Lynn v. Lombardi

• Decision Date: 16 November 2015
• Docket Number: Case No. 4:14 CV 428 CDP
• Parties: DARRIL LYNN, Petitioner, v. GEORGE LOMBARDI, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

DARRIL LYNN, Petitioner,
v.
GEORGE LOMBARDI, Respondent.

Case No. 4:14 CV 428 CDP

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

November 16, 2015

MEMORANDUM AND ORDER

This case is before this Court on the petition of Darril Lynn for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He pleaded guilty to kidnapping and was sentenced to 10 years imprisonment in the Missouri Department of Corrections. In his petition for habeas corpus relief, Lynn asserts five grounds. His claim that the trial court erred in accepting an open Alford plea or that plea counsel was ineffective for not interviewing Jackie Moss and Robert Allen are procedurally barred. The Missouri Court of Appeals addressed the rest of his claims and denied them on the merits. The appellate court's decision was not contrary to clearly established Federal law, nor was it based on an unreasonable determination of the facts. Therefore, this Court will deny Lynn's petition for writ of habeas corpus.

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Background

On December 6, 2011, Lynn entered an Alford plea for the class B felony of kidnapping. At the plea hearing, the following exchange occurred:

[COURT]: Mr. Lynn, then it's my understanding that you wish to enter what's referred to as an Alford plea, meaning that you do not believe you're guilty of the class B felony charge of kidnapping that you are charged with but that the State's evidence is such that if the case were tried you do believe you would be found guilty, is that correct?
[MOVANT]: Yes, Sir.
[COURT]: All right. And do you understand that if I do accept this as an Alford plea that the same possibilities as to punishment, penitentiary sentence is the only possibility on this charge?
[MOVANT]: Yes, sir.

Lynn informed the court that he had been given sufficient time to discuss his case with his attorney and had no complaints about his attorney's handling of the case. Lynn testified that he understood that by entering a plea he was waiving the right to be tried by a jury and the presumption of innocence. Lynn also understood that he was waiving the right to confront his accusers and to call witness in his defense.

Lynn stated that no threats or promises had been made to cause him to plead guilty. No one had made any promise on the sentence he would receive. The court asked Lynn: "Do you understand that no one can promise what your sentence will be and I can impose any sentence within the range of punishment permitted by law

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and the range of punishment on this charge is a minimum of five up to a maximum of fifteen years in the penitentiary?" Lynn responded, "Yes, sir."

The prosecutor informed the court of the facts as follows. On or about December 15th, 2009, Chester Harvey telephoned Lynn and asked him to remove James McNeely ("Victim") from Harvey's home. On the night of December 17th, Lynn, along with Jackie Moss and Robert Allen entered Harvey's home, "removed" Victim and took Victim to Lynn's home. Victim remained at Lynn's home until Harvey and several of his family members arrived at Lynn's home the next day. Lynn showed Harvey how to place duct tape on Victim's hands. Harvey bound Victim, removed him from Lynn's home, and drove him to the Harvey's residence. Over the next several days, the Harvey family tortured and killed Victim.

The court asked: " Mr. Lynn, do you agree that's what the State's evidence would be if the case were tried?" Lynn answered, "Yes, sir." The court found there was a factual basis for Lynn's Alford plea, that Lynn understood the nature of the charge and the plea was at least as voluntary and unequivocal as an Alford plea could be. The court accepted the plea.

At the sentencing hearing, the court sentenced Lynn to ten years' imprisonment. Lynn stated that plea counsel had done everything he had asked of him. Lynn said he was satisfied with counsel's services and did not have any

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complaints. Lynn was able to review the police reports and evidence with counsel, and counsel had spoken with witnesses as instructed by Lynn.

On June 25, 2012, Lynn filed a Rule 24.035 motion for post-conviction relief. The motion court denied his motion after an evidentiary hearing. The motion court found that Lynn was not a credible witness and that counsel and the prosecutor were credible as to the facts they remembered. Lynn appealed. The Missouri Court of Appeals affirmed the denial of post-conviction relief.

Discussion

In his petition for writ of habeas corpus, Lynn asserts five claims, containing a total of seven allegations:

(1) The trial court erred by (a) accepting an open Alford plea; and (b) failing to make an explicit finding on the record that Lynn's plea was a voluntary and intelligent choice among his alternative courses of action;

(2) Counsel was ineffective for advising Lynn to enter an open Alford plea because it provided no benefit over a trial;

(3) Counsel was ineffective for failing to conduct adequate pre-trial investigation by (a) not reading all the discovery the State provided, and (b) not interviewing or deposing Jackie Moss, Robert Allen, and Scott Trower;

(4) Counsel was ineffective for telling Lynn that he stood a "good chance" of receiving probation since two less culpable defendant each received several years in prison from negotiated pleas; and

(5) Counsel was ineffective for failing to file and litigate a motion to suppress Lynn's statements to police that he assisted Chester Harvey by providing duct tape and explaining how to wrap Victim's hands so he could not escape.

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I. Procedural Bar

Lynn raised all the above claims in his appeal from the denial of his post-conviction motion. (Resp. Exh. A and E). The Missouri Court of Appeals declined to address claim 1(a) because Lynn had failed to present this argument to the motion court. Lynn v. State, 417 S.W.3d 789, 797 (Mo. Ct. App. 2013) (Resp. Exh. D. at 6). The Court of Appeals did not decide Lynn's claim that counsel was ineffective for not investigating and interviewing Moss and Allen because Lynn failed to furnish the court with the record necessary to address the claim. (Resp. Exh. D. at 16-17).

To preserve issues for federal habeas corpus 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). If a state prisoner fails to raise the claims following applicable state procedural rules, then the prisoner is procedurally barred from raising them in a federal habeas corpus action. Id. at 1151.

Federal habeas review of a claim is barred where a prisoner has defaulted his federal claims in a state court under an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750 (1991). State procedural rules are adequate and independent when they are "firmly established and regularly followed." Oxford v. Delo, 59 F.3d 741, 746 (8th Cir. 1995). If "the last state

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court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar," a federal habeas court is precluded from reviewing the claim. Harris v. Reed, 489 U.S. 255, 263 (1989).

The Missouri Court of Appeals is the "last state court rendering a judgment in this case." Its ruling clearly and expressly stated its denial of the two claims was based solely on state procedural bars.

Lynn's claim of trial court error for accepting an open Alford plea was defaulted because Lynn failed to present the same claim to the motion court. (Resp. Exh. D. at 6). In the post-conviction motion, Lynn argued that it was error to accept an Alford plea without making an explicit finding that the plea was a voluntary and intelligent choice among alternatives, (which is claim 1(b)), but he did not argue, as he does here and he did on appeal, that open Alford pleas were per se invalid.

Lynn's claim of ineffective assistance of counsel for not interviewing and deposing Moss and Allen was rejected because Lynn failed to provide that court with an adequate record to review the claim.¹ Lynn introduced depositions of Moss and Allen at the post-conviction evidentiary hearing, but he failed to include these depositions on appeal. (Resp. Exh. D. at 16). Missouri Supreme Court Rule 81.12 (a) provides that "[t]he record on appeal shall contain all of the record,

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proceedings and evidence necessary to the determination of all questions to be presented, by either appellant of respondent, to the appellate court for decision." It is the appellant's duty to "prepare and file a record on appeal that incorporates the proceedings showing that the motion court erred." Garris v. State, 389 S.W.3d 648, 652 (Mo. banc 2012); see State v. Cella, 32 S.W.3d 114, 117 (Mo. 2000); Rhodes v. Zhang, 7 S.W.3d 7, 8 (Mo. Ct. App. 1999); State v. Dunn, 817 S.W.2d 241, 244 (Mo. banc 1991) ("It is the appellant's duty to prepare a complete record on appeal."). Lynn failed to comply with Missouri Supreme Court Rule 81.12 and so he procedurally defaulted this claim.

A state prisoner can overcome a procedural default only if he can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. To demonstrate cause, a petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice, a petitioner must demonstrate that the errors "worked to his actual and substantial disadvantage, infecting the entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982). Alternatively, to use the fundamental miscarriage of justice exception, a petitioner must present new

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evidence that "affirmatively demonstrates that he is innocent of the crime for which...