Bledsoe v. Hurley

• Decision Date: 16 June 2015
• Docket Number: Case No. 14-1128-CV-W-ODS-P
• Court: U.S. District Court — Western District of Missouri
• Parties: MICHAEL BLEDSOE, Petitioner, v. JAMES HURLEY, Respondent.

MICHAEL BLEDSOE, Petitioner, v. JAMES HURLEY, Respondent.

Case No. 14-1128-CV-W-ODS-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

June 16, 2015

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Petitioner, Michael Bledsoe, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on December 15, 2014. Petitioner is not challenging his 2007 convictions and sentences for forcible rape, kidnapping, second degree domestic assault (2 counts), and third degree assault which were entered in the Circuit Court of the City of St. Louis, Missouri. On initial review, it appeared that petitioner was instead challenging the calculation of his parole eligibility date by the Missouri Board of Probation and Parole, and indeed, he is challenging that action in a roundabout way. However, the way the grounds for relief are worded in the petition, it appears that petitioner also is challenging the denial of his state declaratory judgment action by the Circuit Court of Cole County, Missouri, and the subsequent judgment by the Missouri Court of Appeals affirming that decision.

Petitioner raises two grounds for relief: (1) that the state court erred in rejecting petitioner's claim that his parole eligibility should be calculated based on the sentencing court's comments at sentencing; and (2) that petitioner has a right to placement in the Missouri Sex Offender Program at the earliest and most beneficial opportunity in order to fulfill the intent of the sentencing court.

Respondent contends that the petition is untimely. Additionally, respondent contends thatpetitioner's grounds for relief are procedurally barred and/or without merit. Because this case presents an example in which "it is considerably easier and thus more judicially efficient to affirm on the merits than to untangle the complexities of the timeliness issue," the Court will address the merits of petitioner's grounds for relief. Jones v. Bowersox, 28 Fed. Appx. 610, 611 2002 WL 215523, **1 (8th Cir. Feb. 13, 2002).

FACTUAL BACKGROUND

On direct appeal, the Missouri Court of Appeals, Western District, summarized the facts and procedural history of the case as follow:

In September 2007, [petitioner] was convicted by a jury in the Circuit Court of the City of St. Louis of one count of forcible rape, one count of kidnapping, two counts of domestic assault in the second degree and one count of domestic assault in the third degree. The trial court sentenced [petitioner] to ten years on the forcible rape count, five years each on the kidnapping and both second degree domestic assault counts, and one year on the third degree assault count. The sentences on all but the first charge were ordered to run concurrent to each other for a total of five years, but were ordered to run consecutively to the rape conviction under Count I. Thus, the total sentence was for fifteen years. The rape and kidnapping offenses carry with them a statutory requirement that a defendant serve eighty-five percent of each sentence before being eligible for parole. [RSMo 2000] Section 558.019.3. [Petitioner]'s convictions and sentences were upheld on appeal in a percuriam order. State v. Bledsoe, 272 S.W.3d 473 (Mo. App. E.D. 2008). [Petitioner] also unsuccessfully challenged his sentence under Rule 29.15(k). State v. Bledsoe, 347 S.W.3d 511 (Mo. App. E.D. 2011).

Shortly following his incarceration, [petitioner] received a letter from the Board titled "Relating to Release Consideration." It stated that [petitioner] would be scheduled for a parole hearing in June 2019. Four years later, [petitioner] received another letter similarly titled with a minimum mandatory release date noted as December 12, 2019, and an updated parole hearing date of December 2017. Both letters contained the statement that "this decision is not subject to appeal." However, [petitioner] disputed the calculation and began pursuing what he deemed to be a correct calculation of his parole eligibility.

[Petitioner] contacted the Board in July 2010, asserting that his parole calculation was incorrect. The Board responded that [petitioner]'s contention was incorrect because both the forcible rape and kidnapping convictions carried amandatory eighty-five percent of time served before parole eligibility by statute and the Board's calculation that he was not eligible until December 2019, was accurate. Following significant correspondence with the Board over the issue, [petitioner] filed a Petition for Declaratory Judgment in Cole County against the Board and the Missouri Department of Corrections (collectively, the "State"). The State answered and then filed a motion for judgment on the pleadings. The court granted the motion. This appeal follows.

(Respondent's Exhibit E, pp. 2 - 4).

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.

GROUND 1

In Ground 1, petitioner claims that the Cole County Circuit Court, which heard petitioner's declaratory judgment action, violated petitioner's "right to a fair and impartial hearing and his due process" when it failed "to grant appellant's motion to objection to the state's proposed judgment,and for denying [his] request for a writ of habeas corpus ad testificandum" because "the respondents did not prove the[petitioner's] claim has no merit in arguing that his parole eligibility should be based on what occurred at his sentencing hearing by the Honorable Judge Joan Burger of the Trial Court." (Attachment to p. 5 of Petition).

Ground 1 essentially can be broken down into two parts - - (a) that petitioner was denied due process when the Cole County Circuit Court overruled petitioner's objection to the state's proposed judgment denying his declaratory judgment petition, because petitioner's parole eligibility should be based on the trial judge's intent when petitioner was sentenced in the Circuit Court of the City of St. Louis; and (b) that petitioner's due process rights were violated when the Cole County Circuit Court denied petitioner's request for a writ of habeas corpus ad testificandum so petitioner could attend and participate in the hearing on his declaratory judgment action.

The Missouri Court of Appeals disposed of these two sub-parts of petitioner's first ground for relief, as follows:

As to Bledsoe's point regarding the refusal to grant his writ of habeas corpus ad testificandum, we note that a prisoner has no constitutional right to appear personally before the trial court in a civil proceeding. Meadows v. Meadows, 330 S.W. 3d 798, 802 (Mo. App. S.D. 2011). There are a variety of alternative methods for a prisoner to secure his or her rights to access the courts. Id. "The granting of a writ of habeas corpus ad testificandum to appear in a civil proceeding lies within the discretion of the trial court, which should require strict proof of the materiality of the testimony and the necessity of the attendance of the prisoner as a witness." Id. at 803 (internal citations and quotation marks omitted). "[D]ue process is not implicated in the absence of a showing that alternative means are inadequate to secure meaningful access to the courts." Id. at 802 (internal citations and quotation marks omitted). Bledsoe makes no argument under this point that his rights were not adequately protected absent his personal appearance before the trial court. This portion of the multifarious point is denied.

. . .

The comment by the sentencing court, which gives rise to Bledsoe's argument, was that "[t]he legislature intended that sex crimes would be consecutive to give extra punishment - - consecutive to any other offense. And in your case, because the State only asked for fifteen years and that was my only intent, it ends up benefitting you." This comment was made after sentencing had been pronounced during a discussion of Bledsoe's rights pursuant to Rule 29.15. The sentencing court subsequently stated, "Because the only 85 percent - - where you have to serve 85 percent is the rape count." Shortly thereafter the court went on to state "and that is now 10 years rather than 15. So, in any case, that concludes the matter."

Bledsoe argues that, based on these statements by the sentencing court, the Department cannot enforce the statutory requirement that he serve eighty-five percent of the sentence for kidnapping before he is eligible for parole. However, the sentencing court has no authority whatsoever on matters of parole; rather, it is the Department "that performs the ministerial act of initially determining whether and when a defendant qualifies for early release from prison . . ." Talley v. Mo. Dep't of Corr., 210 S.W. 3d 212, 214 (Mo. App. W.D. 2006) (citing Boersig v. Mo. Dep't of Corr. 436 S.W. 3d 692, 699 (Mo. App. W.D. 2014 (citing Edger v. Mo. Bd. of Prob. & Parole, 307 S.W. 3d 718, 720 (Mo. App. W.D. 2010)). In light of the foregoing, it is clear that the sentencing court's off-hand comments after sentence was pronounced carry no legal authority with regard to parole eligibility.

Bledsoe cites State v. Cowan in support of his contention that the sentencing court's inaccurate comments should be a basis for remand to re-calculate his parole. 247 S.W.3d 617 (Mo. App. W.D. 2008). In Cowan, a

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