Bailey v. Villmer

Decision Date16 March 2012
Docket NumberCase no. 4:08cv1837 TCM
PartiesMICHAEL DAVID BAILEY, Petitioner, v. TOM VILLMER,1Respondent.
CourtUnited States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
MEMORANDUM AND ORDER

Michael David Bailey (Petitioner), a Missouri prisoner, petitions the United States District Court for the Eastern District of Missouri for federal habeas corpus relief from an August 23, 2005 conviction following a guilty plea. See 28 U.S.C. § 2254. Respondent filed a response [Doc. 12] and Petitioner filed a reply [Doc. 16].

This matter is before the undersigned United States Magistrate Judge for review and final disposition of the petition.2 Finding that the pending federal habeas petition presentsthree grounds for relief based on the allegedly ineffective assistance of Petitioner's plea attorney, and having concluded those claims lack merit, this Court will deny the petition without further proceedings.

Background

Petitioner was charged with committing on February 26, 2004, the class A felony of robbery in the first degree, in violation of Mo. Rev. Stat. § 569.020, for forcibly stealing currency in the possession of a man ("Victim"), by threatening the use of what appeared to be a deadly weapon. (Compl., filed Feb. 28, 2004, Legal File, Resp't Ex. C, at 8-10; Indictment, filed Apr. 20, 2004, Legal File, Resp't Ex. C, at 11-12; Docket Sheet, Legal File, Resp't Ex. C, at 1.) Petitioner was also charged as a prior and persistent offender due to two prior convictions. (Indictment, filed Apr. 20, 2004, Legal File, Resp't Ex. C, at 11-12.)

On August 23, 2005, after questioning Petitioner and the prosecutor, the plea court accepted Petitioner's guilty plea, found Petitioner guilty, and sentenced Petitioner to fifteen years in prison in the custody of the Missouri Department of Corrections ("MDC"). (See Aug. 23, 2005 Sentence and J., Legal File, Resp't Ex. C, at 13-15; Plea Tr. at 15-16, Legal File, Resp't Ex. C at 30-31; Aug. 23, 2005, entry on docket sheet, Legal File, Resp't Ex. C, at 6.) The prosecutor reported the following facts as support for the first-degree robbery offense charged:

Your Honor, in this case [Victim], who is blind, was at his home in the 5100 block of Pennsylvania. He knew [Petitioner] because [Petitioner] associated and hung out with people who lived across the street, and they had met before. [Petitioner] asked [Victim] to borrow $30. [Victim] told [Petitioner] no, and at that point something was placed against [Victim]'s neck,and there were threats made that he would be shot if he didn't give [Petitioner] the money. At that point, [Victim] retrieved the money, gave it to [Petitioner], and [Petitioner] left the premises.
[Petitioner] later, upon talking with the police, made a statement on audiotape admitting that he had done these things.

(Plea Tr. at 15-16, Legal File, Resp't Ex. C at 23-24.) During the plea proceeding, Petitioner acknowledged that the two prior convictions listed in the indictment were accurate, that what the prosecutor stated as the facts supporting the first-degree robbery offense were substantially correct, that what he had done violated the law, and that the range of punishment for this class A felony was "10 years to 30 years or life incarceration." (Id. at 20-21, 24.) Petitioner pled guilty, without accepting the State's recommendation that a twenty-year sentence be imposed, upon acknowledging that no promise, other than the State's recommendation as to his sentence, had been made, that the state court had the full range of punishment available for sentencing, and that he would not be able to withdraw his guilty plea if he did not like his sentence. (Id. at 25.) Petitioner also acknowledged that he had had sufficient time to speak with his attorney before entering the plea; and that his attorney had explained the charge to Petitioner, had reviewed the evidence with Petitioner, had explained Petitioner's legal rights and what could happen if he pled guilty, had reviewed defenses and answered his questions, did what Petitioner had asked of counsel, and did not do anything Petitioner did not want the attorney to do. (Id. at 22, 25-27.) Additionally, Petitioner stated he had given his attorney the names of "character witnesses," that he was satisfied with his attorney's investigation, that he had no complaints or criticisms about his attorney, and thathis attorney had done a good job for him. (Id. at 26-27.) Furthermore, Petitioner acknowledged the various rights he gave up when he pled guilty and stated that no one, including his attorney, had threatened or intimidated him to get him to plead guilty or had forced him to plead guilty. (Id. at 27-29.)

Petitioner did not file an appeal after his plea, but timely filed on September 26, 2005, a pro se motion for post-conviction relief under Missouri Supreme Court Rule 24.035 (Pet'r Post-conviction Mot., Legal File, Resp't Ex. C, at 38-43). See Mo. S. Ct. Rule 24.035(b) (if no appeal is taken from a final judgment after a guilty plea, the post-conviction motion must be filed within 180 days after the person is delivered to the custody of the MDC). Through counsel, Petitioner subsequently filed an amended post-conviction motion, including a request for an evidentiary hearing. (Pet'r Am. Post-conviction Mot., Legal File, Resp't Ex. C, at 47- 66.)

Petitioner presented three ineffective assistance of counsel claims in his amended post-conviction motion. First, Petitioner alleged that his plea was not voluntary, knowing, and intelligent because his attorney failed to locate, interview, and endorse as witnesses Betty Rice, a friend of Petitioner, and Ruby Thomas, Petitioner's mother. (Id. at 50-54.) Petitioner next alleged that his plea was not voluntary, knowing, and intelligent because his attorney promised Petitioner that he would be placed in a long-term treatment program under Mo. Rev. Stat. § 217.362 if he pled guilty. (Id. at 54-58.) Finally, Petitioner alleged his plea was not voluntary, knowing, and intelligent because his attorney failed to prepare to impeach Victim with inconsistencies between statements Victim gave to the police and Victim's depositiontestimony, and the attorney failed to advise Petitioner of those inconsistencies. (Id. at 58-63.)

On June 19, 2006, the post-conviction court3 entered findings of fact and conclusions of law denying Petitioner's request for an evidentiary hearing and denying Petitioner's post- conviction motion ("Judgment"). (J., Legal File, Resp't Ex. C, at 71-80.)

On July 28, 2006, Petitioner filed a timely appeal, raising three points. (Notice of Appeal, Legal File, Resp't Ex. C at 83-84; Pet'r Br., Resp't Ex. A). See Mo. S. Ct. Rule 81.04(a), Rule 81.05(a)(1) (both Rules as in effect before Jan. 1, 2012) (the provisions of those rules give Petitioner forty days from entry of the post-conviction judgment in which to file an appeal). In his first point, Petitioner contended his rights to due process and the effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments were violated by the motion court's judgment denying the post-conviction motion, without an evidentiary hearing, because Petitioner's guilty plea was not voluntary, knowing, and intelligent in that plea counsel failed to locate, interview, and endorse Rice and Thomas as witnesses. (Pet'r Br., Resp't Ex. A, at 15-16, 21.) In his second point, Petitioner argued that his Fifth, Sixth, and Fourteenth Amendment rights to due process and the effective assistance of counsel were violated by the motion court's judgment denying the post-conviction motion, without an evidentiary hearing, because Petitioner's guilty plea was not voluntary, knowing, and intelligent in that Petitioner's counsel induced Petitioner to plead guilty by promising Petitioner that, if he pled guilty, he would be placed in the long-term treatment program underMo. Rev. Stat. § 217.362, a program for which Petitioner was not eligible. (Id. at 17, 32.) For his third point on appeal, Petitioner urged his rights to due process and the effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments were violated by the motion court's judgment denying the post-conviction motion, without an evidentiary hearing, because Petitioner's guilty plea was not voluntary, knowing, and intelligent in that plea counsel failed to prepare to impeach Victim with the inconsistencies between what Victim had told the police and what Victim said in his deposition. (Id. at 19, 37.) In relevant part, Petitioner and Respondent cited Strickland v. Washington, 466 U.S. 668 (1984), in support of their positions on appeal. (See, e.g., Pet'r Br., Resp't Ex. A, at 23, 41; Resp't Br, Resp't Ex. B, at 12, 20, 27.)

The Missouri Court of Appeals for the Eastern District affirmed the denial of Petitioner's post-conviction motion in a summary order, supplemented by a memorandum, sent only to the parties, setting forth the reasons for the decision. (Per Curiam Order and Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b) , dated March 20, 2007, Resp't Ex. D.) Citing to Strickland, supra, and finding that the record conclusively refuted Petitioner's allegations, the state appellate court denied Petitioner's points after discussing points one and three together, and then point two by itself. (Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b), at 3, 4-5.) Specifically, the Missouri Court of Appeals stated

We consider [Petitioner]'s first and third points together. In his first point, [Petitioner] alleges that his guilty plea was rendered involuntary, unknowing, and unintelligent because plea counsel failed to locate, interview,and endorse two witnesses. In his third point, [Petitioner] alleges that his guilty plea was rendered involuntary, unknowing, and unintelligent because plea counsel failed to prepare to impeach [V]ictim with inconsistencies between [V]ictim's statements to police and at deposition. He also claims that plea counsel
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