Garrett v. Dormire
| Decision Date | 26 September 2011 |
| Docket Number | No. 4:10CV1861 CDP,4:10CV1861 CDP |
| Parties | LAMARC GARRETT, Petitioner, v. DAVE DORMIRE,1Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
Missouri state prisoner Lamarc Garrett seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Garrett is currently serving terms of imprisonment following his guilty pleas in two separate cases. In 2007 he was sentenced to five years imprisonment following his pleas to first degree burglary and second degree burglary, and to a concurrent sentence of five months for misdemeanor stealing. In 2008 he was sentenced to a concurrent term of 6 years following his plea to first degree assault. Garrett's claims are procedurally barred, because he failed to raise them in the state courts. I will therefore deny the petition and Garrett's other motions.
Garrett's 2007 conviction arose from his commission of two burglaries on March 9, 2007. As the Missouri Court of Appeals described the facts:
On March 9, 2007, Dan Tilden was working in his apartment when he heard the door close. He walked into the living room to find Movant sitting on the couch. Movant stated that he liked Mr. Tilden's keyboard. Mr. Tilden asked Movant to leave. Movant left and unlawfully entered a Power Plant where he appropriated a maintenance work shirt. Police later apprehended Movant and Mr. Tilden identified him.
Exhibit E to Respondent's brief, unreported Memorandum Opinion, No. ED 93696 (Mo. Ct. App. August 31, 2010). On August 24, 2007, Garrett pleaded guilty to burglary in the first and second degrees and misdemeanor stealing. He was sentenced the same day to five years imprisonment with the Missouri Department of Corrections on the burglary offenses and five months imprisonment on the offense of misdemeanor stealing, with all sentences to run concurrently. The judge suspended the execution of the sentence and released Garrett on supervised probation. Garrett did not appeal.
On September 5, 2008 Garrett pleaded guilty to first degree assault arising out of his assault on a corrections officer and was sentenced to six years on that charge. He acknowledged that he had struck the victim as he was being put in a jail cell and that the blow broke the jailer's jaw. He also admitted violating hisprobation in the 2007 case, and the court ordered that five year sentence to be executed and served concurrently with the new six year sentence, for an aggregate term of six years. Garrett did not file a direct appeal.
On January 29, 2009, petitioner filed a pro se motion for post-conviction relief in the Circuit Court for St. Louis County, pursuant to Mo. R. Crim. P. 24.035, pertaining to both the 2007 and the 2008 criminal convictions. Counsel was appointed by the Circuit Court, and appointed counsel filed an amended motion.
In the amended motion for post-conviction relief, Garrett raised one claim related to the 2007 burglary conviction: that counsel was ineffective for failing to advise him that he had a possible defense to the charge of burglary in the first degree, regarding whether he intended to commit a crime in the apartment. The element of intent to commit a crime distinguishes burglary from the lesser-included offense of trespass, and Garrett argued that he had told counsel that he did not intend to commit a crime in the apartment, yet counsel never informed him about the possibility of going to trial on this theory. Petitioner further asserted that he would have gone to trial if he had known that this lack of intent was a possible defense.
The amended motion raised two claims relating to the 2008 assault case. First, Garrett alleged that his trial counsel was ineffective for failing to explain to him that he would have to serve 85% of the term for assault in the first degree before being eligible for parole. He stated that if plea counsel had advised him regarding the minimum term that he would have to serve before being eligible for parole, he would not have entered a plea of guilty. Second, Garrett alleged that trial counsel was ineffective for threatening him that if he went to trial, a jury would convict him and he would receive life imprisonment. Petitioner claimed that if counsel had not informed him of her belief in the likely outcome, he would not have entered a plea of guilty.
The motion for post-conviction relief was denied on August 17, 2009, and the Missouri Court of Appeals affirmed in an unreported opinion. See Exhibit E. The only claim raised on appeal was that trial counsel was ineffective for failing to advise petitioner that he had a possible defense of lack of intent to steal with regard to the 2007 burglary conviction. Both the post-conviction court and the Missouri Court of Appeals found that this claim was affirmatively refuted by Garrett's admission to the charge at the guilty plea. Garrett sought rehearing and/or transfer to the Missouri Supreme Court, but that motion was denied, and the Court of Appeals issued its mandate on November 1, 2010.
On October 1, 2010, Garrett filed this federal petition for writ of habeas corpus challenging the 2007 burglary conviction and the 2008 assault conviction. He alleges nine claims of ineffective assistance of trial counsel: 1) he was prevented by counsel from testifying at trial; 2) he was assured of parole at a fixed time; 3) counsel failed to interview alibi witnesses; 4) counsel never informed petitioner of an unspecified proposed plea bargain; 5) counsel failed to object to improper evidence or arguments; 6) counsel did not spend "enough" time with petitioner; 7) counsel failed to explain the range of punishment; 8) counsel failed to evaluate or present a defense based on mental disease or defect; and 9) counsel failed to do enough discovery or investigate the case sufficiently. None of the claims specify which conviction they are challenging, nor does Garrett provide any facts underlying these claims.
After he filed the petition, Garrett filed a number of other documents and motions. In his "Pro Se Motion on Appeal," he adds an allegation that the State failed to properly charge him, and I interpret this allegation as an additional claim that counsel was ineffective for failing to raise this issue. Other motions appear to seek discovery materials from the underlying cases. He asks for a speedy trial, for entry of default, and for a "Declaration Against Official Responsible for Vindictive Testimony." He filed a "Motion for Leave of Court to Stay Proceedings" whichseeks stay or dismissal until the state appeal process is completed. And he seeks appointment of counsel.
Habeas proceedings are civil in nature, and, thus, habeas petitioners have no Sixth Amendment right to counsel. See Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994); McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997) (). A Court may appoint counsel for a habeas petitioner if "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). Except when an evidentiary hearing is held, the Court may use its discretion in deciding whether to appoint counsel. See Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. 1994). To determine whether appointment of counsel is warranted, the Court should examine the nature of the litigation, the litigant's ability to do research and present his claims, and the complexity of the issues. See id.; McCall, 114 F.3d at 756.
Although the pro se petition is not a model of clarity and some of Garrett's later filings are not at all sensible, I believe Garrett has adequately presented the issues he wishes to raise. See Glass v. Higgins, 959 F.2d 88, 90 (8th Cir. 1992). The petition and motions raise ten grounds for relief, as discussed above. None of these claims appear legally or factually complex. I do not believe that either theinterests of justice or due process requires the appointment of counsel, so I will deny the motion.
I will interpret Garrett's request for "stay of proceedings or alternatively, voluntary dismissal without prejudice" as a motion for stay and abeyance.
Garrett filed this habeas petition one month before the Missouri Court of Appeals issued its mandate. But by the time he filed the motion for stay, all Missouri proceedings had been completed. He appears to be seeking the opportunity to stay this § 2254 petition so that he can return to state court to exhaust previously unexhausted claims. "Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Rhines v. Weber, 544 U.S. 269, 277 (2005). Entitlement to a stay requires not only consideration of whether petitioner had good cause for his failure to exhaust, but also whether his unexhausted claims are "plainly meritless," whether the claims are potentially meritorious, and whether the petitioner engaged in intentionally dilatory litigation tactics. Id. at 277-78.
Before considering the merits of a state petitioner's habeas claims, a federal court must determine whether the federal constitutional dimensions of the petitioner's claims were presented to the state court. Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir.1988). When a petitioner's claims were not presented to the state court but are nevertheless deemed exhausted because he has no available state court remedy, the federal court still cannot reach the merits of the claims unless the petitioner demonstrates adequate cause to excuse his state court default and actual prejudice resulting from the alleged unconstitutional error, or that a fundamental miscarriage of justice would occur if the Court were not to address the claims. Coleman v. Thompson, 501 U.S. 722 (1991); Wainwright v....
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