Monk v. Bowersox

• Decision Date: 13 November 2013
• Docket Number: Case No. 13-0750-CV-W-ODS-P
• Parties: ARTHUR MONK, Petitioner, v. MICHAEL BOWERSOX, Respondent.
• Court: U.S. District Court — Western District of Missouri

ARTHUR MONK, Petitioner, v. MICHAEL BOWERSOX, Respondent.

Case No. 13-0750-CV-W-ODS-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

Date: November 13, 2013

OPINION AND ORDER DENYING WRIT OF HABEAS CORPUS AND DENYING A

CERTIFICATE OF APPEALABILITY

Petitioner, a convicted state prisoner currently confined at the South Central Correctional Center in Licking, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2011 conviction and sentence for second-degree robbery, which was entered in the Circuit Court of Buchanan County, Missouri. Petitioner's conviction was affirmed on direct appeal (Respondent's Exhibit E; State v. Monk, 331 S.W.3d 720 (Mo. Ct. App. 2011)), and the denial of his motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 29.15 was upheld on appeal thereof (Respondent's Exhibit I). Petitioner raises four (4) grounds for relief. Respondent contends that Grounds One and Four are procedurally defaulted and, alternatively, are without merit and that Grounds Two and Three are without merit.

GROUND ONE

In Ground One, petitioner contends that the trial court violated petitioner's right to counsel when it allowed him to represent himself and that his waiver of counsel was notvoluntary, unequivocal, knowing, and intelligent. Doc. No. 1, p. 20. Respondent contends that petitioner procedurally defaulted Ground One because petitioner's argument based on waiver of counsel was not raised during trial or in a motion for new trial. Doc. No. 10, pp. 6-7. Respondent further contends that the plain error review of Ground One by the Missouri Court of Appeals did not cure petitioner's procedural default. Doc. No. 10, pp. 7-13. Alternatively, respondent argues that Ground One is without merit. Doc. No. 10, pp. 13-16.

Currently, there is a split within the Eighth Circuit with respect to plain error review and procedural bar. One line of cases stands for the proposition that "a properly limited plain error review by a state court does not cure a procedural default." See, e.g., Toney v. Gammon, 79 F.3d 693, 699 (8th Cir. 1996). Another line of cases holds that, when a state court conducts a plain error review, we may also review for plain error. See, e.g., Hornbuckle v. Groose, 106 F.3d 253, 257 (8th Cir. 1997), cert. denied 522 U.S. 873 (1997) ; Sweet v. Delo, 125 F.3d 1144, 1152 (8th Cir. 1997); cert. denied, 523 U.S. 1010 (1998) . Because of this split in circuit authority, the Court is free to choose which line of cases to follow. See Sweet, 125 F.3d at 1152. In this case, as in Hornbuckle and Sweet, the Court will review Ground 1 for plain error, because the state court appears to have done so.¹

The Missouri Court of Appeals found the claim to be without merit:

Section 600.051 provides that the trial court may permit a waiver of counsel to be filed in any criminal case if the court first determines that defendant has made a knowledgeable and intelligent waiver of the right to assistance of counsel and the waiver is signed before and witnessed by the judge or clerk of the court. The waiver, which is to be read by or to the defendant, is to contain information regarding the nature of the offense, the right to jury trial, the range of punishment, and the right to appointed counsel if the defendant cannot afford to hire counsel. Here, [petitioner]'s waiver of the right to assistance of counsel was conducted on the record. There was no written waiver signed by [petitioner] as required by section 600.051.

Section 600.051 is inapplicable, however, to cases where the defendant has the benefit of "hybrid representation where an attorney is present at trial to assist [a] defendant who insisted on representing himself [because the situation] is not a waiver of counsel but, on the contrary, is utilization of the assistance of counsel." State v. harper, 637 S.W.2d 170, 173 (Mo. App. E.D. 1982); see alsoState v. Hunter, 840 S.W.2d 850, 860 (Mo. banc 1992); State v. Roper, 268 S.W.3d 392, 399 (Mo. App. W.D. 2008); State v. Clay, 11 S.W.3d 706, 712 (Mo. App. W.D. 1999). "Where this kind of hybrid representation is provided, defects in the waiver of counsel are not grounds for reversal." State v. McGee, 781 S.W.2d 161, 162 (Mo. App. E.D. 1989).

Here, it is undisputed that [petitioner] was afforded standby counsel. Thus, any alleged defects in his waiver of counsel are not grounds for reversal.

Respondent's Exhibit E, pp. 8-9.

The state court's determination is reasonable and is entitled to deference. 28 U.S.C. § 2254(d). A waiver of counsel will be found to be knowing, voluntary and intelligent if "the record shows either that the court adequately warned him or that, under all the circumstances, he knew and understood the dangers and disadvantages of self representation." United States v. Patterson, 140 F.3d 767, 774-75 (8^th Cir. 1998). The record shows petitioner was aware of the charges against him and of the consequences of proceeding pro se. Resp. Ex. A, pp. 4-6, Resp. Ex. J, p. 21. While petitioner askedquestions of the trial court, he decided that he wanted to proceed with standby counsel. Resp. Ex. A, pp. 8-9.

The resolution of petitioner's ground for relief by the state court did not result 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 in "a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d)(1) and (2); Mo. Rev. Stat § 558.021(1)(3). Ground One will be denied.

GROUND TWO

In Ground Two, petitioner contends that trial counsel was ineffective for failing to inform petitioner of the consequences of proceeding pro se. Doc. No. 1, pp. 9-10. The Missouri Court of Appeals, Western District, denied Ground Two as follows:

First, [petitioner] does not cite to any authority, nor have we found any, that imposes a duty upon trial counsel to advise a criminal defendant on the dangers of self-representation. Rather, it is the trial court's responsibility when determining whether a defendant should represent himself to "advise the defendant of the dangers and disadvantages of self-representation." State v. Davis. 934 S.W.2d 331, 334 (Mo. App. E.D. 1996). See § 600.051.1. Thus, [petitioner]'s claim of ineffective assistance of counsel as to a failure of advising him of the "dangers and disadvantages of self-representation" is misplaced.

...

And even assuming, arguendo, that [petitioner]'s trial counsel was obligated to advise him of the dangers of self-representation, [petitioner] has failed to show he is entitled to relief. The motion court found that [petitioner]'s claim was not supported by the evidence, citing [the attorney]'s testimony that she explained to [petitioner] why it was a poor decision to represent himself. 'At a post-conviction relief evidentiary hearing, the motion court determines the credibility of the witness and is free to believe ordisbelieve the testimony of any witness. . . .' Ferguson v. State, 325 S.W.3d 400, 412 (Mo. App. W.D. 2010) (internal quotation omitted). Though [petitioner]'s testimony of his conversations conflict with the testimony of [the attorney], the motion court reviewed the conflicting testimony and resolved the conflict in favor of [the attorney]'s version of events in her testimony. We conclude that the motion court did not clearly err in finding that [petitioner]'s trial counsel did not provide ineffective assistance and in denying [petitioner]'s amended Rule 29.15 on the issue

Respondent's Exhibit I, pp. 10-11.

The Supreme Court held that when a duty to give advice exists, total failure to advise is deficient performance. Padilla v. Kentucky, 599 U.S. 356, 367 (2010). Trial counsel gave petitioner substantial advice about the risks of proceeding pro se: she warned petitioner it would be a poor idea (Resp. Ex. J, p. 21), she explained that the state would be represented by a prosecutor with a law license (Resp. Ex. J, p. 21), and she explained the plea offer by the state, including the additional jail time the state would seek if the offer were rejected (Resp. Ex. K, p. 7). Such advice is not deficient performance; therefore, the state court's determination is reasonable and is entitled to deference. 28 U.S.C. § 2254(d). Ground Two will be denied.

GROUND THREE

In Ground Three, petitioner asserts that his appellate counsel was ineffective for failing to assert a claim of plain error in regard to petitioner's waiver of his right to trial by jury. Doc. 1, p. 16. Respondent argues that petitioner waived his right to a jury trial in open court and on the record; therefore, appellate counsel cannot be faulted for failing to assert a meritless claim. Doc. 10, p. 20. In responding to this claim, the Missouri Courtof Appeals, Western District, held that:

In Baxter, our Missouri Supreme Court concluded that where the defendant was present in the courtroom when trial counsel orally waived defendant's right to a jury trial on the record without objection from defendant, those circumstances were sufficient to demonstrate a record with 'enough clarity' and 'unmistakable' substantiation of the jury trial waiver. [State v. Baxter, 204 S.W.3d 650], 654-55.

Here, the trial court did far more than the court in Baxter. First, the trial court made direct inquiry of [petitioner] as to his request to waive his right to a trial by jury and submit the case to the trial court. Second, the trial court specifically explained to [petitioner] that his jury trial waiver meant that the trial judge, not the jury, would decide the question of his guilt; further, the trial court then asked [petitioner] if he understood precisely that scenario and [petitioner] unequivocally responded in the affirmative and again stated that that was precisely what he was asking for. Given our Supreme Court's

...