Forest v. Delo

• Citation: 52 F.3d 716
• Decision Date: 04 May 1995
• Docket Number: No. 94-2608,94-2608
• Parties: Gregory FOREST, Appellant, v. Paul K. DELO, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 716

52 F.3d 716

Gregory FOREST, Appellant, v. Paul K. DELO, Appellee.

No. 94-2608.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 9, 1995.

Decided March 28, 1995.

Rehearing Denied May 4, 1995.

Daniel V. Conlisk, St. Louis, MO, argued (James Dankenbring, on the brief), for appellant.

Frank Jung, Asst. Atty. Gen., Jefferson City, MO, argued, for appellee.

Before BOWMAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Gregory Forest, a Missouri state prisoner, petitions for a writ of habeas corpus under 28 U.S.C. Sec. 2254 (1988), claiming that he was coerced into pleading guilty in violation of his Fifth and Sixth Amendment rights and that he did not receive the effective assistance of counsel required by the Sixth Amendment. The District Court ¹ denied the petition, and Forest timely appeals. We affirm.

I.

In January 1989 Forest was arrested and charged in a state court with a string of robberies and attempted robberies committed in St. Louis between January 9 and 13, 1989. Assistant Public Defender Andrew Hernandez was appointed to represent Forest, and Hernandez filed discovery and disclosure requests on Forest's behalf. Hernandez later filed a notice of alibi and a request for discovery of alibi rebuttal evidence. The notice identified Loretta Harris ² as the alibi witness and stated that she would testify that Forest was with her at her address during the times of the robberies and attempted robberies with which Forest had been charged. Hernandez later filed a motion to suppress the identifications of Forest made by the state's witnesses and a motion to suppress a statement Forest made to police officers immediately after his arrest.

Forest's trial was scheduled to begin on May 9, 1989, and was continued first to July 10 and then to July 31, 1989. On July 21, 1989, Assistant Public Defender Gloria Reno replaced Hernandez as Forest's attorney. Four days later, Reno obtained a further continuance, and the trial was rescheduled for September 25, 1989. On September 12, Reno moved for another continuance to permit her to depose the state's witnesses and investigate other potential witnesses. The trial was rescheduled for October 23. Reno's third motion for a continuance was denied on October 10.

On October 23, 1989, Forest pled guilty to and was convicted of three counts of first-degree robbery, three counts of attempted second-degree robbery, and one count of second-degree robbery. Prior to pleading guilty, however, Forest expressed dissatisfaction with Reno's performance and stated that he was pleading guilty only to avoid a life sentence, which he believed would be the end result of going to trial because his attorney had not prepared a defense. Reno said that she was prepared to go forward that day with a hearing on the suppression motions filed by Hernandez. Reno also stated that she had contacted Forest's alibi witness but that the witness did not want to testify on Forest's behalf. The trial judge told Forest, "either you're guilty of these offenses or you're not. If not, I'll bring the jury down and we'll start trying these cases." First Plea Hearing Transcript at 6. Forest again stated that he wanted to plead guilty but only because, in his opinion, his lawyer was not prepared to go to trial; he claimed that he was not guilty of the offenses charged. When the trial judge realized that the impasse could not be resolved, he took a recess to discuss the situation with counsel in chambers. Returning to open court after only a few minutes, the trial judge began a new plea hearing. In this second hearing, Forest stated that he was not being coerced into pleading guilty and admitted the facts that formed the basis of the charges against him. The court sentenced Forest to four thirty-year and two fifteen-year prison terms, all to be served concurrently, and then proceeded to determine whether there were any deficiencies in Forest's representation. Forest stated that he was satisfied with his representation by both Hernandez and Reno as well as the assistance rendered by an investigator from the public defender's office.

In 1990, Forest filed a pro se motion and, with the assistance of counsel, an amended motion seeking post-conviction relief in state court pursuant to Missouri Supreme Court Rule 24.035 (1989). In the pro se motion, Forest claimed that his guilty plea was involuntary, unintelligent, and coerced by his attorney. In his amended motion, Forest claimed that he was denied effective assistance of counsel. To prepare for the post-conviction proceedings, Forest requested the transcript of his plea and sentencing hearing. Initially, Forest was provided with only the transcript of the second plea hearing. The transcript of the first, aborted plea hearing was filed in the circuit court on June 7, 1990. On June 18, 1990, the circuit court denied Forest's Rule 24.035 motion without a hearing. The Missouri Court of Appeals affirmed. Forest v. State, 810 S.W.2d 518 (Mo.App.E.D.1991).

Forest filed this petition for a writ of habeas corpus in August 1991. He raised three grounds for relief, claiming (1) that he was denied effective assistance of counsel because his second appointed attorney (a) failed or refused to investigate a defense of misidentification, (b) failed to contact or subpoena an alibi witness, (c) failed to file a motion to suppress a statement Forest made to police investigators, and (d) failed or refused to depose the state's witnesses; (2) that the state trial court judge coerced him into pleading guilty; and (3) that the Missouri post-conviction review process is inadequate. The District Court denied Forest's petition without holding an evidentiary hearing. The court held (1) that Forest's ineffective assistance claims were either barred by his procedural defaults or without merit; (2) that Forest's claim of coercion by the state trial judge was defaulted because he did not raise it in his state post-conviction proceedings and had not shown sufficient cause or prejudice to overcome the procedural bar; and (3) that claims of inadequate state post-conviction relief proceedings cannot serve as a basis for federal habeas corpus relief.

On appeal, Forest contends that the District Court erred when it held (1) that his coercion claim was defaulted or, alternatively, that he had not shown cause for his default and prejudice from the coercion; and (2) that his ineffective assistance claims were either defaulted or without merit. We address each of these arguments in turn.

II.

Forest contends that the claim that his guilty plea was coerced by the state trial judge is not barred because he raised it in state court when he alleged that his guilty plea was involuntary and coerced by his attorney. Forest, however, did not submit that the state trial judge coerced his guilty plea until he appealed the denial of his Rule 24.035 to the Missouri Court of Appeals, which held that the claim was barred because it was not raised in the trial court. Forest contends that the addition of judicial coercion was only a "minor reformulation" of his claim regarding coercion by his attorney. We disagree.

In his motions for post-conviction relief in state court, Forest alleged that his attorney, Gloria Reno, had coerced his guilty plea. None of Forest's pleadings even hint that his plea might also have been due to the trial judge's coercion. A state prisoner seeking a writ of habeas corpus from a federal court must first fairly present his claims to the state courts in order to meet the exhaustion requirement of 28 U.S.C. Sec. 2254(b). Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986). This Court has held that a claim has not been fairly presented to the state courts unless the same factual grounds and legal theories asserted in the prisoner's federal habeas petition have been properly raised in the prisoner's state court proceedings. See Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.1995); Flieger v. Delo, 16 F.3d 878, 884 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 355, 130 L.Ed.2d 309 (1994). Forest failed to raise his judicial coercion claim in either of his motions for post-conviction relief in state court. He thereby incurred a procedural bar as a matter of state law and has defaulted the claim for purposes of federal habeas relief. Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991); Keithley, 43 F.3d at 1217.

Despite the procedural default, Forest would be entitled to federal habeas review of his claim if he could show cause for his default and actual prejudice from the alleged constitutional violations or if he could demonstrate that failure to review the claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750, 111 S.Ct. at 2564-65; Keithley, 43 F.3d at 1218. Forest argues that the state trial court's delay in providing him with a copy of the transcript from the initial, aborted plea hearing is sufficient cause for his failure to raise judicial coercion in his Rule 24.035 motion. As Forest's brief notes, however, "[c]ause is established 'where the factual basis for [a] claim was not reasonably available to counsel.' " Appellant's Brief at 16 (quoting Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir.), cert. denied, 485 U.S. 1000, 108 S.Ct. 1459, 99 L.Ed.2d 690 (1988) (other citations omitted)). The magistrate judge concluded that Forest and his memory of the plea hearings were reasonably available to his attorney during the Rule 24.035 proceedings and held that the "petitioner did not need a transcript to know whether [or by whom] he was coerced into pleading guilty." Forest v. Delo, No. 91-1810 C(8), Report & Rec. at 14 (E.D.M.O. Sept. 13, 1993). We agree.

Forest argues that the magistrate judge's decision is erroneous because it is unfair to require him to remember what occurred during the...