Rousan v. Cassady

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

WILLIAM BRENT ROUSAN, )

)

Petitioner, )

)

)

v. ) Case No. 4:16-CV-01502-SPM

)

JAY CASSADY, )

)

Respondent. )

MEMORANDUM AND ORDER

This matter is before the undersigned on the petition of Missouri state prisoner William

Brent Rousan (“Petitioner”) for a writ of habeas corpus pursuant to 28 U.S.C.A. § 2254. (Doc. 47).

The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge

pursuant to 28 U.S.C.A. § 636(c)(1). (Doc. 23). For the following reasons, the petition will be

denied.

I. FACTUAL BACKGROUND

Rousan is currently an inmate at the Jefferson City Correctional Center in Jefferson City,

Missouri. On March 4, 1996, after pleading guilty in exchange for a waiver of the death penalty,

Rousan was sentenced to two consecutive terms of life imprisonment without eligibility for parole

on two counts of first-degree murder. Rousan was sixteen years old at the time he committed the

offenses.

Rousan filed a motion for post-conviction relief pursuant to Mo. Sup. Ct. R. 24.035, in

which he alleged ineffective assistance of counsel and attempted to withdraw his guilty plea. (Doc.

47 at 3). That motion was denied without a hearing, and the motion court's ruling was affirmed on

appeal. Id. Subsequently, Rousan filed a pro se direct appeal in 2005, seeking to withdraw his

guilty plea, which was dismissed as untimely on February 6, 2006. Id. at 2. He then filed a motion

for a writ of habeas corpus in 2012, in the Circuit Court of Cole County, which was denied on

April 23, 2012. (Doc. 48 at 3).

On June 25, 2012, the United States Supreme Court issued its opinion in Miller v. Alabama,

567 U.S. 460 (2012). In Miller, the Supreme Court held that the Eighth Amendment prohibits a

sentencing scheme that mandates life in prison without the possibility of parole for juvenile

homicide offenders. Id. at 479. The Court reasoned that “[m]andatory life without parole for a

juvenile precludes consideration of his chronological age and its hallmark features—among them,

immaturity, impetuosity, and failure to appreciate risks and consequences,” the “family and home

environment that surrounds him—and from which he cannot usually extricate himself—no matter

how brutal or dysfunctional,” the “circumstances of the homicide offense,” and “the possibility of

rehabilitation[.]” Id. at 477-78.

On March 12, 2013, Rousan filed a petition for writ of habeas corpus in the Missouri

Supreme Court, alleging that his sentence was unconstitutional in light of Miller. On January 27,

2016, while Rousan's petition was still pending, the United States Supreme Court decided the case

of Montgomery v. Louisiana, 577 U.S. 190 (2016), holding that the rule of Miller must be

retroactively applied in collateral cases to juveniles sentenced to mandatory life without parole

before Miller was decided. Id. at 205. The Court clarified, however, that this retroactive application

“does not require States to relitigate sentences, let alone convictions, in every case where a juvenile

offender received mandatory life without parole.” Id. Rather, “[a] State may remedy a Miller

violation by permitting juvenile homicide offenders to be considered for parole, rather than by

resentencing them.” Id. Regarding this remedy, the Court cited a Wyoming statute that allows a

juvenile convicted of homicide to be eligible for parole after 25 years of incarceration. Id. (citing

Wyo. Stat. Ann. § 6-10-301(c)). The Court specifically held that “allowing those offenders to be

considered for parole ensures that juveniles whose crimes reflected only transient immaturity—

and who have since matured—will not be forced to serve a disproportionate sentence in violation

of the Eighth Amendment.” Id.

On March 15, 2016, the Missouri Supreme Court issued an order in Rousan’s habeas case,

as well as all other similarly situated cases, stating that the Missouri General Assembly had yet to

enact a constitutionally valid sentencing provision in accordance with Miller and Montgomery.

Therefore, the Missouri Supreme Court granted Rousan's petition in part and ordered that he (and

those similarly situated) would be eligible to apply for parole after 25 years’ imprisonment on their

sentences of life without parole unless their sentences were otherwise brought into conformity with

Miller and Montgomery by action of the governor or enactment of the legislature.

On July 13, 2016, the Governor signed into law Missouri Senate Bill (“S.B.’) No. 590, 98th

General Assembly, which states, in relevant part:

1. (1) Any person sentenced to a term of imprisonment for life without eligibility for parole

before August 28, 2016, who was under eighteen years of age at the time of the commission of the

offense or offenses, may submit to the parole board a petition for a review of his or her sentence

... after serving twenty-five years of incarceration.

* * *

4. The parole board shall hold a hearing and determine if the defendant shall be granted

parole.

(codified at Mo. Ann. Stat. § 558.047 ).

In light of Mo. Ann. Stat. § 558.047, the Missouri Supreme Court issued an order on July

19, 2016, vacating its March 15 order, overruling as moot the motions for rehearing or resentencing

filed by Rousan and others similarly situated, and denying the pending petitions for state habeas

corpus.

On October 14, 2016, Rousan filed a pro se petition for writ of habeas corpus in this Court,

raising one ground for relief: that Mo. Ann. Stat. § 558.047 is unconstitutional as applied to him

because the statute creates an “arbitrary and unfair distinction between youth convicted before and

after August 28, 2016,” when the statute was put into effect. (Doc. 1). Subsequently, this Court

appointed counsel to represent Rousan, after which he submitted an amended petition asserting

that Mo. Ann. Stat. § 558.047 is unconstitutional as applied to him because he will be 67 years old

before he is eligible for parole. (Doc. 24-1 at 10). In the response filed on August 17, 2018,

Respondent asserted that Rousan's sole ground for relief is not properly before the Court because

it has not been exhausted in state court. (Doc. 36).

On August 19, 2019, the Court concluded that Rousan's claim had not been properly raised

before the state courts, and that Rousan still had non-futile state court remedies he may pursue.

(Doc. 37). Accordingly, the Court entered an order staying this action, so that Petitioner could

pursue his unexhausted claim in state court.

Rousan subsequently filed a petition for state writ of habeas corpus in the Circuit Court of

Cole County. (Doc 50-1). On July 13, 2020, Cole County Circuit Judge Daniel Green entered an

Order denying Rousan's state petition for writ of habeas corpus with prejudice. (Doc. 50-2 at 4-

11). On September 3, 2020, Rousan filed a petition for writ of habeas corpus in the Missouri Court

of Appeals, Western District. (Doc 50-3). On October 8, 2020, the appellate court denied the

petition. (Doc. 50-4). Rousan subsequently filed a motion to lift the stay issued by this Court. (Doc.

40). This Court granted Rousan’s motion and appointed counsel on November 23, 2020. (Doc 43).

In the instant petition, Rousan requests this Court resentence him. He argues that Mo. Ann.

Stat. § 558.047 violates his rights “under the Eighth and Fourteenth Amendment … as he is

ineligible for even a parole hearing for fifty (50) years, or in 2044.” (Doc 48 at 2).

II. LEGAL STANDARDS

A. LEGAL STANDARD FOR REVIEWING CLAIMS ON THE MERITS

A district court “shall entertain an application for a writ of habeas corpus on 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.A. § 2254(a).

Federal habeas review exists only “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) (internal citations and quotations omitted). Accordingly, “[i]n the habeas

setting, a federal court is bound by the AEDPA [the Antiterrorism and Effective Death Penalty

Act] to exercise only limited and deferential review of underlying state court decisions.” Lomholt

v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (internal citation omitted). 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 a 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.A. § 2254(d)(1) and (2). A state court decision

is “contrary to” clearly established Supreme Court precedent “if the state court applies a rule that

contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state court

confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court

and nevertheless arrives at a result different from [the Supreme Court’s] precedent.” Williams v.

Taylor, 529 U.S. 362, 405-06 (2000); see also Brown v. Payton, 544 U.S. 133, 141 (2005). A state

court decision involves an “unreasonable application” of clearly established federal law if it

“correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular

prisoner’s case.” Williams, 529 U.S. at 407-08; see also Bell v. Cone, 535 U.S. 685, 694 (2002).

“Finally, a state court decision involves an unreasonable determination of the facts in light of the

evidence presented in the state court proceedings only if it is shown that the state courts

presumptively correct factual findings do not enjoy support in the record.” Jones v. Luebbers, 359

F.3d 1005, 1011 (8th Cir. 2004) (citation and internal quotation marks omitted); see also Rice v.

Collins, 546 U.S. 333, 338-39 (2006) (noting that state court factual findings are presumed correct

unless the habeas petitioner rebuts them through clear and convincing evidence).

B. LEGAL STANDARD FOR PROCEDURALLY DEFAULTED CLAIMS

To preserve a claim for federal habeas review, “a state habeas petitioner must present that

claim to the state court and allow that court an opportunity to address his claim.” Moore-El v.

Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32

(1991)). “Where a petitioner fails to follow applicable state procedural rules, any claims not

properly raised before the state court are procedurally defaulted.” Id. The federal habeas court will

consider a procedurally defaulted claim “only where the petitioner can establish either cause for

the default and actual prejudice, or that the default will result in a fundamental miscarriage of

justice.” Id. (citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992)). To demonstrate cause, a

petitioner must show that “some objective factor external to the defense impeded [the petitioner’s]

efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).

To establish prejudice, a petitioner must demonstrate that the claimed errors “worked to his actual

and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”

United States v. Frady, 456 U.S. 152, 170 (1982); accord Ivy v. Caspari, 173 F.3d 1136, 1141 (8th

Cir. 1999). Lastly, in order to assert the fundamental miscarriage of justice exception, a petitioner

must “present new evidence that affirmatively demonstrates that he is innocent of the crime for

which he was convicted.” Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011) (quoting Abdi v.

Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).

III. DISCUSSION

Petitioner Rousan’s sole ground for relief is that, under Miller, Mo. Ann. Stat. § 558.047

violates his Eighth and Fourteenth Amendment rights because, at a parole eligibility age of 67

years old, he is serving a de facto life without parole sentence. (Doc. 48 at 13). He argues that

under Miller, Mo. Ann. Stat. § 558.047 violates his Eighth and Fourteenth Amendment rights

because he is entitled to a “meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” Id. He contends that the statute provides no relief or opportunity for

“any judge, or jury to hear any of the facts now required to be considered” as detailed in Miller

and Graham. Id. To remedy the purported error, Rousan requests a resentencing hearing, “so that

for the first time since the date of the crime, he [will] have a meaningful opportunity to present

attendant circumstances to a court.” Id. at 25.

A. FOURTEENTH AMENDMENT VIOLATION

As noted above, Rousan’s sole ground for relief is that Mo. Ann. Stat. §558.057 violates

both the Eighth and Fourteenth Amendments. This Court recognizes that Rousan’s reference to

the Fourteenth Amendment may have been nothing more than an acknowledgement that the Eighth

Amendment’s protection against cruel and unusual punishment applies to state governments only

through the due process clause of the Fourteenth Amendment. See Robinson v. California, 370

U.S. 660 (1962). However, to the extent that Rousan is attempting to raise a separate Fourteenth

Amendment claim, the Court finds his claim is procedurally defaulted because it was not raised at

the state level. Moore-El 446 F.3d at 896. As discussed above, a state prisoner can overcome such

a procedural default only if he 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.” Coleman, 501 U.S. at 750. Rousan has failed to

provide any evidence justifying the cause for his default, actual prejudice, or that the default would

result in a fundamental miscarriage of justice. Moore-El 446 F.3d at 896. Therefore, any separate

Fourteenth Amendment claim is denied as procedurally defaulted.

Even if Rousan had a separate cognizable Fourteenth Amendment claim, Respondent

argues such a claim would fail because Rousan cited no authority differentiating between his

Eighth Amendment and Fourteenth Amendment claims. (See Doc. 50 at 4). After a review of

Rousan’s state habeas petition, the Court cannot ascertain a Fourteenth Amendment claim that is

distinct and separate from Rousan’s Eighth Amendment claim. As such, Rousan’s purported

Fourteenth Amendment claim will be denied for the reasons discussed below regarding his Eighth

Amendment claim.

B. EIGHTH AMENDMENT VIOLATION

Rousan has failed to show that the Cole County Circuit Court’s decision was contrary to,

or involved an unreasonable application of clearly established Federal law, as determined by the

Supreme Court of the United States, or that the circuit court’s ruling was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C.A. § 2254(d)(1) and (2). In deciding Rousan’s state habeas petition, the Cole County

Circuit Court carefully considered Supreme Court precedent and found that “[n]either Miller nor

Montgomery dealt with minimum parole eligibility terms for consecutive sentences,” and reasoned

that to accept Rousan’s argument, the court would have to expand Supreme Court precedent

beyond the four corners of the opinions. (Doc. 50-2 at 10-11). The court declined to do so, finding

that as applied, Rousan had no right to resentencing, and that Mo. Ann. Stat. § 558.047 provides

no more relief than Miller and Montgomery require. Id. at 4. The court cited analogous state and

federal denials of habeas relief to bolster its decision, and reasonably applied Supreme Court

precedent. See id. at 4-8.

To be sure, this Court does not address whether Rousan, who will be age 67 before

becoming parole eligible, is effectively serving a de facto life sentence. Furthermore, it is not this

Court's role to independently assess the constitutionality of S.B. 590. Instead, pursuant to the

AEDPA, this Court may only grant Rousan habeas relief if it determines that the state court

adjudication “was contrary to, or involved an unreasonable application of, clearly established

federal law.” 28 U.S.C. § 2254(d)(1). Such review is “highly deferential.” Ali v. Roy, 950 F.3d

572, 574 (8th Cir. 2020) (internal citations omitted). Furthermore, courts in this circuit have denied

various similar requests for habeas relief, even where the state court adjudication included no

substantive analysis. Hack v. Cassady, No. 16-04089-CV-W-ODS, 2019 WL 320586 (W.D. Mo.

Jan. 24, 2019); Saddler v. Pash, No. 4:16-CV-00363-AGF, 2018 WL 999979 (E.D. Mo. Feb. 21,

2018); see also Wolf v. Cassady, No. 16-3334-CV-S-MDH, 2019 WL 1089125 (W.D. Mo. Mar.

7, 2019). Notably, the Missouri Supreme Court has now weighed in on the issue and upheld the

constitutionality of S.B. 590, holding that “Missouri's General Assembly can accept the Supreme

Court's invitation to remedy Miller-affected sentences by supplying parole eligibility.” Hicklin v.

Schmitt, 613 S.W.3d 780, 787 (Mo. banc 2020).

There is no basis for this Court to conclude that the state court unreasonably applied federal

law. The Cole County Circuit Court appropriately relied on language in Montgomery suggesting

that remedies like S.B. 590 are a permissible legislative response to Miller. The state's adjudication

of Rousan’s claim on the merits “gets the benefit of the doubt” unless he showed that its decision

“was so lacking in justification that there [is] an error well understood and comprehended in

existing law beyond any possibility for fair minded disagreement.” Ali, 950 F.3d at 574 (internal

citation omitted). Rousan has failed to show the court’s reasoning is lacking in justification. Thus,

he has not demonstrated that the Missouri courts unreasonably applied federal law in denying his

state habeas petition.

IV. CONCLUSION

For all the above reasons, Petitioner is not entitled to federal habeas relief. Under 28

U.S.C.A. § 2253 , an appeal may not be taken to the court of appeals from the final order in a 28

U.S.C.A. § 2254 proceeding unless a circuit judge or district judge issues a certificate of

appealability. 28 U.S.C.A. § 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);

Tiedman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). “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) (internal

citation omitted). The Court finds that Rousan 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 Rousan’s amended petition for writ of habeas corpus

pursuant to 28 U.S.C.A. § 2254 (Doc. 47) 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 right.

28 US.C.A. § 2253.

— Mo O02

SHIRLEY PADMORE MENSAH

UNITED STATES MAGISTRATE JUDGE

Dated this 234 day of January, 2024

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