Brown v. Vandergriff

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ROY BROWN, )

)

Petitioner, )

)

v. ) No. 4:22CV755 HEA

)

DAVID VANDERGRIFF, )

)

Respondent. )

)

OPINION, MEMORANDUM AND ORDER

Petitioner filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C.

§ 2254. [Doc. 1]. Respondent filed a Response to the Court’s Order to Show Cause

Why Relief Should Not Be Granted. [Doc. 7]. For the reasons set forth below, the

Petition will be denied and dismissed.

Facts and Background

Petitioner was charged in the Circuit Court of the City of St. Louis, Missouri

with four counts of robbery in the first degree, nine counts of robbery in the second

degree, one count of attempted robbery in the second degree, and one count of

resisting arrest. A jury found him not guilty of two counts of second-degree

robbery and guilty of the remaining offenses.

Petitioner timely appealed to the Missouri Court of Appeals, arguing that

there was insufficient evidence to convict him of one count of attempted

second-degree robbery and one count of first-degree robbery and that the written

sentence and judgment contained clerical errors. The appellate court affirmed the

judgment but reversed and remanded the case to the trial court with instructions to

correct the clerical mistakes in the written sentence and judgment.

On November 8, 2018, Petitioner timely filed a pro se post-conviction

motion under Missouri Supreme Court Rule 29.15, alleging twelve bases for relief

that included several claims of trial-court error and claims of ineffective assistance

of trial counsel for failing to: impeach two of the state’s witnesses, Justin Durel

and Shadia Wade; retain an expert; object to the admission of certain evidence; and

challenge the legality of license-plate reading technology used by police during the

investigation. The motion court appointed counsel on December 3, 2018, which

made the amended Rule 29.15 motion due 60 days later on February 1, 2019.

Post-conviction counsel moved for an extension of time, but because the motion

court did not rule on the motion, the due date remained the same. Counsel then

filed an untimely amended Rule 29.15 motion on March 4, 2019, along with a

request to permit the untimely filing because counsel had mistakenly assumed that

the court had granted an extension.

The amended Rule 29.15 motion alleged that: (1) trial counsel was

ineffective for failing to have a hearing on the motion to suppress statements or, in

the alternative, for failing to order a transcript of the suppression hearing; (2) trial

counsel was ineffective for erroneously advising Petitioner to waive jury

sentencing; and (3) appellate counsel was ineffective for failing to obtain a

transcript of the suppression hearing. On March 25, 2019, the motion court denied

the amended Rule 29.15 motion without conducting an abandonment inquiry and

without an evidentiary hearing. The motion court only addressed the merits of the

claims in the amended motion and did not address the claims in the pro se motion.

On the same day that the motion court denied the amended Rule 29.15 motion,

counsel filed a motion requesting that the court conduct an abandonment inquiry,

but the court never ruled on that motion.

Petitioner appealed to the Missouri Court of Appeals, raising four points on

appeal. In his first point, Petitioner argued that the motion court clearly erred in

failing to conduct an abandonment inquiry on the untimely amended Rule 29.15

motion. The remaining three points were the same claims regarding the ineffective

assistance of trial and appellate counsel that post-conviction counsel raised in the

untimely amended Rule 29.15 motion.

On June 2, 2020, the Missouri Court of Appeals concluded that the motion

court failed to conduct an independent abandonment inquiry and did not consider

the claims asserted in the timely pro se Rule 29.15 motion. Thus, the appellate

court reversed and remanded the case to the motion court with instructions to

conduct an independent inquiry to determine whether post-conviction counsel

abandoned Petitioner. Because the first point was dispositive, the appellate court

did not address the remaining three points on appeal.

On November 30, 2020, the motion court issued an order finding that

Petitioner was abandoned by his former post-conviction counsel. The motion court

noted that on September 22, 2020, Petitioner filed a verified affidavit stating that

he had been abandoned by his former counsel and that he did not wish to proceed

with the claims raised by his former counsel in the amended Rule 29.15 motion.

Instead, Petitioner stated that he wished to proceed on the claims in his pro se Rule

29.15 motion. Thus, the motion court granted Petitioner’s request to disregard the

amended Rule 29.15 motion, addressed the claims in Petitioner’s pro se Rule 29.15

motion, and denied the motion for failure to allege facts entitling him to relief.

Petitioner appealed the denial of his pro se Rule 29.15 motion, reiterating his

contention that trial counsel was ineffective for failing to impeach witnesses Durel

and Wade. On November 23, 2021, the Missouri Court of Appeals affirmed the

motion court’s judgment.

In his habeas petition, Petitioner raises four grounds for relief, alleging that:

(1) the motion court failed to conduct an abandonment inquiry on the untimely

filed amended Rule 29.15 motion; (2) trial counsel was ineffective for failing to

have a hearing on the motion to suppress statements or, in the alternative, failing to

order a transcript of the suppression hearing; (3) trial counsel was ineffective for

erroneously advising the movant to waive jury sentencing; and (4) appellate

counsel was ineffective for failing to obtain a transcript of the suppression hearing.

Standard of Review

Federal habeas relief is available to a state prisoner “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). Where a claim has been adjudicated on the merits in

state court, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

provides that an application for a writ of habeas corpus cannot be granted unless

the state court’s 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 proceedings.

28 U.S.C. § 2254(d).

In construing AEDPA, the United States Supreme Court, in Williams v.

Taylor, held that:

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 U.S. Supreme Court] on a question of law or if the state court

decides a case differently than [the U.S. 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 governing legal principle from [the U.S.

Supreme Court’s] decisions but unreasonably applies that principle to

the facts of the prisoner’s case.

529 U.S. 362, 412-13 (2000). Furthermore, the Williams Court held that “a federal

habeas court may not issue the writ simply because that court concludes in its

independent judgment that the relevant state court decision applied clearly

established federal law erroneously or incorrectly.” Id. at 409.

A state court decision must be left undisturbed unless the 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 the decision was

based on an unreasonable determination of the facts in light of the evidence

presented in state court. Colvin v. Taylor, 324 F.3d 583, 586-87 (8th Cir. 2003). A

decision is contrary to United States Supreme Court precedent if it decides a case

based on a different rule of law than the rule dictated by United States Supreme

Court precedent, or it decides a case differently than the United States Supreme

Court did on materially indistinguishable facts. Id. at 587 (quoting Bell v. Cone,

535 U.S. 685, 694 (2002)).

A decision may only be overturned as an unreasonable application of clearly

established United States Supreme Court precedent if the decision is both wrong

and an objectively unreasonable interpretation or application of United States

Supreme Court precedent. Id. “[A] federal habeas court may not grant relief simply

because it concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly. Rather,

that application must also be unreasonable.” Williams, 529 U.S. at 365. A state

court’s factual determinations are presumed to be correct, and this presumption can

only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Procedural Default

To preserve a claim for federal habeas review, a state prisoner “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. (citing Sawyer v. Whitley, 505 U.S. 333, 338

(1992)); see also Martinez v. Ryan, 566 U.S. 1, 9 (2012) (noting that, under the

doctrine of procedural default, “a federal court will not review the merits of claims

. . . that a state court declined to hear because the prisoner failed to abide by a state

procedural rule”).

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, 505 U.S. at 338-39). To demonstrate cause, a petitioner must show that

“some objective factor external to the defense impeded counsel’s efforts to comply

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

establish prejudice, “[t]he habeas petitioner must show ‘not merely that the errors

at . . . trial created a possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error of constitutional

dimensions.’” Id. at 494 (quoting United States v. Frady, 456 U.S. 152, 170

(1982)). Lastly, 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)).

The Supreme Court in Martinez announced a narrow equitable rule for

§ 2254 petitions brought by prisoners in states like Missouri that require prisoners

to raise ineffective-assistance-of-trial-counsel claims in collateral proceedings. In

Martinez, the Supreme Court held that such a prisoner may establish cause for the

procedural default of an ineffective-assistance-of-trial-counsel claim in two

circumstances: (1) “where the state courts did not appoint counsel in the

initial-review collateral proceeding,” and (2) “where appointed counsel in the

initial-review collateral proceeding . . . was ineffective under the standards of

Strickland v. Washington, 466 U.S. 668 (1984).” Martinez, 566 U.S. at 14. “To

overcome the procedural default, a prisoner must also demonstrate that the

underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which

is to say that . . . the claim has some merit.” Id.

Discussion

Ground One – The Motion Court Failed to Conduct an Abandonment Inquiry

In Ground One of the Petition, Petitioner alleges that the motion court erred

in denying the amended Rule 29.15 motion without conducting an independent

abandonment inquiry. Petitioner asserts that his former post-conviction counsel

untimely filed the amended motion, which created a presumption of abandonment.

The Court finds no basis for relief as to Ground One because Petitioner

properly raised the issue in his first post-conviction appeal and was granted relief.

Specifically, the Missouri Court of Appeals addressed this issue by reversing and

remanding the case to the motion court with instructions to conduct an independent

abandonment inquiry [Doc. 7-6 at 6], and on remand, the motion court conducted

an independent abandonment inquiry and found that Petitioner had been

abandoned by post-conviction counsel [Doc. 7-7 at 2, 12]. Ground One also fails

because an infirmity in Petitioner’s Rule 29.15 proceeding is not a cognizable

claim in a federal habeas corpus action. See Gee v. Groose, 110 F.3d 1346,

1351-52 (8th Cir. 1997) (“[A]n infirmity in a state post-conviction proceeding does

not raise a constitutional issue cognizable in a federal habeas petition.” (quoting

Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir. 1994))). Consequently, Ground One

must be denied.

Grounds Two, Three and Four – Ineffective Assistance of Counsel

Petitioner asserts in Ground Two that trial counsel was ineffective for failing

to request a hearing on the motion to suppress or, alternatively, failing to order a

transcript of the suppression hearing. In Ground Three, he alleges that trial counsel

was ineffective for erroneously advising him to waive jury sentencing. Petitioner

claims in Ground Four that appellate counsel was ineffective for failing to obtain a

transcript of the suppression hearing. Respondent argues that Grounds Two, Three

and Four are procedurally defaulted because he did not raise them in his second

post-conviction appeal. The Court agrees.

In Missouri, a claim must be “presented ‘at each step of the judicial process’

in order to avoid default.” Jolly v Gammon, 28 F.3d 51, 53 (8th Cir. 1994) (quoting

Benson v. State, 611 S.W.2d 538, 541 (Mo. Ct. App. 1980)). “Failure to raise a

claim on appeal from the denial of a post-conviction motion erects a procedural bar

to federal habeas review.” Id. (citing Gilmore v. Armontrout, 861 F.2d 1061, 1065

(8th Cir. 1988)); Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996) (“In Missouri,

a claim presented in a Rule 29.15 motion but not advanced on appeal is considered

abandoned.” (citing Sloan v. Delo, 54 F.3d 1371, 1382 (8th Cir. 1995))).

Here, Petitioner raised Grounds Two, Three and Four in the amended Rule

29.15 motion filed by former counsel, but after the first remand, Petitioner

specifically requested that the motion court disregard his amended Rule 29.15

motion and, instead, address only the claims in his pro se Rule 29.15 motion.

Additionally, Petitioner did not raise those claims on appeal from the denial of his

pro se motion. Because Petitioner did not raise Grounds Two, Three and Four at

each stage of the judicial process, they are procedurally defaulted. See Jolly, 28

F.3d at 53; Reese, 94 F.3d at 1181.

The petition contains no allegations regarding cause or prejudice, and

despite having been granted an extension of time to file a reply to Respondent’s

answer, Petitioner still has not filed a reply. See Skillicorn v. Luebbers, 475 F.3d

965, 976-77 (8th Cir. 2006) (“Unless a habeas petitioner shows cause and

prejudice or that he is actually innocent of the charges, a court may not reach the

merits of procedurally defaulted claims in which the petitioner failed to follow

applicable state procedural rules in raising the claims.”). Additionally, the

equitable rule announced in Martinez does not apply here because the failure to

raise Grounds Two, Three and Four on remand was not the result of

post-conviction counsel’s ineffectiveness or absence. Instead, the motion court

disregarded the claims in the amended Rule 29.15 motion and addressed only the

claims raised in the pro se Rule 29.15 motion because Petitioner specifically

requested that it do so. See Franklin v. Hawley, 879 F.3d 307, 313 (8th Cir. 2018)

(“In order to arrive at the conclusion that attorney error is not cause due to the

attorney’s status as the prisoner’s agent, a necessary premise is that the prisoner’s

own failure to act cannot constitute cause.” (citing Coleman, 501 U.S. at 753);

Coleman, 501 U.S. at 753 (explaining that “‘cause’ under the cause and prejudice

test must be something external to the petitioner, something that cannot fairly be

attributed to him” (citing Murray, 477 U.S. at 488)). Thus, Grounds Two, Three

and Four must be denied.

Conclusion

For the foregoing reasons, the Court concludes that the grounds in

Petitioner’s Petition for Writ of Habeas Corpus are either procedurally barred or

fail on the merits and must be denied in all respects.

Certificate of Appealability

When a district court issues an order under § 2254 adverse to the applicant,

it “must issue or deny a certificate of appealability.” R. Governing Section 2254

Cases in the U.S. Dist. Cts., R. 11. If a federal court denies a habeas application on

procedural grounds without reaching the underlying constitutional claims, the court

should issue a certificate of appealability if the prisoner has shown “that jurists of

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the district

court is correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Id.; see also Khaimov v. Crist,

297 F.3d 783, 786 (8th Cir. 2002).

For the reasons stated in this Opinion, Memorandum and Order, the Court

finds that Petitioner’s claims in Grounds Two, Three and Four are procedurally

defaulted. The Court also finds that the denial of Petitioner’s claim in Ground One

is based on such a clear record and well-established law that no reasonable jurist

would find it debatable that no constitutional right of Petitioner was denied.

Therefore, no certificate of appealability will issue in this case.

Accordingly,

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus,

[Doc. 1], is DENIED AND DISMISSED.

IT IS FURTHER ORDERED that no certificate of appealability shall

issue.

A separate judgment in accordance with this Opinion, Memorandum and

Order is entered this same date.

Dated this 9 day of April, 2025.

HENRY EDWARD AUTREY

UNITED STATES DISTRICT JUDGE

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