Brown v. Jennings

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

BOBBY BROWN, )

)

Petitioner, )

)

v. ) Case No. 4:20-CV-00275-JAR

)

RICHARD JENNINGS, )

)

Respondent. )

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Bobby Brown’s Petition Under 28 U.S.C. §

2254 for Writ of Habeas Corpus by a Person in State Custody. (Doc. 1). Respondent filed a

response on April 6, 2020. (Doc. 7). Petitioner has not filed any reply, and the deadline to do so

has passed. For the reasons discussed below, the Petition will be denied.

I. BACKGROUND

On July 18, 2017, Petitioner pled guilty in Missouri state court to one count each of

unlawful use of a weapon (by discharging a firearm from a motor vehicle), armed criminal

action, unlawful possession of a firearm, and resisting arrest. (Doc. 7-5 at 2-3). Petitioner was

sentenced to 15 years’ imprisonment for unlawful use of a weapon, 15 years for armed criminal

action, seven years for unlawful possession of a firearm, and four years for resisting arrest, such

terms to be served concurrently. (Id.). In exchange for the guilty plea, the prosecution agreed not

to “prove [Petitioner] up” as a prior and persistent offender. (Id. at 3 n.2).

After multiple changes of post-conviction counsel, Petitioner filed an amended motion

for post-conviction relief pursuant to Missouri Supreme Court Rule 24.035 on April 4, 2018. (Id.

at 4). Though the motion court determined that the motion was untimely, it proceeded to address

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(Id. at 5). The Missouri Court of Appeals affirmed this denial on October 1, 2019. (Id. at 9). See

Brown v. Missouri, 588 S.W.3d 622 (Mo. Ct. App. 2019) (per curiam). On February 18, 2020,

Petitioner timely filed his Petition for Writ of Habeas Corpus in this Court. (Doc. 1). This Court

has liberally construed the pro se Petition. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). The

Petition states five grounds for relief:

Ground One: Ineffective Assistance of Counsel – Gunshot Residue Test

Ground Two: Ineffective Assistance of Counsel – Abandonment & Actual Innocence

Ground Three: Ineffective Assistance of Counsel – Adequate Trial Strategy

Ground Four: Fifth and Eighth Amendments – Duress

Ground Five: Ineffective Assistance of Counsel – Eye-Witness Testimony

II. LEGAL STANDARDS

A. 28 U.S.C. § 2254

A district court “shall entertain an application for a writ of habeas corpus in behalf of a

person in custody pursuant to the judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2254(a). The Court may not grant a writ of habeas corpus as to any claim that was adjudicated on

the merits in state court proceedings unless such adjudication “(1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or (2) resulted in a 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).

“A state court’s decision is contrary to . . . clearly established law if it applies a rule that

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that are materially indistinguishable from a [Supreme Court] decision . . . and nevertheless

arrives at a [different] result.” Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir. 2007) (alteration in

original) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)). A state court “unreasonably

applies” federal law when it “identifies the correct governing rule from [the Supreme] Court’s

cases but unreasonably applies it to the facts of the particular state prisoner’s case” or

“unreasonably extends a legal principle from [the Supreme Court’s] precedent to a new context

where it should not apply or unreasonably refuses to extend that principle to a new context where

it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). Finally, a state court decision is

based on an unreasonable determination of the facts “only if it is shown that the state court’s

presumptively correct factual findings do not enjoy support in the record.” Jones v. Luebbers,

359 F.3d 1005, 1111 (8th Cir. 2004) (citations omitted). The petitioner must rebut this

presumption by clear and convincing evidence. Rice v. Collins, 546 U.S. 333, 338-39 (2006).

B. Ineffective Assistance of Counsel

Petitioner’s first, second, third, and fifth grounds for relief all allege ineffective assistance

of plea counsel (“Plea Counsel”). Federal review of an ineffective assistance of counsel claim

under § 2254 is “doubly deferential.” Burt v. Titlow, 571 U.S. 12, 15 (2013). First, Petitioner

must meet the requirements of Strickland v. Washington by establishing that (1) Plea Counsel’s

performance was objectively unreasonable and (2) Petitioner was prejudiced such that the result

of the proceedings would have been different if not for the error. 466 U.S. 668, 694 (1984).

Judicial scrutiny of counsel’s performance is “highly deferential,” and this Court “must indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689.

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assistance claim was unreasonable. Harrington v. Richter, 562 U.S. 86, 101 (2011). “[I]t is not

enough to convince a federal habeas court that, in its independent judgment, the state-court

decision applied Strickland incorrectly. Rather, [Petitioner] must show that the [state court]

applied Strickland to the facts of his case in an objectively unreasonable manner.” Underdahl v.

Carlson, 381 F.3d 740, 742 (8th Cir. 2004) (quoting Bell v. Cone, 535 U.S. 698-99 (2002)). This

requirement will not apply to many of Petitioner’s claims due to his failure to present them to the

Missouri Court of Appeals.

Petitioner pled guilty to the crimes for which he was sentenced. As a result, his habeas

challenge is limited to the voluntariness of the plea and whether he understood the charges and

consequences of the plea. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). Pre-plea constitutional

claims are waived by a valid and voluntary state court plea. See Tollett v. Henderson, 411 U.S.

258, 266-67 (1973). Accordingly, to obtain habeas relief for his ineffective assistance claims,

Petitioner must demonstrate that Plea Counsel’s representation fell below an objective standard

of reasonableness and Petitioner would have insisted on going to trial but for such ineffective

assistance. See Watson v. United States, 682 F.3d 740, 745 (8th Cir. 2012) (Petitioner must

“establish a reasonable probability that he would have exercised his right to trial but for

counsel’s ineffectiveness.”); Sell v. Steele, No. 4:11-CV-168 JAR, 2014 WL 707248, at *10

(E.D. Mo. Feb. 24, 2014) (citation omitted). Petitioner’s representations during his plea hearing

“carry a strong presumption of verity and pose a formidable barrier in any subsequent collateral

proceedings.” Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (internal quotations

omitted).

Before assessing each of Petitioner’s ineffective assistance claims, it is important to note

that Petitioner repeatedly affirmed to the plea court that Plea Counsel rendered adequate

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Plea Court: All right. Did your lawyer do everything that you asked him to do in

this case?

Petitioner: Yes, he did, Your Honor.

Plea Court: Did you give your lawyers the names of all witnesses, if any, that

could come into this courtroom to testify on your behalf?

Petitioner: Yes, Your Honor.

. . .

Plea Court: You talked to [Plea Counsel] about the possibility of going to trial and

the consequences therefrom?

Petitioner: Yes, Your Honor.

Plea Court: You talked to [Plea Counsel] about all possible defenses that you

might have?

Petitioner: Yes, Your Honor.

Plea Court: Are you satisfied that your lawyer listened to everything that you had

to say?

Petitioner: Yes, Your Honor.

Plea Court: Did you ask your lawyer questions?

Petitioner: Yes, I did.

Plea Court: Did he give you answers?

Petitioner: Yes, Your Honor.

Plea Court: Are you satisfied with your discussions with your lawyer?

Petitioner: Yes, Your Honor. (Doc. 7-1 at 17-18).

Petitioner’s claims of ineffective assistance of Plea Counsel are squarely contradicted by his

sworn statements.

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A. Procedural Default

A state prisoner is typically “barred from obtaining federal habeas relief unless the

prisoner has properly presented his or her claims through one complete round of the State’s

established appellate review process.” Woodford v. Ngo, 548 U.S. 81, 92 (2006) (internal

quotations omitted); see also 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement offers the

state an “opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.”

Baldwin v. Reese, 541 U.S. 27, 29 (2004). In Missouri, appeal to the intermediate state appellate

court sufficiently exhausts state remedies to permit federal habeas review pursuant to § 2254. See

Mo. Sup. Ct. R. 83.04; Randolph v. Kemna, 276 F.3d 401, 404 (8th Cir. 2002).

Respondent contends that Petitioner has procedurally defaulted his first four claims for

relief by failing to present them to the Missouri courts. This Court agrees. The second ground for

relief – ineffective assistance of Plea Counsel due to abandonment and actual innocence – was

arguably presented in Petitioner’s pro se post-conviction motion. (Doc. 7-2 at 21-22). The

Missouri Circuit Court for the Twenty-Second Judicial Circuit (City of St. Louis) addressed this

argument, essentially determining that it failed because Petitioner knowingly pled guilty to the

alleged crimes and had voluntarily affirmed the adequate performance of Plea Counsel. (Id. at

63-68). On appeal to the Missouri Court of Appeals, however, Petitioner failed to renew this

argument and instead only exhausted his fifth ground for relief regarding Plea Counsel’s alleged

failure to investigate a defense eye-witness. (Doc. 7-3 at 23-31).1 See Arnold v. Dormire, 675

F.3d 1082, 1087 (8th Cir. 2012) (internal quotations omitted) (“In Missouri, a claim must be

presented at each step of the judicial process in order to avoid default.”).

1 Petitioner also exhausted the argument that his plea was involuntary because Plea Counsel advised him he would

only be sentenced to seven years and six months in prison. (Doc. 7-3 at 15-22). Construing the Petition liberally, this

Court will consider this claim within Petitioner’s third ground for relief.

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them at each step of the Missouri post-conviction appeal process. See Reese v. Delo, 94 F.3d

1177, 1181 (8th Cir. 1996). A habeas petitioner under § 2254 may avoid procedural default only

by showing that there was cause for the default and resulting prejudice, or that a miscarriage of

justice will result from enforcing the procedural default. Wainwright v. Sykes, 433 U.S. 72, 87,

90-91 (1977). Petitioner has not shown any cause for his procedural default. While the first four

ground for relief have been procedurally defaulted, this Court will proceed to substantively

address Petitioner’s claims.

B. Substantive Analysis

Ground One: Ineffective Assistance of Counsel – Gunshot Residue Test

In his first ground for relief, construed liberally, Petitioner contends that Plea Counsel

rendered ineffective assistance by failing to argue that the “[a]rresting police officers did not

perform SWOB2 test to determine if Petitioner fired a gun which would’ve cleared him as a

suspect.” (Doc. 1 at 3). Petitioner also claims that the arresting officers have been “linked to

police corruption.” (Id.). Petitioner appears to be arguing that Plea Counsel should have obtained

a gunshot residue test in order to exculpate Petitioner.

Petitioned pled guilty in open court, repeatedly assuring the judge that he was voluntarily

and knowingly pleading guilty to the crimes alleged. (Doc. 7-1 at 11-13). The court asked the

prosecution to recite the precise facts it would attempt to prove at trial, and Petitioner admitted

that such facts were true. (Id.). There is no indication that a SWOB test would have demonstrated

Petitioner’s innocence, or that Petitioner would have proceeded to trial if a SWOB test had been

2 This Court presumes that Petitioner is referring to a gunshot residue test.

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he would have exercised his right to trial but for counsel’s ineffectiveness.”).

In claiming that his guilty plea was involuntary, Petitioner must “overcome strong

presumptions of counsel’s competence and of the voluntariness of the guilty plea based on his

representations at the plea hearing.” Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993).

This Court “should not upset a plea solely because of post hoc assertions from a defendant about

how he would have pleaded but for his attorney’s deficiencies.” Meza-Lopez v. United States,

929 F.3d 1041, 1045 (8th Cir. 2019) (citation omitted). Petitioner has made a bare allegation that

Plea Counsel should have performed a SWOB test or challenged the arresting officers’ failure to

do so. This unsupported claim is clearly insufficient to overcome the presumptions created by

Strickland and Petitioner’s voluntary statements. Accordingly, Petitioner’s first ground does not

merit any habeas relief.

Ground Two: Ineffective Assistance of Counsel – Abandonment & Actual Innocence

In his second ground for relief, Petitioner alleges abandonment and actual innocence.

Petitioner claims that he never fired a gun, an actual innocence defense was the best course of

action, and that he only pled guilty under duress due to Plea Counsel’s abandonment. (Doc. 1 at

3). Petitioner’s unsupported claim that Plea Counsel should have pursued an actual innocence

defense again cannot overcome the presumption of counsel’s effective performance and

Petitioner’s own statements in court. Petitioner specifically informed the plea court that he

“discussed all possible defenses” with Plea Counsel, who did “everything that [Petitioner] asked

him to do.” (Doc. 7-1 at 17-18).

As to his supposed actual innocence, Petitioner briefly suggests that he can offer

“irrefutable evidence of an assailant, jumping out of the vehicle Petitioner was operating.” (Doc.

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under the miscarriage of justice exception. See generally McQuiggin v. Perkins, 569 U.S. 383

(2013). The Eighth Circuit has consistently described the standard for such an actual innocence

claim as “demanding.” Williams v. Hobbs, 509 Fed. App’x 558 (8th Cir. 2013) (per curiam).

Petitioner has not offered any new evidence or persuasive argument regarding his actual

innocence. See Schlup v. Delo, 513 U.S. 298, 327 (1995) (Petitioner “must show that it is more

likely than not that no reasonable juror would have convicted him in light of the new

evidence.”); see also 28 U.S.C. § 2254(e)(2). Therefore, Petitioner has not established any

constitutional violation within his second ground for relief.

Ground Three: Ineffective Assistance of Counsel – Adequate Trial Strategy

In his third ground for relief, Petitioner contends that Plea Counsel failed to prepare an

adequate trial strategy and “manipulated Petitioner into waiving his rights.” (Doc. 1 at 4). Once

again, the Court notes that Petitioner’s arguments are contradicted by his clear affirmation to the

state court that Plea Counsel provided adequate assistance and that the plea was knowing and

voluntary. (Doc. 7-1). Counsel does not act unreasonably, moreover, by declining to pursue

every legal strategy proposed by their client. See Thomas v. United States, 737 F.3d 1202, 1208

(8th Cir. 2013) (“A defendant is protected when trial tactics are reserved for trained

counselors.”). Petitioner has not provided sufficient detail regarding particular decisions Plea

Counsel made rendering Petitioner unprepared to proceed to trial. Petitioner’s general assertions

cannot overcome the presumption that his guilty plea was knowing and voluntary.

Petitioner also appears to argue that Plea Counsel pressured him to accept the

prosecution’s plea offer by exaggerating the risks of proceeding with trial. Petitioner suggests he

expected to receive a seven and one-half year sentence following his plea but instead was

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ensured that Petitioner understood the sentencing consequences of his plea:

Plea Court: The State of Missouri has recommended a term of 15 years

concurrent. So you’ll get the 15 on the Class B, shooting from the motor vehicle;

15 on the ACA, I run everything together, concurrent, for a total of 15 years

without any type of enhancement or without any type of statutory minimum. Do

you understand that?

Petitioner: Yes, sir.

. . .

Plea Court: In your words, what – how much time did I tell you were going to get

for these crimes?

Petitioner: Fifteen, Your Honor. (Doc. 7-1 at 16).

In considering this argument on appeal, the Missouri Court of Appeals concluded that

“the record is abundantly clear that [Petitioner] knew and understood that, if he pleaded guilty to

the charged crimes, he would have to serve a term of imprisonment of 15 years.” (Doc. 7-5 at 7).

The court further noted that even “assuming arguendo that [Plea Counsel] misinformed

[Petitioner] about the sentence he would receive if he pleaded guilty to the charged offenses, the

plea court thoroughly disabused [Petitioner] of any preconceived notions regarding the

consequences of a guilty plea, and no reasonable basis existed for [Petitioner’s] alleged belief

that he would only receive a sentence of seven-and-a-half years’ imprisonment.” (Id. at 8)

(internal quotation omitted). Pursuant to the doubly deferential standard of review applicable to

this claim, this Court finds that the Missouri Court of Appeals reasonably applied Supreme Court

precedent and appropriately affirmed the Missouri motion court. See 28 U.S.C. § 2254(d).

Ground Four: Fifth and Eighth Amendments – Duress

In his fourth ground for relief, Petitioner contends that he pled guilty under duress

because he suffered “hopelessness” and a “profound weakness [and] a prolific vulnerability.”

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exaggerated the risks of proceeding with trial and effectively left Petitioner without a meaningful

choice. But counsel does not render ineffective assistance by advising his or her client regarding

the risks of proceeding with trial, including the risk of a substantially higher sentence. See

Brooks v. United States, 772 F.3d 1122, 1123-24 (8th Cir. 2014) (affirming counsel’s decision to

recommend plea as a permissible strategic choice).

Petitioner suggests that Plea Counsel described the prosecution’s case as “iron clad” and

“[m]ore secure than Fort Knox.” (Doc. 1 at 4). This Court must begin with the “strong

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

assistance.” Strickland, 466 U.S. at 687. Accepting Petitioner’s allegations as true, Plea Counsel

assessed that the prosecution had an extremely strong case and advised Petitioner to plead guilty

in order to obtain a lower sentence. This is precisely the sort of “strategic choice[] made after

thorough investigation of law and facts relevant to plausible options” which is “virtually

unchallengeable.” Id. at 690. This Court must “avoid the distorting effects of hindsight” and

instead consider the reasonableness of Plea Counsel’s advice at the time it was rendered. Rodela-

Aguilar v. United States, 596 F.3d 457, 461 (8th Cir. 2010) (internal quotation omitted). Plea

Counsel’s strategic advice that Petitioner was very likely to be convicted and face a harsher

sentence following trial does not render Petitioner’s guilty plea involuntary. Therefore,

Petitioner’s fourth ground does not merit habeas relief.3

3 Petitioner also appears to argue that his 15-year sentence violates the Eighth Amendment’s prohibition on cruel

and unusual punishment. Given the serious nature of Petitioner’s crimes, this Court holds that the 15-year sentence

is not “grossly disproportionate” to the offense. Solem v. Helm, 463 U.S. 277, 288 (1983); see also United States v.

Paton, 535 F.3d 829, 837 (8th Cir. 2008) (citation omitted) (noting that successful challenges on these grounds

outside capital punishment context are “exceedingly rare”).

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In his fifth ground for relief, Petitioner contends that Plea Counsel failed to investigate an

eye-witness. The Missouri Court of Appeals denied this claim because Petitioner’s “testimony

during his plea proceedings refuted his ineffective assistance claim.” (Doc. 7-5 at 9). The

Petition offers virtually no details regarding the identity of the supposed eye-witness or nature of

her expected testimony. In briefing on appeal, however, Petitioner contended that Plea Counsel

should have investigated Margaret Barton, who would have testified that Petitioner did not

possess the gun in question. (Doc. 7-2 at 48-52).

The Eighth Circuit has held that a defendant who testified at his plea hearing that he was

satisfied with counsel’s representation could not later claim a plea was involuntary due to

counsel’s alleged failure to investigate the case. United States v. Hughes, 16 F.3d 949, 951 (8th

Cir. 1994) (per curiam). At his plea hearing, Petitioner specifically affirmed that he gave Plea

Counsel “the names of all witnesses, if any, that could come into this courtroom to testify” and

that Petitioner was entirely satisfied with Plea Counsel’s performance. (Doc. 7-1 at 17). The

Missouri Court of Appeals appropriately affirmed the decision of the motion court in light of

Petitioner’s sworn statements at his plea hearing. Petitioner has not demonstrated that the

Missouri Court of Appeals assessed this claim in an “objectively unreasonable manner.”

Underdahl v. Carlson, 381 F.3d 740, 742 (8th Cir. 2004) (quoting Bell v. Cone, 535 U.S. 698-99

(2002)); see also Coomer v. Morriss, No. 4:19-CV-2649 HEA, 2020 WL 6392774, at *3-4 (E.D.

Mo. Nov. 2, 2020) (deferring to Missouri Court of Appeals in similar circumstances). Petitioner

has offered no evidence refuting the presumption of adequate performance by Plea Counsel, and

the Missouri Court of Appeals reasonably applied Supreme Court precedent. Therefore, the fifth

ground for relief fails as a matter of law.

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IV. CONCLUSION

Petitioner seeks habeas relief from his conviction in Missouri state court on five grounds.

Except for a portion of Ground Three, Petitioner has procedurally defaulted his first four grounds

for relief by failing to exhaust his claims in state court. Considering his claims substantively, this

Court concludes that habeas relief is not warranted. Each of Petitioner’s ineffective assistance

claims are squarely contradicted by his sworn statements during his plea hearing regarding the

adequate representation of Plea Counsel and voluntariness of the plea. Petitioner, meanwhile, has

merely offered bare assertions and provided no new evidence or persuasive argument that

ineffective assistance by Plea Counsel rendered his guilty plea involuntary. Finally, to the extent

Petitioner exhausted certain claims in state court, the Missouri Court of Appeals’ reasonable

analysis of those claims is entitled to deference pursuant to 28 U.S.C. § 2254(d).

Accordingly,

IT IS HEREBY ORDERED that Petitioner Bobby Brown’s Petition Under 28 U.S.C. §

2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1) is DENIED and this case

is hereby DISMISSED with prejudice. An Order of Dismissal will accompany this

Memorandum and Order.

IT IS FURTHER ORDERED that because Petitioner cannot make a substantial

showing of the denial of a constitutional right, this Court will not issue a certificate of

appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834

(1998).

Dated this 3rd day of August, 2021.

fou

UNITED STATES DISTRICT JUDGE

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