status in relation to
this matter.
Plea Hr’g, Legal File, Vol. 1, Resp’t Ex. A at 67-68 [ECF No. 14-1]. The prosecutor responded
that he did not object to Petitioner receiving any credit for time served that he was entitled to under
the law, but he did object to Petitioner’s receipt of any credit to which he was not entitled under
the law. The plea court ruled that Petitioner be given “appropriate credit” for “whatever time [he
was] entitled to under Section 558.031.” Petitioner did not file an appeal from the convictions and
judgments resulting from the guilty plea and sentencing proceeding. 8
Post-conviction motion court proceedings
In his original pro se motion for post-conviction relief (“PCR”) under Missouri Supreme
Court Rule 24.035, Petitioner contended the MoDOC was denying him credit related to the 2610
case. Through counsel, Petitioner filed an amended PCR motion, along with a request for an
evidentiary hearing.
In his amended PCR motion, Petitioner alleged that his plea counsel provided ineffective
assistance of counsel by “unreasonably informing” him that, “as a matter of law,” he was entitled
to and would receive credit against his sentence for the period from May 17, 2011, to October 9,

8

Federal constitutional claims are not properly raised in state court in a direct appeal from a guilty
plea as “[i]t is well settled that in a direct appeal from a guilty plea, th[e Missouri appellate] court’s review is restricted
to the subject-matter jurisdiction of the trial court or the sufficiency of the information or indictment.” State v.
Goodues, 277 S.W.3d 324, 326 (Mo. Ct. App. 2009); accord State ex rel. Simmons v. White, 866 S.W.2d 443, 446
n.4 (Mo. 1993) (en banc). Likewise, an ineffective-assistance-of-counsel claim is not properly presented in a direct
appeal to the Missouri Court of Appeals. See, e.g., Mo. S. Ct. Rule 24.035.
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2013. 9 Specifically, Petitioner claimed that his plea counsel “induc[ed Petitioner]’s unknowing,
unintelligent, and involuntary plea[s] by informing [him], without qualification, that he was
entitled to, and would receive, credit on both of his St. Louis County Cases for the period of time
[he was in the City of St. Louis Justice Center] from May 17, 2011 to October 9, 2013.” Petitioner
asserted that he was prejudiced as a result of plea counsel’s challenged conduct, for had he not
received those assurances from plea counsel he would not have pleaded guilty but would have
continued with trial in the 379 case and pursued trial in the 1541 case.
The post-conviction motion court denied Petitioner’s PCR motion, without conducting an
evidentiary hearing. The court concluded the record refuted Petitioner’s contention that his
counsel informed him, as a matter of law, that he would be entitled to and would receive two and
a half years of credit towards his sentence. Rather, the post-conviction motion court concluded,
the record of the plea and sentencing proceeding in the County cases (the 379 case and the 1541
case) directly contradicted the existence of such an unqualified statement by plea counsel.
Specifically, the motion court found, plea counsel “made a request” for the credit, “ask[ed]” for
the credit on two occasions, and “contended” that Petitioner was entitled to the credit. 10 Therefore,
the post-conviction motion court found, “the record reflects no guarantees and no assurances
regarding credit for time served.” Furthermore, the post-conviction motion court explained,
[p]lea counsel’s use of petitionary language belies [Petitioner]’s claim of an
unqualified assurance of credit for time served, because if such an unqualified
assurance had been made, there would have been no point in requesting the same
from th[e plea court], just as there would have been no point in asking the [plea
court] to make a finding pursuant to [Section] 558.031. Moreover, plea counsel’s
In his amended motion for post-conviction relief, Petitioner alleges that, after he arrived at the Missouri
Department of Corrections, he learned he would only receive credit for approximately six months of the two plus
years of credit Petitioner had requested from the plea court. Pet’r am. PCR mot., Legal File Volume 2, Resp’t Ex. B.
at 27 [ECF No. 14-2].
9

Post-conviction motion court’s findings of fact, conclusions of law, and j., Legal File - Vol. 2, Resp’t Ex.
B, para. 22 [ECF No. 14-2] (emphasis in original).
10

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use of the argumentative verb, contend, [when asking for the credit] only served to
highlight, on the record, that the credit sought by [Petitioner] was most definitely
not guaranteed by plea counsel, and that the question of the amount of credit to be
granted was yet to be answered.
Post-conviction motion court’s findings of fact, conclusions of law, and j., Legal File - Vol. 2,
Resp’t Ex. B, para. 23 [ECF No. 14-2] (emphasis in original). The post-conviction motion court
concluded: (1) Petitioner “was not guaranteed any specific amount of credit for time served,” (2)
Petitioner “was not unreasonably advised by plea counsel,” (3) no promises were made to induce
Petitioner’s pleas, (5) plea counsel “exercised the customary skill and diligence that a reasonably
competent attorney would exercise under similar circumstances,” and (6) Petitioner’s pleas were
“entered knowingly, intelligently, and voluntarily.” Id. para. 24.
Post-conviction appellate court proceedings
Petitioner presented one point in his post-conviction appeal. Specifically, Petitioner argued
that the motion court erred in denying, without an evidentiary hearing, his claim that his plea
counsel violated his Fifth, Sixth, and Fourteenth Amendment rights to the effective assistance of
counsel, to persist in his not-guilty pleas, to trial, and to due process by “inducing his involuntary
and unintelligent guilty pleas by affirmatively misleading him to believe that he would ‘as a matter
of law’ be entitled to jail-time credit [of] a period of approximately twenty-eight months.”
The Missouri Court of Appeals for the Eastern District affirmed the motion court’s
judgment in an unpublished per curiam order accompanied by a memorandum sent to the parties
setting forth the reasons for the order. Keys v. State, No. ED104136 (Mo. Ct. App. Feb. 28, 2017),
Resp’t Ex. 7 [ECF No. 14-5]. The Court of Appeals stated the only ineffective-assistance-ofcounsel claim that may be pursued after a person pleads guilty is one alleging “counsel’s conduct
affected the voluntariness and knowledge with which the plea was made. Harris v. State, 494
S.W.3d 647, 649 (Mo. [Ct.] App. . . . 2016) (quoting Nichols v. State, 409 S.W.3d 566, 569 (Mo.

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[Ct.] App. . . . 2013)).” Keys, No. ED104136, at 4. For the second or prejudice requirement of an
ineffective-assistance-of-counsel claim pursued by an individual who pleaded guilty, the Court of
Appeals observed the person must show “that absent counsel’s errors, he would have insisted on
proceeding to trial rather than pleading guilty.” Id. (citing Harris, 494 S.W.3d at 649).
Before addressing the ineffective-assistance-of-counsel claim the Court of Appeals
recognized that “[m]istaken beliefs about sentencing may affect, to an extent, a[n individual]’s
ability to knowingly enter a guilty plea” if the mistaken belief is reasonable. Id. at 5 (citing Harris,
494 S.W.3d at 649-50). Because during the plea proceeding Petitioner: (1) twice affirmed “no
threats or promises had been made to induce his guilty plea[s]”; (2) affirmed “he understood the
range of punishment for his offenses, as well as the State’s recommendation for punishment”; (3)
affirmed that “plea counsel did everything that [Petitioner] asked”; and (4) failed to disclose “that
Plea Counsel advised him ‘without qualification’ that ‘as a matter of law’ [he] ‘was entitled to,
and would receive, credit” for his time in the City of St. Louis Justice Center, the Court of Appeals
concluded his “mistaken belief that he would receive a lesser sentence was unreasonable.” Id. at
5.
The Court of Appeals also agreed with the post-conviction motion court that Petitioner’s
ineffective-assistance-of-counsel claim was refuted by the record, that Petitioner’s counsel’s
inquiry of the plea court after sentencing “undermines [Petitioner]’s claim of [an] ‘unqualified’
assurance of credit,” and the plea court’s response that Petitioner would receive whatever credit
he was entitled to “did not reflect any guarantee or assurance regarding credit for time served.” Id.
Additionally, the Court of Appeals reasoned that: (1) any statement Petitioner’s counsel made
that Petitioner was entitled to and would receive credit for jail time that Petitioner relied on to
choose to plead guilty “is considered a promise made by Petitioner’s counsel and should have been

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disclosed when [Petitioner was] asked whether any promises had been made to induce [Petitioner]
to plead guilty”; and (2) “a mere prediction as to sentencing by counsel that proves incorrect is not
sufficient to render a guilty plea involuntary.” Id. at 6 (citing Harris, 494 S.W.3d at 651). The
Court of Appeals issued its mandate on March 24, 2017. 11
II. Ground for relief
In his amended habeas petition, Petitioner presents one ground: that his pleas were
unknowing and involuntary because his plea counsel provided ineffective assistance of counsel by
informing him “on [the] record, that [he] was entitled to approximately two and a half years of
credit [for the time he] was a[n] inmate at the [City of] St. Louis . . . Justice Center.” Citing to
Strickland v. Washington, 466 U.S. 668 (1984), Respondent counters that the decisions of the state
post-conviction motion court and the state appellate court rejecting the merits of Petitioner’s
ground for relief are (1) reasonable and (2) entitled to deference under 28 U.S.C. Section 2254(d)
because there is support in the record for those decisions.
III. Discussion
A. Standard for habeas review
A prisoner in custody under the judgment and sentence of a state court may seek habeas
relief on the grounds his custody violates the United States Constitution. See 28 U.S.C. §§
2241(c)(3), 2241(d). When considering a state prisoner’s habeas petition, a federal court is bound
by the Antiterrorism and Effective Death Penalty Act of 1996 (“the AEDPA”), see 28 U.S.C. §
2254(d), to exercise “only limited and deferential review of underlying state court decisions.”
Nash v. Russell, 807 F.3d 892, 897 (8th Cir. 2015) (internal quotation marks omitted) (quoting

See the March 24, 2017, entry on the docket sheet for Keys v. State, Case No. ED104136 (Mo. Ct. App.
filed Mar. 14, 2016) (available at https://www.courts.mo.gov/casenet/cases/searchDockets.do (last visited Mar. 28,
2021)).
11

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Worthington v. Roper, 631 F.3d 487, 495 (8th Cir. 2011)). A federal court may not grant habeas
relief to a state prisoner unless a state court’s adjudication of the merits 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) “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).
A state court decision is contrary to clearly established Supreme Court precedent if “the
state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question
of law or . . . decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (“Taylor”). If a state
court’s decision is not “contrary to” clearly established federal law, then the “unreasonableness”
standard applies, which is “meant to be difficult to meet, and ‘even a strong case for relief does
not mean the state court’s contrary conclusion was unreasonable.’” Roper, 695 F.3d at 831
(quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). A state court decision is 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 . . . case.” Taylor, 529 U.S. at 407-09; see also
id. at 413. The test of reasonableness is an objective one. Id. at 409-10; accord White v. Woodall,
572 U.S. 415, 419 (2014).
The “clearly established Federal law” requirement of habeas review under Section
2254(d)(1) requires the habeas court to consider only United States Supreme Court precedent in
force when a state court issues its decision. Greene v. Fisher, 565 U.S. 34, 38-40 (2011) (relying
on Cullen, supra); accord Taylor, 529 U.S. at 412. State courts are not required to cite to Supreme
Court cases, “‘so long as neither the reasoning nor the result of the state-court decision contradicts

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them.’” Revels v. Sanders, 519 F.3d 734, 739 (8th Cir. 2008)) (quoting Early v. Packer, 537 U.S.
3, 8 (2002) (per curiam)). Importantly, when reviewing a matter under Section 2254(d)(1), a
federal habeas court “is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen, 563 U.S. at 181-82.
The state court record is also significant when a federal habeas court analyzes under Section
2254(d)(2) whether a state court decision on the merits of a claim “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” A
federal habeas court “accord[s] the state . . . court substantial deference” and does not supersede
the state court’s factual determination if “reasonable minds reviewing the record might disagree
about the finding in question.” Brumfield v. Cain, 576 U.S. 305, 314 (2015) (internal quotation
marks and citation omitted).

For purposes of Section 2254(d)(2), “a state-court factual

determination is not unreasonable merely because [a] federal habeas court would have reached a
different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).
Importantly, “a determination of a factual issue made by a State court [is] presumed to be
correct” unless the habeas petitioner rebuts the presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1). The presumption of correctness applies to the factual determinations made
by a state court at either the trial or appellate levels, Smulls v. Roper, 535 F.3d 853, 864-65 (8th
Cir. 2008) (en banc), and to a state court’s implicit findings of fact, Grass v. Reitz, 749 F.3d 738,
743 (8th Cir. 2014). Likewise, federal habeas courts defer to state court credibility determinations,
Smulls, 535 F.3d at 864, and to “[a] state court’s findings of fact made in the course of deciding”
an ineffective-assistance-of-counsel claim, Odem v. Hopkins, 382 F.3d 846, 849 (8th Cir. 2004).
Although the Supreme Court has not yet clarified the relationship between the
“unreasonable” provision of Section 2254(d)(2) and the “presumed correct” provision of Section

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2254(e)(1), see, e.g., Burt v. Titlow, 571 U.S. 12, 18 (2013); Velez v. Clarinda Corr. Facility, 791
F.3d 831, 834 n.1 (8th Cir. 2015) (citing Brumfield, 576 U.S. at 322), Eighth Circuit authority
supports the granting of habeas relief under Section 2254(d)(2) when a petitioner provides “clear
and convincing evidence that the state court’s presumptively correct factual finding [that is
material to its decision on the merits] lacks evidentiary support. 28 U.S.C. § 2254(e)(1).” Trussell
v. Bowersox, 447 F.3d 588, 591 (8th Cir. 2006); accord Jones v. Luebbers, 359 F.3d 1005, 1011
(8th Cir. 2004) (“a state court decision involves ‘an unreasonable determination of the facts in light
of the evidence presented in state court proceedings,’ 28 U.S.C. § 2254(d)(2), only if it is shown
that the state court’s presumptively correct factual findings do not enjoy support in the record. 28
U.S.C. § 2254(e)(1)”). Put another way, a petitioner is entitled to relief under the AEDPA if the
state court decision “at issue is based on factual determinations that could not reasonably be
derived from the state court evidentiary record.” Velez, 791 F.3d at 834.
B. Ineffective assistance of plea counsel
The Sixth Amendment’s guarantee of counsel is applicable to the States through the
Fourteenth Amendment because it is a fundamental right and essential to a fair trial. Gideon v.
Wainwright, 372 U.S. 335, 342-45 (1963). To establish an ineffective-assistance-of-counsel
claim, Strickland requires a showing by a petitioner that: (1) “counsel’s performance was
deficient,” i.e., that “counsel’s representation fell below an objective standard of reasonableness”
under all the circumstances (“performance prong”) and (2) “the deficient performance prejudiced
the defense” (“prejudice prong”). Strickland, 466 U.S. at 687, 688. A court need not address both
prongs of the Strickland test if it finds the habeas petitioner has not established one of the prongs.
Strickland, 466 U.S. at 697 (“there is no reason for a court deciding an ineffective assistance claim
. . . to address both components of the inquiry if the [petitioner] makes an insufficient showing on

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one”); accord Osborne v. Purkett, 411 F.3d 911, 918 (8th Cir. 2005) (stating the petitioner “did not
satisfy the performance [prong of the Strickland test so the court] need not consider the prejudice”
prong); Odem, 382 F.3d at 851 (stating “[i]t is not necessary for [a court] to consider the prejudice
[prong] of the Strickland analysis” after concluding the petitioner did not satisfy the performance
prong).
When a criminal case is resolved by a guilty plea instead of a trial, the Constitution requires
that the plea be made knowingly, intelligently and voluntarily, with knowledge of “the relevant
circumstances and likely consequences,” because it constitutes a waiver of a defendant’s right to
a trial, right to confront accusers, and privilege against self-incrimination. United States v. Brady,
397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). “The entry of a
guilty plea . . . ranks as a ‘critical stage’ at which the right to counsel adheres.” Iowa v. Tovar,
541 U.S. 77, 81 (2004). A plea is intelligently and knowingly made when it follows advice by
competent counsel, a defendant is made aware of the nature of the charges against him, and nothing
shows a defendant is “incompetent or otherwise not in control of his mental faculties.” Brady, 397
U.S. at 756. A defendant “who pleads guilty upon advice of counsel ‘may only attack the voluntary
and intelligent character of the guilty plea by showing that the advice he received from counsel
was not within the standards set forth in McMann[ v. Richardson, 397 U.S. 759 (1970)],’” or was
not within the range of competence demanded of attorneys in criminal cases. Hill v. Lockhart,
474 U.S. 52, 56-57 (1985) (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)).
Strickland’s two-pronged test “applies to challenges to guilty pleas based on ineffective
assistance of counsel.” Hill, 474 U.S. at 58. To prevail, a habeas petitioner must show that his
counsel’s performance was deficient, i.e., fell below an objective standard of reasonableness, and

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that there is a reasonable probability that, but for counsel’s deficient performance, he would not
have pleaded guilty and would have insisted on going to trial. Id. at 57-59.
As the Supreme Court has explained, under the AEDPA “[t]he pivotal question” for a
federal habeas court reviewing an ineffective-assistance-of-counsel claim that was subject to state
court review on the merits, “is whether the state court’s application of the Strickland standard was
unreasonable.” Harrington, 562 U.S. at 101. “Establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is . . . difficult.” Id. at 105. “The standards created
by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem,
review is ‘doubly’ so.” Id. (internal citations omitted). Specifically, after a state court reviews the
merits of an ineffective-assistance-of-counsel claim, it is not sufficient for a federal habeas
petitioner to “show that he would have satisfied Strickland’s test if his claim were being analyzed
in the first instance.” Bell v. Cone, 535 U.S. 685, 698–99 (2002). Instead, a federal habeas court
“assess[es] the state courts’ assessment of counsel’s performance.” Barnes v. Hammer, 765 F.3d
810, 814 (8th Cir. 2014). Put another way, a federal habeas court views the ineffective-assistanceof-counsel claim through two filters: first, the court defers to the judgments of trial counsel under
Strickland, 466 U.S. at 689, and second, the court “defer[s] to the state courts’ application of
federal law to the facts of the case.” Shelton v. Mapes, 821 F.3d 941, 946 (8th Cir. 2016) (cleaned
up).
A federal habeas petitioner “must show that the [state court] applied Strickland to the facts
of his case in an objectively unreasonable manner.” Bell, 535 U.S. at 699. “A state-court decision
is ‘unreasonable’ within the meaning of § 2254(d) only when it is ‘so lacking in justification that
there [is] an error well understood and comprehended in existing law beyond any possibility for

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fairminded disagreement.’” Daniels v. Kelley, 881 F.3d 607, 611 (8th Cir. 2018) (quoting
Harrington, 562 U.S. at 103) (alteration in original).
Reviewed under the doubly deferential standard applicable to federal habeas review of
ineffective-assistance-of-counsel claims, the Missouri Court of Appeals’ finding that counsel was
not ineffective is not contrary to clearly established federal law. That the Court of Appeals did not
mention either the Strickland or the Hill cases, or other United States Supreme Court decisions
addressing the ineffective assistance of counsel with respect to a guilty plea, is not significant
because the Court of Appeals decision does not contradict the reasoning or result of the relevant
Supreme Court decisions. Furthermore, although the Court of Appeals’ decision did not address
Strickland’s and Hill’s prejudice prong applicable to the analysis of an ineffective-assistance-ofcounsel claim, this does not conflict with federal law. To the contrary, a claim of ineffective
assistance of counsel can be denied for a failure to meet either of the two prongs. Strickland, 466
U.S. at 697 (“there is no reason for a court deciding an ineffective assistance claim . . . to address
both components of the inquiry if the [petitioner] makes an insufficient showing on one”); accord
Osborne, 411 F.3d at 918 (stating the petitioner “did not satisfy the performance [prong of the
Strickland test so the court] need not consider the prejudice” prong).
Additionally, this Court has neither been directed to nor found a Supreme Court case
addressing either prong of the Strickland test, as adopted in Hill, in the context of an attorney
allegedly providing a defendant, prior to a guilty plea, advice regarding jail-time credit toward a
term of imprisonment, much less such advice for a period of jail time served in a separate case as
presented here. In the absence of “any clearly established holding” addressing an ineffectiveassistance-of-counsel claim based on such advice, the Court concludes the Missouri Court of
Appeals’ decision regarding this claim was not contrary to clearly established federal law. See

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Woods v. Donald, 575 U.S. 312, 317 (2015) (per curiam) (because none of the Supreme Court’s
“cases confront ‘the specific question presented by this case’” – the trial attorney’s absence from
the courtroom during approximately ten minutes of prosecution testimony about other defendants
– the state court’s decision on direct appeal rejecting the petitioner’s Sixth Amendment right to
effective-assistance-of-counsel claim was not “‘contrary to’ any holding from th[e Supreme]
Court”).
Nor can it be said that the Missouri Court of Appeals unreasonably applied clearly
established Federal law by finding that Petitioner’s counsel’s performance was not deficient.
Based on Petitioner’s counsel’s colloquy with the plea court after Petitioner’s sentencing, it is
reasonable to conclude, contrary to Petitioner’s claim, that counsel did not unequivocally advise
or assure Petitioner prior to his pleas that he would receive a credit on any term of imprisonment
imposed in the County cases (the 379 and 1541 cases) of approximately twenty-eight months for
the time he spent in the City of St. Louis Justice Center prior to sentencing in the City case (the
2610 case). Nor does the record of the plea and sentencing proceeding in the County cases disclose
any assurance or guarantee by Petitioner’s counsel during the proceeding that Petitioner would
receive a credit for his jail time in the City case with respect to any term of imprisonment imposed.
See United States v. Has No Horses, 261 F.3d 744, 749 (8th Cir. 2001) (rejecting a claim that
erroneous advice by counsel about an expected sentence entitled the defendant to set aside his
guilty plea, based on the defendant’s testimony during the plea proceeding); United States v.
McKnight, 186 F.3d 867, 869 (8th Cir. 1999) (per curiam) (rejecting a claim that a defendant was
misled about the length of his sentence based on the plea agreement and colloquy which showed
the defendant knew he faced a greater sentence, and finding the defendant’s hope of a lesser
sentence did “not translate into a claim for relief”); Premachandra v. United States, 101 F.3d 68,

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69 (8th Cir. 1996) (rejecting a habeas claim that a guilty plea was not voluntary because counsel
had incorrectly informed the petitioner that he would not serve a lengthy prison term if he pleaded
guilty because, at the guilty plea hearing, the petitioner expressly acknowledged, among other
things, the potential sentence he faced).
Furthermore, the record supports the State court’s findings of fact, which are entitled to a
presumption of correctness because Petitioner has not introduced any evidence to rebut the
presumption by clear and convincing evidence. During the plea hearing, Petitioner expressed
satisfaction with his counsel, stated no promise had been made to induce him to plead guilty,
acknowledged the range of punishment on each count as disclosed by the prosecutor, confirmed
his understanding of the term of imprisonment recommended by the State, and did not ask the plea
court any question, much less a question about jail-time credit, when the plea court gave him the
opportunity. Importantly, “[s]olemn declarations in open court carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Therefore, “while a guilty plea taken in
open court is subject to collateral attack, ‘the defendant’s representations during the plea-taking
carry a strong presumption of verity and pose a “formidable barrier in any subsequent collateral
proceedings.”’” Bramlett v. Lockhart, 876 F.2d 644, 648 (8th Cir. 1989) (quoting Voytik v. United
States, 778 F.2d 1306, 1308 (8th Cir. 1985)). Nothing of record challenges the truthfulness of any
of Petitioner’s statements during the plea proceeding or the propriety of counsel’s statements to
the plea court regarding the request for jail-time credit. Petitioner has not established that his
counsel’s performance fell below an objective standard of reasonableness.
The record supports no finding that hoped-for jail time credit induced Petitioner’s guilty
pleas much less that counsel misinformed Petitioner about such credit either before or during the
plea proceeding.

The determination of the Court of Appeals that counsel’s performance was not

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deficient or ineffective and that Petitioner’s pleas were knowing and voluntary (1) is not contrary
to or an unreasonable application of clearly established federal law, and (2) is not based on an
unreasonable determination of the facts in light of the evidence. Ground one is denied. 12
IV. Certificate of appealability
A final order in a habeas proceeding in which the detention complained of arises out of
process issued by a state court cannot be appealed unless the judge issues a certificate of
appealability (“COA”). 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). A judge may issue a COA
under Section 2253(c) only if a petitioner has made “a substantial showing of the denial of a
constitutional right.” Tennard v. Dretke, 542 U.S. 274, 282 (2004); Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). This standard requires a petitioner to demonstrate, with respect to claims
resolved on the merits, that “reasonable jurists would find the . . . court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); accord
Miller-El, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484).
The Court concludes that Petitioner has not made a substantial showing of the denial of
any constitutional right. Accordingly, the Court will not issue a certificate of appealability with
respect to any aspect of the denial of Petitioner’s amended petition.
V. Conclusion
After careful consideration,

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Because, to resolve Petitioner’s ineffective-assistance-of-counsel claim, this Court is not deciding
whether a state jail-time crediting statute requires giving Petitioner credit for the time he was detained in the City of
St. Louis Justice Center, this Court may resolve Petitioner’s sole claim on the merits. Cf. Poe v. Caspari, 39 F.3d 204,
207 (8th Cir. 1994) (reversing the grant of a federal habeas petition in part because, to resolve the petitioner’s
contention that his right to due process was violated when the trial court, which lacked jurisdiction, sentenced him,
the federal habeas court would have to resolve whether the trial court had jurisdiction, a question not properly before
a federal habeas court because it involved solely a matter of state law); Travis v. Lockhart, 925 F.2d 1095, 1097 (8th
Cir. 1991) (vacating the denial of a habeas petition in which the petitioner sought jail-time credit and remanding to
the district court for dismissal of the petition upon concluding “the interpretation of state crediting statutes is a matter
of state concern and not a proper function of a federal court under its habeas corpus jurisdiction”).

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IT IS HEREBY ORDERED that Petitioner’s amended Petition for Writ of Habeas Corpus
[ECF No. 7] is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability.
A separate judgment in accordance with this Memorandum and Order is entered this same date.

PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 31st day of March 2021

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