Abernathy v. Adams

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

RANDALL ABERNATHY, )

)

Petitioner, )

)

)

v. ) Case No. 4:24-CV-01286-SPM

)

RICHARD ADAMS, )

)

Respondent. )

MEMORANDUM OPINION

This matter is before the Court on the petition of Missouri state prisoner Randall Abernathy

(“Petitioner”) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) and

Petitioner’s Motion for Request for an Evidentiary Hearing (ECF No. 5). The parties have

consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28

U.S.C. § 636(c)(1). ECF No. 17. For the following reasons, the petition and the motion will be

denied.

I. FACTUAL BACKGROUND

The Circuit Court of St. Francois County, Missouri summarized the facts of Petitioner’s

case as follows:

Petitioner, Randall Paul Abernathy, serves an aggregate 125-year Missouri

sentence in the Eastern Reception Diagnostic Correctional Center in St. Francois

County, Missouri, where Respondent Richard Adams is the Warden, for two counts

of sexual exploitation of a minor child, promoting child pornography in the first

degree, first degree statutory sodomy on a child under age twelve, and tampering

with physical evidence in a felony prosecution. Petitioner also serves concurrent

federal sentences for production of child pornography and transportation of child

pornography.

Petitioner pleaded guilty in the Circuit Court of Warren County to two counts of

the Class A felony of sexual exploitation of a child for which he received

consecutive thirty-year sentences. He also pleaded guilty to the Class B felony

promoting child pornography in the first degree for which he received a consecutive

fifteen-year sentence. He also pleaded guilty to the unclassified dangerous felony

of first-degree statutory sodomy of a child under age twelve for which he received

a consecutive fifty-year sentence. Petitioner also pleaded guilty to and received a

concurrent four-year sentence for the Class D felony of tampering with physical

evidence in a felony case.

Resp’t Ex. 11, at 1.1 Petitioner did not directly appeal his guilty plea.

In his amended motion for post-conviction relief, filed pursuant to Mo. Sup. Ct. R. 29.15,

Petitioner through counsel asserted three claims: (1) defense counsel assured Petitioner that he

would receive less time than he actually received when he made an open guilty plea; (2) defense

counsel unreasonably failed to advise Petitioner that multiple convictions for first-degree child

exploitation would violate double jeopardy; and (3) no factual basis existed for the plea on Count

II. Resp’t Ex. 11, at 2. The motion court denied all of these claims after an evidentiary hearing.

Resp’t Ex. 4 at 5–10. On appeal, Petitioner raised only the claim that plea counsel was ineffective

for failing to advise him of a possible double jeopardy violation. Resp’t Ex. 7, at 5–7. The Court

of Appeals rejected this claim. Id.

In his state petition for habeas corpus relief, filed pursuant to Mo. Sup. Ct. R. 91, Petitioner

asserted three claims pro se: (1) that the trial court deprived Petitioner of due process by not sua

sponte ordering a mental examination for Petitioner; (2) that his fifty-year sentence for statutory

sodomy exceeded the maximum sentence for statutory sodomy, which he described as a Class A

felony; and (3) that he received ineffective assistance of plea counsel based on the failure to request

a competency evaluation. Resp’t Ex. 11, at 3. The state court denied all three claims. Resp’t Ex.

1 This document contains multiple sets of page numbers. The Court refers to the pagination in the

lower right-hand corner. Additional facts relevant to Petitioner’s specific claims will be set forth

in the discussion section below.

11, at 1–5. Petitioner brought these same claims in a pro se petition for habeas corpus relief in the

Missouri Court of Appeals Eastern District, and the appellate court denied the petition without

discussion. Resp’t Ex. 13, 14. Petitioner brought these same claims in a pro se petition for habeas

corpus relief in the Missouri Supreme Court, and the Missouri Supreme Court summarily denied

the petition. Resp’t Ex. 16, 18.

In the instant petition, Petitioner asserts four grounds for relief: (1) that he received

ineffective assistance of plea counsel based on the failure to request a competency evaluation; (2)

that Petitioner received ineffective assistance of post-conviction counsel based on the failure to

request a mental competency examination of him before he was convicted and sentenced; (3) that

the trial court deprived Petitioner of due process by not sua sponte ordering a mental competence

examination for Petitioner; and (4) that the Missouri habeas courts erred in not granting

Petitioner’s ineffective assistance of counsel claims. Pet’n, ECF No. 1.2

Respondent argues that the petition should be denied because it was not timely filed under

AEDPA’s 1-year statute of limitations, 28 U.S.C. § 2244(d)(l)(A), and because each of Petitioner’s

claims has been procedurally defaulted and/or is meritless. After review, it appears to the Court

that the timeliness issue is substantially more complicated than the merits and procedural default

issues.3 Thus, in the interest of judicial economy, the Court will proceed to address the merits and

2 Attached to the form § 2254 petition, Petitioner included a 69-page document, restating his

grounds for relief and providing “Suggestions in Support” of granting him a writ of habeas corpus.

ECF No. 1-1. The Court will treat this attachment, and all others, as part of the pleadings. See Fed.

R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is part of the

pleading for all purposes”). He also attached 230 pages of exhibits which appear to be mostly state

court filings and documents. ECF No. 1-2.

3 The one-year limitations period set forth in the AEDPA may be equitably tolled if a petitioner

demonstrates: (1) he has been diligently pursuing his rights; and (2) an extraordinary circumstance

stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010);

Muhammad v. U.S., 735 F.3d 812, 815 (8th Cir. 2013). Petitioner argues that equitable tolling

procedural default issues. See White v. Steele, 853 F.3d 486, 490 (8th Cir. 2017) (“[E]ven where

we have reason to doubt compliance with the statute of limitations, we may proceed to the merits

in the interest of judicial economy.”); Trussell v. Bowersox, 447 F.3d 588, 590-91 (8th Cir. 2006)

(“[B]ecause neither the statute of limitations nor procedural default constitutes a jurisdictional bar

to our review, Day v. McDonough, 547 U.S. 198 (2006), we shall, in the interest of judicial

economy, proceed to the merits of [the] petition.”).

II. LEGAL STANDARDS

A. Legal Standard for Reviewing Claims on the Merits

Where a claim has been adjudicated on the merits in state court proceedings, a federal court

may grant habeas relief only if 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). “[A] determination of a factual issue made by a State

applies due to his mental health issues. As noted in a previous order, assuming without deciding

that Petitioner’s limitation period was tolled to some extent due to his mental health issues, the

period would have at least begun to run by May 13, 2022, when he filed a § 1983 action in this

Court. See Abernathy v. Corizon Health, LLC, No. 4:22-cv-528- SEP (E.D. Mo. filed May 13,

2022). Plaintiff also admits that around this same time, he was meeting with a psychiatrist who

explained his recall problems and filled in lapses in his memory. The period from May 13, 2022

to the signing of this petition on September 10, 2024, is over two years. Even tolling this period

for the times when Petitioner’s three state habeas petitions were pending, Petitioner’s limitations

period still would have been running from May 13, 2022 until August 19, 2022 (98 days); from

January 30, 2023 until April 28, 2023 (88 days); from June 5, 2023 until December 16, 2023 (194

days); and from March 5, 2024 until petition signing on September 10, 2024 (189 days). These

periods equal 569 days, which is well over the one-year limitations period. Respondent asserts that

the delay was due to Petitioner’s lack of diligence. Petitioner argues that he experienced multiple

non-contiguous periods during which his mental health issues interfered with his ability to comply

with court procedures, and submitted supporting affidavits from fellow detainees.

court shall be presumed to be correct,” and the petitioner has the “the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C.A. § 2254(e)(1).

A state court decision is “contrary to” clearly established Supreme Court precedents “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 court’s presumptively correct factual findings do not enjoy support in the record.” Jones

v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004) (citations and internal quotation marks omitted).

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)).

III. DISCUSSION

A. Procedurally Defaulted Claims (Grounds One and Three)

In Ground One, Petitioner argues that his plea counsel was ineffective because she failed

to request a competency evaluation of Petitioner. In Ground Three, Petitioner argues that the plea

court violated his due process rights by failing to order sua sponte a mental competency

examination for Petitioner. He asserts violations of his Sixth and Fourteenth Amendment rights.

Petitioner did not raise these claims in his post-conviction relief appeal. See Resp’t Ex. 7, at 5-7.

The state habeas court found both claims to be procedurally defaulted, but also “without

legal merit.” Resp. Ex. 11 at 4. In denying the claims, the court explained:

The Court has reviewed the record. The record does not disclose any facts that

would necessarily have led the trial judge to sua sponte order a competency

examination or that should have led Petitioner’s attorney to request one. Nothing in

the record indicates any cause on the part of counsel to believe Petitioner was not

competent to proceed, and nothing in the record from the Petitioner was

incompetent to proceed [sic].

Resp’t Ex. 11 at 1-5 (citing State v. Mercado, 787 S.W.2d 848, 851–52 (Mo. App. E.D.

1990)).

Respondent argues that both Grounds One and Three are procedurally defaulted, and 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)). See also Kirk v. State, 520 S.W.3d 443, 457 (Mo.

2017) (“[T]he rule is clearly established that in order to preserve a constitutional issue for appellate

review, it must be raised at the earliest time consistent with good pleading and orderly procedure

and must be kept alive during the course of the proceedings.”) (quoting State v. Liberty, 370

S.W.3d 537, 546 (Mo. 2012)). Because Petitioner failed to preserve these claims under Missouri

law, the Court cannot reach the merits of these claims unless Petitioner can show “either cause for

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

justice.” Moore-El, 446 F.3d at 896. The Court will address each claim.4

1. Ground One: Plea Counsel’s Failure to Pursue a Competency

Evaluation

Petitioner asserts that cause for the default on Ground One exists under Martinez v. Ryan,

566 U.S. 1 (2012) because his post-conviction counsel failed to include Ground One in the

amended petition for post-conviction relief. In Martinez v. Ryan, the Supreme Court held,

“Ineffective assistance of counsel at initial-review collateral proceedings may establish cause for

a petitioner’s procedural default of a claim of ineffective assistance at trial.” 566 U.S. 1, 9 (2012).

In other words, “[a]lthough ineffective assistance of post-conviction counsel is not an independent

ground for habeas relief, it may constitute cause excusing a petitioner's procedural default.” Curtis

v. Wallace, No. 4:13CV293 PLC, 2016 WL 4036897, at *13 (E.D. Mo. July 28, 2016) (citing

Martinez, 566 U.S. at 16-17). To overcome his procedural default under Martinez, Petitioner must

show (1) that post-conviction counsel was “ineffective under the standards of Strickland v.

Washington, 466 U.S. 668 (1984),” and (2) “that the underlying ineffective-assistance-of-trial-

counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim

has some merit.” Martinez, 566 U.S. at 13 (emphasis added). The second prong is evaluated by

determining whether Petitioner has made a substantial case of ineffective assistance of trial counsel

4 That Petitioner included Ground One’s claim in his pro se motion for post-conviction relief has

no bearing on the Court’s present analysis. Claims included in a pro se motion for post- conviction

relief, but not included in amended motion by appointed counsel or in an appeal from denial of

that motion, are procedurally defaulted. Interiano v. Dormire, 471 F.3d 854, 856-57 (8th Cir.

2006); Wills v. State, 321 S.W.3d 375, 386-87 (Mo. Ct. App. 2010) (under Missouri law, claims

included in a pro se motion for post-conviction relief but not in a subsequent amended motion

were “not properly before the motion court because they were a nullity”).

under the Strickland v. Washington standards. See Dansby v. Hobbs, 766 F.3d 809, 834-36 (8th

Cir. 2014).

The Sixth Amendment guarantees a criminal defendant the right to effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). To show ineffective assistance

of counsel, a petitioner must show both that his “counsel’s performance was deficient” and that

“the deficient performance prejudiced [his] defense.” Strickland, 466 U.S. at 687; see also Paulson

v. Newton Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014). To show deficient performance,

Petitioner must show “that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.

“Judicial scrutiny of counsel’s performance must be highly deferential,” and Petitioner bears a

heavy burden in overcoming “a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Id. at 689. To show prejudice, Petitioner must show

that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694.

The Court finds neither prong of the Martinez inquiry is satisfied here. As to the first

Martinez prong, Petitioner cannot establish that his post-conviction relief counsel was ineffective

under Strickland for failing to include the ineffective assistance of counsel claim asserted in

Ground One in the amended motion for post-conviction relief. The Eighth Circuit has explained:

When appellate counsel competently asserts some claims on a defendant’s behalf,

it is difficult to sustain a[n] ineffective assistance claim based on allegations that

counsel was deficient for failing to assert some other claims. Because one of

appellate counsel’s important duties is to focus on those arguments that are most

likely to succeed, counsel will not be held to be ineffective for failure to raise every

conceivable issue. Generally, only when ignored issues are clearly stronger than

those presented, will the presumption of effective assistance of counsel be

overcome.

Link v. Luebbers, 469 F.3d 1197, 1205 (8th Cir. 2006) (quotation marks and citations omitted).

The same logic applies to claims of ineffective assistance of post-conviction relief counsel. Here,

Petitioner’s post-conviction relief counsel actively pursued two claims of ineffective assistance of

counsel in the amended motion for post-conviction relief: one claim based on plea counsel

improperly assuring Petitioner that he would receive less time than he actually received when he

made an open guilty plea, and one claim based on plea counsel failing to advise Petitioner about a

double jeopardy defense. Resp’t Ex. 3, at 46–57. Petitioner’s post-conviction relief counsel also

pursued a due process claim that there was an insufficient factual basis for his guilty plea in that

the term “masturbation” was not adequately defined. Resp. Ex. 4 at 9-10. It is well established that

“counsel’s failure to advance a meritless argument cannot constitute ineffective assistance.”

Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir.1994) (per curiam).

Petitioner also cannot satisfy the second Martinez prong, because a review of Petitioner’s

claim demonstrates that it does not have “some merit” under Strickland. After a guilty plea,

collateral review of the plea “is ordinarily confined to whether the guilty plea was both counseled

and voluntary.” Pennington v. United States, 374 F. Supp. 2d 813, 816 (E.D. Mo.

2005) (citing United States v. Broce, 488 U.S. 563, 569 (1989)). A plea is voluntary if it

“‘represents a voluntary and intelligent choice among the alternative courses of action open to the

defendant.’” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S.

25, 31 (1970)). The Supreme Court has held that the two-prong test articulated in Strickland v.

Washington, applies to ineffective assistance claims in the guilty plea context. Id. at 58. “If a

defendant seeks post-conviction relief on the grounds of ineffective assistance of counsel for

failure to seek a mental examination, the defendant must show a factual basis for the claim that his

mental condition was questionable, and counsel had reason to question the defendant’s mental

state.” Robinson-Bey v. Wallace, No. 4:12CV61JCH, 2013 WL 6159466, at *8 (E.D. Mo. Nov.

25, 2013) (citing State v. Skelton, 887 S.W. 2d 699, 706 (Mo.App.S.D.1994)).

Here, Petitioner states that he has a history of mental health problems and that he took

various mental health medications before he was arrested and charged in state court in 2011. After

his arrest, Petitioner attempted suicide in the Warren County Jail. Petitioner claims that during his

time in that Jail—from arrest to sentencing—he was prescribed over sixteen anti-psychotic and

anti-depressant drugs. ECF No. 1-2 at 70. According to Petitioner, on the day of his plea and

sentencing—June 14, 2013—he was in a mental fog and all he can remember about that day is that

he was trying to stay conscious; he could not even remember “anything the prosecutor said or if

he was even there.” Id. at 70-71. He states that he was prescribed various and numerous

medications over the next many years and that it was not until May or June 2022, when meeting

with an institutional psychiatrist, that he realized that the medications had affected his ability to

remember. Id. at 70-71, 110. Petitioner asserts that the psychiatrist opined that “the reason why

[Petitioner] couldn’t recall most of [his] time in Warren County Jail and the events at [his] Plea

Hearing on June 14, 2013 was that [he] was in a state of psychosis during those periods, making it

to where [he] would not be fully aware of what was transpiring and unaware of what [he] was

doing.” Id. at 110. Petitioner asserts that his plea counsel knew, or had reason to know, about his

mental condition and failed to render the “very minimum ‘customary diligence’” in failing to

request a mental exam for Petitioner. ECF No. 1-1 at 37.

The Court has reviewed the record and determined that Petitioner’s own testimony does

not support his assertions. At the evidentiary hearing for his amended motion for post-conviction

relief, on direct examination by his post-conviction counsel, Petitioner was able to testify with

certainty about his discussions with his plea counsel regarding strategy. He testified, “Her

assurance was that for me to receive any kind of leniency, anything other than the max on all

counts that my only option for that was to do an open plea. The other alternative I was left with

would be going to trial where I would receive the max sentence on each count ran [sic]

consecutive.” Resp’t Ex. 2 at 6-7. He then confirmed, “I relied on her advisement,” and replied in

the affirmative when his counsel asked, “And but for that assurance would you [have] rejected

pleading guilty and proceeded on to trial?” Id. at 7. He also testified that his plea counsel never

spoke to him about a double jeopardy defense, and when asked whether he would “have rejected

pleading guilty and insisted on proceeding to trial” had he known about the defense, he replied,

“Yes.” Resp’t Ex. 2 at 8-9.

On cross examination, Petitioner confirmed under oath that: he remembered telling the trial

court that he had plenty of time to speak with his attorney; his plea counsel discussed the nature

of his charges with him; his plea counsel spoke with him about the probable cause statement

accompanying the charging document; his plea counsel explained to him what an open plea was

and that he “knew the full range of punishment was open to the judge”; he remembered Mike

Wright as the prosecutor that day and remembered Mr. Wright “read[ing] off the charging

document the full range of punishment for each of the counts to which [he] pled guilty” as well as

the elements of the offenses; he remembered the trial court giving him two opportunities to make

a statement; he remembered telling the trial court he wanted to spare the victim the experience of

a testifying, explaining at the evidentiary hearing that it “wasn’t the only factor, but…it was

definitely something I was taking into account”; he accepted the risk of an open plea on the advice

of counsel “that I would get the max punishment and consecutive sentences run together on each

count” after a trial; and he remembered, immediately after the sentence was imposed, that he told

the trial court he would like to change his plea. Resp’t Ex. 2 at 12-32. Petitioner further testified,

regarding his requested change of plea:

A. With respect to what I was speaking of is was [sic] the decision to go into --

Q. Go into?

A. To federal custody or state custody.

Q. Oh, okay.

A. While the sentence was ran [sic].

Q. So you were upset about the State having you or the Feds having you; right? On

June 14th that’s what you were upset about?

A. When -- After the sentence was handed down that’s what I was talkin’ about,

yes.

Q. Okay. So you weren’t talkin’ about bad advice from your attorney in reference

to the term of imprisonment. You were talking about[,] should I go with the State

or the federal?

A. I’m speaking specifically to the part where I said I’d like to change my plea.

There I misspoke. What I was referring to was with the federal and the State

sentences being run consecutive or concurrent and who would have custody of me.

That was what my comment was referring to.

Q. That was your complaint on June 14th, 2013; correct?

A. Yes.

Resp’t Ex. 2 at 32.

Contrary to Petitioner’s present assertions, Petitioner’s testimony at the evidentiary

hearing shows that Petitioner followed the events of his guilty plea as they occurred, he

retained memory of those events, and he had strategic and personal motivations for

pleading guilty that he was able to articulate years later under oath. At no point during the

evidentiary hearing did Petitioner testify about experiencing a mental fog or difficulty

remaining conscious during his plea and sentencing, such that he could not remember or

answer questions about that day on examination. Indeed, the primary complaint he voiced

pertained to the quality of plea counsel’s advice. See Resp’t Ex. 2, at 26 (explaining that

he did not complain about plea counsel during the colloquy with the plea court because

“[h]ow can I know that she’d give me bad advice before the outcome?”); see also id., at 31

(“She made that same statement that [after a trial] I would get the max punishment and

consecutive sentences run together on each count, which is exactly what I got following

her advice of doing the open plea.”). His testimony also evidences his prior conversations

with his counsel about risks, strategy, and goals pertaining to his criminal proceedings.

Petitioner’s plea counsel testified at the evidentiary hearing that she had several such

conversations with Petitioner. Resp’t Ex. 2 at 47-48.

Accordingly, the Court finds Petitioner has no substantial claim that trial counsel

was deficient in her performance for failing to seek a mental competency evaluation. As

the record does not evidence that an examination would reveal Petitioner as not competent

on the day of his plea hearing, the Court also finds Petitioner was not prejudiced by trial

counsel’s failure to seek a mental competency evaluation. “Mental illness and legal

incompetence are not identical, nor are all mentally ill people legally incompetent.”

Nachtigall v. Class, 48 F.3d 1076, 1081 (8th Cir. 1995).

For all the above reasons, Ground One is procedurally defaulted and without merit.

The Court further finds that, based on the Court’s review of the record and for the above

reasons, the state court’s denial of Ground One has a factual basis in the record was not

contrary to nor an unreasonable application of any clearly established federal law.5 Ground

One will be denied.

5 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

2. Ground Three: Plea Court’s Failure to Sua Sponte Order a

Competency Examination

Respondent also argues that Ground Three is procedurally defaulted, and that the state

court’s alternative merits decision does not remove the procedural bar. As noted above, relying on

state law, the state habeas court found Ground Three to be procedurally defaulted, but also

“without merit.” Resp’t Ex. 11, at 3-5. The Court agrees that the state court’s discretionary and

brief merits finding does not save Petitioner’s unpreserved claim; a federal habeas court “cannot

reach an otherwise unpreserved and procedurally defaulted claim merely because a reviewing state

court analyzed that claim for plain error.” Clark v. Bertsch, 780 F.3d 873, 874 (8th Cir. 2015).

Because Petitioner failed to preserve this claim under Missouri law, and because the state court’s

discretionary review of Ground Three does not cure the procedural default of that claim, the Court

finds that Ground Three has been procedurally defaulted. See, e.g., Coleman v. Redington, No.

4:18-CV-1750 RLW, 2022 WL 225656, at *5 (E.D. Mo. Jan. 26, 2022) (finding double jeopardy

claim was procedurally defaulted where the petitioner did not raise it at the trial court level but

raised it on direct appeal, where the state court of appeals reviewed it for plain error only); Clayton

v. Steele, No. 4:14CV1878 RLW, 2018 WL 1382401, at *8 (E.D. Mo. Mar. 16, 2018) (failure to

raise issue of improper striking of a juror constitutes procedural default even where the state court

conducted discretionary plain-error review of the unpreserved claim). Moreover, based on the

Court’s review of the record and for the reasons discussed with respect to Ground One, the Court

finds that the state court’s merits-related denial of Ground Three has a factual basis in the record

was not contrary to nor an unreasonable application of any clearly established federal law.

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, 535 U.S. at 698–99.

Finally, because Petitioner has made no claim of actual innocence, he cannot satisfy the

“fundamental miscarriage of justice” exception to showing cause and prejudice. Schlup v. Delo,

513 U.S. 298, 314-15, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Washington v. Delo, 51 F.3d 756,

761 (8th Cir.1995); see also McCall v. Benson, 114 F.3d 754, 758 (8th Cir.1997).6

The claims raised in Grounds One and Three are, therefore, both procedurally barred

from review and should be dismissed. See Maynard v. Lockhart, 981 F.2d 981 (8th Cir.1992).

B. Non-Cognizable Claims

1. Ground Two: Post-Conviction Counsel’s Failure to Pursue a

Competency Claim

In Ground Two, Petitioner asserts that his post-conviction counsel was ineffective. This

claim is not cognizable in a federal habeas proceeding. See 28 U.S.C. § 2254(i) (“The

ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction

proceedings shall not be a ground for relief in a proceeding arising under Section 2254.”). See also

Cox v. Burger, 398 F.3d 1025, 1030 (8th Cir. 2005) (“There is no federal constitutional right to

post-conviction counsel.”); Roberts v. Stange, No. 1:17-CV-214 JAR, 2023 WL 2734228, at *5

(E.D. Mo. Mar. 31, 2023) (“Petitioner’s independent claims of ineffective assistance of post-

conviction counsel are not cognizable in a federal habeas petition.”).

6 It is unclear to what extent Petitioner argues that his mental illness and/or the effects of his

prescription medication per se constitute cause—but to the extent he does, this argument fails. See

Holt v. Bowersox, 191 F.3d 970 (8th Cir.1999) (holding that, in order for mental illness to

constitute cause and prejudice to excuse procedural default, there must be a conclusive showing

that mental illness interfered with a petitioner's ability to appreciate his or her position and make

rational decisions regarding his or her case at the time during which he or she should have pursued

post-conviction relief). For the reasons discussed above, the Court finds that Petitioner has not

shown that his mental condition impeded his ability to participate in his post-conviction

proceedings. The Court therefore finds that Petitioner has not shown that his mental condition

constitutes cause for the procedural default.

Because Ground Two is not cognizable in this proceeding, it will be denied.

2. Ground Four: Missouri Habeas Courts’ Error

In Ground Four, Petitioner claims that the that the Missouri courts violated clearly

established federal law by denying his ineffective assistance of counsel claims in his petition for

habeas corpus relief. However, it is well-settled that “the Constitution does not guarantee the

existence of state post-conviction proceedings.” Bell-Bey v. Roper, 499 F.3d 752, 756 (8th Cir.

2007) (citing Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)). As such, “an infirmity in a state

post-conviction proceeding does not raise a constitutional issue cognizable in a federal habeas

[application].” Id. (quoting Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990)).

Petitioner’s claim in Ground 4 is not cognizable for purposes of habeas review because it is based

on an alleged error in post-conviction proceedings. . Accordingly, Ground Four will be denied.

C. Evidentiary Hearing

Finally, the Court addresses Petitioner’s request for an evidentiary hearing. ECF No. 5.

Petitioner specifically requests the opportunity to present evidence of his mental health records

from the Warren County Sheriff’s Office and present testimony from two psychiatrists. Id.

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); see also Tran, 849 F.2d at 1068 (8th Cir. 1998) (holding that

district court was not required to hold an evidentiary hearing where appellant’s claim that he did

not understand sufficient English to provide knowing and voluntary plea was belied by plain

reading of colloquy).

Here, as discussed above, the Court finds that Petitioner’s statements on the record—both

during the colloquy at his plea hearing and during the post-conviction evidentiary hearing—refuted

Petitioner’s claims regarding his competency on the day of his guilty plea, and therefore also refute

his claims pertaining to ineffective assistance of counsel and the plea court’s error. Thus, an

evidentiary hearing “would not assist in the resolution of [Petitioner’s] claim[s].” Johnston v.

Luebbers, 288 F.3d 1048, 1059 (8th Cir. 2002) (quotation marks omitted).

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 (ECF No. 1) is DENIED.

IT IS FURTHER ORDERED that Petitioner’s motion for an evidentiary hearing (ECF

No. 5) 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. § 2253.

ej 0

SHIRLEY PADMORE MENSAH

UNITED STATES MAGISTRATE JUDGE

Dated this 30th day of September, 2025.

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