Mosby v. Russell

• Decision Date: 28 September 2011
• Docket Number: Case number 4:08cv1478 TCM
• Citation: Mosby v. Russell, Case number 4:08cv1478 TCM (E.D. Mo. Sep 28, 2011)
• Parties: LOUIS Z. MOSBY, Petitioner, v. TERRY RUSSELL and CHRIS KOSTER,1 Respondents.
• Court: U.S. District Court — Eastern District of Missouri

LOUIS Z. MOSBY, Petitioner, v.TERRY RUSSELL and CHRIS KOSTER,¹Respondents.

Case number 4:08cv1478 TCM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: September 28, 2011

MEMORANDUM AND ORDER

Louis Z. Mosby, who is a Missouri prisoner, petitions the United States District Court for the Eastern District of Missouri for federal habeas corpus relief from a conviction following a guilty plea.See28 U.S.C. § 2254.Finding that Petitioner's three grounds are without merit, the petition will be denied without further proceedings.²

Background

Petitioner was charged with assault in the first degree, in violation of Mo. Rev. Stat. § 565.050, for attempting to kill or cause serious physical injury to David Holmes(Victim) by shooting him and causing him serious physical injury (Count I); robbery in the first degree, in violation of Mo. Rev. Stat. § 569.020, for forcibly stealing lawful currency owned by Victim while armed with a deadly weapon (Count II), and armed criminal action ("ACA") in violation of Mo. Rev. Stat. § 571.015, which was related to the first-degree assault offense (Count III).(Information, Legal File, Resp'ts Ex. D, at 5-6[Doc. 11](all of Respondents' exhibits are part of Document 11).)

Petitioner entered a guilty plea to the charges in Counts I and III and, upon that plea, the first-degree robbery charge was dismissed.(Plea Tr., Legal File, Resp'ts Ex. D, at 14-31.)The plea court subsequently sentenced Petitioner to terms of imprisonment of life for the first-degree assault and ten years for the ACA, with those sentences running consecutively.(Sentence and Judgment, Resp'ts Ex. Dat 49-50;Sentencing Tr., Resp'ts Ex. D, at 44, 46.)

Petitioner did not appeal, but did timely seek post-conviction relief by filing a motion under Mo. S. Ct. Rule 24.035.(Pet'r Post-Conviction Mot., Legal File, Resp'ts Ex. D, at 53-72).Through counsel, Petitioner filed an amended post-conviction motion.(Pet'r Am. Post-conviction Mot., Legal File, Resp'ts Ex. D, at 73-82.)Petitionerpresented two claims in that motion, that Petitioner's rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments were violated because (1) the plea court failed to comply with Missouri S. Ct. Rule 24.02(e), which requires the court to find a sufficient factual basis for the plea, in that there were insufficient facts that Petitioner"attempted to kill or cause serious physical injury" to Victim; and (2) the sentencing court mistakenly believed it was required to run the ACA sentence consecutive to the sentence imposed for the first-degree assault.(Id. at 74.)

Without an evidentiary hearing, the motion court entered findings of fact and conclusions of law denying Petitioner's post-conviction motion("Judgment").(Judgment, Legal File, Resp'ts Ex. D, at 82-90.)

Petitioner appealed, raising two points.(Pet'r Br., Resp'ts Ex.A.) In his first point, Petitioner alleged his guilty plea to first-degree assault was involuntary and violated his right to due process under the Fourteenth Amendment because the record contained an insufficient factual basis for that plea.(Id. at 9, 13.)For his second point, Petitioner argued the sentencing court violated his right to due process under the Fourteenth Amendment by acting under the mistaken belief that it was required to run the sentences consecutively.(Id. at 11, 23.)

The Missouri Court of Appeals for the Southern District affirmed the denial of Petitioner's post-conviction motion.(Opinion, dated October 31, 2007, Resp'ts Ex. E.)The state appellate court described the factual and procedural background as follows:

In September 2001, [Petitioner] was charged in a three-count information with committing assault in the first degree (Count I), robberyin the first degree (Count II) and ACA (Count III).See§§ 565.050,569.020,571.015.³All three charges arose out of an armed robbery of a locksmith store during which the owner, [Victim], was shot with a handgun.Insofar as relevant here, Count I alleged that "on or about March 13, 2001 . . . [Petitioner] attempted to kill or cause serious physical injury to [Victim] by shooting him, and in the course thereof, inflicted serious physical injury to [Victim] . . . ."

On April 9, 2002, the State and [Petitioner] entered into a plea agreement.He agreed to enter an open plea of guilty to the charges of first-degree assault and ACA.In return, the State agreed to dismiss the first-degree robbery charge.[Petitioner] and his plea attorney each executed a guilty plea petition.It stated, in pertinent part, as follows:

5.I know that the Court must be satisfied that there is a factual basis for a PLEA OF GUILTY before my plea can be accepted.I represent to the Court that I did the following acts in connection with the charge made against me: Caused serious physical injury to [Victim] by shooting him with a deadly weapon in Scott Co. on March 13, 2001.

. . .

16.I know that the Court will not permit anyone to plead GUILTY who is innocent, and with that in mind, and because I AM GUILTY, I wish to plead GUILTY and respectfully request the Court to accept my PLEA OF GUILTY.

(Underlining in original with hand-written entries.)That same day, [Petitioner] appeared in court for his plea hearing.[Petitioner] stated that he was able to understand the petition, and he was aware of the ranges of punishment for the crimes of first-degree assault and ACA.He also acknowledged that, by pleading guilty, he would be giving up his rights to have a trial, confront the witnesses against him and present evidence on his own behalf.The following colloquy then took place:

[THE COURT] Listen to the facts the prosecutor says theywould prove if we had a trial, and if they are different than the facts that you remember, let me know.

[Prosecutor]: Judge, the evidence would be on the evening of March 13, 2001, [Petitioner] entered the Security Locksmith located at 133 West Malone Street in Sikeston, Missouri.When he entered that [place], he was armed with a deadly weapon, being a hand gun.He approached the owner of the locksmith store, [Victim], and demanded money from [Victim] with a pistol in his hand.At one point [Petitioner put] the pistol on the counter top while [Victim] was collecting money.

[Petitioner] began counting the money on the floor with the pistol out of his hand.[Victim] made an attempt to acquire the pistol from [Petitioner] and a struggle ensued between [Petitioner] and [Victim].At one time [Petitioner] discharged the gun into [Victim]'s upper chest shoulder area.At which point [Petitioner] stood above [Victim] and attempted to shoot [Victim] three additional times with the pistol.However, the pistol jammed and did not fire those three additional times.At that point [Petitioner] grabbed [Victim] by the . . . head and hair and dragged him to a locked safe . . . and demanded more money from [Victim].As [Victim] was bleeding, he explained that he could not see because his glasses had been knocked off, and [Petitioner] began striking [Victim] in the head with the pistol.The safe was opened and more money gained and [Petitioner] left with the amount of money he had gained from [Victim], left 133 West Malone heading towards his apartment building where he was living.

[Victim] in desperation dialed 911 and was in a semiconscious state when the ambulance arrived and took him to the Missouri Delta Hospital.At Missouri Delta Hospital [Victim] was operated on by Dr. Helfrich.At which point he flat lined approximately three times on the operating table and eventually recovered from the gun shot wound and regained consciousness several days later.Upon regaining consciousness he did speak to Detective Keith Lawson and identified [Petitioner] as the one whohad robbed and assaulted him.

The night of the assault though, Detective Mike Williams responded to the Missouri Delta Medical Center to check on the status of [V]ictim . . ., and ma[d]e contact with [Petitioner] at Missouri Delta Hospital.[Petitioner] did have his hand wrapped in a bandage, and it was believed he actually shot himself in the process of shooting [Victim].

At the locksmith store there were numerous amounts of money and blood soaked money leading towards [Petitioner's] apartment building.

Detective Armour from the Department of Public Safety suspected [Petitioner] and made contact with Mrs. Mosby and consent to search the residence was given, and in the bathroom area several bloody towels were located in the bathroom and information was gained that [Petitioner] may have [gone] to another residence located on Ruth Street.Contact was made at that residence and additional blood was found at that residence and statements were obtained from Miss Johnson that [Petitioner] indicated he had shot himself and was bleeding.

Eventually Deputy Bobby Sullivan stopped a vehicle on Ruth Street where [Petitioner] was a passenger, and in the search of the vehicle found blood soaked money from the crime scene.The gun shot residue test was positive for [Petitioner] handling a firearm.[Petitioner] was taken into custody and after being read his Miranda Rights, gave a statement stating that he did participate and was the person who robbed [Victim] and was the person [who] shot [Victim].Later that morning on March 14, [Petitioner] gave a more detailed statement of the robbery and the assault and how it took place.Therefore, the State would be able to [pr]ove that [Petitioner] attempted to kill or cause serious physical injury to [Victim] by shooting him and in the course thereof, inflicted serious physical injury to [Victim].This assault took place in Sikeston, Scott County, Missouri.

In regard to Count III, [Petitioner] did commit the felony of assault in the first degree with the use, assistance and aid of a deadly weapon, with the pistol that was used to discharge the bullet that struck [Victim].

THE COURT: [Petitioner], is that basically what happened in this

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