Dunn v. Norman
| Decision Date | 29 March 2012 |
| Docket Number | Case No. 4:11CV872 CDP |
| Parties | EDWARD T. DUNN, Petitioner, v. JEFF NORMAN, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
Petitioner Edward T. Dunn is currently on parole following his release from the Southeast Correctional Center in Charleston, Missouri. Dunn was convicted after a bench trial in the Circuit Court of St. Louis County, Missouri, of felony driving while intoxicated and felony driving while his license was canceled. He was sentenced to five years imprisonment on each charge, to run concurrently with each other but consecutive to sentences that he was serving at the time of his sentencing.
This matter is before the Court on Dunn's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dunn raises four grounds for relief. Two of those grounds are procedurally defaulted, and the other two grounds fail on the merits. I will therefore deny his petition for the writ.
On September 26, 2005, at approximately 2:45 a.m., Detective John Melugin was in uniform and driving a marked police car. He observed a vehicle, driven by Dunn, traveling seventy-five miles-per-hour in a forty miles-per-hour zone. He activated his lights and siren and attempted to pull the vehicle over. Dunn continued to drive through neighborhoods, traveling between ten and thirty miles-per-hour. He made several turns and was driving erratically, nearly hitting several parked cars. When he finally stopped his car, the detective yelled to Dunn to get out of the vehicle and onto the ground. Dunn stuck his hands out the window but did not do anything else. The detective then pulled Dunn out of his vehicle.
Once Dunn was out of the vehicle and on the ground, he refused to allow the detective to handcuff him, instead tensing up on his hands and knees. The detective forced him to the ground, which caused Dunn to scrape his head on the concrete. The detective picked him up off the ground and helped him to the back of the police car. He observed that Dunn had watery and bloodshot eyes, smelled like alcohol, and his speech was mumbled. He then searched Dunn's car for identification, and he returned to his vehicle to find Dunn asleep and snoring in the backseat.
Detective Melugin did not perform any field sobriety tests on the scene because he believed that it was not safe to do so given Dunn's condition. At thepolice station, he read the implied-consent warning to Dunn, who refused to consent to a breath test. He also asked him on several occasions whether he wanted medical attention for his head injury, which Dunn repeatedly refused. He attempted field sobriety tests at the station, but abandoned these efforts because Dunn could not stand on his own.
Dunn was charged with driving while intoxicated and driving while his license was canceled. He waived his right to a jury trial and proceeded to have a bench trial. Detective Melugin testified to the above events and stated that he believed that Dunn was intoxicated given his experience as an officer. The court also admitted into evidence a copy of the videotape of the above events, taken by the patrol car's camera. Dunn testified in his defense. He stated that he had not been drinking on that day or the day before, that he was on his way to buy paint supplies from the grocery store, and that he may have smelled like paint thinner since he had been using it that evening. He testified that he didn't pull over because he had a revoked license, so he was trying to make a phone call to a business associate to let her know that he would probably be arrested that night. Dunn also testified that after Detective Melugin pulled him from the car, the detective slammed his head into the ground. Dunn said he couldn't remember much after that injury.
The trial court found that the video showed Detective Melugin forcing Dunn to the ground, but that he did not slam him down and that Dunn couldn't have originally been more than about a foot above the ground. The court also noted that some of the defendant's testimony was "bizarre." The court then found the defendant guilty of both counts.
After the trial judge found Dunn guilty of felony driving while intoxicated and felony driving while his license was canceled, the trial judge sentenced him to five years imprisonment on each charge, to run concurrently with each other but consecutive to sentences that he was serving at the time of his sentencing. He appealed his conviction to the Missouri Court of Appeals, arguing only that the trial court erred in overruling his motion for judgment of acquittal because there was insufficient evidence from which the trial court could find beyond a reasonable doubt that he was intoxicated. The Missouri Court of Appeals affirmed the conviction in a per curiam unpublished opinion on March 3, 2009. State v. Dunn, 277 S.W.3d 348 (Mo. Ct. App. 2009)(Resp. Exh. E).
On September 10, 2007, Dunn prematurely filed a motion in the trial court for post-conviction relief under Missouri Rule 29.15. In the post-conviction motion, Dunn raised seven main arguments: (1) the trial court lacked jurisdiction to convict and sentence Dunn because his speedy trial rights were violated; (2) theState failed to prove that he was a persistent offender by showing that he pled guilty to two or more felonies committed at different times; (3) the trial court violated his due process rights by using the same prior conviction to enhance two separate charges; (4) the State failed to prove that he was a chronic offender by showing the he pled or was found guilty of four or more alcohol-related traffic offenses; (5) the State engaged in prosecutorial misconduct and vindictiveness by enhancing his charges for proceeding to trial; (6) the trial court violated ex post facto laws by using prior offenses that should have been excluded under his guilty pleas and statutory law; and (7) he received ineffective assistance of counsel for failing to file a timely appeal. Many of these arguments contained several subpoints.
The premature motion was stayed until after the appellate court issued its ruling, and an appellate public defender entered on Dunn's behalf. On June 24, 2009, that counsel filed an amended Rule 29.15 motion. In that motion, Dunn raised two primary claims: (1) he was entitled to dismissal of the charges because he was not brought to trial within 180 days and did not waive his speedy trial right under the Uniform Mandatory Disposition of Detainers Law (UMDDL); (2) his counsel was ineffective for failing to argue that his due process rights were violated because the chronic DWI offender statute is void for vagueness.However, the amended motion also "physically attache[d] and incorporate[d] herein" the first six claims in Dunn's pro se motion.
The motion court denied the request for an evidentiary hearing and overruled and denied all of Dunn's claims. Dunn appealed the denial of his motion to the Missouri Court of Appeals, asserting only one argument: that the motion court erred in denying his Rule 29.15 motion because his due process rights were violated when he was not brought to trial within 180 days, even though he did not knowingly or voluntarily waive his speedy trial right. On February 15, 2011, the Missouri Court of Appeals affirmed the denial of Dunn's post-conviction motion in a per curiam unpublished opinion. Dunn v. State, 334 S.W.3d 903 (Mo. Ct. App. 2011)(Resp. Exh. J).
Dunn now seeks federal habeas corpus relief, asserting the following grounds:
Respondent argues that all of Dunn's asserted grounds, except Ground 1, are procedurally defaulted because he failed to raise them at each step of the state court proceedings. Regarding Ground 1, Respondent argues that it fails on the merits. I conclude that Grounds 2 and 3 are procedurally defaulted, but I will consider Grounds 1 and 4 on the merits.
To preserve issues for federal habeas review, a state prisoner must fairly present his or her claims to state courts during direct appeal or in post-conviction proceedings. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997). Under Missouri law, "allegations of trial court error, reviewable on direct appeal, are not cognizable in a post-conviction motion." Oden v. State, 320 S.W.3d 198, 201 (Mo. Ct. App. 2010). Failure to raise a claim in a post-conviction appeal results in abandonment of that claim. Sweet, 125 F.3d at 1150 (citing Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996)); see also Anderson v. Groose, 106 F.3d 242, 245 (8th Cir. 1997) (citing Lowe-Bey v. Groose, 28 F.3d 816, 818 (8th Cir. 1994)) ("A claim that is presented to the state court on a motion for post-conviction relief isprocedurally defaulted if it is not renewed in the appeal from the denial of post-conviction relief.").
A state prisoner who fails "'to follow applicable state procedural rules [for] raising the claims' . . . is procedurally barred from raising them in a federal habeas action, regardless of whether he has exhausted his state-court remedies." Sweet, ...
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