# Gaskin v. Buckner

> District Court, E.D. Missouri · March 16, 2023

URL: https://www.frixlaw.com/law-library/cases/10238411

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** March 16, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10238411

## How later opinions describe it (automated extraction)

- noting that “errors of state law are not cognizable in federal habeas courts”
- noting that “errors of state law are not cognizable in federal habeas courts”
- noting that “errors of state law are not cognizable in federal habeas courts”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANDREW GASKIN, )
)
Petitioner, )
)
v. ) No. 4:19-CV-03084-SPM
)
MICHELLE BUCKNER, )
)
Respondent. )

MEMORANDUM AND ORDER

This matter is before the Court on the petition of Missouri state prisoner Andrew Gaskin
(“Petitioner”) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Petitioner also
requests an evidentiary hearing. The parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 5). For the following
reasons, the request for an evidentiary hearing will be denied, and the petition will be denied.
I. FACTUAL BACKGROUND
At Petitioner’s plea hearing on February 9, 2016, the prosecuting attorney described the
facts that the State would have proven as follows. On October 2, 2015, Petitioner was a passenger
in the rear seat of a car when the police stopped the car for a traffic violation. Resp’t Ex. 1, at 6-7.
As the officer approached the driver’s side of the vehicle, he observed Petitioner put something
down his shorts and saw loose marijuana on Petitioner’s lap and in the rear of the car. Id. at 6.
Petitioner was ordered out of the car and arrested for the marijuana. Id. After a search, he was also
found to have 25.59 grams of cocaine base. Id. The court asked Petitioner whether those facts were
correct, and he responded that they were. Id.
On questioning by the court, Petitioner testified that he wanted to plead guilty to the charge
of trafficking drugs in the second degree and the charge of possession of misdemeanor marijuana.
Id. at 3. He also testified that that he understood that he had the right to plead not guilty and have
a jury trial; that in a jury trial, the burden is on the State to prove his guilt beyond a reasonable

doubt; that to do that, the State must present witnesses and evidence in open court to prove his
guilt; that his attorney would have a right to question and cross-examine any and all witnesses and
evidence that the State presented; that his attorney could present witnesses and evidence of his
own in defense; that Petitioner himself could testify or could decline to testify without creating an
inference of guilt; that the burden would be on the state to prove his guilt and not on him to prove
his innocence; and that by pleading guilty, he was waiving those rights and there would not be a
trial. Id. at 4-5. When asked whether he had any witnesses of his own in connection with this case,
he said no. Id. at 5. He further testified that he was pleading guilty of his own free will; that he had
had sufficient time to discuss his charges with his attorney; that his attorney had done everything
he had asked; that he was satisfied with his attorney’s services; that there was nothing that his

attorney had not done that Petitioner wanted him to do or thought he should have done; and that
he had no complaints against his attorney. Id. at 3, 8-9.
The court accepted Petitioner’s plea of guilty to one count of trafficking drugs in the second
degree and one count of illegal possession of marijuana. Id. at 9. Pursuant to the State’s
recommendation, Petitioner was granted a suspended imposition of sentence and placed on two
years’ probation. Id. at 10-11. On November 29, 2016, the plea court found that Petitioner had
violated the conditions of his probation, and the court and revoked the probation. Resp’t Ex. 2, at
3. The plea court then placed Petitioner in a 120-day “shock” incarceration program, under which
if Petitioner was given a favorable report, he would be placed back on probation after the 120 days,
but if Petitioner was given a negative report, Petitioner would be sentenced to 30 years’
imprisonment. Id. at 3-7.1 On February 28, 2017, after receiving a report from the Board of
Probation and Parole recommending that probation be denied, the plea court executed Petitioner’s
sentence of 30 years’ imprisonment. Resp’t Ex. 3, at 115.2

On May 1, 2017, Petitioner filed a pro se motion for post-conviction relief pursuant to
Missouri Supreme Court Rule 24.035. Resp’t Ex. 3, at 19-26. Subsequently, acting through
counsel, Petitioner filed an amended motion for post-conviction relief pursuant to Missouri
Supreme Court Rule 24.035. Id. at 32-60. In the amended motion, Petitioner asserted several
claims of ineffective assistance of plea counsel and sentencing counsel. Id. The motion was denied,
and on appeal, Petitioner raised one claim: that the motion court erred in denying the Rule 24.035
motion without an evidentiary hearing because Petitioner pleaded facts, not conclusions, that were
not refuted by the record and that showed that his plea counsel was ineffective for failing to
investigate two witnesses. Resp’t Ex. 5, at 9. The Missouri Court of Appeals affirmed the motion
court’s denial, finding that Petitioner’s claim was refuted by the record. Resp’t Ex. 8. In the instant

petition, filed through counsel, Petitioner asserts the same ineffective assistance of counsel claim
he raised in his post-conviction appeal.
II. LEGAL STANDARDS
A prisoner in custody under the judgment and sentence of a state court may seek habeas
relief under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(a), “only on the ground that he is in custody in violation of the Constitution or laws or

1 Petitioner chose the 120-day shock program with the 30-year backup sentence over the court’s
alternative of a ten-year sentence. Resp’t Ex. 2, at 5-7.
2 Respondent’s Exhibit 3 contains multiple sets of page numbers. Because no other set of page
numbers runs throughout the entire document, the Court cites to the page numbers in the
electronically filed document.
treaties of the United States.” 28 U.S.C. § 2254(a). It is well established that “federal habeas corpus
relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting
Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). See also Nance v. Norris, 392 F.3d 284, 289 (8th Cir.
2004) (noting that “errors of state law are not cognizable in federal habeas courts”). In a habeas

proceeding, the Court reviews claims of error “only to determine whether an alleged error infringes
upon a specific constitutional protection or is so prejudicial as to be a denial of due process.”
Brende v. Young, 907 F.3d 1080, 1084 (8th Cir. 2018) (quoting Rousan v. Roper, 436 F.3d 951,
958 (8th Cir. 2006)). Federal habeas review exists “as ‘a guard against extreme malfunctions in
the state criminal justice systems, not a substitute for ordinary error correction through appeal.’”
Woods v. Donald, 575 U.S. 312, 316 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S.
86, 102-03 (2011)).
“In the habeas setting, a federal court is bound by the AEDPA to exercise only limited and
deferential review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th
Cir. 2003) (citing 28 U.S.C. § 2254). Under AEDPA, a federal court may not grant habeas relief

to a state prisoner with respect to any claim that was adjudicated on the merits in the state court
proceedings unless the state court’s adjudication of the claim “(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). “This is a difficult to meet and highly deferential standard for
evaluating state-court rulings, which demands that state-court decisions be given the benefit of the
doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2015) (internal citations and quotation marks
omitted).
Under subsection (1), a state court decision is “contrary to” clearly established Federal law
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.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). “A

state court ‘unreasonably applies’ Supreme Court precedent if it ‘identifies the correct governing
legal principle from th[e] [Supreme] Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case.’” Worthington v. Roper, 631 F.3d 487, 495 (8th Cir. 2011) (quoting
Williams, 529 U.S. at 413).
Under subsection (2), “A state court decision involves ‘an unreasonable determination of
the facts in light of the evidence presented in state court proceedings’ only if it is shown that the
state court’s presumptively correct factual findings do not enjoy support in the record.” Id. at 508
(quoting Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004)). The petitioner must make this
showing by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
III. DISCUSSION

A. Ineffective Assistance of Plea Counsel
Petitioner raises a single claim: that his plea counsel was ineffective for failing to
investigate two witnesses who were also in the car at the time of the traffic stop that gave rise to
his arrest. Petitioner argues that this ineffective assistance rendered his guilty plea involuntary.
Petitioner properly raised this claim in his state post-conviction proceedings, and the Missouri
courts denied the claim on the merits. Petitioner now argues that the state court decision was a
result of an unreasonable determination of the facts in light of the evidence presented in the state
court proceeding.
Petitioner’s factual allegations related to this claim, which are substantially the same as the
facts he alleged in his amended motion for post-conviction relief, are as follows. Plaintiff’s counsel
did not contact or interview Janee Lashell Crumer and Kenny Howard, the two other people in the
car with Petitioner when he was arrested, despite their names being listed in the information and

their names and addresses appearing in the police report. Pet’n ¶ 21. His counsel did not discuss
the evidence or provide a copy of discovery to Petitioner, did not ask for names of any witnesses,
and did not talk to Petitioner about potential motions that could be filed. Id. If counsel had
interviewed the two witnesses, he would have discovered that their accounts of what happened
were significantly different than what the police stated in their report. Id. ¶ 22. Both witnesses
would have testified that the vehicle windows were tinted, making it impossible to see inside as
the officer had claimed. Id. They would also have testified that it was not true that the officers saw
marijuana in Petitioner’s lap; instead, the officers pulled all three men out of the car and searched
them, then searched the vehicle, despite Howard refusing permission to do so. Id. ¶ 22. Although
Petitioner told the plea court that he had no problem with counsel’s performance and had no

witnesses of his own, he gave that answer before seeing his discovery, so he had no way of
knowing things such as how the other men in the car might testify and whether that testimony
would constitute a defense. Id. Petitioner’s counsel advised him to answer the plea court’s
questions in a certain way so as to not jeopardize his guilty plea and probation. Id.
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). In the context of a guilty plea, a
defendant who pleaded guilty upon the advice of counsel may challenge the voluntariness of that
plea through a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 56-57
(1985). The Supreme Court has held that the two-prong test articulated in Strickland v.
Washington, 466 U.S. 668, 689 (1984), applies to ineffective assistance claims in the guilty plea
context. Hill, 474 U.S. at 57-59. To satisfy the first prong (“deficient performance”), the petitioner
must show “that counsel’s representation fell below an objective standard of reasonableness.” Id.
at 57. To satisfy the second prong (“prejudice”) in the guilty plea context, the petitioner must show

“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.” Id. at 59.
“[C]ourts 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.” Thompson v. United States,
872 F.3d 560, 567 (8th Cir. 2017) (quoting Lee v. United States, 137 S. Ct. 1958, 1967 (2017)).
“Judges should instead look to contemporaneous evidence to substantiate a defendant’s expressed
preferences.” Id. “A ‘defendant’s representations during the plea-taking carry a strong presumption
of verity and pose a formidable barrier in any subsequent collateral proceedings.’” Adams v. United
States, 869 F.3d 633, 635 (8th Cir. 2017) (quoting Nguyen v. United States, 114 F.3d 699, 703 (8th
Cir. 1997)).

When an ineffective assistance claim has been addressed by the state court, this Court must
bear in mind that “[t]aken together, AEDPA and Strickland establish a ‘doubly deferential
standard’ of review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v.
Pinholster, 563 U.S. 170, 190 (2011)). In the context of a habeas claim, it is not sufficient for a
petitioner to “show that he would have satisfied Strickland’s test if his claim were being analyzed
in the first instance.” Bell v. Cone, 535 U.S. 685, 698-99 (2002). “Rather, he must show that the
[state court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Id.
at 699.
In evaluating this claim, the Missouri Court of Appeals correctly noted the same two-prong
test articulated in Strickland and Hill, and it also recognized that the key question in the guilty plea
context is whether the alleged ineffective assistance impinged on the voluntariness and knowledge
with which the guilty plea was made. Resp’t Ex. 8, at 4-5. The court found that Petitioner’s claim

that his plea counsel was ineffective for failing to interview and investigate two witnesses was
“refuted by the record.” Id. at 5. The court noted that at his plea hearing, Petitioner had specifically
stated that he had no witnesses in connection with the charged crimes, that he was satisfied with
his plea counsel’s performance, and that he understood he was waiving a jury trial, which the plea
court expressly explained included the right to present witnesses in his defense. Id. at 5-6. The
court found these statements “sufficient to effectively refute [Petitioner’s] ineffective assistance
claim that is at issue in this case.” Id. at 6. The Missouri Court of Appeals also noted that it was
clear that Petitioner sought to be released on probation instead of going to trial, and that plea
counsel “effectuated [Petitioner’s] wishes by negotiating a plea agreement with the State where
[Petitioner] was released on probation after pleading guilty.” Id. The court stated that Petitioner

“cannot now complain after the fact that his plea counsel was ineffective for failing to
interview/investigate witnesses when counsel seemingly did everything that [Petitioner] asked him
to leading up to [Petitioner] pleading guilty.” Id.
The Missouri Court of Appeals’ rejection of this claim did not involve an objectively
unreasonable application of Strickland or Hill to the facts of this case, nor did it involve an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. The Missouri Court of Appeals’ finding that Petitioner’s allegations of ineffective
assistance of counsel in failing to investigate witnesses were refuted by Petitioner’s own statements
at the plea hearing was reasonable and has support in the record. Petitioner testified that he did not
have any witnesses of his own, that he had had sufficient time to discuss his charges with his
attorney, that his attorney had done everything he had asked, that he was satisfied with his
attorney’s services, and that there was nothing that his attorney had not done that Petitioner wanted
him to do or thought he should have done. Petitioner also testified that he understood that if he

went to trial rather than pleading guilty, his attorney would be able to present witnesses and
evidence. These statements “carry a strong presumption of verity,” Adams, 869 F.3d at 635, and it
was reasonable for the Missouri Court of Appeals to find that they refuted Petitioner’s post hoc
assertions about what his attorney should have done. The Court also notes that Petitioner would
have been aware of the existence of the two potential witnesses at the time he made these
statements to the plea court, because the two witnesses were in the car with him at the time of his
arrest.
In light of Plaintiff’s own testimony regarding his counsel’s performance and the absence
of witnesses at the plea hearing, the Missouri Court of Appeals’ denial of this claim was consistent
with Strickland and Hill and was well-supported by the record. Therefore, Petitioner’s sole ground

for relief is denied.
B. Request for Evidentiary Hearing
Generally, the decision about whether to conduct an evidentiary hearing is within a habeas
court’s discretion, as limited by statutory restrictions set forth in the AEDPA. See Schriro v.
Landrigan, 550 U.S. 465, 473-75 (2007). It is well established that “if the record refutes the
applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required
to hold an evidentiary hearing.” Id. at 474. Other courts have found that where, as here, the
knowing and voluntary nature of a guilty plea is established by the record, a petitioner is not
entitled to an evidentiary hearing on an ineffective assistance of counsel claim. See Roberts v.
Griffith, No. 4:16-CV 241-RWS, 2018 WL 2364295, at *3 (E.D. Mo. May 24, 2018) (denying
request for evidentiary hearing on ineffective assistance of plea counsel claim and stating, “Eighth
Circuit precedent permits district courts to deny evidentiary hearings attacking a guilty plea where
the knowing and voluntary nature of the plea is established by the record.”) (citing Tran v.

Lockhart, 849 F.2d 1064, 1068 (8th Cir. 1998)); Cotton v. Steele, No. 4:15-CV-00806-AGF, 2018
WL 3020209, at *3 (E.D. Mo. June 18, 2018) (denying request for evidentiary hearing where the
allegations of ineffective assistance of plea counsel were defeated by the petitioner’s own
representations at the plea hearing). Here, as in those cases, the Court finds that Petitioner’s
statements on the record refuted Petitioner’s claims. Thus, the Court will deny Petitioner’s request
for an evidentiary hearing. The Court need not reach the question of whether Petitioner has
established that a hearing is permissible under AEDPA’s statutory restrictions.
IV. CONCLUSION
For all of the above reasons, Petitioner is not entitled to federal habeas relief. Under 28
U.S.C. § 2253, an appeal may not be taken to the court of appeals from the final order in a 28

U.S.C. § 2254 proceeding unless a circuit judge or district judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a certificate, the judge must find that the
Petitioner “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2);
“A substantial showing is a showing that issues are debatable among reasonable jurists, a court
could resolve the issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997) (citation omitted).
The Court finds that Petitioner has not made a substantial showing of the denial of a
constitutional right, so the Court will not issue a certificate of appealability. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (Doc. 1) is DENIED.
IT IS FURTHER ORDERED that Petitioner’s request for evidentiary hearing is
DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability shall issue, because
Petitioner has failed to make a substantial showing that he has been denied a constitutional night.
28 ULS.C. § 2253.

ej 0
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 16th day of March, 2023.

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10238411. Public record. Not legal advice.