Dominicus v. Wallace

• Decision Date: 17 December 2015
• Docket Number: Case no. 4:13cv0359 CAS/TCM
• Court: U.S. District Court — Eastern District of Missouri
• Parties: CONRAD E. DOMINICUS, Petitioner, v. IAN WALLACE, Respondent.

CONRAD E. DOMINICUS, Petitioner, v. IAN WALLACE, Respondent.

Case no. 4:13cv0359 CAS/TCM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

December 17, 2015

REPORT AND RECOMMENDATION

Conrad E. Dominicus, who is a Missouri prisoner, petitions the United States District Court for the Eastern District of Missouri for federal habeas corpus relief from a conviction following a guilty plea. See 28 U.S.C. § 2254. This matter is before the undersigned United States Magistrate Judge for a review and recommended disposition of Petitioner's federal habeas petition. See 28 U.S.C. § 636(b). The undersigned recommends that the petition be denied because the first, third, and fourth grounds for relief are procedurally barred and may not be considered on their merits; and the second ground is without merit.

Background

Petitioner was charged with first-degree assault in violation of Mo. Rev. Stat. § 565.050¹and armed criminal action in violation of Mo. Rev. Stat. § 571.015² for shooting Brad Rhodes ("Victim") on January 17, 2007. (Guilty Plea Tr., Resp't Ex. F, at 5 [Doc. 11].) On December 8, 2008, Petitioner pleaded guilty to both counts. (Guilty Plea Tr., Resp't Ex. F.) During the plea hearing, the prosecutor advised that

the State would show beyond a reasonable doubt as to Count 1 that . . . , on or about January 17^th, 2007 at 6:45 a.m., [at a specified address] in the County of St. Louis, State of Missouri, [Petitioner] knowingly caused serious physical injury to [Victim] by shooting him.

As to Count 2, the State would show beyond a reasonable doubt that . . . , on or about January 17^th, 2007 at 6:45 a.m., [at the same specified address] in the County of St. Louis, State of Missouri, [Petitioner] committed the felony of assault in the first degree charged in Count 1, that during the course of committing that assault in the first degree, [Petitioner] knowingly committed that felony by, with and through the use, assistance and aid of a deadly weapon.

. . . [T]he evidence would . . . show that [Petitioner] is a resident of California, and that he had dated . . . [V]ictim's girlfriend and later fiancé, and that he came here and had been in the area for a couple of days. He confronted . . . [V]ictim as . . . [V]ictim was attempting to leave for work in the morning. [Petitioner] was wearing all black, with a black ski mask, and he had a gun with a silencer. He shot at . . . [V]ictim five times. He hit . . . [V]ictim once. He then fled.

The State would produce evidence that the black ski mask that he was wearing was left at the scene, and DNA was taken from that, which matched [Petitioner]. Also, [Petitioner] was arrested about a week to 10 days later in Los Angeles. And upon being questioned by the St. Louis County police officers and detectives investigating the case, he made a confession as to shooting . . .[V]ictim. And that was memorialized in an audio recording, which the State would produce at trial.

. . . [S]everal pieces of evidence were also taken out of [Petitioner]'s car, which provided a connection to [Petitioner] being in St. Louis at the time, including a GPS, a police scanner, and his cell phone.

(Id. at 5-6.) The prosecutor also reported that the range of punishment was a term of imprisonment of ten to thirty years or life for first-degree assault, and a term of imprisonment of from three years to an unlimited number of years or life for armed criminal action, with the terms running either consecutively or concurrently. Id. at 7. Petitioner said he understood that range of punishment; and the State recommended that Petitioner be sentenced to concurrent terms of imprisonment of twenty-five years. Id. at 7, 9. The plea court noted its understanding that Petitioner did not accept the State's recommendation and asked for a presentence investigation report, which understanding Petitioner agreed with. Id. at 9-10.

The plea court then asked Petitioner various questions about his attorney's representation. Id. at 10-12. Petitioner responded that no one had made any promises or threats to induce the plea; that his attorney had complied with his requests and answered his questions; that he had enough time to discuss the case with his attorney; that he had no complaints or criticisms of his attorney; that he did not know of anything his attorney could have done that he did not do or of any witnesses the attorney could have contacted but did not; that his attorney had investigated to Petitioner's "complete satisfaction"; that he believed his attorney had fully advised him of "all aspects of [the] case, including [Petitioner's] legal rights and the possible consequences of [the] plea"; and that he believed his "attorney ha[d] adequately, completely, and effectively represented [Petitioner] in [his] defense to the[] charges." Id.

The plea court also noted the trial had been set to begin the day of the plea, and went through the trial rights Petitioner was waiving by pleading guilty and not having a trial. Id. at 13. Petitioner indicated he understood what he was waiving; he had understood the plea court's questions; and no one had asked him to lie in response to the court's questions. Id. at 13-14. Petitioner then pleaded guilty to "the charge of assault in the first degree, a class A felony, and armed criminal action, an unclassified felony." Id. The plea court found the plea had a factual basis, and was voluntarily and intelligently made, with a full understanding of the charges and consequences of the plea, as well as an understanding of the jury trial rights and the plea's effect on those rights. Id. at 14-15.

Before concluding, the plea court permitted Victim to make a statement. Id. at 15-18. In part, Victim told the court that, after the shooting, he was taken to a hospital where he stayed "for a number of days." Id.

On January 30, 2009, the plea court sentenced Petitioner to concurrent terms of imprisonment of twenty years for first-degree assault and three years for armed criminal action. (Sentencing Tr. at 6-7, Resp't Ex. F.) The plea court then asked Petitioner about his attorney's representation. Id. at 9-10. In particular, the plea court asked whether, prior to the plea, Petitioner had sufficient opportunity to discuss the case with the attorney, his attorney did things Petitioner had asked him to do, and his attorney did not do things Petitioner asked him not to do, to which Petitioner responded affirmatively. Id. The plea court also asked Petitioner whether his attorney had made any threats or promises to Petitioner to induce his guilty plea, which Petitioner denied; and whether he was satisfied with his attorney's services, which Petitioneracknowledged. Id. at 10. Based on this colloquy, the plea court found there was no probable cause that Petitioner had received the ineffective assistance of counsel. Id.

Petitioner did not file a direct appeal, but did timely seek post-conviction relief by filing on March 9, 2009, a pro se post-conviction motion under Mo. S. Ct. Rule 24.035. (Pet'r Post-Conviction Mot., Legal File, Resp't Ex. A, at 6-11). Petitioner presented three claims in that motion. First, he urged that he "was misled by [his] attorney" to "take a blind plea." (Id. at 7.) Second, Petitioner stated that he wanted a trial because there was enough evidence showing he was not guilty in that there was no gun, there were no witnesses, there were no fingerprints, and he had no prior history, and he would "never hurt a person [and] would give [his] own life to help someone in need of help." (Id.) For his third claim, Petitioner argued his attorney was ineffective in failing to challenge the voluntariness of his confession. (Id.)

Through counsel, Petitioner filed an amended post-conviction motion, presenting nine claims, designated as 7(a) through 7(i), that his attorney provided ineffective assistance of counsel. (Pet'r Am. Postconviction Mot., Legal File, Resp't Ex. A, at 18-28, 35.) First, Petitioner contended that his attorney failed to review and fully investigate medical information, and to consult with medical professionals, to determine whether Victim had suffered a serious physical injury as defined in Mo. Rev. Stat. § 565.002(6) to support the determination that he was guilty of the class A felony of first-degree assault. (Id. at 19-21.) Second, Petitioner argued that his attorney failed to secure Petitioner's medical records from Lakewood Regional Center ("Lakewood") in Lakewood, California or to interview either a physician there or the detective who took Petitioner there. (Id. at 21.) In support of this claim, Petitioner reported that he had blacked out or had a seizure during the police interrogation on January 30, 2007; he was taken to Lakewood before he made any admissions; and then the interrogation resulting in his confessioncontinued after his release from that facility. (Id.) For his third claim, Petitioner alleged his attorney failed to investigate numerous text and voice mail messages between Petitioner and Victim's girlfriend . . . which would show she lured Petitioner to the St. Louis area "to set [Petitioner] up." (Id. at 22.) In his fourth claim, Petitioner urged that his attorney failed to obtain a forensic computer examination and failed to review materials on Petitioner's computer after it was seized by the police, to show Victim's girlfriend "almost daily" sent him messages and photographs "which were entirely inconsistent with her claim that [her] relationship [with Petitioner] was over." (Id. at 23.) Petitioner also argued, for his fifth ground, that his attorney "failed to explore numerous false accusations that . . . [Victim's girlfriend] leveled against [Petitioner] prior to the" shooting, including that Petitioner stole and vandalized her car, although "someone else was apprehended driving her stolen vehicle." (Id.) Petitioner urges the information gathered from such an investigation "would have corroborated [Petitioner]'s defense that . . . [Victim's...