Rodgers v. Denney

Filing 12

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 February 18, 2014 by District Judge Beth Phillips. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DARRELL T. RODGERS, JR.,
Petitioner,
vs.
LARRY DENNEY,
Respondent.

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Case No. 13-1004-CV-W-BP-P

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING A CERTIFICATE OF APPEALABILITY
Petitioner, a convicted state prisoner currently confined at the Crossroads Correctional
Center in Cameron, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner challenges his 2010 convictions and sentences for two counts of
second degree murder and two counts of armed criminal action, which were entered in the
Circuit Court of Jackson County, Missouri. Petitioner filed a motion for state post-conviction
relief pursuant to Mo. Sup. Ct. R. 24.035, the denial of which was upheld on appeal. Rodgers v.
State, WD74536 (Mo. Ct. App. Oct. 30, 2012) (unpublished opinion); Respondent’s Exhibit F.
Petitioner raises one ground for relief, asserting that his guilty plea counsel provided
ineffective assistance when he coerced petitioner into pleading guilty by failing to investigate
and prepare a defense for trial. Doc. No. 1. Respondent contends that petitioner’s sole ground
for relief is procedurally defaulted and, alternatively, is without merit.
FACTUAL BACKGROUND
In affirming the motion court’s denial of petitioner’s 24.035 motion, the Missouri Court
of Appeals, Western District, set forth the following facts:

Rodgers was charged with two counts of first-degree murder and two
counts of armed criminal action. The indictment alleged that Rodgers fatally shot
two victims in the back of the head.
Rodgers pled guilty pursuant to a plea agreement by which the State
agreed that in exchange for Rodger’s pleas of guilty to the reduced charges of two
counts of second-degree murder and two counts of armed criminal action, he
would receive two twenty-year terms of imprisonment for the two counts of
second-degree murder and two five-year terms of imprisonment for the two
counts of armed criminal action. At the plea hearing, Rodgers testified that he
was satisfied with plea counsel’s representation and that plea counsel had done
everything Rodgers asked him to do. Rodgers testified that he was not being
forced to plead guilty and that he was doing so because he was guilty. Rodgers’s
pleas were accepted and he was sentenced in accordance with the plea agreement.
All sentences were ordered to run concurrent with each other for a total sentence
of twenty years.
Rodgers timely filed his pro se Rule 24.035 motion which was followed
by an amended motion filed by appointed post-conviction counsel. In his
amended motion, Rodgers alleged that plea counsel provided ineffective
assistance when he coerced Rodgers to plead guilty by failing to investigate and
prepare Rodgers’s defense. Rodgers claimed he was prejudiced because had plea
counsel completed his investigation of Charmain Johnson (“Johnson”), the mother
of Rodgers’s children, who had recanted her statement to police that she disposed
of Rodgers’s bloody clothes, he would have been able to prepare a defense.
Rodgers claimed that but for plea counsel’s failure, Rodgers would not have pled
guilty and would have exercised his right to a jury trial. Rodgers thus claimed
that his guilty plea was coerced.
After the evidentiary hearing, at which plea counsel, Johnson, and
Rodgers testified, the motion court denied Rodgers’s Rule 24.035 motion.
Respondent=s Exhibit F, pp. 3-4.
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). Because the state court’s findings of fact have fair support

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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.
INEFFECTIVE ASSISTANCE OF COUNSEL
In petitioner’s sole ground for relief, he argues that plea counsel coerced him into
pleading guilty by failing to complete the investigation of Johnson’s statement about disposal of
his bloody clothes and by failing to conduct a more thorough investigation to prove Johnson’s
allegations with supporting eyewitness testimony from witnesses who saw Johnson being
paraded around the neighborhood by police. Doc. No. 1, p. 16. Petitioner also claims that
counsel failed to check police travel logs, question the officers involved in the harassment, or
talk to people in the neighborhood who witnessed the abuse. Id.
Respondent contends that petitioner did not include any allegation in his amended postconviction motion or in his post-conviction appeal beyond the claim that plea counsel should
have talked with Johnson.

Doc. No. 7, p. 6.

Therefore, respondent argues, petitioner

procedurally defaulted the additional part of his claim because it presents an entirely new factual
basis that goes beyond the facts asserted in state court. Id. On January 16, 2014, petitioner filed
a reply in support of habeas corpus relief. Doc. No. 11. Petitioner argues in reply that he did
raise all of his claims in his post-conviction 24.035 motion and on appeal; thus, his claims are
not procedurally defaulted. Doc. No. 11, p. 4.
“A habeas petitioner is required to pursue all available avenues of relief in the state courts
before the federal courts will consider a claim.” Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir.
1995), cert. denied, 516 U.S. 1056 (1996). “In order to present a habeas claim to the state court,
a prisoner must ‘fairly represent’ not only the facts, but also the substance of his federal habeas
corpus claim . . . . Presenting a claim that is merely similar to the federal habeas corpus claim is

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not sufficient to satisfy the fairly presented requirement.” Barrett v. Acevedo, 169 F.3d 1155,
1161-62 (8th Cir. 1999) (citing Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996), cert.
denied, 517 U.S. 1215 (1996)), cert. denied, 528 U.S. 846 (1999). “If a petitioner fails to exhaust
state remedies and the court to which he should have presented his claim would now find it
procedurally barred, there is a procedural default.”

Sloan, 54 F.3d at 1381.

Petitioner

procedurally defaulted his ground of relief insofar as he claims that there were other witnesses
and neighbors who would have supported Johnson’s allegation of police harassment had plea
counsel conducted further investigation by failing to assert the claim in his post-conviction
motion or on appeal from the denial of his Rule 24.035 motion. See Sweet v. Delo, 125 F.3d
1144, 1149 (8th Cir. 1997) (recognizing that failure to present claims in the Missouri courts at
any stage of direct appeal or post-conviction proceedings is a procedural default), cert. denied,
523 U.S. 1010 (1998).
Petitioner’s grounds in his reply in support of habeas corpus relief, (Doc. No. 11), are not
the same claims he raised in his state habeas petition because petitioner asserts in his reply that
plea counsel could have talked to his aunt, Vicky Defrance, who would have told plea counsel
that petitioner was at her home at the time and night of the murders. Doc. 11, pp. 4-5. Petitioner
also states that his uncle, Charles Defrance, knew about the police misconduct because Johnson
told him how the police threatened and harassed her. Id. Petitioner contends that this would
have confirmed Johnson’s statements to plea counsel. Id. Prior to filing his reply, petitioner
made no mention of his aunt or uncle in any state court pleadings or motions filed with this
Court. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (petitioner must provide the state courts
with a fair opportunity to apply controlling legal principles to the facts bearing on his
constitutional claim); Abdullah, 75 F.3d at 411-12 (requiring fair presentation of the same facts

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and legal theories to the state courts). Thus, petitioner’s reply in support of habeas corpus relief
did not properly present his claims to the state courts and did not prevent petitioner’s state
procedural default of his ground for relief in this case.
A federal court may not review a procedurally defaulted claim Aunless the prisoner can
demonstrate cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.@ Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner has not
demonstrated cause or prejudice for defaulting this part of his claim. Furthermore, petitioner has
failed to show that a fundamental miscarriage of justice will result if his defaulted claims are not
considered. See Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006) (petitioner must present new
evidence that affirmatively demonstrates that he is actually innocent of the crime for which he
was convicted in order to fit within the fundamental miscarriage of justice exception), cert.
denied, 549 U.S. 1036 (2006). As a result, this claim is procedurally defaulted.
In affirming the denial of petitioner’s motion for post-conviction relief, the Missouri
Court of Appeals, Western District, determined that counsel was not ineffective as follows:
For his sole point on appeal, Rodgers claims that the motion court erred in
denying his Rule 24.035 motion because he demonstrated that his plea was not
knowing and voluntary in that counsel coerced him into pleading guilty by failing
to complete his investigation of Johnson. Rodgers argues that had his counsel
done so, he would not have pled guilty and would have proceeded to trial. We
disagree.
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At the plea hearing, Rodgers testified that he understood the charges
against him and the terms of the plea agreement; that he understood that by
pleading guilty he was waiving his rights to a trial and to offer evidence of any
defense that he may have; that he desired to plead guilty; that no one was forcing
him to plead guilty; and that he was pleading guilty because he was guilty. When
the court asked Rodgers about his representation by plea counsel, Rodgers stated
that he was satisfied with plea counsel’s representation and that plea counsel has
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done everything that Rodgers asked him to do.
At the post-conviction hearing, plea counsel testified that he met with
Johnson during the investigation of the case. Johnson told plea counsel that the
police had harassed her to get her statement; that the police told her they would
take her kids away; and that the police made her walk in front of a police car
through the neighborhood so that others would think she was snitching. Plea
counsel stated that Johnson’s claim that she was harassed by the police to give a
statement against Rodgers, whether believable or not was immaterial in that:
[T]here was plenty of other evidence that was going to cause
problems. To start with there was her own statement where at best
I guess if we put her on the stand we would hope that the jury
would believe that [her] statement was coerced. But by saying that
you gave a false statement you lose a lot of credibility.
But mainly there was the other individual in the back seat placed
[Rodgers] at the scene when it happened, and in a nutshell
identified him as the shooter. And there was also a neighbor in one
of the apartments that was also able to place him at the crime
scene.
So I don’t know that it would have made much of a difference to
the jury what happened to [Johnson].
Plea counsel testified that had Johnson testified at trial, the State could
have played the videotape recording of Johnson’s statement implicating Rodgers,
and could have argued to the jury that the videotaped statement should be
believed. Plea counsel testified that he met with Rodgers and informed him of the
content of his discussion with Johnson, and explained his reservations about
calling Johnson as a witness. Plea counsel also stated that he advised Rodgers to
plead guilty based on the law and the evidence in the case, but that ultimately
Rodgers made the decision to plead guilty on his own.
Johnson testified that police officers contacted her several times regarding
Rodgers’s whereabouts. Johnson stated that she eventually gave police detectives
a statement that she had gotten rid of Rodgers’s bloody clothes. Johnson stated
that her statement was false and that she only gave it because the police officers
threatened to arrest her and to take her children away. Johnson also testified,
however, that the police detectives who actually took her statement did not coerce
or threaten her, and were not the same officers she claimed had harassed and
threatened her.
Rodgers testified that he was aware that plea counsel had met with
Johnson prior to his guilty plea. Rodgers testified that he nonetheless felt plea
counsel was unprepared for trial because he did not take notes during his meeting
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with Johnson.
Rodgers admitted that plea counsel discussed Johnson’s
recantation of her statement and her allegations regarding police harassment, and
that plea counsel advised him that Johnson’s testimony could hurt Rodgers as the
State would likely respond by playing her videotaped statement. Rodgers testified
that plea counsel told him that “it can be 50/50, they can believe the video or they
can believe what the detective did to her after the video and before the video. . . .
the video will be played but the jury can hear her side, what was said, the reason
what was said behind the video, why did she this or stuff like that.” Rodgers
testified that based on his discussion with plea counsel, he decided to plead guilty.
Rodgers also testified that he would be required to complete eighty-five
percent of his twenty-year sentence before he would be eligible for parole, and
that he had two years of his sentence completed. Rodgers testified that he
understood that if his Rule 24.035 motion was successful, he would be facing two
charges of first-degree murder for which he could receive sentences of life
without parole if he were found guilty following a jury trial.
In denying Rodgers’s Rule 24.035 motion, the motion court noted that
Rodgers did not plead guilty on the eve of trial. Rodgers’s trial was set for
August 23, 2010, and it was the first trial setting. Rodgers pled guilty on July 2,
2010, leaving ample time for trial preparation or a request for a continuance. The
motion court found:
[Rodgers] . . . has failed to prove by a preponderance of the
evidence that his counsel’s representation fell below an objective
standard of reasonableness or that he was prejudiced. By
[Rodgers’s] own testimony, his attorney did investigate Ms.
Johnson’s claims of coercion and reported his finding, albeit not in
writing, to [Rodgers]. [Rodgers] admits that he had discussed with
his trial counsel whether Ms. Johnson’s testimony would be of any
benefit to his case and that even with her testimony no clear
defense existed.
[Rodgers] also admitted that after these
discussions with counsel he decided to take the State’s offer and
plead guilty.
There is no evidence of a failure to investigate, nor is there
evidence of coercion.
On the contrary, evidence of an
investigation at the evidentiary hearing was undisputed and
admitted by [Rodgers]. Viewing the evidence from an objective
standard, it is clear that a reasonable investigation took place,
followed by attorney-client discussions over the relative
importance of the investigated evidence, which lead [Rodgers] to
decide to plead guilty. [Rodgers] has not been prejudiced.
The motion court noted that Rodgers accepted a negotiated plea offer of
twenty years imprisonment on the reduced charges of second-degree murder.
Otherwise, Rodgers was facing sentences of life without the eligibility of parole if
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he was convicted of first-degree murder. The motion court further noted that
Rodgers’s testimony at the guilty plea demonstrated that he had the opportunity to
raise concerns about his counsel but did not do so. Finally, the motion court
noted the evidence against Rodgers if he were to proceed to trial included two
witnesses, one that would testify that Rodgers was the shooter and that he was
sitting next to Rodgers in the back seat of the vehicle where the shooting
occurred, and another who would place Rodgers at the crime scene.
The trial court’s denial of Rodgers’s motion is not clearly erroneous.
Rodgers claims he was coerced into pleading guilty. He presumably
frames his claim in this fashion to distinguish it from a bare claim of failure to
investigate as “‘[a] guilty plea generally waives any future complaint the
defendant might have about trial counsel’s failure to investigate his case.’”
Bogard v. State, 356 S.W.3d 850, 854 (Mo. App. W.D. 2012) (quoting Simmons
v. State, 100 S.W.3d 143, 146 (Mo. App. E.D. 2003). In contrast, a claim that one
was coerced into pleading guilty because counsel was unprepared for trial is not
summarily waived by entering a guilty plea. Morrison v. State, 65 S.W.3d 561,
564 (Mo. App. W.D. 2002).
Regardless the manner in which Rodgers has framed his claim, Rodgers is
nonetheless required to establish “what information plea counsel failed to
discover, that a reasonable investigation would have resulted in the discovery of
such information, and that the information would have aided and improved the
defense.” Bliss v. State, 367 S.W.3d 190, 195 (Mo. App. S.D. 2012). Rodgers
has not sustained this burden.
In his brief, Rodgers alleges only that “[Rodgers’s] attorney did not go
into much detail about the conversation [with Johnson], or provide him with any
notes he took during the conversation. [Rodgers] testified that he decided to take
the plea deal at that point. . . . [T]his testimony establishes that [Rodgers’s] plea
was not knowing and voluntary.” This bare allegation fails to establish what
information plea counsel failed to discover, or how note taking would have made
any difference. It is uncontested that plea counsel discussed with Rodgers the
potentially harmful impact that Johnson’s testimony could have on his defense
should the State respond by playing the videotape of Johnson’s statement
implicating Rodgers.
Further, Rodgers testified that his discussions with plea counsel regarding
Johnson’s statements occurred before Rodgers entered his guilty plea. Thus, plea
counsel’s alleged failure was known to Rodgers at the time of the guilty plea.
Yet, the guilty plea record reflects that Rodgers had ample opportunity to
complain about plea counsel and that instead of doing so, he stated unequivocally
that he was satisfied with counsel’s performance, that he had not been threatened
into pleading guilty, and that he was pleading guilty because he was guilty. See
Morrison, 65 S.W.3d at 564.
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Rodgers has not established that his plea counsel performed ineffectively.
Plea counsel’s suggestion to Rodgers that Johnson’s testimony could do more
harm than good was not unreasonable advice, particularly in light of the
compelling additional evidence of Rodgers’s guilt. Rodgers has not explained to
us how any further investigation into Johnson’s assertions of harassment would
have altered plea counsel’s advice.
In view of Rodgers’s failure to identify what information plea counsel
failed to discover, it is not surprising that Rodgers has also failed to elaborate on
how he was prejudiced by counsel’s alleged failure to further investigate
Johnson’s recanted statement.
The motion court’s findings are not clearly erroneous. The point is denied.
Respondent’s Exhibit F, pp. 5-11.
In Strickland, the Court held that, in order for petitioner successfully to 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). To show prejudice, petitioner must establish with "reasonable
probability" that he would not have entered a guilty plea and would have insisted on going to
trial had counsel been effective. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
Petitioner's representations at the guilty plea hearing carry a strong degree of verity and
pose "a formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431
U.S. 63, 73 (1977). A[T]he courts must resist the temptation to second-guess a lawyer=s trial
strategy; the lawyer makes choices based on the law as it appears at the time, the facts as
disclosed in the proceedings to that point, and his best judgment as to the attitudes and
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sympathies of judge and jury.@ Blackmon v. White, 825 F.2d 1263, 1265 (8th Cir. 1987). A[I]t is
not enough to complain after the fact that [petitioner] lost, when in fact the strategy at trial may
have been reasonable in the face of an unfavorable case.@ Id. (citation omitted).
"[A] determination of a factual issue made by a State court shall be presumed to be
correct," and petitioner "shall have the burden of rebutting the presumption by clear and
convincing evidence." 28 U.S.C. ' 2254(e)(1). The statutory presumption "is particularly proper
[in cases involving the voluntariness of a guilty plea] in light of the state trial court's ability to
judge the defendant's credibility and demeanor at the plea hearing and the fact that >[m]ore often
than not a prisoner has everything to gain and nothing to lose from filing a collateral attack upon
his guilty plea.'" Weeks v. Bowersox, 119 F.3d 1342, 1352 (8th Cir. 1997) (quoting Blackledge,
431 U.S. at 71).
Petitioner has failed to proffer clear and convincing evidence that his guilty plea was not
voluntary, knowing, and intelligent. See Hunter v. Bowersox, 172 F.3d 1016, 1022 (8th Cir.
1999), cert. denied, 528 U.S. 1140 (2000). As to petitioner’s sole ground, the Missouri Court of
Appeals, Western District, affirmed the motion court’s finding that petitioner’s testimony that
counsel failed to investigate Johnson’s statement of police harassment was not credible and was
inconsistent with the record, which included testimony from petitioner’s counsel and the
petitioner himself that counsel discussed the reasons Johnson’s statement was immaterial and his
reservations about calling her as a witness when negotiating the case. Respondent’s Exhibit F, p.
7. Additionally, the Missouri Court of Appeals found that petitioner’s claim that he informed
counsel of the existence of several witnesses was insufficient because petitioner failed to allege
the specific information the witnesses would have presented or that the information would have
aided petitioner’s defense. Respondent’s Exhibit F, p. 10.

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Applying the Strickland v. Washington standard, the Missouri Court of Appeals held that
petitioner failed to establish that his counsel=s performance fell below a reasonable level of
assistance.

Because the state court=s determination was not based upon an Aunreasonable

determination of the facts in light of the evidence@ or a misapplication of Aclearly established
Federal law,@ 28 U.S.C. ' 2254(d)(1) and (2), petitioner’s sole ground for relief will be denied.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c), the Court may issue a certificate of appealability only “where
a petitioner has made a substantial showing of the denial of a constitutional right.” To satisfy
this standard, a petitioner must show that a “reasonable jurist” would find the district court ruling
on the constitutional claim(s) “debatable 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;
(2) the issuance of a certificate of appealability is denied; and
(3) this case is dismissed with prejudice.

/s/ Beth Phillips__________________
BETH PHILLIPS
UNITED STATES DISTRICT JUDGE
Kansas City, Missouri,
Dated: February 18, 2014.

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