Petition for Writ of Certiorari — Barry Steven Gahagan, Petitioner v. Bill Stange, Warden

Supreme Court briefApr 5, 2024

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 23-3400

Barry Gahagan

Appellant

Bill Stange, Warden, SECC

Appellee

Appeal from U.S. District Court for the Western District of Missouri - Joplin

(3:23-cv-05044-MDH)

ORDER

The petition for rehearing by the panel is denied. The motion for appointment of counsel

is also denied.

February 08, 2024

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 23-3400

Barry Gahagan

Petitioner - Appellant

Bill Stange, Warden, SECC

Respondent - Appellee

Appeal from U.S. District Court for the Western District of Missouri - Joplin

(3:23-cv-05044-MDH)

JUDGMENT

Before ERICKSON, GRASZ, and KOBES, Circuit Judges.

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

The motions to proceed in forma pauperis are denied as moot.

December 26, 2023

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

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UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHWESTERN DIVISION

BARRY GAHAGAN,

Petitioner,

vs.

BILL STANGE,

Respondent.

)

Case No. 23-05044-CV-SW-MDH-P

ORDER

Petitioner, a convicted state prisoner currently confined at the Southeast Correctional

Center in Charleston, Missouri, has filed a pro se petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254. Petitioner challenges his conviction and sentence for first-degree assault, which

was entered in the Circuit Court of Lawrence County, Missouri. Doc. 1 at 1. Respondent contends

Petitioner’s petition should be dismissed as procedurally defaulted and without merit. Doc. 5.

Petitioner has filed a reply thereto. Doc. 12. For the reasons set forth below, the petition for writ

of habeas corpus is DENIED; a certificate of appealability is DENIED; and this case is

DISMISSED.

Background

Petitioner entered an Alford plea and was found guilty on January 26, 2017, to the charge

of first-degree assault. Doc. 5-5 at 131-149. Petitioner was sentenced to 15 years’ imprisonment,

with a suspended execution of sentence in the Circuit Court of Lawrence County, Missouri. Id. at

131,142, 146-150. Petitioner was placed on supervised probation. Id. at 157. On July 26, 2018,

Petitioner’s probation was revoked, and his sentence was ordered executed. Id. Petitioner did not

file a direct appeal.

Pursuant to Mo. Sup. Ct. R. 24.035, Petitioner filed an amended motion to vacate, set aside

or correct judgment and sentence, alleging (1) counsel failed to investigate Petitioner’s mental

health and advise Petitioner based on such investigation; (2) counsel failed to adequately advise

Petitioner what an Alford plea entails; (3) the Court did not specifically inquire Petitioner or his

counsel as to Petitioner s mental health; and (4) the Court misadvised Petitioner of the law

concerning the Court’s options if Petitioner entered an Alford plea. Doc. 5-5 at 132-136; see also

Case 3:23-cv-05044-MDH Document 13 Filed 09/25/23 Page 1 of 9

id. at 67-77. On October 18, 2022, the Circuit Court of Lawrence County, Missouri denied

Petitioner’s Rule 24.035 motion. Id. at 130-137. While Petitioner appealed the Circuit Court’s

Order denying the motion for post-conviction relief, he later filed a voluntary dismissal, which the

Missouri Court of Appeals, Southern District, granted. See Doc. 5-7.

Before the state court findings may be set aside, a federal court must conclude that the state

court’s findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422,

432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem,

728 F.2d 1533,1540 (8th Cir. en banc), cert, denied, 469 U.S. 842 (1984). It is Petitioner’s burden

to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C.

§ 2254(e)(1).1 Because the state court’s findings of fact have fair support in the record and because

Petitioner has failed to establish by clear and convincing evidence that the state court findings are

erroneous, the Court defers to and adopts those factual conclusions.

Discussion

Petitioner raises three grounds for relief: (1) defense counsel was ineffective in advising

Petitioner to make an Alford plea to first-degree assault when the crime was a misdemeanor and

post-conviction counsel erred in refusing to transfer this claim from his pro se motion to the

amended motion for post-conviction relief; (2) Petitioner’s probation revocation was improper and

post-conviction counsel erred in failing to transfer this claim from his pro se motion to the amended

motion for post-conviction relief; and (3) post-conviction counsel was ineffective for refusing

place Grounds 1 and 2 in the amended post-conviction relief motion. Doc.l at 5-8.

Respondent argues Petitioner’s Grounds One and Two are procedurally barred,

unexhausted, and otherwise lack merit and Ground Three is not cognizable. Doc. 5. In reply,

Petitioner reasserts his petition’s argument and maintains he is entitled to relief. Doc. 12.

For the reasons set forth below, the Court finds Petitioner is not entitled to habeas corpus

relief.

In a proceeding instituted by an application for writ of habeas corpus by a person in custody pursuant to a

judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.

The applicant shall have the burden of rebutting the presumption of correctness by “clear and convincing evidence ”

28 U.S.C. § 2254(e)(1).

Case 3:23-cv-05044-MDH Document 13 Filed 09/25/23 Page 2 of 9

Applicable Standards

Pursuant to the Antiterrorism and Effective Death Penalty Act, (“AEDPA”), a writ of

habeas corpus shall not be issued on a claim litigated on the merits in state court unless the state

court’s decision

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;

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). The “contrary to” and “unreasonable application” provisions in the first

subsection have independent meaning. The “contrary to” provision applies “if the state court

arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or

reached a decision contrary to Supreme Court precedent when confronting facts that were

materially indistinguishable.” Jackson v. Norris, 651 F.3d 923, 925 (8th Cir. 2011). “A federal

court may grant relief under the ‘unreasonable’ application clause if the state court correctly

identified the governing legal principle, but unreasonably applied it to the facts of the particular

case.” Id.

Insofar as Movant alleges ineffective assistance of counsel, such claims are evaluated under

the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires the

movant to “show that his lawyer’s performance fell below the minimum standards of professional

competence (deficient performance) and that there is a reasonable probability that the result of the

proceedings would have been different if his lawyer had performed competently (prejudice).”

Hamberg v. United States, 675 F.3d 1170, 1172 (8th Cir. 2012) (quotation omitted).

With respect to the performance prong, there is a “strong presumption that counsel’s

conduct falls within the wide range of professional assistance,” Charboneau v. United States, 702

F.3d 1132, 1136 (8th Cir. 2013) (quotation omitted), so the Court’s scrutiny of counsel’s

performance must be deferential. E.g., Hamberg, 675 F.3d at 1172. The Court’s scrutiny is even

more deferential with respect to the performance of appellate counsel because appellate counsel is

expected to “winnow[ ] out weaker arguments on appeal.” Charboneau, 702 F.3d at 1136-37. The

prejudice prong’s requirement of a “reasonable probability” of a different outcome means there

must be a “substantial, not just conceivable, likelihood of a different result. Cullen v. Pinholster,

Case 3:23-cv-05044-MDH Document 13 Filed 09/25/23 Page 3 of 9

563 U.S. 170, 189 (2011). “A court need not address both prongs of the Strickland test if the

petitioner cannot meet one of them.” Garcia v. United States, 679 F.3d 1013,1014 (8th Cir. 2012).

Finally, a claim that is not presented to the state courts is procedurally defaulted and cannot

be considered. E.g., Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). However, in narrow

circumstances, an attorney’s ineffectiveness in the post-conviction proceeding can excuse the

default and permit consideration of a defaulted claim of ineffective assistance of counsel at trial.

These circumstances occur when “(1) the claim of ineffective assistance of trial counsel was a

substantial claim; (2) the cause consisted of there being . . . ineffective counsel during the state

collateral review proceeding; (3) the state collateral review proceeding was the initial review

proceeding in respect to the ineffective-assistance-of-trial-counsel claim; and (4) state law requires

that an ineffective assistance of trial counsel claim be raised in an initial-review collateral

proceeding.” Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez v. Ryan, 566 U.S. 1,

13-17 (2012) (cleaned up). With respect to the first requirement, “[a] ‘substantial’ ineffectiveassistance claim is one that has some merit.” Dansby v. Hobbs, 766 F.3d 809, 834 (8th Cir. 2014),

cert, denied, 577 U.S. 828 (2015) (citing Martinez, 566 U.S. at 14). Thus, the issue of whether the

procedural default can be excused is closely related to the merits of the underlying claim of

ineffective assistance. Moreover, “judicial economy sometimes dictates reaching the merits if the

merits are easily resolvable against a petitioner while the procedural bar issues are complicated.”

Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) (en banc); see also Iromuanya v. Frakes,

866 F.3d 872, 877 (8th Cir. 2017).

Ground One

In Ground One, Petitioner alleges counsel was ineffective for advising him to make an

Alford plea to first-degree assault as Petitioner believes that the crime should have been a

misdemeanor assault because he did not use a weapon and the victim suffered only a minor injury.

Doc. 1 at 5. Petitioner further alleges that post-conviction counsel was ineffective in refusing to

transfer the claim from Petitioner’s pro se motion for post-conviction relief to the amended motion

filed by counsel, thereby waiving the claim. Id.

Respondent argues Ground One is procedurally defaulted and otherwise, lacks merit. Doc.

5 at 14-16.

Case 3:23-cv-05044-MDH Document 13 Filed 09/25/23 Page 4 of 9

The record shows that Petitioner raised this claim in his pro se post-conviction motion.

Doc. 5-5 at 51. However, Petitioner’s counsel did not raise said claim in the amended motion. Id.

at 65-77. Therefore, the claim is procedurally defaulted.

Insofar as Petitioner alleges that he can overcome the procedural defaulting by

demonstrating cause and prejudice under Martinez due to post-conviction counsel's failure to

advance the claim in Petitioner's amended motion for post-conviction relief, as previously

explained,

[inadequate assistance of counsel at initial-review collateral proceedings may

establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.”

Martinez, 566 U.S. at 9. To overcome Petitioner's procedural default, Petitioner must establish

that counsel on collateral review was ineffective under Strickland and that the ineffective

assistance of trial counsel claim is meritorious.

The Court concludes, however, that Petitioner is unable to demonstrate cause sufficient to

overcome the default. As stated above, to establish ineffective assistance of counsel, Petitioner

must demonstrate that counsel's performance was “deficient” and that such deficient performance

prejudiced his defense. Strickland, 466 U.S. at 687. ‘“Judicial scrutiny of counsel's performance

is highly deferential, indulging a strong presumption that counsel's conduct falls within the wide

range of reasonable professional judgment.’” McAllister v. Redington, No. 4:16CV558 RLW,

2019 WL 4261455, at *8 (E.D. Mo. Sept. 6, 2019) (quoting Bucklew v. Luebbers, 436 F.3d 1010,

1015 (8th Cir. 2006) (citing Strickland, 466 U.S. at 689)).

Petitioner is unable to establish that post-conviction counsel's performance was deficient.

In the amended Rule 24.035 motion, counsel raised two claims of ineffective assistance of trial

counsel. Doc. 5-5 at 66-72. “If, as with appellate counsel, ‘one of [post-conviction] counsel's

important duties is to focus on those arguments that are more likely to succeed, [then] counsel will

not be held to be ineffective for failure to raise every conceivable issue.’” McAllister, 2019 WL

4261455, at *9 (citing Sutton v. Wallace, No. 4:13-CV-1285,2016 WL 4720452, at * 10 (E.D. Mo.

Sept. 9,2016) (quotingLinkv. Luebbers, 469 F.3d 1197,1205 (8th Cir. 2006)) (internal quotations

omitted). “Only where stronger issues are ignored is a petitioner able to overcome the presumption

of effective assistance of counsel.” Id. (citing Sutton, 2016 WL 4720452, at *10) (citations and

quotations omitted in original).

Post-conviction counsel's decision to focus on the two ineffective assistance of counsel

claims was reasonable trial strategy. Petitioner makes no attempt to argue that the defaulted claim

Case 3:23-cv-05044-MDH Document 13 Filed 09/25/23 Page 5 of 9

is stronger than those advanced by post-conviction counsel. See id. (citing Muhammad v. Cassady,

No. 4:13-CV-1816-SPM, 2016 WL 4493682, at *9 (E.D. Mo. Aug. 26, 2016) (“It appears that

post-conviction counsel determined that the claims presented were the most meritorious claims

and the ones that could be supported with evidence, and Petitioner offers no argument or evidence

to overcome the presumption that counsel's decision to focus on these five claims was a reasonable

strategy.”)).

Further, the Court finds that the underlying defaulted claim of ineffective assistance of

counsel is not substantial and lacks merit. Petitioner made an Alford plea to Count I of the

Information. Doc. 5-5 at 150. Count I charged Petitioner

in violation of Section 565.050, RSMo, committing] the class B felony of assault

in the first degree, punishable upon conviction under Section 558.011, RSMo, in

that on or about October 22, 2015, in the County of Lawrence, State of Missouri,

[Petitioner] stated he was going to kill her and then grabbed her and punched her in

the face, and such conduct was a substantial step toward the commission of the

crime of attempting to kill Morgana Hazell and was done for the purpose of

committing such assault. Charge Code 1302099.0.

Id. at 138. At the hearing in which Petitioner entered an Alford plea, counsel for the State of

Missouri asserted that:

If this case were to go to trial, we would anticipate calling all endorsed

witnesses and that they would collectively testify that on October 22, 2015, at the

Clark Center at 1701 North Central in Monett, Missouri, in Lawrence County,

[Petitioner], had failed to attend an appointment with Dr. Morgana Hazell, at which

time she called him to inform him of his failure to make that appointment and,

subsequently, he told her that he was going to kill her, and then he showed up later

that day at the Clark Center and tried to get in, in a couple of different locations

tried to get into the building, and ultimately crawled through the Reception window

where Ms. Hazell was located, grabbed her, pulled her hair.

She was able to escape from that hold, at which time he hit her in the right

side of her face, and then chased her into another hallway. Ultimately, during that

time, he continued to tell her that he was going to kill her during the encounter, and

he was ultimately subdued by other individuals there at the Clark Center until law

enforcement arrived.

That's the evidence we would anticipate at trial, and we'd anticipate a guilty

verdict.

Doc. 5-2 at 10-11. Petitioner thereafter confirmed that he heard the statement of facts from the

prosecutor and that he would assert no corrections to the statement. Id. at 11.

Case 3:23-cv-05044-MDH Document 13 Filed 09/25/23 Page 6 of 9

As explained by Respondent, serious physical injury was not an element of the offense charged.

See Doc. 5-5 at 138. Defense counsel also testified that Count I did not include the element of

serious physical injury, but rather, the charge was an “attempt to cause” and that he explained this

to Petitioner. Doc. 5-3 at 30-31. Counsel further testified that he went over the charges with

Petitioner, along with the elements. Id. at 31. After hearing the testimony, the state court found

counsel’s testimony to be credible and concluded that there was no probable cause to believe there

was ineffective assistance of counsel. Id. at 39. As explained above, credibility determinations

are left for the state court to decide. Graham, 728 F.2d at 1540.

Because Petitioner could not succeed on a meritless claim, post-conviction counsel was not

ineffective for failing to bring this unsubstantial claim on post-conviction review. In short,

Petitioner has failed to demonstrate that that the procedurally defaulted ineffective assistance of

counsel claim was substantial or that post-conviction counsel was deficient for failing to raise said

claim. Ground One is DENIED.

Ground Two

In Ground Two, Petitioner alleges that his probation revocation was improper because he

was revoked for another assault for which he was only held for 24 hours and not ultimately

prosecuted, and for not paying court costs, which he alleges was imprisonment for debt. Doc. 1 at

6. Petitioner further alleges that post-conviction counsel was ineffective in refusing to transfer this

claim from his pro se motion for post-conviction relief to the amended motion filed by counsel,

thereby waiving the claim. Id.

Respondent argues Ground Two is not exhausted and otherwise, lacks merit. Doc. 5 at 1617.

To exhaust a challenge to probation revocation proceedings in Missouri, Petitioner must

first file a state habeas corpus petition under Missouri Supreme Court Rule 91 in the circuit or

associate circuit court of the county where he is in custody. Mo. S. Ct. R. 91.01(a). See Romano

v. Wyrick, 681 F.2d 555, 556-57 (8th Cir. 1982); see also Brown v. Missouri Bd. ofProb. & Parole,

727 F. Supp. 524, 531 (W.D. Mo. 1989). Indeed, “to be considered exhausted for purposes of

federal habeas relief, the claims must be presented in a Rule 91 state habeas petition to either the

Missouri Court of Appeals or the Missouri Supreme Court.” Robinson v. Redington, No. 2:23CV-0003 NCC, 2023 WL 2941616, at *2 (E.D. Mo. Mar. 21, 2023) (citing Romano, 681 F.2d at

Case 3:23-cv-05044-MDH Document 13 Filed 09/25/23 Page 7 of 9

556-57). “There is no time limit for filing a Rule 91 state habeas petition.” Id. (citing Davis v.

Purkett, 296 F. Supp. 2d 1027, 1030 (E.D. Mo. 2003)).

Petitioner has not shown that he exhausted his state remedies prior to filing this claim,

which amounts to procedural default. Id. (citing Williamson v. Minor, 2010 WL 681376, at *4

(E.D. Mo. Feb. 22, 2010) (petitioner's failure to file a state habeas petition to contest his probation

revocation is procedural default and subject to dismissal)).

Further, insofar as Petitioner alleges ineffective assistance of post-conviction counsel for

counsel’s failure to assert this claim in the amended Rule 24.035 motion, this claim is without

merit. Because Petitioner never challenged the court’s jurisdiction to revoke his probation, post

conviction counsel was not ineffective in failing to assert this claim in the amended motion. Fisher

v. Gammon, No. 4:03CV01569 AGF, 2007 WL 80963, at *2 (E.D. Mo. Jan. 8,2007) (citing Stelljes

v. State, 12 S.W.3d 196,199 (Mo.Ct.App.2002) (holding that Rule 24.035 permits a claim that the

trial court lacked jurisdiction to revoke probation because the probationary term ended; Williams

v. State, 927 S.W.2d 903, 906 (Mo.Ct.App.1996)).

Because Petitioner’s Ground Two is

unexhausted, this claim will be DISMISSED without prejudice to Petitioner pursuing his state

court remedies.

Ground Three

In Ground Three, Petitioner argues that post-conviction counsel was ineffective in failing

to transfer the claims discussed above to the amended motion for post-conviction relief. Doc. 1 at

8. Insofar as Petitioner is realleging the arguments asserted in Grounds One and Two, the Court

denies his claim for the reasons set forth above.

Insofar as Petitioner attempts to assert independent claims that his post-conviction counsel

was ineffective for abandoning claims during the post-conviction proceeding, such claims are not

cognizable in a federal habeas proceeding. Jennings v. Groose, No. 4:94CV1349 CDP, 2015 WL

1475663, at *3 (E.D. Mo. Mar. 31, 2015) (citing Reed v. Norman, 2014 WL 1413536, at *2 n. 2

(E.D. Mo. April 11, 2014) (“The Court [in Martinez ] did not hold, as Petitioner appears to argue,

that a claim for ineffectiveness of postconviction-relief counsel is an independently cognizable

claim.”) (internal quotation marks and citation omitted); Yarberry v. Sachse, 2013 WL 3231539,

at *5 (W.D. Mo. Jun.26, 2013) (“If petitioner intends to assert an independent claim of ineffective

assistance of post-conviction counsel, petitioner's claim is not cognizable in federal habeas.”); 28

U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State

Case 3:23-cv-05044-MDH Document 13 Filed 09/25/23 Page 8 of 9

collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under

section 2254.”). Petitioner’s Ground Three is DENIED.

III.

A Certificate of Appealability is Denied

Under 28 U.S.C. § 2253(c), the Court may issue a certificate of appealability only “where

a petitioner has made a substantial showing of the denial of a constitutional right.” To satisfy this

standard, a petitioner must show that a “reasonable jurist” would find the district court ruling on

the constitutional claim(s) “debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 276 (2004).

Because Petitioner has not met this standard, a certificate of appealability will be denied.

IV.

Conclusion

For the foregoing reasons, it is ORDERED that:

(1) Petitioner’s Ground Two is DISMISSED WITHOUT PREJUDICE for failure to

exhaust available state law remedies;

(2) Petitioner’s remaining Grounds for relief and his petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 are DENIED;

(3) a certificate appealability is DENIED; and

(4) this case is DISMISSED.

/s/ M. Douglas Harpool______

M. DOUGLAS HARPOOL, JUDGE

UNITED STATES DISTRICT COURT

Dated: September 25. 2023.

Case 3:23-cv-05044-MDH Document 13 Filed 09/25/23 Page 9 of 9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

SOUTHWESTERN DIVISION

JUDGMENT IN A CIVIL CASE

BARRY GAHAGAN,

Petitioner,

Case No. 23-05044-CV-MDH

BILL STANGE,

Respondent.

JURY VERDICT. This action came before the Court for a trial by jury. The issues have

been tried and the jury has rendered its verdict.

DECISION OF THE COURT. This action came for consideration before the

Court. The issues have been considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED: Petitioner's Ground Two is DISMISSED

WITHOUT PREJUDICE for failure to exhaust available state law remedies; (2) Petitioner's

remaining Grounds for relief and his petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 are DENIED; (3) a certificate appealability is DENIED; and (4) this case is

DISMISSED.

Entered on: September 25. 2023.

PAIGE WYMORE-WYNN

CLERK OF COURT

/s/ K. Willis

(By) Deputy Clerk

Case 3:23-cv-05044-MDH Document 14 Filed 09/25/23 Page 1 of 1

tfc.

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHWESTERN DIVISION

BARRY GAHAGAN,

Petitioner,

vs.

BILL STANGE,

Respondent.

)

Case No. 23-05044-CV-SW-MDH-P

ORDER

Petitioner, a convicted state prisoner currently confined at the Southeast Correctional

Center in Charleston, Missouri, has filed a pro se petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254. Petitioner challenges his conviction and sentence for first-degree assault, which

was entered in the Circuit Court of Lawrence County, Missouri. Doc. 1 atl. Respondent contends

Petitioner’s petition should be dismissed as procedurally defaulted and without merit. Doc. 5.

Petitioner has filed a reply thereto. Doc. 12. For the reasons set forth below, the petition for writ

of habeas corpus is DENIED; a certificate of appealability is DENIED; and this case is

DISMISSED.

Background

Petitioner entered an Alford plea and was found guilty on January 26, 2017, to the charge

of first-degree assault. Doc. 5-5 at 131-149. Petitioner was sentenced to 15 years’ imprisonment,

with a suspended execution of sentence in the Circuit Court of Lawrence County, Missouri. Id. at

131, 142, 146-150. Petitioner was placed on supervised probation. Id. at 157. On July 26, 2018,

Petitioner’s probation was revoked, and his sentence was ordered executed. Id. Petitioner did not

file a direct appeal.

Pursuant to Mo. Sup. Ct. R. 24.035, Petitioner filed an amended motion to vacate, set aside

or correct judgment and sentence, alleging (1) counsel failed to investigate Petitioner’s mental

health and advise Petitioner based on such investigation; (2) counsel failed to adequately advise

Petitioner what an Alford plea entails; (3) the Court did not specifically inquire Petitioner or his

counsel as to Petitioner’s mental health; and (4) the Court misadvised Petitioner of the law

concerning the Court’s options if Petitioner entered an Alford plea. Doc. 5-5 at 132-136; see also

Case 3:23-cv-05044-MDH Document 13 Filed 09/25/23 Page 1 of 9

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collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under

section 2254.”). Petitioner’s Ground Three is DENIED.

III.

A Certificate of Appealability is Denied

Under 28 U.S.C. § 2253(c), the Court may issue a certificate of appealability only “where

a petitioner has made a substantial showing of the denial of a constitutional right.” To satisfy this

standard, a petitioner must show that a “reasonable jurist” would find the district court ruling on

the constitutional claim(s) “debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 276 (2004).

Because Petitioner has not met this standard, a certificate of appealability will be denied.

IV.

Conclusion

For the foregoing reasons, it is ORDERED that:

(1) Petitioner’s Ground Two is DISMISSED WITHOUT PREJUDICE for failure to

exhaust available state law remedies;

(2) Petitioner’s remaining Grounds for relief and his petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 are DENIED;

(3) a certificate appealability is DENIED; and

(4) this case is DISMISSED.

/s/ M. Douglas Harpool______

M. DOUGLAS HARPOOL, JUDGE

UNITED STATES DISTRICT COURT

Dated: September 25, 2023.

Case 3:23-cv-05044-MDH Document 13 Filed 09/25/23 Page 9 of 9

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FILED

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CRAIG A. STREET

MISSOURI COURT OF APPEALS

SOUTHERN DISTRICT

ORDER

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examined said application and having been advised in the premises, the Court does deny the petition.

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ZIP CODS

rtOG

k\leJ%

HEIGHT

WEIGHT

/A S7/

V?J02;

□ YES

CITY

>->

STATE

IATE OF BIRTH

h'Virm

STATE

RAGE

SEX

HEIGHT

□ YES

EMPLOY

ADDRESS (STREET. CITY. STATE, ZIP)

ADDRESS (STREET, CITY, STATE, ZIP)

WEIGHT

STATE

CDL

rwd

□ NO

M \ a/

vf.

EMPLOYER

Zip C£|3F

rti® I bS7c)F

i/v\.OYi.erH~:

176

CDL

“

C«z

A t/\i

CITY

□ NO

//id

Dwiikhazmat

I 5 -QIBKft

DID UNLAWFULLY

□ OPERATS/DRlVE

G park

□ CJvl.V.

□ WITH HAZ MAT

MAKE

MODEL

STYLE

COLOR

YEAR

DID UNLAWFULLY

□ OPERATE/DRIVE

□ PARK

Q C.M.V.

V YEAR

MAKE

MODEL

STYLE

COLOR

STATE

YEAR

REGISTERED WEIGHT

NUMBER

YEAR

STATE

REGISTERED WEIGHT

DID THEN AND THERE COMM ITTHE FOLLOWING OFFENSE. THE FACTS SUPPORTING THIS

BELIEF ARE AS FOLLOWS:

-H rl- pi Mttec#-.. i-ti-ft—

.......fcs<r?\uli

MPH

__ MS&lLtZj£:

MPH

MPK

DETECTION METHOD

‘□STATIONARY RADAR □ WATCH (AIR)

□ MOWING RADAR

□n

O PACE

D WATCH (GROUND) □ OTHER

79 ,D

SEAT BE LT VIOLATION: STATUTE/OROJNANCE - CHARGE CODE

SIEAT BELTVlOLAnON:S3ATU7BOROINANCE - CffiOtGE CODE

_ RSMO

□ ORD.

OCN

□ IN FATAL CRASH

□ IN CRASH

□ OWMBAC

^AOSE/

POSTED SPEED UMFT

DRIVING

53? 2.i%I?/) - q&dnrf.d

IRFjCER

....—

Q Subject taken into custody. (Complete "Far Issuance ftf.c Warrant" section on reverse glrfo.)

POSTED SPEED LIMIT j DETECTION METHOD

□ STATIONARY RADAR D WATCH (AIR)

D FACE

MPH

□ MOVING RADAR

□ WATCH (GROUND) □ OTHER

IN VIOLATION OF: STATUT&ORDINANCE -CHARGE CODE

NUMBER

<? y,g

O Subject taken into custody. {Complete “For issuance at e Warrant" section on reverse aide.)

DRIVING

DID THEN AND THERE COMMIT THE FOLLOWING OFFENSE. THE FACTS SUPPORTING THIS

BELIEF ARE AS FOLLOWS:

□ RSMo

□ ORD.

OCN

□ IN RATAL CRASH

ONINFORMATION, UADEfiSJGNED PROSECUTOR CHARGES THE DEFENDANT AND

INFORMS THE COURT THAT ABOVE FACTS ARE TRUE AND PUNISHABLE BY:

CRASH

□ DW1/BAC

rwy

TRP/ZONE DATE

CjMaa>0______________ D L(

□

it/

OFFIC

/Crt*£p

TRPiZONE

ON INFORMATION, UNDERSIGNED PROSECUTOR CHARGES THE DEFENDANTAND

INFORMS THE COURT THAT ABOVE FACTS ARE TRUE AND PUNISHABLE BY:

□ RSMo

IflW□ RSMo

□ ORD.

PROSECUTORS SIGNATURE

DATE

I PROMISE TO DISPOSE OF THE CHARGES OF WHICH I AM ACCUSED THROUGH COURT

APPEARANCE OR PREPAYMENT OF FINE AND COURT COSTS.

SIGNATURE X

DATE

PROSECUTOR'S SIGNATURE

I PROMISE TO DISPOSE OF THE CHARGES OF WHICH 1 AM ACCUSED THROUGH COURT

APPEARANCE 08 PREPAYMENT OF FINE AND COURT COSTS.

OR.- LIC.

PCSTEO

DYES

,BWer

SIGNATURE X

MO 100-0051 <2-15)

MO 100-0051 (2-15)

ABSTRACT OF COURT RECORD

£Egsv£d—ngv-w-m

DR. UC.

POSTED

QfYES

JSj NO

UMWW \ \ \ \ \\\ \U \N

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.