McCune v. Denney

Filing 19

ORDER: ORDERED that: (1) the petition for writ of habeas corpus is denied;(2) the issuance of a certificate of appealability is denied; and (3) this case is dismissed with prejudice. Signed on March 25, 2014 by District Judge Nanette K. Laughrey. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JOHNATHAN D. MCCUNE,
Petitioner,
vs.
LARRY DENNEY,

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Case No. 13-0452-CV-W-NKL-P

Respondent.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
Petitioner filed this federal petition for writ of habeas corpus pursuant to 28 U.S.C. ' 2254
to challenge his 2008 conviction and sentence for statutory rape and child abuse, which was
entered in the Circuit Court of Johnson County, Missouri. Petitioner raises four (4) grounds for
relief: (1) petitioner received ineffective assistance of counsel because counsel failed to advise
petitioner of the effect his guilty plea would have on a subsequent case; (2) petitioner received
ineffective assistance of counsel because counsel failed to move to dismiss a charge of child abuse;
(3) the plea court did not have a sufficient factual basis to accept petitioner’s guilty plea for child
abuse; and (4) petitioner received ineffective assistance of counsel because plea counsel
“incorrectly advised him that his chance of acquittal at trial was slim.” Doc. No. 1. Respondent
contends that Grounds 1 and 2 are without merit, that Ground 3 is not cognizable, and that Ground
4 is procedurally barred.
FACTUAL BACKGROUND
In affirming the judgment of conviction and sentence of the state circuit court denying
petitioner=s Rule 24.035 motion for post-conviction relief, the Missouri Court of Appeals,

Western District, set forth the following facts:

[Petitioner] was indicted for first-degree statutory rape and the class C
felony of abuse of a child (alleging that [petitioner] burned Stepdaughter’s legs and
back with a cigarette) for acts occurring between May 1, 2005, and August 31,
2005, in Johnson County, Missouri. [Petitioner] executed a written Petitioner to
Enter Plea of Guilty wherein he state that he
had sexual intercourse with A.R. (D.O.B. 12/05/1995) between May
1st 2005 & August 31st, 2005, in Johnson County Missouri, who was
then less than 12 years old. I also knowingly inflicted cruel and
inhuman punishment upon A.R. (d.o.b. 12/5/1995), a child less than
17 years old, by burning her legs and back with a cigarette.
....
The court questioned [petitioner] about the assistance of counsel, and
[petitioner] indicated that plea counsel had done everything [petitioner] asked of
him, that there was nothing counsel failed to do, and that [petitioner] was satisfied
with counsel’s services. [Petitioner] verified that counsel discussed the State’s
evidence with him, as well as his potential defenses to the charges. [Petitioner]
indicated that, after going over all of that information with counsel, he chose to
enter a guilty plea of his own free will. [Petitioner] denied that counsel made any
threats or promises to induce his pleas, and [petitioner] again affirmed his
satisfaction with counsel’s services.
Thereafter, [petitioner] filed a pro se Rule 24.035 motion. The court
appointed counsel, and appointed counsel filed an amended motion, alleging
(among other claims) that counsel was ineffective for “incorrectly advising
Movant concerning the [e]ffect that plea to charges in Johnson County, Missouri,
would have on pending and potential prosecutions in other jurisdictions, including
the pending prosecution in Johnson County, Kansas, and the potential for Movant
to enter into a plea bargain in those other jurisdiction.” The amended motion also
alleged that plea counsel was ineffective for advising [petitioner] to plead guilty to
the child abuse charge because “there was no allegation that Movant committed
the alleged acts in Johnson County, Missouri[.]” The amended motion further
alleged that there was an insufficient factual basis for McCune’s guilty plea to
child abuse because “the alleged victim made no claim that [petitioner] committed
the acts alleged in Johnson County, Missouri.
The motion court held an evidentiary hearing, wherein it received
testimony from plea counsel, [petitioner], and [petitioner]’s public defender from
Kansas. Plea counsel testified that he advised [petitioner] “early on that
petitioner had four cases pending[,]” and that “[t]he odds of him winning four
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trails were slim[.]” He also advised [petitioner] that if he were convicted at trial,
he would probably get a sentence of twenty years. Counsel testified that “per that
advice, [petitioner] decided to pursue a plea.” Plea counsel suggested that the
best course of action would be to “try to work a plea to the lowest amount of
years[, a]nd hopefully, then, the other jurisdictions would do something
comparable to the plea that we get here in Johnson County.” Counsel suggested
to [petitioner] that in his other cases, “most likely he would get something
comparable but there is a risk.” Counsel testified, “[t]hat is why [petitioner]
pled.” Counsel’s advice was based upon his past experience that “other
jurisdictions had been willing to do something comparable rather than use
resources for someone that is already serving a 13 year sentence.” Counsel did
not believe that any of [petitioner]’s other cases would go to trial. As far as the
Kansas case, counsel “did not believe they were going to give him the max and
make it consecutive.” Counsel “told [petitioner] it was a possibility but that [he]
didn’t belie[ve] they would do that to him.” When asked if he adviced
[petitioner] that similar plea agreements were not only possible, but were, in fact, a
likely outcome, counsel responded, “I emphasized that there was a chance.”
[Petitioner] testified that he and plea counsel did not discuss how his
Johnson County, Missouri, pleas would affect his potential sentences in the other
cases. [Petitioner] indicated that he and counsel
had discussions about them running it concurrent or whatnot, if they
could. There was a possibility because it’s the same girl and the
stories all came out at the same time. There was a possibility that I
would get close to the same amount of time as I was plea[d]ing to
here as in other counties.
[Petitioner] stated that counsel told him “that [he] really didn’t have a chance and
[he] would do less time if [he] just pled to all the charges[.]” [Petitioner] testified
that, had he not been advised by counsel of the possibility of a plea agreement in
Kansas similar to the agreement he received in this case, he would not have pled
guilty.
[Petitioner]’s Kansas public defender testified that because of Kansas’s
version of “Jessica’s Law,” [petitioner]’s offenses carried a minimum
twenty-five-year sentence for a first-time offender. But with a prior offense, the
mandatory minimum rose to forty years. She further testified that a prosecutor
lacks the discretion to agree to a sentence below the statutory minimum, but the
minimum could be avoided as part of a plea agreement if the charge were dropped
and re-filed as a different charge outside the coverage of Kansas’s version of
“Jessica’s Law.”
The motion court issued findings of fact and conclusions of law, overruling
[petitioner]’s motion. The motion court found that, even if counsel provided
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[petitioner] with misadvice regarding the possible outcome of his Kansas case,
[petitioner] did not rely on that misadvice in deciding to plead guilty; rather,
[petitioner] pled guilty to avoid a life sentence (the maximum possible) for the
Johnson County, Missouri, charges. The motion court also determined that
counsel was not ineffective for advising [petitioner] to plead guilty to child abuse
because there was a sufficient factual basis for the plea. [Petitioner] appeals.
Respondent=s Exhibit F, pp. 4-9.
Before the state court findings may be set aside, a federal court must conclude that the
state court’s findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S.
422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v.
Solem, 728 F.2d 1533, 1540 (8th Cir. en banc), cert. denied, 469 U.S. 842 (1984).

It is

petitioner=s burden to establish by clear and convincing evidence that the state court findings are
erroneous.

28 U.S.C. ' 2254 (e)(1).1

Because the state court’s findings of fact have fair

support in the record and because petitioner has failed to establish by clear and convincing
evidence that the state court findings are erroneous, the Court defers to and adopts those factual
conclusions.
GROUND 1
In Ground 1, the petitioner claims that he received ineffective assistance of counsel
because counsel failed to advise petitioner of the effect his guilty plea would have on a
subsequent Kansas case.

Petitioner claims that, although counsel told petitioner that the present

case could be used against him in his Kansas cases, counsel did not inform petitioner of any
mandatory sentence requirements in Kansas that would be affected by a conviction in Johnson

1

In a proceeding instituted by an application for writ of habeas corpus by a person in
custody pursuant to a judgment of a State court, a determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by Aclear and convincing evidence.@ 28 U.S.C. ' 2254(e)(1).
4

County, Missouri. Doc. No. 1, p. 4.
Following petitioner’s guilty plea in Johnson County, Missouri, petitioner was convicted
in Johnson County, Kansas, of two counts of rape of a child under fourteen.
40.

Resp. Ex. A, pp. 36,

In Kansas, petitioner’s offenses require a minimum of twenty-five years’ imprisonment for a

first-time offender, but, with a prior “personal felony,” the mandatory minimum rises to forty
years.

Resp. Ex. F, p. 8.

Because petitioner had two prior “personal felonies” as a result of his

guilty pleas in the present case, Kansas law required the Kansas Court to sentence petitioner to a
mandatory minimum of forty years’ imprisonment. Resp. Ex. A, pp. 40-41.

Petitioner claims

that, if he had known a felony conviction in Missouri would increase the mandatory minimum
term he faced in Kansas, he would not have pled guilty.

Doc. No. 1, p. 6.

In order for petitioner to successfully assert a claim for ineffective assistance of trial
counsel, petitioner must demonstrate that his attorney=s performance Afell below an objective
standard of reasonableness@ and that Athe deficient performance@ actually prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

This Court, moreover, may not grant

habeas relief unless the state appellate court’s decision Awas contrary to, or an unreasonable
application of, the standard articulated by the [United States] Supreme Court in Strickland.@
Owens v. Dormire, 198 F.3d 679, 681 (8th Cir. 1999), cert. denied, 530 U.S. 1265 (2000).
AA court considering a claim of ineffective assistance of counsel must apply a >strong
presumption= that counsel=s representation was within the >wide range= of reasonable professional
assistance.@ Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at
689).

Petitioner must show Athat counsel made errors so serious that counsel was not

functioning as the >counsel= guaranteed the defendant by the Sixth Amendment.@ Strickland, 466
U.S. at 687.
5

At an evidentiary hearing on his state post-conviction motion, counsel testified that he was
aware petitioner had other charges pending in Kansas and in another county in Missouri that were
related to the present convictions.

Resp. Ex. A, pp. 8-9.

Counsel reviewed the Kansas

sentencing guidelines and discussed them with petitioner, but did not inform petitioner of any
mandatory sentence requirement in Kansas.

Resp. Ex. A., pp. 11, 13. Counsel also discussed

with petitioner how the guilty pleas in Johnson County, Missouri, might impact his ability to
defend the charges he was facing in other jurisdictions.

Resp. Ex. A., pp. 13-14.

The Missouri courts found that counsel’s performance was not deficient and, thus,
petitioner did not receive ineffective assistance of counsel.

Resp. Ex. F, pp. 10-12.

The

Missouri Court of Appeals reasoned that counsel’s failure to advice petitioner “can be found
deficient only if the elevated mandatory minimum sentence in Kansas is considered a direct
consequence of [petitioner’s] pleas in Missouri.”

Resp. Ex. F, p. 10.

The court found that the

imposition of the mandatory minimum sentence requirement for petitioner’s Kansas sentences
was a collateral consequence of petitioner’s guilty plea and that counsel had no duty to advise
petitioner of the mandatory minimum sentences he faced in Kansas.

Resp. Ex. F, pp. 10-12.

“The validity of a plea of guilty depends on whether it was made
voluntarily and intelligently, which means, inter alia, that the defendant must enter
the plea with knowledge of direct consequences of the plea.” Reynolds v. State,
994 S.W.2d 944, 946 (Mo. Banc 1999) (internal citation omitted). In contract, a
defendant need not be advised regarding the collateral consequences of a plea in
order to be voluntary. Id.
Direct consequences are set forth in Mo. R. Crim. P.
24.02(b) and include the nature of the charges, the maximum
possible and mandatory minimum penalties, the right to be
represented by an attorney, the right not to plead guilty, and the
defendant’s waiver of all trial rights if he pleads guilty.
State v. Rasheed, 340 S.W.3d 280, 284 (Mo. App. E.D. 2011). Direct
consequences are also “ones that ‘definitely, immediately, and largely
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automatically’ follow the entry of a plea of guilty.” Id. (quoting Johnson v.
State, 318 S.W.3d 313, 317 (Mo. App. E.D. 2010)). Collateral consequences,
however, “are those that do not follow automatically from the guilty plea.” Id.
In Rasheed, the defendant argued that his federal defense counsel was
“ineffective for failing to inform him that his plea could be used against him in
state court.” Id. at 283. Relying on the Eighth Circuit’s holding in United
States v. Williams, 104 F.3d 213, 316-17 (8th Cir. 1997), which determined that the
direct consequences about which a defendant must be informed are only those he
may face within the particular judicial system of his plea, the Eastern District of
this court held that “the subsequent use of a guilty plea is a collateral
consequence.” Rasheed, 340 S.W.3d at 284. The court ultimately held that
“[b]ecause the possibility that one’s guilty plea may be used in a subsequent
prosecution in a different jurisdiction is a collateral consequence, Rasheed’s
federal counsel did not have a duty to inform him that his plea could be used in
state court.” Id. at 285.
Here, the fact that [petitioner]’s guilty pleas in Missouri could be used later
in Kansas to enhance the penalties he faced – if convicted – for his charged crimes
there was a collateral consequence. Thus, counsel had no duty to provide him
this information.
Resp. Ex. F, pp. 10-11.

The Missouri courts also found that, even if counsel provided petitioner

with misadvise about the possible outcome of the Kansas case, petitioner did not rely on that
misadvise in deciding to plead guilty; rather, petitioner pled guilty to avoid a life sentence, the
maximum possible sentence for the Johnson County, Missouri, charges. Resp. Ex. F, pp. 8, 11,
12-13.

The Rule 24.035 motion court weighed the credibility of both guilty plea counsel and

petitioner and found that it was “hard pressed to find that [petitioner] relief on any such
misrepresentations in entering his plea.”

Respondent’s Ex. A, p. 12.

In petitioner’s post-conviction proceedings, he sought to apply the United States Supreme
Court’s decision in Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010), in urging the court to find
that an attorney must inform a defendant of the potential that a guilty plea in one state may affect
a subsequent mandatory minimum sentence in another state.

In Padilla, the court held that

counsel was deficient for failing to advise his client that his plea of guilty made him subject to
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automatic deportation, but the Court did not apply the direct-collateral distinction to the claim that
plea counsel was ineffective. Id. at 1482.

Petitioner’s increased mandatory minimum in a

separate proceeding is distinguishable from the consequence of automatic deportation.

At the

time petitioner entered his guilty pleas in Missouri, petitioner had yet to be tried and convicted of
the Kansas offenses, much less sentenced for them.

Petitioner’s mandatory minimum sentence

in Kansas was not the “automatic” result of his conviction in Missouri.
The decision of the Missouri Court of Appeals is reasonable and therefore is entitled to
deference under § 2254(d).

Counsel’s performance was not deficient because he failed to advise

petitioner of the mandatory minimum statutory scheme in Kansas.

Although an attorney has the

duty to inform a defendant of the direct consequences of his guilty pleas, the use of a plea in a
subsequent proceeding is not a direct consequence.

United State v. Williams, 104 F.3d 213, 216

(8th Cir. 1997). Because the state courts= determinations did not result 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 in “a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding,” see 28 U.S.C. §2254(d)(1) and (2); Mo. Rev. State § 558.021(1)(3), Ground 1 will
be denied.
GROUND 2
In Ground 2, petitioner claims he was denied effective assistance of counsel because plea
counsel failed to move to dismiss the child abuse charge. Doc. No. 1, p. 7.

Petitioner claims

that there was no allegation that petitioner committed the offense in Johnson County, Missouri,
and that he was prejudiced because the child abuse conviction resulted in an increased mandatory
minimum sentence for petitioner’s later Kansas convictions. Doc. No. 1, p. 8.
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The indictment that charged petitioner with abuse of a child stated that between May 1,
2005, and August 31, 2005, in Johnson County, Missouri, petitioner knowingly inflicted cruel and
inhumane punishment on the victim, a child less than seventeen years old, by burning her legs and
back with a cigarette. Resp. Ex. B, p. 1.

Petitioner acknowledged that he committed this

offense in his written plea and orally at his plea hearing.

Resp. Ex. B, pp. 4, 29.

Petitioner now

claims that various discovery documents involving statements from both him and the victim
indicate that the victim was burned by petitioner while they were in Benton County, Missouri, and
in Johnson County, Kansas, but that there was no mention in those documents that petitioner
burned the victim during the charged period while in Johnson County, Missouri.
8-9; Resp. Ex. F, p. 15.

Doc. No. 1, pp.

Petitioner claims that, because these documents do not firmly establish

that petitioner burned the victim while in Johnson County, Missouri, counsel was ineffective for
failing to move to dismiss the abuse of child charge.

Doc. No. 1, pp. 7-8.

As previously stated, petitioner must demonstrate that his attorney=s performance Afell
below an objective standard of reasonableness@ and that Athe deficient performance@ actually
prejudiced him.

Strickland v. Washington, 466 U.S. at 687-88. The Missouri Court of Appeals

reasoned that counsel’s performance was not ineffective as follows:
Notably absent from the evidentiary hearing testimony was any evidence from
[petitioner] that he did not, in fact, burn the victim as outlined in the indictment.
It is reasonable to assume that [petitioner] discussed the charge with counsel and
advised counsel in a manner consistent with his testimony at the plea hearing – that
he was guilty of the charged crime. We will not hold counsel ineffective for
advising his client to plead guilty to a crime he believed his client committed when
counsel had no reason to believe that the State lacked evidence to prove his client’s
guilt.
Resp. Ex. F, p. 17.
The conclusion of the Missouri Court of Appeals that counsel’s performance was not
9

deficient under Strickland, has support in the record.

At the plea, petitioner admitted that

between May 1 and August 31, 2005, in Johnson County, Missouri, he knowingly inflicted cruel
and unusual punishment on the victim, who was less than seventeen years old, by burning her legs
and back with a cigarette.

Resp. Ex. B, p. 29.

In his petition to enter the plea of guilty,

petitioner wrote that there was a factual basis for the plea and agreed to the same factual basis.
Resp. Ex. B, p. 4.

Petitioner claims counsel was ineffective in light of the victim’s testimony at

petitioner’s later Kansas trial; however, petitioner fails to show how the victim’s later testimony
at the Kansas trial regarding separate events renders counsel’s earlier advice regarding the
Missouri offenses deficient.
Because the Missouri court’s decision did not result 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 in “a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,” see 28
U.S.C. §2254(d)(1) and (2); Mo. Rev. Stat § 558.021(1)(3), Ground 2 will be denied.
GROUND 3
In Ground 3, petitioner claims there was an insufficient factual basis for his guilty plea for
abuse of a child. Doc. No. 1, p. 10. Petitioner claims there was insufficient evidence because
various discovery documents and the victim’s testimony at a later Kansas trial for separate offenses
do not affirmatively prove that petitioner burned the victim with cigarettes while in Johnson
County, Missouri. Doc. No. 1, pp. 10-11.
Missouri law provides that a court must determine that there is a factual basis for conviction
prior to accepting a guilty plea. See Mo. Sup. Ct. R. 24.02(e). It is a well-established rule of
federal criminal procedure that there must be a factual basis sufficient to support a guilty plea. See
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Fed. R. Crim. P. 11(b)(3). However, this requirement derives only from the Federal Rules of
Criminal Procedure, and not from the Constitution. See Cranford v. Lockhart, 975 F.2d 1347 (8th
Cir. 1992) (a state court=s failure to comply with state rule requiring factual basis for guilty plea
does not deprive defendant of due process, and thus does not warrant habeas relief). Federal
circuit courts addressing similar claims have refused to impose a due process duty to establish a
factual basis for a guilty plea entered in a state court. See Berget v. Gibson, 188 F.3d 518, slip
op. at *6 (10th Cir. Aug. 5, 1999) (listing cases from Second, Third, Sixth, Seventh, and Ninth
Circuits), cert. denied, 529 U.S. 1042 (2000)).

Only when a defendant claims his factual

innocence while pleading guilty have state courts been constitutionally required to establish a
factual basis for a plea as required in North Carolina v. Alford, 400 U.S. 24, 37-39 (1970).
Thus, federal habeas corpus relief for a claim of insufficient factual basis to support a conviction is
not cognizable so long as a guilty plea was entered knowingly and voluntarily. See Wabasha v.
Solem, 694 F.2d 155, 157 (8th Cir. 1982).
Furthermore, the state adequately set out a factual basis for the charge against petitioner
when petitioner acknowledged at the guilty plea hearing that he committed the charged act, within
the charged time period, in the charged county. Petitioner’s plea was not accompanied by any
claim of innocence as allowed under Alford, 400 U.S. at 91. Resp. Ex. B, pp. 4, 29. In addition,
petitioner has not alleged that his guilty plea was unknowing or involuntary. Because petitioner’s
claim of insufficient evidence to support a guilty plea does not raise a Constitutional issue, habeas
relief on Ground 3 must be denied.
GROUND 4
In Ground 4, petitioner claims he was denied effective assistance of counsel because his
plea counsel “incorrectly advised him that his chance of acquittal at trial was slim” and failed to
11

advise him on potential affirmative defenses. Doc. No. 1, p. 12. Petitioner argues that, because
he has genital warts, evidence that the victim does not have genital warts was exculpatory. Doc.
No. 1, p. 13. Petitioner claims that, if counsel had investigated the victim’s medical records and
discovered that she did not have genital warts, petitioner would not have pled guilty. Doc. No. 1,
pp. 13-14.
To preserve issues for federal habeas review, a state prisoner must fairly present his or her
claims to state courts during direct appeal or in post-conviction proceedings. Sweet v. Delo, 125
F.3d 1144, 1149 (8th Cir. 1997). Failure to raise a claim on direct appeal or in a post-conviction
appeal is an abandonment of a claim. Id. at 1150 (citing Reese v. Delo, 94 F.3d 1177, 1181 (8th
Cir. 1996)).

Petitioner did not raise this claim of ineffective assistance of counsel in his

post-conviction proceedings. Therefore, petitioner procedurally defaulted this claim.
A petitioner may overcome the procedural bar if he can demonstrate a legally sufficient
cause for the default and actual prejudice resulting from it or that failure to review the claim would
result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. In order to satisfy the
“cause” requirement, petitioner must show that an “external” impediment prevented him from
presenting his claim to the state court in a procedurally proper manner. Id. at 753.
Petitioner asserts that ineffective assistance of post-conviction counsel caused his state
procedural default. Doc. No. 1, p. 14. In Martinez v. Ryan, the court held that “Inadequate
assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.” 132 S.Ct. 1309, 1315 (2012). To
meet this narrow exception for establishing cause, petitioner must demonstrate that the
post-conviction counsel also was ineffective under the standards of Strickland. Id.
To show that post-conviction counsel was ineffective under Strickland, petitioner must
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demonstrate that post-conviction counsel was objectively unreasonable for failing to raise the
claims of ineffective assistance of trial counsel and that petitioner was prejudiced as a result of this
deficient performance. 466 U.S. at 687. Generally, to show prejudice for ineffective assistance, a
petitioner must show that there is a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different. Strickland, 466 U.S. at 694.
Petitioner claims that counsel failed to advise him of “affirmative defenses” attacking the
victim’s character and veracity, that there were no corroborating witnesses, and that the victim had
not contracted the venereal warts that petitioner had.

Doc. No. 1, p. 12.

Assuming that

post-conviction counsel was objectively unreasonable in failing to assert a claim of ineffective
assistance of plea counsel for failure to raise these “affirmative defenses,” petitioner still must show
that he was prejudiced as a result of his deficient performance.
“To overcome the default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit.” Martinez, 132 S. Ct. at 1318. The defenses
petitioner claims counsel was ineffective for failing to inform him about, even if true, would not
show that the prosecutor had no valid case and would not create a justification for petitioner’s
crimes. Moreover, to establish ineffective assistance of plea counsel for failure to advise petitioner
of potential affirmative defenses, petitioner must show that the affirmative defenses likely would
have succeeded at trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Petitioner does not meet this
burden.
Any attack on the victim’s character or on the fact that petitioner happened not to transmit
his genital warts to the victim would not have overcome the weight of the evidence. Petitioner
voluntarily spoke with the police and confessed that he had sexual intercourse with the twelve
13

year-old victim. Resp. Ex. B, p. 20. Also, petitioner proceeded to a jury trial in Kansas for two
counts of statutory rape with the same victim he raped in Missouri, and the Kansas court found him
guilty. Kansas v. McCune, 08CR-00323.
Post-conviction counsel has stated, in an affidavit, that he did not research, investigate, or
advise petitioner about a claim that evidence of his venereal disease would have been so compelling
as to establish innocence. Doc. No. 14. However, post-conviction counsel’s failure to investigate
and pursue such a claim is not ineffective and cannot constitute cause to overcome the procedural
default of petitioner’s claim that plea counsel failed to advise him on affirmative defenses. “An
attorney need not pursue an investigation that would be fruitless, much less one that might be
harmful to the defense.” Harrington v. Richter, 131 S. Ct. 770, 789-90 (2011). Any investigation
of post-conviction counsel into petitioner’s claims that trial counsel failed to raise affirmative
defenses would have been fruitless because those claims lack legal merit. Because petitioner does
not satisfy the elements of Strickland in order to show cause to overcome the procedural default,
Ground 4 will be denied as procedurally barred.
A CERTIFICATE OF APPEALABILITY WILL BE DENIED
Under 28 U.S.C. ' 2253(c), the Court may issue a certificate of appealability only Awhere
a petitioner has made a substantial showing of the denial of a constitutional right.@ To satisfy
this standard, a petitioner must show that a Areasonable jurist@ would find the district court ruling
on the constitutional claim(s) Adebatable or wrong.@ Tennard v. Dretke, 542 U.S. 274, 276
(2004).

Because petitioner has not met this standard, a certificate of appealability will be

denied. See 28 U.S.C. ' 2254, Rule 11(a).
Accordingly, it is ORDERED that:
(1) the petition for writ of habeas corpus is denied;
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(2) the issuance of a certificate of appealability is denied; and
(3) this case is dismissed with prejudice.

/s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
UNITED STATES DISTRICT JUDGE
Jefferson City, Missouri,
Dated: March 25, 2014 .

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