Moore v. Wallace

Filing 10

ORDER: ORDERED that: (1) the above-captioned petition for a writ of habeas corpus is denied; (2) this case is dismissed with prejudice; and (3) the issuance of a certificate of appealability is denied. Signed on June 18, 2015 by District Judge M. Douglas Harpool. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
KRISTOPHER LEE MOORE,
Petitioner,
vs.
IAN WALLACE,
Respondent.

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Case No. 14-3419-CV-S-MDH-P

OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS
AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
Petitioner, Kristopher Lee Moore, filed this pro se habeas corpus petition pursuant to 28
U.S.C. ' 2254 on September 29, 2014, seeking to challenge his 2008 conviction and sentence for
first degree robbery, which was entered pursuant to an Alford plea1 in the Circuit Court of Greene
County, Missouri.
The petition raises six grounds for relief: (1) that plea counsel was ineffective for failure to
investigate; (2) that plea counsel was ineffective for lack of communication and
miscommunication with petitioner concerning the Sentencing Assessment Report and the 15-year
plea offer by the prosecutor; (3) that plea counsel was ineffective for failing to obtain full
disclosure or supply petitioner with discovery; (4) that plea counsel was ineffective for “failure to
properly investigate, assess, and present a defense on petitioner’s prior record from New Jersey”;
(5) that the prosecutor violated petitioner’s rights by withdrawing the 15-year plea offer and
seeking the maximum sentence due to petitioner exercising his right to have a preliminary hearing;
and (6) that plea counsel was ineffective for failure to raise the issue that petitioner only should
have been charged with second degree robbery rather than first degree robbery.
1

North Carolina v. Alford, 400 U.S. 25 (1970).

Noting that petitioner’s sole point on appeal from the denial of his Mo. Sup. Ct. Rule
24.035 post-conviction relief motion was the allegation set forth in Ground 2 of the petition,
respondent contends that that Grounds 1, 3, 4, 5, and 6 are procedurally defaulted. Respondent
further contends that the allegation set forth in Ground 2 is without merit and was denied by the
Missouri Court of Appeals, and that the state court’s judgment is entitled to deference.
SUMMARY OF THE FACTS
On appeal from the denial of petitioner’s Mo. Sup. Ct. Rule 24.035 post-conviction relief
motion, the Missouri Court of Appeals summarized the facts as follows:
Kristopher Lee Moore (“Movant”) pleaded guilty to first-degree
robbery and received a 25-year sentence. He now claims that his
Rule 24.035 motion for post-conviction relief was wrongly denied
after an evidentiary hearing because he proved that bad advice he
received from his attorney rendered his guilty plea involuntary.
Specifically, Movant claims that if his lawyer had not advised him
“that if he entered a plea of guilty . . . he would likely receive less
than a 15-year sentence,” he would have either taken an earlier
15-year plea offer or insisted on going to trial. Finding no merit in
his claim, we affirm.
Facts and Procedural Background
The underlying plea and sentencing hearings
On October 3, 2008, Movant appeared with defense counsel and
informed the trial court that he wanted to plead guilty. Movant
testified that he “had [been given] enough time to talk to [defense
counsel]” about his decision to enter the guilty plea and was
“satisfied with [defense counsel’s] services[.]” Movant confirmed
that his plea “was an open plea” in that there was “no plea
agreement with the State[.]” The guilty plea became an “Alford
plea” after Movant disagreed with the State’s description of how
Movant had displayed the gun he used during the robbery.
The prosecutor announced that Movant was facing a “range of
punishment . . . from ten years to thirty years or life in the
Department of Corrections.” Movant confirmed that he was
“pleading guilty . . . hoping for a more favorable result in terms of
sentence than [he] would [receive] if [he] went to trial[.]” The trial

court reminded Movant that “there’s no plea agreement with the
State in this case” and asked Movant if anyone had “made any
promises to [him] about the outcome of [his] case or otherwise to try
to get [him] to plead guilty?” Movant replied, “No, sir.”
Movant also understood that the trial court would not make its
sentencing decision until it had reviewed the Sentencing
Assessment Report with its included recommendations and had
“heard argument from the prosecutor and [defense counsel].” The
trial court accepted Movant’s guilty plea upon finding, among other
things, that Movant’s plea had been entered “voluntarily and with an
understanding of his rights.”
At the January 2009 sentencing hearing, the State argued in favor of
a 25-year sentence. Defense counsel argued that the court should
impose “a fifteen-year sentence . . . under [section] 559.115, with a
placement in the Institutional Treatment Center, so that [Movant]
can receive the drug treatment that clearly he needs in an
institutional setting.” Defense counsel further argued that the trial
court could deny probation after treatment if it was not satisfied with
Movant’s progress. The trial court stated that “the appropriate
sentence is incarceration. It’s a question of how long.”
After announcing its 25-year sentence, the trial court placed Movant
under oath and again inquired about defense counsel’s
representation. Movant confirmed that “during that time leading
up to [his] plea and to [his] sentence,” defense counsel did
“everything on [Movant’s] case [Movant] asked him to do” and did
not do anything that he was asked not to do. When asked if Movant
was satisfied with defense counsel’s services, Movant replied, “I
guess so.” Movant went on to state:
Sir, I just - - I don’t - - I’m being honest with you. I
mean, I’m a little shocked. I pled guilty because I
was told I’d lose [at] trial. They offered me fifteen
years, and I’m going to turn around and get
twenty-five because I can’t win [at] trial, not because
I commit - - I don’t know, sir. I guess I’m - - I’m
content with it. I don’t have a choice.
The Motion Hearing
The motion court held an evidentiary hearing on Movant’s motion
in January 2013. Movant testified via videoconference that he had
received “a fifteen-year plea” offer from the State. Movant

rejected that offer after discussing it with defense counsel. Movant
acknowledged that he was informed during his guilty plea that the
sentencing range he faced “was ten to thirty” years and that it could
be a life sentence. Movant also understood that “there was no plea
agreement because [he] wasn’t going to take the plea agreement that
was offered.”
On cross-examination, Movant testified that “[i]t was highly
recommended by [defense counsel] that [Movant] would only
receive fifteen years under Missouri State guidelines.” The
prosecutor followed up by specifically asking if defense counsel had
promised Movant that if Movant pleaded guilty he “would get
fifteen years or less[.]” Movant responded, “No, sir. It was not a
promise.” Movant also testified that he “would have been happy
with a fifteen-year sentence in the Department of Corrections.”
Defense counsel provided the following testimony. An offer “for a
fifteen-year sentence, with probation denied” was made by the State
prior to Movant’s preliminary hearing. Movant rejected that offer
and “requested to have the preliminary hearing and see the State’s
evidence.” That initial 15-year offer was the State’s only plea
offer. Defense counsel “had discussions [with Movant] about
whether to have [a] trial, whether to offer a plea to the Court and
proceed to sentencing or not, [and] which route to go to try to
resolve the allegations.” Defense counsel
expressed [his] opinion to [Movant] that [he]
believed that if [Movant] went to trial, the State
would have sufficient evidence for the jury to find
him guilty beyond a reasonable doubt, as charged,
and that he would likely face a stiffer sentence if he
did go to trial than if he accepted responsibility for
his actions by entering a guilty plea. That [opinion]
was in conjunction with discussions about the
sentencing guidelines.
Defense counsel discussed with Movant “the presumptive sentence,
the aggravating sentence, and the mitigating sentence” under the
sentencing guidelines, and he told Movant that they could ask the
trial court “for a lesser than the presumptive sentence under the
guidelines." Defense counsel “explained to [Movant] that the
ultimate decision would be made by [the trial court] and that [the
trial court] would listen to arguments and suggestions of the
respective counsel, counsel for the State and [defense counsel], but
that ultimately neither counsel had control over [the trial court], and

the [trial court] has the final decision.” Defense counsel believed
that he did tell Movant that he “thought the [trial court] would likely
follow the sentencing guidelines and would likely not give more
than a fifteen-year sentence and might possibly give less than a
fifteen-year sentence[,]” and he believed that “based on that advice,
[Movant] decided to follow [defense counsel’s] recommendation.”
Defense counsel “didn’t promise [Movant] what [the trial court]
would decide. I never promise to my client what the [trial court]
will do.”
(Doc. No. 7, Ex. 6, pp. 2-5). (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.
v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc 1984).

It is petitioner=s burden to establish by

clear and convincing evidence that the state court findings are erroneous.
(e)(1).2

Graham

28 U.S.C. ' 2254

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 2 B INEFFECTIVE ASSISTANCE OF COUNSEL
(Regarding lack of communication and miscommunication with petitioner concerning the
Sentencing Assessment Report and the 15-year plea offer by the prosecutor)
In Ground 2, petitioner contends that plea counsel was ineffective “for lack of
communication, and miss communication [sic] about the Sentence Assessment Report and the
amount of time.”

(Petition at p. 5). More specifically, petitioner states that “Petitioner learned

from recent court decisions in Fry and Lofler that counsel failed to communicate a plea deal
2

AIn a proceeding instituted by an application for a writ of habeas corpus by a person in
custody pursuant to the 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 clear and convincing evidence.@ 28 U.S.C. ' 2254(e)(1).

offered by the state.

Same is to be true here. Counsel had it within himself to convince

Petitioner to take a 15 year deal.
10 to 12 years.”

This was a guarantee!

His recommendation of “I can get you

Counsel knew he could not get that.

Petitioner rejected the states plea deal

based on erroneous advice from his counseler. [sic]
with Petitioner.

Counsel had a mental issue to deal with

Counsel should have had pressed the issue to take the plea offered.”

(Attachment to Petition at p.3).

(emphasis in original).

“[c]ounsel bolstered continueously [sic] he would lose at trial.
the Petitioner to take the deal.

Further, according to petitioner
All the more reason to convince

This falls far below the standards of assistance of counsel in

violation of Petitioner’s Constitutional rights.” Id.
In order to succeed on his claim of ineffective assistance of 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

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

Id.

On appeal from the denial of his Rule 24.035 motion, the Missouri Court of Appeals
disposed of petitioner=s claims as follows:
Applicable Principles of Review and Governing Law
“The motion court’s findings are presumed correct[,]” Storey v.
State, 175 S.W.3d 116, 125 (Mo. banc 2005), and “the movant bears
the burden of proving otherwise.” McCain v. State, 317 S.W. 3d
657, 659 (Mo. App. S.D. 2010). We review the denial of a
post-conviction motion for clear error. Rule 24.035(k); Woods v.
State, 176 S.W. 3d 711, 212 (Mo. banc 2005). “[W]e view the
record in the light most favorable to the motion court’s judgment,
accepting as true all evidence and inferences that support the
judgment and disregarding evidence and inferences that are contrary
to that judgment.” Hardy v. State, 387 S.W. 3d 394, 399 (Mo.
App. S.D. 2012). The motion court may “believe of disbelieve the
testimony of any witness, including that of the movant[,]” Clay v.
State, 297 S.W. 3d 122, 124 (Mo. App. S.D. 2009), and we “defer to
the motion court’s determinations of credibility.” Id.
“To prove ineffective assistance of counsel, a defendant must show
counsel’s performance did not conform to the degree of skill, care
and diligence of a reasonably competent attorney, and defendant
was thereby prejudiced.” State v. Nunley, 923 S.W.2d 911, 922
(Mo. banc 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984).
Analysis
Movant argues that he “received ineffective assistance of counsel
due to counsel’s improperly misleading him about the consequences
of his plea.” As a result, Movant claims his “plea was not entered
in a knowing, voluntary and intelligent manner.”
Movant correctly argues that “[m]isadvice about the direct
sentencing consequences of a guilty plea can amount to ineffective
assistance of counsel[.]” citing Hao v. State, 67 S.W. 3d 661, 663
(Mo. App. E.D. 2002). In Hao, the State conceded that the motion
court erred in deciding the motion without first holding an
evidentiary hearing when the motion alleged that the movant’s
lawyer had incorrectly advised him about parole eligibility. Id. at
663. The court noted that “[w]hile neither the court nor counsel is
obligated to inform a defendant about parole eligibility, erroneous
advice about it can affect the voluntariness of a guilty plea.” Id.

Here, Movant did receive an evidentiary hearing, and it established
that Movant was not misled about the sentence he could receive.
Beyond merely stating at his plea hearing that no one had made
promises that caused him to plead guilty, Movant affirmatively
testified at the motion hearing that defense counsel did not promise
him that he would receive a sentence of 15 years or less. Cf. Gold
v. State, 341 S.W. 3d 177, 182 (Mo. App. S.D. 2011) (the movant’s
negative responses about “other promises” refuted his claim of a
“‘guaranteed’ or ‘assured’ sentence”). Movant was informed that
the sentencing range was up to 30 years or life, and he knew that he
did not have a plea agreement that promised a particular sentence.
Defense counsel testified that he recommended the guilty plea.
And he admitted telling Movant that the trial court “would likely not
give more than a fifteen-year sentence and might possibly give less
than a fifteen-year sentence.” (Emphasis added.) “A mere
prediction or advice of counsel will not lead to [a] finding of legal
coercion rendering a guilty plea involuntary[,] Loudermilk v. State,
973 S.W.2d 551, 554 (Mo. App. E.D. 1998), especially if counsel
adds, as here, that “there is no guarantee what the sentence will be.”
Defense counsel informed Movant that “ultimately” the lawyers did
not control the trial court and the trial court would make “the final
decision” on Movant’s sentence. Defense counsel tesitified that he
did not “promise [Movant] what [the trial court] would decide.”
The testimony at the evidentiary hearing established that there was
no “positive representation upon which [Movant wa]s entitled to
rely.” Jones, 211 S.W.3d at 213. Movant’s point is denied, and
the denial of post-conviction relief is affirmed.
(Doc. No. 7, Ex. 6, pp. 6-9). (footnotes omitted).
The resolution of Ground 2 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).3

Applying the Strickland

standard of review to the facts as set forth in the record, the Court finds that counsel was not
ineffective.
Ground 2 is denied.
GROUNDS 1, 3, 4, 5 & 6 B PROCEDURAL DEFAULT
In Ground 1, petitioner contends that plea counsel was ineffective for failure to
investigate. In Ground 3, petitioner contends that plea counsel was ineffective for failing to
obtain full disclosure or supply petitioner with discovery. In Ground 4, petitioner contends that
plea counsel was ineffective for “failure to properly investigate, assess, and present a defense on
petitioner’s prior record from New Jersey.” In Ground 5, petitioner contends that the prosecutor
violated petitioner’s rights by withdrawing the 15-year plea offer and seeking the maximum
sentence due to petitioner exercising his right to have a preliminary hearing.

In Ground 6,

petitioner contends that plea counsel was ineffective for failure to raise the issue that petitioner
only should have been charged with second degree robbery rather than first degree robbery.
Grounds 1, 3, 4, 5, and 6 are 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
3

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.

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 grounds 5 or 6 in his amended
Rule 24.035 motion, and that although petitioner did present Grounds 1, 3, and 4 in his amended
Rule 24.035 motion, he did not raise them on appeal from the denial of that motion.

Therefore,

Grounds 1, 3, 4, 5, and 6 are 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 these grounds were not pursued
on appeal from the denial of his 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 Grounds 1, 3, 4, 5, and 6. He does not
show that a manifest injustice will occur if these grounds are not reviewed on the merits, and he
has failed to meet the Schlup standard for actual innocence. Id. Therefore, federal review of
Grounds 1, 3, 4, 5, and 6 is barred.
Grounds 1, 3, 4, 5, and 6 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).
ORDER
Accordingly, it is ORDERED that:
(1) the above-captioned petition for a writ of habeas corpus is denied;
(2) this case is dismissed with prejudice; and
(3) the issuance of a certificate of appealability is denied.

/s/ Douglas Harpool
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
Springfield, Missouri,
Dated:

June 18, 2015.