Lemons v. Cassady

• Decision Date: 14 July 2016
• Docket Number: No. 4:13-CV-1494-SPM,4:13-CV-1494-SPM
• Parties: MICHAEL A. LEMONS, Petitioner, v. JAY CASSADY, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

MICHAEL A. LEMONS, Petitioner,
v.
JAY CASSADY, Respondent.

No. 4:13-CV-1494-SPM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

July 14, 2016

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Michael A. Lemons's ("Petitioner's") pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 10). For the following reasons, the petition for a writ of habeas corpus will be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 20, 2011, Petitioner was charged with first-degree assault. Pet'r Ex. G, Doc. 1-1, at p. 13. The charges were subsequently amended to second-degree assault and to include prior and persistent offender status. Pet'r Ex. I, Doc. 1-1, at p. 17. The Amended Information charged Petitioner with committing the class C felony of assault in the second degree, "in that on or about December 20, 2011, in the County of Dunklin, State of Missouri, the defendant recklessly caused serious physical injury to [the victim] by striking her." Id. It also stated that Petitioner was a prior offender, "in that he has pleaded guilty to or has been found guilty of a felony," and that he was a persistent offender, "in that he has pleaded guilty or has been found guilty of two or more felonies committed at different times." Id. On July 25, 2012,

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Petitioner entered a guilty plea, the plea was accepted, and Petitioner was sentenced to 10 years. Pet'r Ex. E, Doc. 1-1, at p. 10; Pet'r Ex. J, Doc. 1-1, at pp. 19-20. Petitioner did not file a direct appeal, nor did he file a motion for post-conviction relief.

On July 12, 2013, Petitioner filed the instant petition. Doc. 1. Petitioner asserts twelve grounds for relief, each entitled something similar to "Violations of Due Process of Law 14th and 4th, 5th, and 8th Amendments [to the] U.S. Constitution [and various provisions of the Missouri Constitution]."¹ The precise nature of the claims is very difficult to discern, because each claim consists of a long list of facts that do not always obviously correspond to any distinct constitutional claim. It appears that he is alleging the following claims: (1) he could not have committed the crimes listed on the Probable Cause Affidavit because he was in jail on that date; (2) the felony complaint did not set out the evidence against him; (3) the warrant for his arrest was date-stamped with the date before the date the crime was committed and did not describe a domestic assault; (4) the associate court docket sheet shows that Petitioner was arrested more than 24 hours before a warrant was served; (5) the warrant for Petitioner's arrest was not in the proper form; (6) there is no evidence that Petitioner waived a preliminary hearing, and his counsel was ineffective with respect to telling Petitioner about the charges against him, waiving a formal arraignment, and requesting discovery; (7) the information was deficient in various ways; (8) the first amended information was deficient in various ways; (9) the second amended information was deficient in various ways; (10) the felony of second-degree assault only carries a sentence of up to seven years; (11) his counsel was ineffective based on, among other things, counsel's failure to "allow" the judge to do the formal arraignment and explain to Petitioner his

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rights; and (12) his counsel was ineffective based on, among other things, counsel's failure to file a motion for discovery or other motions before the preliminary hearing.

II. DISCUSSION

Respondent argues that all of Petitioner's claims have been procedurally defaulted because he failed to present them to the state courts in accordance with Missouri's procedural rules. The Court agrees.

To preserve a claim for federal habeas review, "a state habeas petitioner must present that claim to the state court and allow that court the opportunity to address his claim." Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). See also Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012) ("Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. § 2254 proceeding may consider only those claims which the petitioner has presented to the state court in accordance with state procedural rules.") (quotation marks omitted). "Claims that have not been presented to the state courts, and for which there are no remaining state remedies, are procedurally defaulted." Skillicorn v. Luebbers, 475 F.3d 965, 976 (8th Cir. 2007).

Petitioner's claims are procedurally defaulted, because he has not presented them to the Missouri state courts and he has no remaining state remedies. First, he did not file a direct appeal following his guilty plea. A direct appeal must be filed within ten days of the entry of a sentence. See Mo. Sup. Ct. R. 30.01(a) (in criminal cases, appeals may be taken as provided in Rule 81.04); Mo. Sup.Ct. R. 81.04(a) (appeal must be filed "not later than 10 days after the judgment or order appealed from becomes final"); Stevens v. State, 208 S.W.3d 893, 894 (Mo. 2006) ("In criminal cases, a judgment becomes final when a sentence is entered."). Petitioner was sentenced on July 25, 2012, and he has filed no direct appeal. Thus, assuming, arguendo, that any of his

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claims fall within the limited scope of a direct appeal following a guilty plea,² he did not properly present them to the state court through a direct appeal and cannot now do so. Second, Petitioner did not file a motion for post-conviction relief under Missouri Supreme Court Rule 24.035. Under Rule 24.035, "A person convicted of a felony on a plea of guilty and delivered to the custody of the department of...