Mooring v. Wallace

• Decision Date: 24 June 2014
• Docket Number: No. 4:12 CV 1386 DDN,4:12 CV 1386 DDN
• Parties: GENO P. MOORING, Petitioner, v. IAN WALLACE, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

GENO P. MOORING, Petitioner, v. IAN WALLACE, Respondent.

No. 4:12 CV 1386 DDN

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Signed: June 24, 2014

MEMORANDUM

This action is before the court upon the petition of Missouri state prisoner Geno Mooring for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the petition for a writ of habeas corpus is denied.

I. BACKGROUND

On September 22, 2008, petitioner Geno Mooring pled guilty in the Circuit Court of the City of St. Louis to one count of kidnapping and two counts of domestic assault in the third degree.¹ (Doc. 15, Ex. A at 28-31.) The trial court sentenced petitioner to fifteen years imprisonment as a prior and persistent offender but suspended execution of sentence and placed him on five-years' probation. (Id. at 18-21, 31.) On October 29, 2010, the circuit court revoked petitioner's probation and executed his previously suspended sentence. (Id. at 22-26, 32-34.)

On December 2, 2010, petitioner filed in the circuit court a pro se motion for post-conviction relief under Missouri Supreme Court Rule 24.035. (Id. at 39-44.) On May 31, 2011, with the assistance of appointed counsel, petitioner filed an amended motion for post-convictionrelief. (Id. at 50-76.) On July 13, 2011, the circuit court denied petitioner's motion. (Id. at 86-89.) On May 15, 2012, the Missouri Court of Appeals affirmed the circuit court's denial of the motion. (Doc. 15, Ex. D); Mooring v. State, 386 S.W.3d 147 (Mo. Ct. App. 2012) (per curiam).

On August 28, 2012, petitioner filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254.

II. PETITIONER'S GROUNDS FOR FEDERAL HABEAS RELIEF

Petitioner alleges four grounds for relief in this habeas action:

(1) His trial counsel rendered constitutionally ineffective assistance by not informing petitioner that he would be required to serve 85% of his fifteen-year sentence of imprisonment.

(2) His trial counsel rendered constitutionally ineffective assistance by failing to call the victim as a defense witness and by failing to proceed to trial pursuant to petitioner's wishes.

(3) The trial court erred by failing to inform petitioner that he would be required to serve 85% of his fifteen-year imprisonment sentence before parole consideration.

(4) Petitioner is actually innocent, because the victim has provided an affidavit stating that petitioner did not assault or kidnap her.

Respondent argues that Grounds 1-3 are without merit, that Ground 4 is not a cognizable ground for habeas relief consideration, that Grounds 2 and 4 are procedurally barred, and that petitioner's habeas petition is untimely.

III. STATUTE OF LIMITATIONS

To obtain federal habeas relief, state prisoners must file their habeas petitions within one year of the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).

Under Missouri law, a notice of appeal must be filed within ten days of a final judgment. Mo. Sup. Ct. R. 30.01(a), 81.04(a). Petitioner did not appeal his guilty plea or sentence, and his time to appeal expired on October 2, 2008. Petitioner filed his motion for post-conviction relief on December 2, 2010, seven hundred ninety-one days later. (Doc. 15, Ex. A at 38.) On May 15, 2012, the Missouri Court of Appeals affirmed the circuit court's denial of the motion. Mooring v. State of Missouri, 386 S.W.3d 147 (Mo. Ct. App. E.D. 2012); Doc. 15, Ex. D. His time for a motion to transfer to the Supreme Court of Missouri expired on May 25, 2012. See Mo. Sup. Ct. R. 83.01. On August 28, 2012, petitioner filed the instant petition for a writ of habeas corpus, ninety-five days later. (Doc. 1.)

In response to the respondent's argument that the federal habeas petition was filed untimely, petitioner argues that the one-year federal limitations period did not begin until the revocation of his probation. Petitioner is incorrect. Under Missouri law, "[i]n a suspended execution of sentence, a criminal conviction has been entered and the sentence has been assessed; only the act of executing the sentence has been suspended." State v. Nelson, 9 S.W.3d 687, 688 (Mo. Ct. App. 1999); see Garrett v. Dormire, 2011 WL 4445839, *4 (E.D. Mo. 2011). Moreover, petitioner was "in custody" for purposes of habeas relief during his period of probation. See Mohammad v. Heston, 542 F. Supp. 2d 949, 953 (E.D. Mo. 2007).

Eight hundred eighty-six untolled days elapsed between the expiration of petitioner's time for direct appeal and the filing of the instant federal habeas petition. Therefore, petitioner's habeas corpus petition is untimely. Nevertheless, the court has considered the petition as if it was timely filed.

IV. EXHAUSTION AND PROCEDURAL BAR

Congress requires that state prisoners exhaust their state law remedies for claims made in federal habeas corpus petitions filed in district courts under 28 U.S.C. § 2254. See 28 U.S.C. § 2254(b)(1)(A). A state prisoner has not exhausted his remedies "if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). As discussed above, petitioner filed a motion for post-conviction relief and appealed the denial of relief.

Exhaustion in the sense that petitioner now has no remaining procedure for bringing a claim to the state court does not, however, satisfy the federal statutory requirement. Rather, a petitioner must have fairly presented the substance of each federal ground to the trial and appellate courts. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). If he has not done so and has no remaining procedure for doing so because he has defaulted on the legitimate requirements of the otherwise available procedures, any such ground for federal habeas relief is barred from being considered by the federal courts. Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011); King v. Kemna, 266 F.3d 816, 821 (8th Cir. 2001) (en banc); Sweet v. Delo, 125 F.3d 1144, 1149-50 (8th Cir. 1997) (petitioner's failure to present a claim on appeal from a circuit court ruling raises a procedural bar to pursuing the claim in a habeas action in federal court). The doctrine of procedural bar applies whether the default occurred at trial, on appeal, or during state court collateral attack. See Murray v. Carrier, 477 U.S. 478, 490-92 (1986).

Petitioner did not raise Ground 4 until his petition in this court. (Doc. 1 at 6.) However, he has since been denied relief on his claim for actual innocence by the state trial and appellate courts. (Doc. 8); Mooring v. Wallace, Case No. SD32640; Mooring v. Wallace, Case No. 13MI-CV00522; Mooring v. Wallace, Case No. 12 MI-CV00513.²

Petitioner raised Grounds 1-3 in his amended post-conviction relief petition. (Doc. 15, Ex. A at 51-53.) However, the state appellate court found that petitioner did not adequately plead Ground 2 in the factual context of the case. (Id., Ex. D at 5-6.) Failure to satisfy the procedural requirement of fact-pleading acts violates the state procedural requirements and erectsa bar to this court considering this ground. Smith v. Groose, 998 F.2d 1439, 1441 (8th Cir. 1993). Petitioner does not argue avoidance of the procedural bar. Therefore, Ground 2 is procedurally barred.

Nevertheless, Congress has authorized federal courts to consider and to dismiss procedurally barred grounds if a court concludes that the grounds are without merit. 28 U.S.C. § 2254(b)(2). The undersigned has considered all of petitioner's federal grounds on their merits.

V. EVIDENTIARY HEARING

Petitioner also requests an evidentiary hearing. (Doc. 1 at 7.) 28 U.S.C. § 2254(e)(2) provides that a court shall not hold an evidentiary hearing on a habeas corpus claim unless a petitioner shows that:

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2).

Petitioner alleges no ground for relief that relies on a new rule of law or a factual predicate that could not have been previously discovered with due diligence. Accordingly, petitioner's request for an evidentiary hearing is denied.

VI. STANDARD OF REVIEW ON MERITS

The Antiterrorism and Effective Death Penalty Act (AEDPA) requires that habeas relief may not be granted by a federal court on a claim that has been decided on the merits by a state court unless that adjudication:

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

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