Glasperil v. Clark

• Decision Date: 15 August 2011
• Docket Number: Case No. 4:08 CV 01393 CAS (LMB)
• Parties: CHARLES GLASPERIL, Petitioner, v. OMER CLARK, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

CHARLES GLASPERIL, Petitioner,

v.OMER CLARK, Respondent.

Case No. 4:08 CV 01393 CAS (LMB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: August 15, 2011

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the court on the petition of Charles Glasperil for a writ of habeas corpus under 28 U.S.C. § 2254. This cause was referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 (b).

Procedural History

Petitioner is presently incarcerated at Southeast Correctional Center in Charleston, Missouri, pursuant to the judgment and sentence of the Circuit Court of the City of St. Louis, Missouri. On September 22, 2004, petitioner was found guilty after a jury trial of robbery in the first degree and armed criminal action. See Respondent's Exhibit E at 365. He was sentenced to a term of imprisonment of 25 years on the robbery count and a concurrent term of 5 years for the armed criminal action count. See Resp't Ex. E at 372.

Petitioner raised two points on direct appeal of his convictions. See Resp't Ex. A. Petitioner first argued that the trial court plainly erred and abused its discretion in permitting theState to charge petitioner, a juvenile at the time of the offense, with first degree robbery and armed criminal action when the juvenile petition dismissed by the family court had charged petitioner with first degree robbery and second degree assault. See id. at 9. Petitioner also claimed that the trial court erred and abused its discretion in overruling defense counsel's objection regarding the testimony of Barbara Hathorne that petitioner sold her crack. See id. at 11. On November 1, 2005, the Missouri Court of Appeals for the Eastern District affirmed petitioner's convictions. See Resp't Ex. F.

On January 3, 2005, petitioner filed a pro se motion to vacate, set aside or correct the judgment of the Circuit Court of the City of St. Louis, Missouri, pursuant to Missouri Supreme Court Rule 29.15. See Resp't Ex. I at 3-13. After appointment of counsel, petitioner filed an amended motion to vacate, set aside, or correct judgment and sentence and request for evidentiary hearing, pursuant to Missouri Supreme Court Rule 29.15. See id. at 23-40. In this motion, petitioner argued that he was denied effective assistance of counsel for the following reasons: (1) trial counsel failed to file a motion to quash or dismiss the indictment or a motion to remand for further proceedings in the family court to challenge the family court's order granting the juvenile officer's motion to dismiss the petition; and (2) trial counsel advised petitioner to waive his statutory right to jury sentencing and failed to inform petitioner it was his ultimate decision to make regarding his right to have the jury assess punishment. See id. On December 1, 2006, the motion court denied petitioner's motion for post-conviction relief and request for evidentiary hearing. See id. at 42-48.

Petitioner timely filed a notice of appeal from the denial of post-conviction relief. See id. at 51. Petitioner raised two claims on appeal. See Resp't Ex. G. Petitioner first claimed that trialcounsel was ineffective for failing to file a motion to quash or dismiss the indictment or a motion to remand for further proceedings in the family court to challenge the family court's decision to relinquish jurisdiction so petitioner could be prosecuted as an adult in the circuit court. See id. at 11. Petitioner next argued that trial counsel was ineffective for advising petitioner to waive his statutory right to jury sentencing and for failing to inform petitioner it was his ultimate decision whether to waive his right to have the jury assess punishment. See id. On October 16, 2007, the Missouri Court of Appeals for the Eastern District affirmed the judgment of the trial court. See Resp't Ex. J.

On September 10, 2008, petitioner, pro se, filed a petition for a writ of habeas corpus, raising the following grounds for relief: (1) the trial court plainly erred and abused its discretion in permitting the state to pursue charges of robbery in the first degree and armed criminal action against petitioner when the juvenile petition which the family court dismissed to permit the state to pursue charges against petitioner as an adult charged petitioner with robbery in the first degree and assault in the second degree; (2) the trial court erred and abused its discretion in overruling defense counsel's objection to Barbara Hathorne's testimony that petitioner had sold her crack; (3) petitioner received ineffective assistance of counsel in that trial counsel failed to file a motion to quash or dismiss the indictment or a motion to remand for further proceedings in the family court to challenge the family court's decision to relinquish jurisdiction; and (4) petitioner was denied effective assistance of counsel in that trial counsel advised petitioner to waive his statutory right to jury sentencing and failed to inform petitioner it was his ultimate decision whether to waive his right to have the jury assess punishment. See Doc. No. 1-2.

On November 10, 2008, respondent filed a Response to Order to Show Cause, in whichhe argues that petitioner's first ground for relief is non-cognizable and fails on its merits, while the rest of petitioner's grounds for relief fail on their merits. See Doc. 10. On April 13, 2009, petitioner filed a traverse in which he provides further argument in support of the claims raised in his petition. See Doc. No. 14.

Facts

The sufficiency of the evidence is not at issue. The motion court summarized the relevant facts as follows:

The evidence of record at Glasperil's trial established beyond a reasonable doubt that on December 28, 2002, St. Louis police officers responded to a reported robbery at 4822 Labadie. The victim of the robbery was Keith Harvey, an entrepreneur who sold clothes from his van. Glasperil and two associates approached Harvey that day purportedly to buy clothes. When Mr. Harvey gave them access to his van, Glasperil pulled a gun and demanded the keys to the van. Harvey refused and Glasperil hit him on the side of his head with the gun. Glasperil and his associates then fled on foot taking approximately $3000 worth of clothes. Glasperil was found by police walking in [a] nearby alley with a bag of clothes from the van. The arresting officers brought Glasperil back to the scene of the incident and he was positively identified by the victim as the perpetrator of the robbery.

Glasperil was a juvenile at the time of the crime. The petition and amended petition in Family Court alleged three separate offenses: robbery first degree, armed criminal action, and assault second degree. In due course, the juvenile officer filed a motion to dismiss the Family Court proceedings and to "certify" Glasperil for prosecution in adult court. In its opinion, the Family Court lucidly and emphatically found that the Harvey robbery was part of a repetitive pattern of offenses committed or allegedly committed by Glasperil. The Family Court cited Glasperil's 18 referrals to the Juvenile Court, five of which were for felonies. Noting that Glasperil had exhausted the services available to him as a juvenile and recognizing that his age left him little time under the purview of the Juvenile Code, the Court concluded that there was no reasonable prospect of his reform within the juvenile system. The Court then declared Glasperil beyond rehabilitation under the Juvenile Code and certified him to be prosecuted under the general laws of the state. Family Court Order, pp. 4-5. Upon certification, the Circuit Attorney elected not to charge Glasperil with assault. However, the evidence at trial showed that the victim had been struck with a weapon by at least one of the perpetrators of the robbery. Tr. 187, 189.

(Resp't Ex. I at 44-45).

I. Standard of Review

A federal court's power to grant a writ of habeas corpus is governed by 28 U.S.C. § 2254(d), which provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

The Supreme Court construed § 2254(d) in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to the "contrary to" language, a majority of the Court held that a state court decision is contrary to clearly established Federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or if "the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." 529 U.S. at 413, 120 S. Ct. 1523. Under the "unreasonable application" prong of § 2254(d)(1), a writ may issue if "the state court identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies [the principle] to the facts of the particular state prisoner's case." Id. Thus, "a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S. Ct. 1521. Although the Court failed to specifically define "objectively unreasonable," it observed that "an unreasonable application offederal law is different from an incorrect application of federal law." Id. at 1410, 120 S.Ct. 522.

II. Petitioner's Claims

Petitioner raises four grounds for relief....