Rayford v. Sachse

• Decision Date: 13 September 2012
• Docket Number: Case No. 4:10CV2162 JCH
• Citation: Rayford v. Sachse, Case No. 4:10CV2162 JCH (E.D. Mo. Sep 13, 2012)
• Parties: DAVID L. RAYFORD, Petitioner, v. JENNIFER SACHSE, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

DAVID L. RAYFORD, Petitioner, v. JENNIFER SACHSE¹, Respondent.

Case No. 4:10CV2162 JCH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Date: September 13, 2012

MEMORANDUM AND ORDER

This matter is before the Court on Missouri State prisoner David L. Rayford's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready for disposition.

On January 30, 2008, a jury in the Circuit Court of St. Louis City, Missouri, found Petitioner guilty of one count of stealing, third offense. Petitioner was sentenced as a persistent offender to seven years imprisonment. Petitioner's conviction and sentence were affirmed on appeal. State v. Rayford, 278 S.W.3d 736 (Mo. App. 2009). Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied without an evidentiary hearing. (Resp. Exh. G). The Missouri Court of Appeals affirmed the denial of Petitioner's post-conviction motion. Rayford v. State, 322 S.W.3d 162 (Mo. App. 2010).

Petitioner is currently incarcerated at the Algoa Correctional Center in Jefferson City, Missouri. In the instant petition for writ of habeas corpus, Petitioner raises the following two claimsfor relief:

(1) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to object to the trial court's improper classification of Petitioner as a persistent offender, and appellate counsel failed to raise on direct appeal that the trial court had so erred²; and

(2) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to object when a State's witness engaged in improper bolstering during his testimony at trial.

(§ 2254 Petition, PP. 5-8). The Court will address the claims in turn.

DISCUSSION

I. Ground 1

As stated above, in Ground 1 of his petition Petitioner asserts he received ineffective assistance of counsel, in that trial counsel failed to object to the trial court's improper classification of Petitioner as a persistent offender, and appellate counsel failed to raise on direct appeal that the trial court had so erred. (§ 2254 Petition, PP. 5-6). Petitioner raised this claim before the 29.15 post-conviction motion court, and the court denied the claim as follows:

The first claim in movant's³ amended motion is that trial counsel was ineffective for not objecting to the Court's classification of him as a prior and persistent offender in that the State did not prove he had been convicted of two prior felonies and the determination of his persistent offender status was made after the case was submitted to the jury. Movant further alleges appellate counsel was ineffective for not raising this ground on appeal.

Movant was charged as a prior and persistent offender based on 1990 guilty pleas for two counts of burglary first degree and stealing over $150, a 1993 guilty plea to burglary second degree, 1995 guilty pleas to burglary second degree and possession of burglar's tools, and a 2005 guilty plea to possession of cocaine base. Movant's trial took place in January 2008. Following the testimony of the finalwitness for the State, Anthony Hafner, the Assistant Circuit Attorney, asked the Court to take judicial notice of court files in the possession of the courtroom clerk for the purpose of proving movant's status as a prior and persistent offender and in order to prove two prior stealing offenses. The Court took judicial notice of Cause Nos. 019-5053-A and 019-5264 which involved findings of guilt of stealing under $150. The Court also took judicial notice of Cause Nos. 039-2403, trespassing second degree, and 031-2587, possession of a controlled substance and possession of drug paraphernalia. Mr. Hafner said he had more priors and the Court said "we'll take those up later." During the course of his testimony, movant admitted to prior convictions for possession of a controlled substance, stealing, trespass, burglary second, assault third, DWI, and tampering. On cross-examination he admitted to two 1992 guilty pleas for stealing, a 1992 guilty plea for burglary second degree, a 1982 guilty plea for tampering with a utility second degree and a DWI, a 1989 guilty plea to assault third, 1990 guilty pleas to burglary second and stealing over $500,1991 guilty pleas to assault third degree and property damage second degree, 1993 guilty plea to burglary second, 1995 guilty pleas to burglary second and possession of burglar's tools, a 2002 conviction for stealing, a 2004 conviction for trespassing first degree, a 2004 guilty plea to stealing, and 2005 guilty pleas to possession of a controlled substance and possession of drug paraphernalia. He also admitted to a 1976 Arkansas conviction for receiving stolen property. At the close of the evidence Mr. Hafner asked the Court to make a prior and persistent offender finding; the Court said it would do that while the jury was out.

The prior and persistent offender issue was taken up again prior to pronouncement of sentence at which time movant admitted under oath to pleas in 1990 to two counts of burglary second degree and stealing over $500 and a 1993 plea of guilty to burglary second degree. The Court made a finding at that time that movant was a prior and persistent offender.

At the time of movant's trial numerous cases had held that when a defendant was found to be a prior and persistent offender after the case was submitted to the jury, any error was generally harmless. See, State v. Teer, 275 S.W.3d 258, 262 (Mo. banc 2009); seealso, State v. Cullen, 39 S.W.3d 899, 906 (Mo. App. E.D. 2001). In January 2009, the Supreme Court ruled in Teer that the requirement in § 558.021 that the defendant's prior and persistent offender status be pleaded and proved prior to submission to the jury was mandatory.

The Court finds movant's claim is without merit because an attorney's conduct is determined by what the law is considered at the time of trial. Counsel is not ineffective for not anticipating a change in the law. State v. Parker, 886 S.W.2d 908, 923 (Mo. banc 1994). At the time of movant's trial, the timing of the proof of prior and persistent offender status was not deemed to be critical, and the failure of the State to make its proof in a timely manner was not deemed to be prejudicial.

(Respondent's Exh. G, PP. 38-41). Petitioner advanced the claim on appeal of the denial of his Rule29.15 motion, and the Missouri Court of Appeals denied the claim as follows:

In his first point on appeal, Movant claims the motion court clearly erred in denying without an evidentiary hearing his claim that both his trial counsel and appellate counsel were ineffective. Specifically, Movant argues that his trial counsel was ineffective for failing to object to the trial court's untimely classification of Movant as a persistent offender. Movant also contends that his appellate counsel was ineffective for failing to raise this same issue on direct appeal.

A "persistent offender" is a person "who has pleaded guilty to or has been found guilty of two or more felonies committed at different times." Section 558.016.3. Section 558.021.2 mandates that the facts establishing the enhanced punishment status "shall be pleaded, established and found prior to submission to the jury." The Missouri Supreme Court has held that the plain language of Section 558.021.2 imposes a mandatory timing requirement. State v. Teer, 275 S.W.3d 258, 261 (Mo. banc 2009). However, a failure to comply with this requirement will be reversible error only if the defendant can establish prejudice. Id. at 260-61.

Generally, a conviction for stealing, third offense in violation of Section 570.040.1 is a Class D felony, which has a maximum penalty of four years' imprisonment. Sections 570.040.1; 558.011.1(4) (providing the maximum penalty for a Class D felony). However, Section 558.016.7(4) enhances the sentence for a persistent offender from that of a Class D felony to a Class C felony, which has a maximum penalty of seven years. Section 558.011.1(4) (providing the maximum penalty for a Class C felony).

In its indictment, the State charged Movant as a persistent offender based on Movant's guilty pleas to five previous felonies. During the trial, Movant admitted that he had previous convictions for a number of crimes including the five felonies listed in the indictment. Although the State asked the trial court to make a persistent offender finding before submission to the jury, the trial court did not make a finding until sentencing. Movant's trial counsel did not object to this procedure, and appellate counsel did not raise this issue on appeal.

The motion court rejected Movant's claims of ineffective assistance without holding an evidentiary hearing. In so doing, the motion court concluded that Movant failed to allege facts that would entitle him to relief because "[a]t the time of [M]ovant's trial, the timing of the proof of prior and persistent offender status was not deemed to be critical, and the failure of the State to make its proof in a timely manner was not deemed to be prejudicial."

Based on our review of the whole record, we cannot say that the motion court clearly erred in denying Movant's claim. The State charged Movant as a persistent offender, and Movant admitted he had convictions for the felonies listed in the indictment. Movant's admissions relieved the State of its burden to prove the convictions supporting a finding of persistent offender status. State v. Johnson, 237S.W.3d 277, 284 (Mo. App. E.D. 2007). While it is true that the trial court made an untimely finding, authoritative case law, valid at the time of Movant's trial, suggested any claimed error related to the trial court's belated finding would be harmless error. See State v. Tincher, 797 S.W.2d 794 (Mo. App. S.D. 1990). In Tincher, the trial court made a belated persistent offender finding, which the reviewing court deemed error. Id. at 797. The reviewing court, however,

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