Case Law Update: 2011-2014 Cumulative Edition

Holding: (1) Claim of ineffective assistance of trial counsel for failure to preserve an issue for appeal is not cognizable in a 29.15 case, but the claim can be properly pleaded as ineffective assistance of trial counsel for failing to object to admission of the evidence at trial, which likely would have led to the evidence being excluded and an acquittal; and (2) where motion court failed to issue Findings on all issues, case is remanded for Findings on omitted issues because 29.15(j) requires Findings on all issues.
Williams v. State, No. ED95386 (Mo. App. E.D. 11/15/11):

Where there was no evidence that a gun Defendant-Movant used in an unlawful use of weapon case was readily capable of lethal use, Movant was entitled to an evidentiary hearing on claim that appellate counsel was ineffective in failing to raise sufficiency of evidence on direct appeal.

Facts: Defendant pointed a gun at various persons. He was convicted at a trial of unlawful use of a weapon, and other offenses. After losing his direct appeal, he filed a 29.15 motion alleging that appellate counsel was ineffective in failing to appeal the issue of sufficiency of evidence to support the unlawful use of weapon conviction. The motion court denied the claim without a hearing.

Holding: To show ineffective appellate counsel, Movant must show that counsel failed to raise a claim that was so obvious that a competent attorney would have recognized it and asserted it, and that there is a reasonable probability the outcome of the appeal would have been different. Unlawful use of a weapon requires display of a weapon “readily capable of lethal use.” Sec. 571.030.1(4). Here, Movant contends that the State presented no evidence that the gun was readily capable of lethal use. The State had the burden of proof and was required to produce evidence that the gun used was capable of lethal use. The State’s assertion that a gun is generally capable of lethal use is not unreasonable, but a verdict cannot rest upon stacked inferences when there are not supporting facts in the first inference. Denial of postconviction relief reversed, and case remanded for evidentiary hearing on whether appellate counsel was ineffective.
Collins v. State, No. ED94590 (Mo. App. E.D. 3/29/11):

Where Movant alleged his counsel told him he would receive 407 days jail time credit if he pleaded guilty but he later was not given this, Movant was entitled to evidentiary hearing on whether counsel was ineffective.

Facts: Movant pleaded guilty to stealing pursuant to a plea bargain. At his plea, he asked the judge if he would receive jail time credit and the judge said yes. After Movant was delivered to the DOC, he learned that he would only be given 243 days credit instead of 407 days because he was not eligible for time served prior to the date of the offense. (Movant was serving other sentences). Movant filed a Rule 24.035 motion claiming his attorney had been ineffective in advising him that he would receive 407 days credit. The motion court denied the claim without a hearing.

Holding: Movant may be entitled to vacate his guilty plea if his attorney misinformed him about the number of days credit he would receive. Movant’s claim is not refuted by the record, since he specifically asked the judge at his plea if he would be given credit. The State argues that because Movant asked this after his plea was accepted, Movant did not rely on it in pleading guilty. However, the immediacy of the question, the form of the question and the court’s response all show the parties’ and court’s understanding that jail time credit was part of the plea agreement. Movant is entitled to an evidentiary hearing.
Brantley v. State, No. SD30868 (Mo. App. S.D. 4/20/12):

Holding: Where Movant claimed his plea counsel was ineffective in failing to provide him with timely discovery, which caused him to miss a favorable plea offer and later accept a less-favorable one, this stated a viable claim and required a hearing under Missouri v. Frye, 132 S.Ct. 1399 (2012).
Woods v. State, 2014 WL 6914632 (Mo. App. W.D. Dec. 9, 2014):
Holding: (1) 29.15 motion court clearly erred in granting relief for trial counsel’s failure to have a Frye hearing where no scientific evidence was presented at the 29.15 evidentiary hearing as to what a Frye hearing would have actually shown; this is because in a 29.15 case, Movant has the burden of proof and had the burden to prove that the Frye evidence would have refuted the State’s scientific evidence presented at trial. (2) Motion court clearly erred in granting relief for trial counsel’s failure to call an Investigator-Witness at trial where Movant failed to ask the Investigator-Witness at the 29.15 evidentiary hearing exactly what she would have testified to if she had been called at trial; Movant failed to meet his burden of proof in the 29.15 case by presenting only conclusory testimony from Investigator-Witness that she had information that would “conflict” with State’s witnesses’ testimony, but not presenting exactly what that information was.
Scott v. State, 2013 WL 6170608 (Mo. App. W.D. Nov. 26, 2013):

Defendant/Movant was entitled to evidentiary hearing on claim that counsel was ineffective in advising him that he would receive pre-plea jail time credit, which he ultimately did not receive.

Facts: Defendant/Movant, who was held in custody approximately 4 years prior to his guilty plea for a drug offense, filed a 24.035 motion, alleging his counsel was ineffective in advising him that he would receive 4 years of pre-guilty plea jail time credit. In the actual event, the Department of Corrections awarded him less credit than this. The motion court denied the claim without a hearing.

Holding: Movant claims that but for counsel’s mistaken advice about jail time credit, he would not have pleaded guilty but would have insisted on going to trial. Movant would be entitled to relief if he relied on positive misrepresentations by counsel. At the plea colloquy, Movant said he thought he would be getting 4 years of jail time credit, and counsel said that that was true. Thus, it appears that counsel gave positive misadvice. Even though the plea court told Movant that the DOC would determine jail time credit, the court’s advice did not fully disabuse counsel’s advice because the court also said that it was “true” that Movant would get credit. Even though the plea court said that Movant could be required to serve “every day” of his sentence, this did not disabuse counsel’s advice because this statement could mean both pre-plea and post-plea service. Finally, any statements by the plea court about probation and parole didn’t correct the misadvice because probation and parole is not the same as pre-plea jail time credit. Thus, the record does not conclusively refute Movant’s claim. Reversed and remanded for hearing.
Chacon v. State, No. WD75646 (Mo. App. W.D. 9/24/13):

Holding: Although the Western District denies relief on a Padilla claim because the court finds that counsel did adequately advise defendant/movant of immigration consequences, footnote 8 is notable because it holds that the test of prejudice is whether there is a reasonable probability that defendant would not have pleaded guilty but would have insisted on going to trial but for counsel’s advice; Western District rejects motion court’s finding that defendant cannot show prejudice because he cannot show he would have prevailed at trial.
Johnson v. State, No.WD74813 (Mo. App. W.D. 6/11/13):

Plea counsel was ineffective for failing to inform Movant that the State would have to prove he had knowledge that he was within 2,000 feet of a school, Sec. 195.214, when he sold drugs.

Facts: Movant pleaded guilty to three counts of sale of drugs within 2,000 feet of a school, Sec. 194.214, which offenses occurred in 2007. At the plea, when asked if the sales occurred within 2,000 feet of a school, Movant said he didn’t know for sure, although the State said he was within 2,000 feet. Movant subsequently filed a 24.035 motion alleging that his plea counsel failed to inform him that the State had to prove that he knew he was within 2,000 feet of a school, and that there was not a factual basis for the plea under Rule 24.02(e) because the plea colloquy did not prove that he knew this. Movant’s counsel could not recall if she discussed the matter with Movant, but also thought that his knowledge of being within 2,000 feet of a school would be irrelevant. The motion court denied relief.

Holding: In State v. Minner, 256 S.W.3d 92 (Mo. banc 2008), the Supreme Court held that knowledge of being within 1,000 feet of public housing was an element the State had to prove under Sec. 195.218, which is similar to the statute here. Minner overruled a prior Supreme Court case (Hatton), which had held that no knowledge of proximity to public housing was required. Minner was decided after Movant’s sentencing, and because of that, the Southern District has held in State v. Applewhite, 276 S.W.3d 900 (Mo. App. S.D. 2009), that claims such as Movant’s factual basis claim are not valid since courts were entitled to rely on the Supreme Court’s pre-Minner holding in Hatton. However, the Western District believes Applewhite was incorrectly decided. This is because after the Supreme Court’s Hatton holding, the Legislature enacted Sec. 562.021.3, which provides that if a statute does not contain a culpable mental state, a culpable mental state is nevertheless required and it is “purposely” or “knowingly.” Also, the MAI for the offense, MAI-CR3d 325.30, was changed to require a mental state of knowingly. And several pre-Minner appellate cases held that such a mental state was now required. Thus, the motion court erred in denying relief based on Hatton. However, the case must be remanded for further factual findings on whether Movant knew he was within 2,000 feet of a school, and whether he would not have pleaded guilty, but would have taken the case to trial, if he knew this was an element of the crime.
Frye v. State, 2013 WL 324029 (Mo. App. W.D. Jan. 29, 2013):

Holding: Where Rule 24.035 Movant alleged that plea counsel was ineffective in failing to communicate a plea offer to him (causing him to have entered a guilty plea on less favorable terms), case is remanded to motion court for Findings on prejudice, i.e., whether Movant demonstrated a reasonable probability that the State would not have withdrawn the offer and that the trial court would not have rejected a plea agreement based on the offer.
Ewing v. Denney, No. WD74807 (Mo. App. W.D. 3/6/12):

Where trial counsel undertook to file a notice of appeal for Defendant but failed to properly do so and Defendant did not learn of this until after time for late notice of appeal expired, trial counsel was ineffective and habeas relief is granted to allow Defendant to be resentenced so can file a new notice of appeal.

Facts: In 2007, Defendant (Petitioner) was convicted at trial. His trial counsel filed a notice of appeal for him, but failed to timely pay a filing fee. That appeal was dismissed in 2007, but counsel never told Defendant. In 2008, Defendant wrote other attorneys and legal authorities to try to find out what was happening regarding his appeal. The Supreme Court told him to contact the Public Defender. In 2010, Defendant brought a habeas case in DeKalb County seeking to have Defendant re-sentenced so he could appeal. The DeKalb County Circuit Court granted relief and ordered the Jackson County Circuit Court to resentence Defendant, but the Jackson County Circuit Court refused to do so on grounds that the DeKalb court had no authority to order the Jackson court to do so. In 2011, Defendant re-filed his habeas case in the Western District Court of Appeals.

Holding: One of the exceptions to allow review of procedurally defaulted claims is “cause and prejudice.” The question here is whether Defendant can meet this test. A defendant is entitled to effective assistance of counsel on appeal and failure to perfect a notice of appeal is ineffective. “Cause” requires that the procedural default be “external” to the defense, which might at first blush appear to not be met here. But the U.S. Supreme Court has held that where the procedural default is the result of ineffective assistance of counsel, the default is imputed to the State and this renders the “cause” “external” to the defense. Here, counsel was ineffective in failing to perfect the appeal, and Defendant was prejudiced by being denied an appeal. Sentence vacated so Defendant can be resentenced, and then file a timely notice of appeal.
Radmer v. State, No. WD 74014 (Mo. App. W.D. 3/27/11):

In bifurcated trial, counsel was ineffective in failing to present psychologist who would have testified to Defendant’s borderline intellectual functioning and explained Defendant’s sex offense in that context.

Facts: In 2003, Defendant had been charged with various sex offenses, and was examined by a psychologist who found that Defendant suffered from borderline intellectual functioning. The 2003 charges were dismissed when the victims refused to testify. In 2007, Defendant was charged with new child sex offenses. Defendant was represented by the same attorney in 2003 and 2007. The new case had a bifurcated jury trial under Sec. 557.036. In penalty phase, the State presented evidence that Defendant collected girl’s underwear and other sex objects, and testimony that this leads sex offenders “to work up to the offense.” The State also presented testimony about other uncharged sex acts and victims. Defendant presented the testimony of family members that they had never seen Defendant inappropriately touch children, and the testimony of his employer that he was a good worker. The jury sentenced Defendant to 90 years. Defendant filed a 29.15 motion claiming that counsel was ineffective in failing to present in penalty phase evidence of his borderline intellectual functioning. The motion court found counsel ineffective. The State appealed.

Holding: The psychologist who previously examined Defendant would have been able to testify that Defendant suffered from borderline intellectual functioning and had the functioning of a 10 year old. The psychologist would have also been able to testify that persons with borderline functioning who behave sexually inappropriately are doing so because they lack sexual knowledge, which is different than being a pedophile. Counsel knew about this psychologist but testified he didn’t know why he didn’t call him and didn’t have a strategy about it one way or the other. Significant mental illness and intellectual deficits have been recognized as establishing a reasonable probability of a different sentencing outcome. The same judge who heard the trial also heard the 29.15 case, and would be in the best position to judge the prejudice from failure to present this testimony. The State claims that the psychologist’s testimony would include that Defendant sexually abused “six to eight” other victims and demonstrates a “consistent pattern of sexual deviance,” but the jury already had heard evidence from the State that Defendant had committed other uncharged acts of sex abuse against other victims. The State claims that the psychologist would be incredible because he had been hired by the public defender’s office in the past, but he had also been hired by prosecutors and private attorneys for civil suits. Judgment granting new penalty phase on grounds of ineffective assistance of counsel affirmed.
* Hinton v. Alabama, ___ U.S. ___, 94 Crim. L. Rep. 613, 134 S.Ct. 1081 (U.S. 2/24/14):

Holding: Counsel in capital case was ineffective for erroneously believing that he could not seek extra funding to hire a more qualified forensic expert; even though choice of expert is usually a strategy decision, the attorney’s decision here was not based on any strategy but on a mistaken belief that the only available funds were capped at $1,000 and that there was only one ballistics expert available at that rate; “[a]n attorneys’ ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.”
* Burt v. Titlow, ___ U.S. ___, 94 Crim. L. Rep. 197, 2013 WL 5904117 (U.S. 11/5/13):
Holding: When federal courts review ineffective assistance of counsel claims, AEDPA combined with the already-deferential standard toward counsel’s performance in Strickland, require federal courts to be doubly deferential to state courts’ denial of Sixth Amendment claims; Supreme Court defers to state court finding that counsel was not ineffective under Frye/Lafler in advising Defendant to withdraw a guilty plea and proceed to trial even though counsel failed to obtain the case file (discovery) from the prior attorney before giving this advice, and counsel had Defendant sign over the media rights to counsel of this high-profile case; record indicated that Defendant withdrew her guilty plea because she wanted to protest her innocence.
* Chaidez v. U.S., 92 Crim. L. Rep. 609, ___ U.S. ___ (U.S. 2/20/13):
Holding: Padilla’s ruling that defense attorneys must warn clients about immigration consequences is a new rule that is not retroactive on collateral review.
* Lafler v. Cooper, 2012 WL 932019 (U.S. 2012):

Holding: The fact that a defendant received a full and fair trial after his counsel performed deficiently in advising him to reject the State’s plea offer did not preclude the defendant from establishing the prejudice prong of a claim of ineffective assistance of counsel.
* Missouri v. Frye, 132 S.Ct. 1399 (2012):

Holding: (1) Failure to communicate plea offer to Defendant before it expired is ineffective assistance of counsel, and (2) to show prejudice a Defendant must show a reasonable probability he would have accepted the expired offer and a reasonable probability the prosecution would have adhered to the agreement and that it would have been accepted by the court.
* Lafler v. Cooper, ___ U.S. ___, 90 Crim. L. Rep. 850 (U.S. 3/21/12):

Holding: (1) Giving erroneous advice to a Defendant that leads him to reject a favorable plea offer and proceed to trial is ineffective assistance of counsel, and (2) the remedy after trial is to have a court resentence a Defendant or have the prosecutor reoffer the plea offer.
* Martinez v. Ryan, ___ U.S. ___, 90 Crim. L. Rep. 805 (U.S. 3/20/12):

Holding: A federal habeas petitioner may be excused from procedural default in federal habeas if the default was caused by state postconviction counsel who was constitutionally ineffective.
* Maples v. Thomas, ___ U.S. ___, 90 Crim. L. Rep. 539 (U.S. 1/18/12):

Holding: Prisoner who missed filing deadline in state postconviction proceeding because his lawyer abandoned him demonstrated “cause” needed to excuse the procedural default in federal habeas corpus.
* Cavazos v. Smith, ___ U.S. ___, 90 Crim. L. Rep. 213 (U.S. 10/31/11):

Holding: 9^th Circuit unreasonably applied federal law in holding that evidence was insufficient in shaken baby case.
* Cullen v. Pinholster, ___ U.S. ___, 89 Crim. L. Rep. 5, 131 S.Ct. 1388 (U.S. 4/4/11):

Holding: Federal habeas court is limited to reviewing the evidence that was before the state court in determining under 28 USC 2254(d)(1) if state court decision is “contrary to, or an unreasonable application of clearly established federal law”; federal court should not have considered new mitigating evidence that was not presented to state court in considering ineffective assistance of counsel claim; it was not unreasonable for state court to conclude that counsel made a strategic decision not to present further evidence of defendant’s mental problems because that could lead jury to believe that defendant could not be rehabilitated.
* Premo v. Moore, ___ U.S. ___, 88 Crim. L. Rep. 474, 131 S.Ct. 733 (U.S. 1/19/11):

Holding: State court decision that counsel was not ineffective in not moving to suppress statement to police before a guilty plea was not unreasonable, where Defendant had also confessed to other individuals.
* Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733 (U.S. 2011):

Holding: State court’s finding that counsel was not ineffective was not unreasonable where counsel told Defendant to plead guilty without first challenging Defendant’s confession; suppression would serve little purpose since there was a second admissible confession and there were strategic reasons to enter into a quick plea bargain to avoid the prosecution making a deal with a co-defendant.
* Harrington v. Richter, ___ U.S. ___, 88 Crim. L. Rep. 474, 131 S.Ct. 770 (U.S. 1/19/11):

Holding: Even though state court decision denying postconviction relief did not express any reasons for denial, this is still an “adjudication on the merits” that requires federal courts to apply a deferential reasonableness standard on federal habeas review; state court’s decision that counsel was not ineffective in failing to get a blood expert was not unreasonable.
Kovacs v. U.S., 94 Crim. L. Rep. 704 (2d Cir. 3/3/14):
Holding: Padilla error will entitle Defendant to writ of error coram nobis where Defendant can show that he either would have litigated a meritorious defense, or would have negotiated a better deal with no adverse immigration consequences, or would have gone to trial but for counsel’s mistaken advice regarding immigration.
Gonzalez v. U.S., 2013 WL 3455501 (2d Cir. 2013):

Holding: Counsel was ineffective at sentencing where counsel did little more than attend the hearing.
Grant v. Lockett, 92 Crim. L. Rep. 764 (3d Cir. 3/7/13):

Holding: State court unreasonably applied federal law in holding that counsel was not ineffective in failing to discover that a key prosecution witness was on parole at time of his testimony because there was no formal deal for the witness to receive favorable treatment; “Poison lurks in the bias that can arise from the witness’s subjective state of mind, regardless of whether the witness’s belief arose from an actual agreement with, or representation of, the prosecutor.”
Blystone v. Horn, 2011 WL 6598166 (3^rd Cir. 2011):

Holding: State appellate court’s determination that petitioner did not experience ineffective assistance of counsel was contrary to clearly established federal law, where counsel failed to develop expert mental health testimony and institutional records in mitigation of a death sentence.
U.S. v. Orocio, 89 Crim. L. Rep. 620 (3d Cir. 6/29/11):

Holding: Padilla is retroactive to cases on collateral review.
Breakiron v. Horn, 89 Crim. L. Rep. 190 (3d Cir. 4/18/11):

Holding: Where Movant claims that trial counsel was ineffective in failing to strike a juror who heard another juror’s remarks about Defendant’s prior bad acts, Strickland requires an objective assessment of whether any juror who heard the remarks would have voted to acquit Movant; Movant does not have to show that the specific juror in question was actually prejudiced to win relief; here, Movant is entitled to relief because there was a reasonable probability he would not have been convicted had counsel acted when the juror was exposed to the improper remarks.
Showers v. Beard, 89 Crim. L. Rep. 71 (3d Cir. 3/28/11):