Cody v. Mesmer

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

LOIS LORETTA CODY, )

)

Petitioner, )

)

v. ) Case No. 4:20-cv-00857-MTS

)

ANGELA MESMER, )

)

Respondent. )

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Lois Cody’s timely filed petition under 28

U.S.C. § 2254 for writ of habeas corpus. For the following reasons, Petitioner’s § 2254 Petition is

denied.

I. Factual and Procedural History

On July 1, 2016, Petitioner Lois Loretta Cody (“Petitioner”) pleaded guilty to first-degree

robbery and armed criminal action. When Petitioner pleaded guilty, she confirmed the evidence the

State would present at trial. Petitioner and her co-defendant, Chantel Taylor (Taylor), robbed

Victim at gunpoint. Taylor had a relationship with Victim where she would perform sexual favors

in exchange for money; as such, Victim admitted he was expecting Taylor for a “visit.” After Taylor

went into the room, Petitioner followed and pointed a gun at Victim. Petitioner later handed the gun

to Taylor, who held the gun to Victim’s head. Petitioner and Taylor subsequently took money and

phones from Victim. The loaded gun, Victim’s wallet, and the phones were found in Taylor’s car.

Petitioner admitted robbing Victim at gunpoint and taking items from him with Taylor.

After accepting Petitioner’s guilty plea, the St. Louis City Circuit Court sentenced Petitioner

to ten years’ imprisonment for first-degree robbery and three years’ imprisonment for armed criminal

action, to be served concurrently. Petitioner is currently incarcerated at the Chillicothe Correctional

Center in Chillicothe, Missouri. Petitioner did not file a direct appeal, but subsequently filed a

motion under Supreme Court of Missouri Rule 24.035 for post-conviction relief.1 Appointed

counsel filed an amended motion. After an evidentiary hearing, Petitioner’s claims for

postconviction relief were denied. Petitioner appealed. The Missouri Court of Appeals, Eastern

District, affirmed the denial of Petitioner’s amended Rule 24.035 motion. Cody v. State, 595 S.W.3d

580 (Mo. Ct. App. 2020) (per curiam). Petitioner subsequently filed this habeas action.

Petitioner asserts four grounds for relief. First, Petitioner claims plea counsel was ineffective

for failing to investigate her co-defendant, Chantel Taylor. Second, Petitioner claims the motion

court denied her due process by conducting an independent fact-finding investigation. Third,

Petitioner claims the motion court committed judicial misconduct by conducting an unsolicited

investigation resulting in prejudice. Fourth, Petitioner claims the motion court committed judicial

misconduct, stating, “Judicial conduct that violates the very bedrock rules regarding judicial

proceedings – no matter how well intentioned – cannot be condoned.” Doc. [1] at 9.

II. Legal Standard

A. Claims Reviewed on the Merits

1 Further referred to as a Rule 24.035 motion. In the context of a direct appeal following a guilty plea, “the right to a

direct appeal is limited.” State v. Hopkins, 432 S.W.3d 208, 211 (Mo. Ct. App. 2014). “In Missouri, the general rule is

that a guilty plea waives all non-jurisdictional defects, including statutory and constitutional guarantees.” Id. “In a direct

appeal of a judgment and sentence entered as a result of a guilty plea, the state court’s review is limited to claims

involving subject matter jurisdiction of the trial court and the sufficiency of the information or indictment.” Id.; see

also Maulhardt v. State, 789 S.W.2d 835, 837 (Mo. Ct. App. 1990); State v. Sharp, 39 S.W.3d 70, 71-72 (Mo. Ct. App.

2001) (unless “the conviction or sentence imposed violates the constitution and laws of this state or the constitution of

the United States,” a motion for post-conviction relief pursuant to Rule 24.035 provides the exclusive remedy).

Under 28 U.S.C. § 2254, habeas relief is not available on the basis of an alleged involuntary

guilty plea unless the state court’s determination that the petitioner’s plea was knowing and

voluntary is either contrary to or an unreasonable application of clearly established Supreme Court

law, or resulted in a decision based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(1) and (2).

To determine whether the state court lawfully determined whether a petitioner’s guilty plea

was voluntary and knowing, a federal habeas court must consider the state court record, and

“[s]olemn declarations in open court carry a strong presumption of verity.’” Smith v. Lockhart, 921

F.2d 154, 157 (8th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

Determination of factual issues made by a state court are 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) (en banc) (quoting Blackledge, 431 U.S. at 71).

B. Ineffective Assistance of Counsel Claims

To prevail on an ineffective assistance of counsel claim, Petitioner must show that her

attorney’s performance fell below an objective standard of reasonableness and that she was

prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 688 (1984). The two-prong Strickland

test also applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v.

Lockhart, 474 U.S. 52, 59 (1985). While the first prong of Strickland remains the same, to show

prejudice in the context of a guilty plea, petitioner “must show that there is a reasonable probability

that, but for counsel’s errors, she would not have pleaded guilty and would have insisted on going

to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The test for determining the validity of a guilty

plea is “whether the plea represents a voluntary and intelligent choice among the alternative courses

of action open to the defendant.” Id. at 56.

“Taken 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, 202 (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, [s]he must show that the [state court]

applied Strickland to the facts of his case in an objectively unreasonable manner.” Id. at 699.

III. Discussion

Petitioner asserts four grounds for habeas relief in her Petition. However, Grounds 2

through 4 are interrelated and will be addressed together.

a. Ground One

In Ground One, Petitioner alleges plea counsel was ineffective “for failing to investigate

this movant’s co-defendant, Chantel Taylor.” Doc. [1] at 4. Petitioner claimed in her amended Rule

24.035 motion that plea counsel was ineffective for failing to investigate Petitioner’s co-defendant,

Chantel Taylor, as a witness for Petitioner because Taylor would have exonerated her by testifying

that she, Taylor, committed the robbery alone. Petitioner maintained that she would not have

pleaded guilty if plea counsel had conducted a proper investigation, thus rendering her plea

unknowing, unintelligent, and involuntary.

Petitioner provided only the bare assertion in her Petition that plea counsel was ineffective

“for failing to investigate this movant’s co-defendant, Chantel Taylor.” Doc. [1] at 4. The court of

appeals found that:

[Petitioner] contended that she would not have pled guilty had plea counsel

conducted proper investigation, and thus her guilty plea was rendered unknowing,

unintelligent, and involuntary. The record, however, refutes the [Petitioner’s]

claim that plea counsel’s failure to investigate Taylor as a witness led the

[Petitioner] to enter an unknowing, unintelligent, and involuntary plea of guilty.

At the plea hearing, the [Petitioner] acknowledged that counsel reviewed the

police reports and the witnesses’ statements with her, and she acknowledged that

her co-defendant Taylor had already been tried. The [Petitioner] further

acknowledged that counsel had discussed possible defenses with her, that counsel

answered all of her questions, that she did not give counsel the names of any

witnesses to contact, and that it was her decision to plead guilty. At sentencing,

the [Petitioner] acknowledged that there was nothing she had asked counsel to do

that he failed to do, and she had no complaints about counsel’s services. The

[Petitioner] did not contend at that time that she wanted counsel to contact Taylor

and to have Taylor testify for her. In addition, plea counsel testified at the

evidentiary hearing that the [Petitioner] admitted to him that she committed the

robbery along with Taylor. The [Petitioner’s] admission of guilt influenced plea

counsel’s investigation and strategy, and further refutes the [Petitioner’s] claim

that Taylor’s testimony would have exonerated her.

Doc. [10-6] at 6. The court of appeals also found that Petitioner failed to demonstrate prejudice

because:

[Petitioner] failed to establish that Taylor would have testified truthfully on the

[Petitioner’s] behalf had the [Petitioner] gone to trial. There is no reason to believe

that Taylor would have answered questions at a trial about the underlying crimes

without obtaining counsel and invoking her Fifth Amendment rights. Because

Taylor declined to testify about the underlying crimes, the [Petitioner] failed to

establish that Taylor’s testimony would have provided a viable defense. Without

establishing that Taylor would testify and thereby give the movant a viable

defense, the [Petitioner] cannot show that she suffered prejudice.

Id. at 7.

Petitioner has not satisfied the “doubly deferential” standard required to obtain habeas relief

of her claim. The court of appeals correctly identified and applied the legal standard, Hill v.

Lockhart, 474 U.S. 52, 59 (1985), governing Petitioner’s ground for relief, and based upon a

determination of the facts that was not unreasonable, found that the record refuted Petitioner’s claim

that plea counsel’s failure to investigate Taylor as a witness led Petitioner to enter an unknowing,

unintelligent, and involuntary plea. Further, the court of appeals also found that Petitioner failed to

show prejudice because she failed to show there was a reasonable probability that, but for counsel’s

unfounded error of failing to investigate her co-defendant Taylor, she would not have pleaded guilty

and would have insisted on going to trial. Ground One is denied.

b. Grounds Two – Four

On appeal from the denial of Petitioner’s 24.035 motion, Petitioner claimed that the

postconviction motion court denied her due process by “‘conducting an independent fact-finding

investigation and interjecting itself into the proceedings in that the court solicited without request

by any party an excerpt of an unofficial transcript of [the movant’s] key witness [and co-defendant

Chantel Taylor], which ultimately resulted in the court striking the witness’[s] testimony,’” and

that the postconviction motion court sought to “‘to use the fruits of that investigation to undermine

Ms. Taylor’s testimony, preventing her from testifying.’” See Doc. [10-6] at 2.2 Utilizing the plain

error review standard, the court of appeals found that: (1) the motion court was entitled to take

judicial notice of the record in Taylor’s case; (2) the motion court did not strike Taylor’s testimony

based on the contents of the transcript excerpt [from Taylor’s own trial]3; (3) [Petitioner] failed to

2 The court of appeals found that Petitioner’s claims were not preserved for review because at the evidentiary hearing,

she “did not object when the transcript excerpt was referenced or used by either the motion court or Taylor’s counsel.

The [Petitioner] did not object to appointment of counsel for Taylor. The [Petitioner] did not object when Taylor

invoked her Fifth Amendment rights,” and that Petitioner did not raise any due process concerns until the appeal. Doc.

[10-6] at 3. Further, the court of appeals determined that Petitioner only requested plain error review in her reply brief,

and that “[a]ssuming, without deciding, that plain-error review is available under the circumstances” of the case, they

did not find error “plain or otherwise.” Id.

3 The court of appeals found that, “there is no evidence that the motion court struck Taylor’s testimony at [Petitioner’s]

evidentiary hearing based on the contents of Taylor’s [trial] transcript. Rather the record established that the motion

allege in her amended motion facts, not refuted by the record, that entitled her to post-conviction

relief; and (4) [Petitioner] failed to demonstrate prejudice. Id. at 3-4.

Petitioner provides only bare assertions in Grounds Two through Four of her Petition.

Petitioner’s grounds, in total, are that the motion court denied her due process “[b]y conducting an

independent fact-finding investigation,” committed judicial misconduct by “conducting an

unsolicited investigation resulting in prejudice to [Petitioner],” and that “[j]udicial conduct that

violates the very bedrock rules regarding judicial proceedings – no matter how well intentioned –

cannot be condoned.” Doc. [1] at 4-9. A petition for a writ of habeas corpus “shall specify all the

grounds for relief which are available to the petitioner ... and shall set forth in summary form the

facts supporting each of the grounds thus specified.” Rule 2(c), Rules Governing Section 2254

Cases in the United States District Courts. Petitioner has not provided the Court with any facts

whatsoever to support these grounds for relief. Grounds Two through Four are denied.

c. Does Law and Justice Require Relief

Petitioner’s claims fail for another reason. The Supreme Court has made clear that even if

a petitioner “overcomes all of [§ 2254’s] limits, he is never entitled to habeas relief.” Shinn v.

Ramirez, 142 S. Ct. 1718, 1731 (2022); see also 28 U.S.C. § 2241(a) (providing that federal courts

“may” (not must) grant writs of habeas corpus). Therefore, if a petitioner “prevails under AEDPA”

the petitioner “must still today persuade a federal habeas court that ‘law and justice require’ relief.”

Brown v. Davenport, 142 S. Ct. 1510, 1524 (2022) (quoting 28 U.S.C. § 2243); accord Jones v.

Cromwell, 75 F.4th 722, 726 (7th Cir. 2023) (“If a petitioner cannot make both a statutory and

court relied solely on Taylor’s invocation of her Fifth Amendment rights in striking her evidentiary hearing testimony.”

Id. at 4-5. The court of appeals also noted that although it did not have Taylor’s trial testimony in the record before it,

it could reasonably infer that Taylor’s testimony in her own trial and the testimony Petitioner hoped to adduce at the

evidentiary hearing would not be consistent. Id.

discretionary showing, we must deny relief.”). Petitioner, who has “acknowledged the correctness

of [her] conviction,” has not made such a showing here. See Missouri v. Frye, 566 U.S. 134, 152

(2012) (Scalia, J., dissenting).

Petitioner admitted, in open court, that she committed the crimes to which she pleaded

guilty. Doc. [10-2] at 45 (“Do you admit robbing [Victim] at gunpoint?” “Yes, sir.”); id. at 46

(“And you took the property that belonged to him?” “I admit to that.”); see also Thompson v.

United States, 872 F.3d 560, 566 (8th Cir. 2017) (“[R]epresentations [made] during the plea-taking

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

proceedings.”). Not only did she admit to her crimes in open court, but she also admitted them to

her attorney.4 Doc. [10-2] at 9 (“[S]he told me that [she and Taylor] had robbed this gentleman

together.”); id. at 12 (counsel for Cody answering that he “believe[d] the victim” of the robbery

because the victim’s statements were “corroborated by [Cody’s] statements”). Petitioner is guilty,

and States have a “powerful and legitimate interest in punishing the guilty.” See Brown, 142 S. Ct.

at 1523 (quoting Calderon v. Thompson, 523 U.S. 538, 556 (1998)); accord U.S. ex rel. Gockley v.

Myers, 450 F.2d 232, 251 (3d Cir. 1971) (Adams, J., dissenting) (“[I]f he is not innocent, society

has a strong interest in his continued incarceration.”). Habeas “imposes special costs on our federal

system” that can “frustrate both the States’ sovereign power to punish offenders and their good-

faith attempts to honor constitutional rights.” Engle v. Isaac, 456 U.S. 107, 128 (1982). Given that

4 Petitioner waived the attorney-client privilege when she asserted ineffective assistance of counsel in her Rule 24.035

Motion. Scruggs v. State, 839 S.W.2d 51, 52 (Mo. Ct. App. 1992) (“[A] claim of ineffective assistance of counsel

waives all privilege.”); see also Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) (“A client has a privilege to

keep his conversations with his attorney confidential, but that privilege is waived when a client attacks his attorney’s

competence in giving legal advice, puts in issue that advice and ascribes a course of action to his attorney that raises

the specter of ineffectiveness or incompetence.”); Natoli v. United States, 4:21-cv-00235-AGF, 2021 WL 2187279, at

*1 (E.D. Mo. May 28, 2021) (noting it is “well settled” that a collateral attack asserting claims of ineffective assistance

of counsel “impliedly waives attorney-client privilege with respect to communications with his attorney necessary to

prove or disprove his claim”).

“Congress invested federal courts with discretion when it comes to supplying habeas relief,” Brown,

142 S. Ct. at 1523, and cognizant of the States’ powerful interest in punishing the guilty, “this Court

sees no reason why the federal government should ‘intrude[ ] on state sovereignty’ by granting

habeas” to Petitioner given the facts and circumstances here. See Corley v. Blair, 4:22-cv-00250-

SRC, 2023 WL 4261608, at *4 (E.D. Mo. June 29, 2023) (quoting Davenport, 142 S. Ct. at 1523).5

The Petitioner has not, in any way, explained how “law and justice” could require habeas relief for

her given that she is factually guilty. 28 U.S.C § 2243. Our justice system has long recognized that

“to do justice” means “to shield the innocent and punish the guilty.” United States v. Macomb, 26

F. Cas. 1132, 1134 (C.C.D. Ill. 1851) (McLean, J.) (punctuation omitted).

In sum, even if Petitioner would have “overcome the obstacles to habeas relief,” which she

did not do for the reasons explained herein, “[s]he still has not persuaded [the Court] that ‘law and

justice’ require the petition to be granted.” Watkins v. Medeiros, 36 F.4th 373, 392 (1st Cir. 2022),

cert. denied, 143 S. Ct. 604 (2023) (quoting Shinn, 142 S. Ct. at 1731).

CONCLUSION

Based on the Petition, the Petitioner has not shown that the court of appeal’s decision was

contrary to or involved an unreasonable application of clearly established federal law, or resulted

in a decision based on an unreasonable determination of the facts.

Accordingly, all of Petitioner’s Grounds for relief are denied,

IT IS HEREBY ORDERED that the Petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254, Doc. [1], is DENIED.

5 See also Crawford v. Cain, 68 F.4th 273, 287 (5th Cir. 2023) (Oldham, J., for the Court, joined by Smith and Duncan,

JJ.), reh’g en banc granted, opinion vacated, 72 F.4th 109 (5th Cir. 2023) (“Law and justice do not require habeas

relief—and hence a federal court can exercise its discretion not to grant it—when the prisoner is factually guilty.”).

IT IS FURTHER ORDERED that the Petitioner has not made a substantial showing of a

denial of a constitutional right and this Court will not grant a certificate of appealability.

A separate judgment in accordance with the Memorandum and Order is entered this same date.

Dated this 25th day of September, 2023

alrHEw T. SCHELP

UNITED STATES DISTRICT JUDGE

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