Winans v. Pash

Filing 14

ORDER: ORDERED that: (1) the petition for writ of habeas corpus is DENIED; (2) this case is DISMISSED with prejudice; and (3) a certificate of appealability is DENIED. Signed on February 26, 2016 by District Judge Dean Whipple. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DARREN J. WINANS,
Petitioner,
vs.
RONDA PASH,
Respondent.

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Case No. 15-0729-CV-W-DW-P

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
Petitioner, who is currently confined at the Crossroads Correctional Center in Cameron,
Missouri, has filed pro se a petition for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254.
Petitioner seeks to challenge his 2011 convictions and sentences for two counts of murder in the
second degree, two counts of armed criminal action, and one count of burglary in the first
degree, which were entered in the Circuit Court of Jasper County, Missouri, after he pleaded
guilty to those offenses.
Petitioner asserts two (2) grounds for relief: (1) that plea counsel was ineffective for failing
to file a motion to suppress incriminating statements petitioner made to Dr. Tammy Neil; and (2)
that trial counsel was ineffective for failing to file a motion for change of judge due to alleged
statements made by the judge during ex parte communication with the prosecutor. Respondent
contends that Ground 1 is without merit and that Ground 2 is procedurally barred.
FACTUAL BACKGROUND
On appeal from the denial of petitioner’s Rule 24.035 post-conviction relief motion, the
Missouri Court of Appeals, Southern District, summarized the facts of the case:
On September 1, 2009, Winans and Matthew Laurin (“Laurin”) were each

charged with two counts of the class A felony of first-degree murder, in violation of
section 565.020; two counts of felony armed criminal action, in violation of section
571.015; and one count of the class B felony of first-degree burglary, in violation of
section 569.160, following the October 11, 2008 stabbing deaths of Robert and
Ellen Sheldon. The cases were later severed.
After Winans behaved erratically during booking at the Jasper County Jail,
Winans was evaluated by Dr. Tammy Neil (“Dr. Neil”), a psychologist and medical
provider utilized by the jail. Dr. Neil prepared a one-page report summarizing the
evaluation.
On January 15, 2010, the State filed a notice of aggravating circumstances
and its intent to seek the death penalty against Winans. Two attorneys from the
Capital Litigation Division of the Missouri State Public Defender’s Office, Charlie
Moreland (“Moreland”) and Tom Marshall (“Marshall”) (collectively “defense
counsel”), entered an appearance on Winans’ behalf.
The State provided defense counsel with a copy of Dr. Neil’s report, and
defense counsel later deposed Dr. Neil about her report. The report purportedly
stated that Winans made “admissions relative to the charges in this case” to Dr.
Neil. Specifically, Winans admitted he had been involved in the planning and
execution of the robbery that resulted in the victims’ deaths, and that he was on
drugs at the time.
On February 28, 2011, the parties appeared before the court to announce a
plea agreement as contained in a “Petition to Enter plea of Guilty” that had been
explained to and signed by Winans. Defense counsel also signed the petition and
affirmed they had “investigated the circumstances of this case and have explored
all avenues leading to the facts relevant to guilt and degree of guilt or penalty.”
As part of Winans’ plea of guilty, the State agreed to file an amended
information reducing the charges on the two murder counts from first-degree
felony murder to second-degree felony murder; Winans would plead guilty to all
the charges contained in the amended information, including the armed criminal
action and the burglary charges; and Winans would receive sentences of life
imprisonment on the two felony murder counts. The parties also agreed that a
sentencing hearing would be held during which the sentences for the remaining
charges would be decided and a determination made whether the sentences
imposed, including the two life sentences, would be served concurrently or
consecutively.
Upon examination by the plea court, Winans stated that: (1) defense
counsel had explained the charges against him, and advised him of any and all
possible defenses he might have; (2) he acknowledged the rights he was waiving by

pleading guilty; and (3) he believed he would not be found innocent by a jury. The
plea court expressly advised Winans that he would lose the “right to file pretrial
motions to suppress or try to keep certain items out of evidence” if he pleaded
guilty. Winans acknowledged that right and stated he still wished to plead guilty.
In the prosecutor’s recitation of the factual basis for the charges, he
described a scene in which the victims’ son found his parents (and the family dog)
stabbed to death in their home. Winans and Laurin went to the Old Cabin
Shop—owned by victims—to steal guns. While in the shop, they heard a dog bark
and Laurin ran into the residential section of the building. Thereafter, Winans
stated he “heard the noises that were made inside and he knew that what happened
in there was not good.” Winans then went into the house, saw blood, and described
it as “the awfulist [sic] thing that he had ever seen in his life[.]” Winans and Laurin
took guns from the shop and left, later burning their clothes to hide evidence.
Winans made statements to his girlfriend’s mother admitting to the plan to go to the
Old Cabin Shop to steal guns. The prosecutor also mentioned Winans had made
statements to Dr. Neil at the Jasper County Jail, but nothing specific was attributed
to her.
The plea court found Winans’ plea was voluntarily and intelligently entered
and that a factual basis existed for the plea. The plea court accepted Winans’ guilty
plea, ordered a sentencing assessment report, and scheduled a sentencing hearing.
Following the sentencing hearing, the plea court imposed sentences of life
imprisonment on the second-degree murder charges, twenty years for each armed
criminal action charge, and fifteen years on the burglary charge, all to be served
consecutively.
Respondent’s Exhibit F, pp. 2-4 (internal footnotes omitted).
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

1

Because the state court’s findings of fact have fair

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

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 - INEFFECTIVE ASSISTANCE OF PLEA COUNSEL
In Ground 1, petitioner contends that plea counsel was ineffective for failing to file a
motion to suppress incriminating statements petitioner made to Dr. Tammy Neil, a jail
psychologist. Petitioner contends that if he would have known that “her testimony could not be
used against him as evidence of his guilt[,]” then there is a reasonable probability that he would
have not pleaded guilty.
In order to succeed on a claim of ineffective assistance of plea counsel, petitioner must
show that counsel’s representation fell below an objective standard of reasonableness, and “there
is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Reasonably

effective assistance of counsel may be defined as the skill and diligence that a reasonably
competent attorney would exercise under similar circumstances.

See, e.g., Strickland v.

Washington, 466 U.S. 668, 687-90 (1984).
“Judicial scrutiny of counsel’s performance must be highly deferential.

It is all too

tempting for a defendant to second-guess counsel’s assistance after conviction . . . .” Id. at 689.
“A fair assessment of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.”

Id.

There is a “strong

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).

presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.”

Id.

This Court may not grant habeas relief unless the state 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).
The Missouri Court of Appeals, Southern District, found that the motion court’s judgment
was supported by the record:
Winans argues that his plea counsel was ineffective in failing to file a motion to
suppress incriminating statements Winans made to Dr. Neil.
A convicted defendant’s claim that counsel’s assistance was so defective as
to require reversal of a conviction . . . has two components. First, the
defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Specifically, “the defendant
must show that counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. “Judicial scrutiny of counsel’s performance must be
highly deferential[.] . . . A court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at
689.
Second, the defendant must show prejudice from his counsel’s deficient
conduct. Id. at 687. “To show prejudice when challenging a guilty plea, the movant
must allege facts showing that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Davis v. State, 435 S.W.3d 113, 116 (Mo.App. E.D. 2014) (internal
quotation and citation omitted). “[F]ollowing a guilty plea, the effectiveness of
counsel is relevant only to the extent that it affected whether or not the plea was
made voluntarily and knowingly.” Id. (internal quotation and citation omitted).
Here, the motion court specifically found that:
It is clear from the testimony that such a motion would have been filed prior
to any trial on the charge of first degree murder. The law is clear that any

complaint about failure to file a motion to suppress is waived by the
voluntary entering of a plea of guilty, State v. Smith[,] 972 S.W.2d 551
[(Mo.App. S.D. 1998)]. In this case it is clear that one would have been filed
if the case proceeded to trial and that the process was explained to Movant.
The motion court found that Winans was informed that if he proceeded to trial,
a motion to suppress Dr. Neil’s testimony would be filed, and that he was informed
regarding the process associated with a suppression motion. Likewise, because
Winans’ plea was voluntary, his complaint about defense counsel’s failure to file a
motion to suppress was waived. As we have reiterated since Smith, “[a] claim that
counsel was ineffective for failing to file and pursue a motion to suppress is waived
by the voluntary entry of a guilty plea.” Lynn v. State, 417 S.W.3d 789, 804
(Mo.App. E.D. 2013) (internal quotation and citation omitted).
The motion court did not clearly err in denying post-conviction relief. Point
denied. The judgment of the motion court is affirmed.
Respondent’s Exhibit F, pp. 6-8 (internal footnotes omitted).
The decision of the Missouri Court of Appeals is reasonable and therefore is entitled to
deference under § 2254(d). The resolution of Ground 1 by the state court did not result in Aa
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 Aa decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.@ 28 U.S.C. ' 2254(d)(1) and (2) (as amended April 24, 1996), as
defined by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 412 (2000).2

Applying the

Strickland standard of review to the facts as set forth in the record, the Court finds that counsel
2

According to the concurrence of Justice O’Connor, joined by four other members of the
Court, “under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court
arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts. Under the ‘unreasonable application’ clause, a federal habeas court
may grant the writ if the state court identifies the correct legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Williams, 529 U.S. at 413, 120 S.Ct. at 1523.

was not ineffective.
Ground 1 is denied.
GROUND 2 – PROCEDURAL DEFAULT
In Ground 2, petitioner contends that trial counsel was ineffective for failing to file a
motion for change of judge due to alleged statements made by the judge during ex parte
communication with the prosecutor. Respondent contends that Ground 2 is procedurally
defaulted.
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court held:
In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an independent and adequate
procedural rule, federal habeas review of the claims is barred
unless 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.
Id. at 750.

Cause, actual prejudice, and the probability of a Afundamental miscarriage of

justice@ are to be judged under criteria set out in Wainwright v. Sykes, 433 U.S. 72 (1977), and
Murray v. Carrier, 477 U.S. 478 (1986). Coleman, 501 U.S. at 748-50.
A review of the record shows that petitioner did not raise Ground 2 on appeal from the
denial of his amended Rule 24.035 motion.

Therefore, Ground 2 is procedurally defaulted and

may not be reviewed by this Court unless petitioner can demonstrate cause and actual prejudice,
or that failure to consider his claims will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750. The Court will not reach the Aprejudice@ component of the analysis
unless it first finds that the petitioner has demonstrated Acause@ for his procedural default.
Petitioner does not present any valid explanation for why this ground was not pursued on

appeal from the denial of his amended Rule 24.035 motion and, therefore, has failed to
demonstrate cause for his procedural default. As a result, we do not consider prejudice. The
Court, however, can still reach the merits of his claims if petitioner can show that he is Aprobably
actually innocent@ of the crimes for which he was convicted. Bowman v. Gammon, 85 F.3d 1339,
1346 (8th Cir. 1996), cert. denied, 520 U.S. 1128 (1997). To demonstrate his innocence,
petitioner must satisfy a two-part test: First, he must support his allegations of constitutional error
Awith new reliable evidence. . . that was not presented at trial.@ Second, he must establish Athat it
is more likely than not that no reasonable juror would have convicted him in light of the new
evidence.@ Id., citing Schlup v. Delo, 513 U.S. 298 (1995). Petitioner fails to make this showing.
Petitioner has failed to show cause for his default of Ground 2. He does not show that a
manifest injustice will occur if this ground is not reviewed on the merits, and he has failed to meet
the Schlup standard for actual innocence. Id. Therefore, federal review of Ground 2 is barred.
Ground 2 will be denied.
CERTIFICATE OF APPEALABILITY
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;

(2) this case is DISMISSED with prejudice; and
(3) a certificate of appealability is DENIED.

/s/ Dean Whipple
DEAN WHIPPLE
UNITED STATES DISTRICT JUDGE
Kansas City, Missouri,
Dated: February 26, 2016 .