SHARKS v. DORMIRE

JEAN HAMILTON, District Judge

This matter is before the Court upon its own motion. Petitioner has submitted a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition is unsigned. Rule 2(c)(5) of the Rules Governing § 2254 Petitions requires that all § 2254 petitions be signed under penalty of perjury. As a result, the Court will order the Clerk to mail a copy of the petition to petitioner. And petitioner will be directed to sign and return the petition within thirty days of the date of this Order.

Accordingly,

IT IS HEREBY ORDERED that the Clerk shall mail to petitioner a copy of his petition for writ of habeas corpus.

IT IS FURTHER ORDERED that petitioner must sign and return the petition to the Court within 30 days of the date of this Order.

PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY PETITION

1. (a) Name and location of court that entered the judgment of conviction you are challenging: _________ CIRCUIT COURT OF ST. LOUIS CITY, MO. 1114 Market St. St. Louis, Mo.__________________________________ 63101________________________________________________________________________________________________ (b) Criminal docket or case number (if you know): 0622-CR02210-01____________________________________ 2. (a) Date of the judgment of conviction (if you know): April 16, 2008_________________________________ (b) Date of sentencing: June 5, 2008_________________________________________________________________ 3. Length of sentence: Fifteen years____________________________________________________________________ 4. In this case, were you convicted on more than one count or of more than one crime? Yes [X] No [] 5. Identify all crimes of which you were convicted and sentenced in this case: One count Robbery________ First Degree, One count Armed Criminal Action. Fifteen years on each count___________________________ to be served concurrently____________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ 6. (a) What was your plea? (Check one) (1) Not guilty [X] (3) Nolo contendere (no contest) [] (2) Guilty [] (4) Insanity plea [] (b) If you entered a guilty plea to one count or charge and a not guilty plea to another count or charge, what did you plead guilty to and what did you plead not guilty to?___________________________ N/A__________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ (c) If you went to trial, what kind of trial did you have? (Check one) Jury [X] Judge only [] 7. Did you testify at a pretrial hearing, trial, or a post-trial hearing? Yes [] No [] 8. Did you appeal from the judgment of conviction? Yes [X] No [] 9. If you did appeal, answer the following: (a) Name of court: Court of Appeals, Eastern District________________________________________________ (b) Docket or case number (if you know): ED91437_____________________________________________________ (c) Result: Affirmed_________________________________________________________________________________ (d) Date of result (if you know): November 24, 2009__________________________________________________ (e) Citation to the case (if you know): _____________________________________________________________ (f) Grounds raised: See Attached_____________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ (g) Did you seek further review by a higher state court? Yes [] No [X] If yes, answer the following N/A (1) Name of court: ______________________________________________________________________________ (2) Docket or case number (if you know): N/A_____________________________________________________ (3) Result: N/a__________________________________________________________________________________ _________________________________________________________________________________________________ (4) Date of result (if you know): N/A____________________________________________________________ (5) Citation to the case (if you know): N/A______________________________________________________ (6) Grounds raised: N/A__________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ (h) Did you file a petition for certiorari in the United States Supreme Court? Yes [] No [X] If yes, answer the following: (1) Docket or case number (if you know): N/A_____________________________________________________ (2) Result: N/A__________________________________________________________________________________ _________________________________________________________________________________________________ (3) Date of result (if you know): N/A____________________________________________________________ (4) Citation to the case (if you know): N/A______________________________________________________ 10. Other than the direct app eals listed above, have you previously filed any other petitions, applications, or motions concerning this judgment of conviction in any state court? Yes [] No [X] 11. If your answer to Question 10 was "Yes," give the following information: (a) (1) Name of court: N/A___________________________________________________________________________ (2) Docket or case number (if you know): N/A_____________________________________________________ (3) Date of filing (if you know): N/A____________________________________________________________ (4) Nature of the proceeding: N/A________________________________________________________________ (5) Grounds raised: N/A__________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ (6) Did you receive a hearing where evidence was given on your petition, application, or motion? Yes [] No [X] (7) Result: N/A__________________________________________________________________________________ (8) Date of result (if you know): N/A____________________________________________________________ (b) If you filed any second petition, application, or motion, give the same information: (1) Name of court: N/A___________________________________________________________________________ (2) Docket or case number (if you know): N/A_____________________________________________________ (3) Date of filing (if you know): N/A____________________________________________________________ (4) Nature of the proceeding: N/A________________________________________________________________ (5) Grounds raised: N/A__________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ (6) Did you receive a hearing where evidence was given on your petition, application, or motion? Yes [] No [] (7) Result: N/A__________________________________________________________________________________ (8) Date of result (if you know): N/A____________________________________________________________ (c) If you filed any third petition, application, or motion, give the same information: (1) Name of court: N/A___________________________________________________________________________ (2) Docket or case number (if you know): N/A_____________________________________________________ (3) Date of filing (if you know): N/A____________________________________________________________ (4) Nature of the proceeding: N/A________________________________________________________________ (5) Grounds raised: N/A__________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________ (6) Did you receive a hearing where evidence was given on your petition, application, or motion? Yes [] No [] (7) Result: N/A___________________________________________________________________________________ (8) Date of result (if you know): N/A_____________________________________________________________ (d) Did you appeal to the highest state court having jurisdiction over the action taken on your petition, application, or motion? (1) First petition: Yes [] No [X] (2) Second petition: Yes [] No [X] (3) Third petition: Yes [] No [X] (e) If you did not appeal to the highest state court having jurisdiction, explain why you did not: Appellate counsel advised that application for rehearing and/or______________________________________ transfer to the Supreme Court would not be effective_________________________________________________ _____________________________________________________________________________________________________ 12. For this petition, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground. CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available state-court remedies on each ground on which you request action by the federal court. Also, if you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date. GROUND ONE: SEE ATTACHED _________________________________________________________________________________ __________________________________________________________________________________________________________ (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): SEE ATTACHED______________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ (b) If you did not exhaust your state remedies on Ground One, explain why: ________________________________ N/A_______________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ (c) Direct Appeal of Ground One: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes [X] No [] (2) If you did not raise this issue in your direct appeal, explain why: ______________________ N/A__________________________________________________________________________________________________ _____________________________________________________________________________________________________ (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? Yes [X] No [] (2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Post-Conviction Relief Motion Rule 29.15_________________________________ Name and location of the court where the motion or petition was filed: _____________________________________ Circuit Court of St. Louis City, Mo._________________________________________________________________

GROUND ONE

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF IAN MCGAHAN'S OUT-OF-COURT IDENTIFICATIONS; IN THAT, MR. MCGAHANS'S OUT-OF-COURT IDENTIFICATIONS WERE THE RESULT OF UNNECESSARILY SUGGESTIVE POLICE PROCEDURE WHICH CREATED A SUBSTANTIAL RISK FOR MISIDENTIFICATION, THUS MAKING SAID IDENTIFICATION UNRELIABLE. THE TRIAL COURT'S RULING, OVER THE OBJECTION OF DEFENSE COUNSEL, DEPRIVED MR. SHARKS RIGHTS TO DUE PROCESS OF LAW AND TO A FAIR AND IMPARTIAL TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNTED STATES CONSTITUTION AND ARTLCLE I, SECTION 18(a) OF THE MISSOURI CONSTITUTION. FURTHERMORE, THE TRIAL COURT'S ERROR IS IN CONFLICT WITH CLEARLY ESTABLISHED FEDERAL LAW AS DETERMINED BY THE UNITED STATES SUPREME COURT AND IS IN CONTRAST WITH THE FACTS OF THE CASE, THEREFORE, THE CLAIM IS PRESERVED FOR FEDERAL HABEAS CORPUS REVIEW. 28 U.S.C. 2254(d). THUS MR. SHARKS IS ENTITLED TO HAVE THE CONVICTION IN CASE NUMBER 0622-CR02210-01 , REVERSED, THE SENTENCE VACATED AND THE CASE REMANDED BACK BEFORE THE TRIAL COURT FOR A NEW TRIAL.

SUPPORTING FACTS FOR GROUND ONE

In Missouri, in determining the admissibility of identification testimony, the trial court must determine if the pretrial identification procedure was suggestive, and if so, what impact that suggestiveness had on the reliability of the witness' identification. STATE V. LANOS, 14 S.W. 3d 90, 95 (Mo.App.E.D. 1999); STATE V. FYFE, 922 S.W.2d 71, 73 (Mo.App.W.D. 1989).

Reliability is assessed under the totality of the circumstances considering the following factors: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. FYFE, Supra, at 73 citing STATE V. HORNBUCKLE, 769 S.W.2d at 93; STATE V. SURGEON, 823 S.W.2d 63 (Mo.App.E.D. 1991).

In the case at bar, there was clear and convincing evidence that the pretrial identification procedure was suggestive and that said procedure impacted the suggestiveness of the reliability of said identification and thus should have been ruled inadmissible.

The police identification procedures used to conduct both the photo line up and the physical line up were unnecessarily suggestive because Mr. McGaham never completely saw the robber's face. Mr. McGahan never did see the robber's face because the robber wore a hat, hood and scarf or turtleneck covering his face from the middle of his forehead to the top of his upper lip. [Tr. 198, 225] Mr. Mcgahan could not pick anyone out when he initially looked at State's Exhibit 2 [Tr. 201]. At trial, Mr. McGahan testified that the robber had a "mean, cold look in his eyes." [Tr. 203]. Mr. McGahan further testified that the police permitted him to use an unreliable, suggestive technique by using his fingers to cover above the forehead and below the bottom lip on each photo in State's Exhibit 2 [Tr. 201] and that he picked out the man because he recognized the man's eyes and the bridge of his nose. [Tr. 203, 204].

In applying the standard of review required by Missouri, in reviewing the totality of the circumstances, the out-of-court identifications made by Mr. McGahan were unreliable and should have been suppressed at trial. Mr. McGahan testified at trial that he could not completely see the robber's face. It was not feasible that Mr. McGahan was able to identify the robber from the photo lineup and a subsequent physical lineup without having seen a large portion of the robber's face. Mr. McGahan could not initially pick anyone out by looking at State's Exhibit 2, without covering a large portion of the individuals face. Thus, his identification of Mr. Sharks' as the person who robbed him was unreliable.

There is a strong probability that he picked Mr. Sharks from the photo lineup because his eyes and the bridge of his nose closely resembled that of the robber, from the others in the lineup. The fact that Mr. McGahan never saw a large portion of the robber's face, his selection of Mr. Sharks from the photo lineup and subsequently at the physical lineup were unreliable.

The evidence clearly established that Mr. McGahan's identification was unreliable; in that, applying the factors established in FYFE, Supra at 73, Mr. McGahan admitted (1) he did not have the opportunity to view the face of his robber. The robber wore a hat, hood and scarf or turtleneck covering most of his face; (2) Mr. McGahan never testified that his attention was completely on the face of the robber; (3) Mr. McGahan initially stated he couldn't identify the face of the robber; (4) Mr. McGahan could not identify anyone without using a suggestive technique of covering up parts of the face of the photos viewed; and (5) Mr. McGahan wasn't shown the physical lineup until almost eight months after the robbery occurred.

The admission of Mr. McGahan's out-Of-court identification and State's Exhibit 2 and 7, were the result of unnecessarily suggestive police procedures which created a substantial risk for misidentification. Mr. Sharks was prejudiced because the jury was allowed to consider unreliable out-of-court identifications when deciding if he committed the crimes for which he was on trial. Had the out-of court identification evidence been suppressed at trial, there is a reasonable probability that the outcome of the trial would have been different.

Thus, the admission of Mr. McGahan's out-of-court identification and State's Exhibit 2 and 7 violated Mr. Sharks' right to due process of the law and a fair and impartial trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section(s) 10 and 18(a) of the Missouri Constitution.

Therefore, Mr. Sharks' is entitled to have the conviction in case no. 0622-CR-2210-01 reversed, the sentence vacated and the case remanded back before the trial court for a new trial.

GROUND TWO

THE POST-CONVICTION RELIEF COURT ERRED IN DENYING MR. SHARKS RULE 29.15 MOTION, WITHOUT AN EVIDENTIARY HEARING. ON THE CLAIM OF INEFFECTIVE ASSISTANCE OF OCUNSEL FOR FAILING TO OFFER UP IMPEACHMENT EVIDENCE IN REGARDS TO THE ALLEGED VICTIM'S IDENTITIFACTION OF MR. SHARKS AS THE PERSON WHO COMMITTED THE CRIME. TRIAL COUNSEL HAD REBUTTAL EVIDENCE WHICH WOULD CONCLUSIVELY PROVE THAT MR. SHARKS WAS 2-5 SHORTER THAN THE PERSON THAT THE VICTM DESCRIBED AS THE PERSON WHO COMMITTED THE CRIME. THE MOTION COURT'S DENIAL OF AN EVIDENTIARY HEARING ON THE CLAIM VIOLATED MR. SHARKS RIGHT TO A FAIR TRIAL AND TO DUE PROCESS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 18(a) OF THE MISSOURI CONSTITUTION. THE MOTION COURT'S DECISION IS IN CONTRAST TO THE FACTS OF THE CASE AND IS IN CONFLICT WITH ESTABLISHED FEDERAL LAW AS DETERMINED BY THE UNITED STATES SUPREME COURT, THEREFORE, THE CLAIM IS PRESERVED FOR FEDERAL HABEAS CORPUS REVIEW. 28 U.S.C. 2254(d). THUS, MR. SHARKS IS ENTITLED TO HAVE THE CONVICTION IN CASE NUMBER 0622-CR02210-01 , REVERSED, THE SENTENCE VACATED AND THE CASE REMANDED BACK BEFORE THE TRIAL COURT FOR A NEW TRIAL.

SUPPORTING FACTS FOR GROUND TWO

Before the trial, Mr. McGahan had given a deposition in which he described the person who robbed him as being the same height or taller than him, 510 or 511. At trial, he gave the same description [Tr. 199]. Mr. Sharks' is 56 to 58 a full 2-5 shorter than the description given. At trial, counsel asked Mr. Sharks' to stand but failed to gauge or measure his height to establish to the jury that he was, in fact, 2-5 shorter than the description given. The fact that Mr. McGahan testified that he only saw a small portion of the robber's partially covered face [Tr. 198], made the variation in the height of Mr. Sharks' in comparison to the height of the robber as described by Mr. McGahan, an important aspect of the defense that Mr. Sharks' could not be the person who robbed Mr. McGahan.

Mr. Sharks' also pled in his Amended Motion that "he is between 56 and 58, in height [PCRI.f. 35]. Mr. Sharks' further pled that he expected trial counsel to testify, at an evidentiary hearing, that she believed the issue of his height was important and that `no strategy or reason, other than inadvertence, supported her failure to elicit that favorable information on behalf of Mr. Sharks'." [PCRL.F. 35]

The motion court denied, without an evidentiary hearing, this aspect of his claim, writing that the allegation, is without merit because if movant was conspicuously shorter than the victim, this would have been apparent when he was asked to stand.

However, this rationale by the motion ocurt is not a valid assumption; in that, shat was not taken into account was that counsel only asked Mr. Sharks' to stand. She did not seek permission of the court to have both Mr. Sharks' and Mr. McGahan stand at the same time, or even ask that they be permitted to stand side by side, so as to show the jury the variance in height. Thus, the motion court could not determine the merits of this claim without an evidentiary hearing on the matter.

The motion court failed to conclude that, had testimony of Mr. Sharks' actual height been established at trial, that this would have changed the outcome of the trial.

The motion court, instead, seemed to have concluded that Mr. Sharks' was, in truth, not significantly shorter that the victim. Again, assuming facts not in evidence; in that, counsel failed to establish this fact by conducting a comparison of the two persons.

The fact that counsel requested that Mr. Sharks' stand during trial, to show the jury his height, established that she considered his height an important issue. [Tr. 406]. However, merely having Mr. Sharks' stand before the jury, without establishing his height of between 56 to 58 tall, in contrast to the description given by Mr. McGahan, as the robber being 510 to 511 tall, failed to provide the jury with the adequate description of the variance in height.

The variance in height of the description given by Mr. McGahan and further testified to at trial, was key to Mr. Sharks' defense; in that, Mr. McGahan testified that he never completely saw the robber's face, only a small portion. Moreover, Mr. McGahan picked Mr. Sharks' out of a photo lineup because his nose and eyes looked similar to the robbers. The variance of the height of Mr. Sharks' 56 to 58 tall and the height of the description given by Mr. McGahan of his robber, 510 to 511 tall, established the unreliability of the identification of Mr. Sharks' as the person who committed the robbery.

Thus, the motion court's denial of Mr. Sharks' Rule 29.15 motion, without an evidentiary hearing, is in conflict with the facts of the case and the testimony presented. Thus, said ruling denied Mr. sharks' rights to due process of law, effective assistance of counsel, to a fair trial and to access to the courts as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Section(s) 10 and 18(a) of the Missouri Constitution.

Therefore, Mr. Sharks' is entitled to have the conviction in case no. 0622-CR-2210-01, reversed, the sentence vacated and the case remanded back before the trial court for a new trial.

GROUND THREE

THE POST-CONVICTION MOTION COURT ERRED IN DENYING MR. SHARKS RULE 29.15 MOTION, WITHOUT AND EVIDENTIARY HEARING, ON THE CLAIM THAT COUNSEL WAS INEFFECTIVE FOR FAILING TO ADEQUATELY CROSS-EXAMINE THE CODEFENDANT ON WHETHER HE WOULD RECEIVE FAVORABLE SENTENCE CONSIDERATION IN EXCHANGE FOR HIS TESTIMONY AGAINST MR. SHARKS. TRIAL COUNSEL'S INEFFECTIVENESS ON THIS CLAIM AND THE PCR MOTION COURT'S FAILURE TO CONDUCT AN EVIDETIARY HEARING ON THIS CLAIM DENIED MR. SHARKS OF HIS RIGHTS TO DUE PROCESS, TO CONFRONT HIS ACCUSOR AND TO A FAIR AND IMPARTIAL TRIAL, AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 18(a) TO THE MISSOURI CONSTITUTION. FURTHERMORE, THE MOTION COURT'S DECISION IS IN CONTRST TO THE FACTS OF THE CASE AND IN CONFLICT WITH ESTABLISHED FEDERAL LAW AS DETERMINED BY THE UNITED STATES SUPREME COURT, THEREFORE THE CLAIM IS PRESERVED FOR FEDERAL REVIEW. 28 U.S.C. 2254(d). THUS, MR. SHARKS IS ENTITLED TO HAVE THE CONVICITON IN CASE NUMBER 0622-CR02210-01 , REVERSED, THE SENTENCE VACATED AND THE CASE REMANDED BACK BEFORE THE TRIAL COURT FOR A NEW TRIAL.

SUPPORTING FACTS FOR GROUND THREE

The motion court's findings of fact and conclusions of law are erroneous; in that, they do not address trial counsel's role in the request for a continuance or its affect on the testimony of Jim Winslow and erroneously conclude that, in the absence of any testimony of a relevant, Jan. 28, 2008, memo, indicating that the state wanted to make a deal with Mr. Winslow for his testimony, that the issue of Mr. Winslow's biased testimony had been sufficiently addressed at trial.

On Nov. 14, 2007, Mr. sharks, by counsel, filed a motion for speedy trial [If24]. On Jan. 28, 2008, however, Mr. Sharks' counsel, with out his consent agreed with the State, by memorandum, to continue his trial so that the State could make a proffer to his co-defendant, Jim Winslow.

In his amended motion, Mr. Sharks' pointed out that he had not signed the Jan. 28, 08, memorandum, and averred that he did not agree with counsel continuing his trial so that the State could make a proffer to Jim Winslow [PCR LF 37]. He alleged that counsel was ineffective in continuing the case, with out his agreement and in contrast to his motion for a speedy trial. [PCR LF 37] He pled that "[h]ad trial counsel not agreed to continue his case so that the State could proffer Mr. Winslow, there is a reasonable probability that his trial would have occurred with out Mr. Winslow and the outcome would have been different [PCR LF 37].

The motion court's conclusion of law addressing this point, but only indirectly. The conclusion of law, however, do not address counsel's complicity in the joint request for a continuance, nor that the decision of Mr. Winslow to testify was affected by his awareness of the memo as pled in the amended motions.

With respect to the testimony of Mr. Winslow, counsel was ineffective in not eliciting from Mr. Wilson about his knowledge that the State had considered, or would consider, a more favorable sentencing recommendation in exchange for his testimony.

The conclusion also ignored the effect that Mr. Winslow's awareness of the memorandum would have had on the jury's determination of his credibility. See State v. brooks , 513 s.w.2d. 168, 173 (Mo. App. ED. 1973) (stating, "for a jury to assess the credibility of a witness, it must be aware of facts which might use a witness to be less than fully truthful or untruthful. The determination of that credibility is solely within the province of the jury and it is entitled to any information which may bear on that credibility").

In STATE V. JOINER, 823 S.W.2d 50, 52, 55 (Mo.App.E.D. 1991), the court of appeals for the Eastern District of Missouri, reversed a first degree murder conviction because the defendant had been prevented by the trial court from cross-examining a State's witness about his pending charges, Id at 52, 55. Although the prosecutor told the court in that case that she was unaware of any pending offers made on pending charges, the court noted that "[n]othing in the record indicates anything had been said to [witness Cole] from which he should have concluded his efforts would be of no avail to benefit his position." Id at 53. The court went on to state that, "w]hen showing bias, its not necessary to prove the existence of a deal or the state's willingness or unwillingness to deal. What is relevant is the witness' knowledge of these facts, his perception of expectancy of favorable treatment if he furthers the state's case, or his basis to fear harsh treatment if his testimony is unfriendly." JOINER, 823 S.W.2d at 54 (citing STATE V. SMITH, 741 S.W.2d 778, 781 (Mo.App.E.D. 1987).

Mr. Sharks' established ineffective assistance of counsel for counsel's complicity in allowing the state to obtain a continuance in order to offer a proffer to Mr. Winslow and for failing to offer the memorandum into evidence to impeach his testimony at trial. Therefore, the motion court's denial of his Rule 29.15 motion, without an evidentiary hearing, is in conflict with the facts of the case and in contrast to both state and federal law as determined by the United States Supreme Court. Thereby violating his rights to due process of the law, effective assistance of counsel, to a fair trial and the right to confront his accusers, as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section(s) 10 and 18(a) of the Missouri Constitution.

Therefore, Mr. Sharks' is entitled to have the conviction in case no. 0622-CR02210-01, reversed, the sentence vacated and the case remanded back before the trial court for a new trial.

GROUND FOUR

THE POST-CONVICTION MOTION COURT ERRED IN DENYING MR. SHARKS RULE 29.15 MOTION, WITHOUT AN EVDENTIARY, ON THE CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAIKING TO CHALLENGE THE INCONSISTENCIES IN THE TIMES WRITTEN ON TWO DOCUMENTS. THE INCONSISTENCIES IN QUESTION ESTABLISHED THAT THE PHOTO LINE UP IDENTIFICATION WAS PRODUCED AS A RESULT OF POLICE MISCONDUCT AND THEREFORE SHOULD HAVE BEEN INDADMISSIBLE. THE MOTION COURT'S DENIAL OF AN EVIDENTIARY HEAING ON THIS CLAIM VIOLATED MR. SHARKS RIGHT TO DUE PROCESS, EQUAL PROTECTION AND THE RIGHT TO A FAIR TRIAL AS GUARANEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 18(a) OF THE MISSOURI CONSTITUTION. THE MOTION COURT'S RULING IS IN CONTRAST TO THE FACTS OF THE CASE AND IN CONFLICT WITH ESTABLISHED FEDERAL LAW AS DETERMINED BY THE UNITED STATES SUPREME COURT, THEREFORE, THE CLAIM IS PRESERVED FOR FEDERAL HABEAS CORPUS REVIEW. 28 U.S.C. 2254(d). THUS, MR. SHARKS IS ENTITLED TO HAVE THE CONVICITON INCASE NUMBER 0622-CR02201-01 , REVERSED, THE SENTENCE VACATED AND THE CASE REMANDED BACK BEFORE THE TRIAL COURT FOR A NEW TRIAL.

SUPPORTING FACTS FOR GROUND FOUR

The motion court's findings of fact and conclusions of law are clearly erroneous and do not conclusively refute Mr. Sharks' Amended Motion; in that, its conclusion that the times were "approximate" times is unsupported by the record, and is in contrast with the trial testimony.

The motion court summarized as follows: "Movant claims there was an inconsistency regarding where detective Griffin was, and that counsel did not sufficiently highlight the discrepancy. Ian McGahan testified that a Detective [Detective Griffin] brought a lineup card to his house from which he identified a person as the robber. Mr. McGahan put his initials on the card as well as the date and time. Movant asserts that the date and time on the lineup card were December 23, 2005 and 2:00 p.m. Detective Cichacki testified that he was with Detective Grffin when they initially spoke with Jim Winslow in an interview room at Bridgeton. They then conveyed him downtown where Mr. Winslow signed a warning and waiver card and then made a written statement. The date and time on the bottom was 2:00 p.m. on December 23, 2005. Movant states that Detective Griffin could not have been in two different locations at the same time., the disparity calls into question the identification by Mr. McGahan and counsel was ineffective for allowing time to run out on her closing argument before she could fully address this disparity. The court does ot believe further highlighting the disparity would have changed the outcome of the trial."

The motion court's conclusions are clearly erroneous; in that, they state, without any support and in contrast to Mr. Sharks' Amended Motion, that the times identified on the warning and waiver form and the lineup card were "approximate" times. However, nothing in the record substantiates this conclusion. Moreover, testimony at trial indicated that Mr. Winslow was accurate in the time he signed the waiver.[2p.m.] Detective Cichacki indicatd it was 14oo hrs when he witnessed Mr. Winslow sign the `waiver' on December 23, 2005.

The form Mr. McGahan signed indicated 2p.m. on December 23, 2005. Nothing in either form stated approximately.

Thus, the motion court's conclusion that these times appear to be approximate, is clearly erroneous.

Furthermore, the motion court denied Mr. Sharks' Rule 29.15 motion without an evidentiary hearing on this claim, thereby relying on speculation, instead of facts. Moreover, the conclusion of the court is in contrast to the facts of the case; in that, the record clearly established that there is a discrepancy as to the times in question and thus questioning the reliability and credibility of the identification made by Mr. McGahan.

The motion court denial of Mr. Sharks' Rule 29.15 motion without an evidentiary hearing denied Mr. Sharks' the right to due process of the law, effective assistance of counsel and to a fair and impartial trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section(s) 10 and 18(a) of the Missouri Constitution.

Therefore, Mr. Sharks' is entitled to have the conviction in case no. 0622-CR02210-01, reversed, the sentence vacated and the case remanded back before the trial court for a new trial.

GROUND FIVE

THE COURT OF APPEALS FOR THE EASTERN DISTRICT OF MISSOURI ERRED IN DENYING MR. SHARKS' APPEAL OF THE PCR MOTION COURT'S DENIAL OF HIS MOTION FOR POST-CONVICTION RELIEF UNDER RULE 29.15 , ON THE CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO DEMONSTRATE THAT HE WAS 2-5 SHORTER THAN THE ROBBER AND FAILING TO IMPEACH THE VICTIM'S TRIAL TESTIMONY IDENTIFIYING HIM AS THE ROBBER. THE APPEAL COURT'S DECISION IS IN CONTRAST TO THE FACTS OF THE CASE AND IS IN CONFLICT WITH ESTABLISHED FERERLA LAW AS ESTABLISHED BY THE UNITED STATES SUPREME COURT, THEREFORE, THE CLAIM IS PERSERVED FOR FEDERAL HABEAS CORPUS REVIEW. 28 U.S.C. 2254(d). THUS, MR. SHARKS IS ENTITLED TO HAVE THE CONVICTION IN CASE NUMBER 0622-CR02210-01 , REVERSED, THE SENTENCE VACATED AND THE CASE REMANDED BACK BEFORE THE TRIAL COURT FOR A NEW TRIAL.

SUPPORTING FACTS FOR GROUND FIVE

In a PER CURIAM ORDER, issued on April 19, 2011, the Court of Appeals for the Eastern District of Missouri, denied Mr. Sharks' appeal of the motion court's denial of his Rule 29.15 motion for post-conviction relief, without an evidentiary hearing, on the claim that trial counsel was ineffective for failing to demonstrate to the jury that Mr. Sharks' was 2-5 shorter than the person that Ian McGahan had described as the person who robbed him.

In forming its rationale, the court cited WORTHINGTON V. STATE, 166 S.W.3d 566, 573 (Mo.banc. 2005) (reasonable choices of trial strategy, even if ineffective in hindsight, cannot form a basis for ineffective assistance of counsel). The court further rationalized that Mr. Sharks' had failed to establish that there was a conspicuous difference between his height and the robber's, stating the difference may have been as little as two inches.

The rationale used by the court is in conflict with the facts of the case. Furthermore, the court erred by dismissing the claim as being irrelevant. At trial, and even before trial in a deposition, Mr. McGahan continually described the person who robbed him as being between 510 and 511 tall. At no time during his testimony did he waiver from this testimony. He stated the robber was as tall as him or taller. [510 to 511 tall].

The court of appeals sidestepped the issue by stating that trial counsel's actions, if reasonable, could not be considered ineffective. The facts of the case establish that counsel's actions were not born from sound trial strategy. Trial counsel attempted to present to the jury that Mr. sharks' could not fit the description of the robber because he is, in fact, 2-5 shorter than the person described as the person who robbed Mr. McGahan. In an attempt to establish this fact, counsel had Mr. Sharks' stand up. However, counsel did not foolw through with this strategy by having Mr. Sharks' go and stand in front of the jury or measure his height in the presence of the jury to establish his height. Counsel further had the option available to her to allow Mr. Sharks' and Mr. McGahan to stand side by side to establish the disparity in height. But, counsel failed to do any of these things. Thus, her trial strategy could not have been considered as `sound strategy'. Had counsel acted as a reasonable attorney would have given similar circumstances, she would have take appropriate measure to establish and show the jury the height disparity and given the facts of the case, there is a reasonable probability that the outcome of the trial would have been different. Thus, Mr. Sharks' has established ineffective assistance of counsel under the STRICKLAND STANDARD and thus, is entitled to have his conviction reversed.

As to the second point of his claim that trial counsel was ineffective for failing to impeach the victim's trial testimony identifying him as the robber, again, the court of appeals decision is in contrast to the facts of the case.

The court states that the victim testified that he was able to immediately identify Mr. Sharks' in the photograph lineup. This, however, is an incorrect assessment of the facts. Mr. McGahan testified that when he was first shown the photo lineup, he could not pick out the person who robbed him. It was only after the police allowed him to use an unnecessarily suggestive tactic that he was able to pick out Mr. Sharks. Mr. McGahan was allowed to place his fingers on the photo above the eyes and below the nose and he picked out Mr. Sharks because he looked similar to the person who robbed him. Mr. McGahan testified that he never saw the robbers face and when viewed in full, he could not identify Mr. Sharks' as the person who robbed him. Mr. McGahan testified that the robber had "mean eyes". So, by allowing Mr. McGahan to cover up the photo, the identification then becomes unreliable, in that, the police could have placed persons in the line up whose eyes were not similar to Mr. Shanks' and thus creating an improper identification. Thus trial counsel had a duty to impeach Mr. McGahan with all inconsistence statements. Furthermore, the jury had a right to know that Mr. McGahan had viewed Mr. Shanks' photograph and was unable to pick him out.

The facts of the case establish that Mr. Shanks' was, in fact, entitled to an evidentiary hearing, in that he stated facts not conclusions which would entitle him to relief. Thus, the Court of Appeals for the Eastern District of Missouri, in denying his appeal of the motion courts denial of his rule 29.15 motion for post-conviction Relief, without an evidentiary hearing, violated Mr. Shanks' right to due process of law, effective assistance of counsel to a fair trial in violation of the 6, 14 amendment to the United States Constitution and Art. I, Sec. 10 18(a) of The Missouri Constitution.

Therefore, Mr. Sharks is entitled to have the conviction in case no. 0622-CR02210-01, reversed, the sentence vacate and the case remanded back before the trial court for a new trial.

GROUND SIX

THE COURT OF APPEALS FOR THE EASTERN DISTRICT OF MISSOURI ERRED IN DENYING MR. SHARKS' APPEAL OF THE PCR MOTION COURT'S DENIAL OF HIS MOTION FOR POST-CONVICTION RELIEF UNDER RULE 29.15 , ON THE CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR CONSENTING TO A CONTINUANCE AND FAILING TO ADEQUATELY CROSS-EXAMINE THE CODEFENDANT ON WHETHER HE WOULD RECEIVE A MORE FAVORABLE SENTENCE IN EXCHANGE FOR HIS TESTIMONY AGAINST MR. SHARKS. THE COURT'S DECISION IS IN CONTRAST TO THE FACTS OF THE CASE AND IN CONFLICT WITH ESTABLISHED FEDERAL LAW AS DETERMINED BY THE UNITED STATES SUPREME COURT, THEREFORE, THE CLAIM IS PRESERVED FOR FEDERAL HABEAS CORPUS REVIEW. 28 U.S.C. 2254(d). THUS, MR. SHARKS' IS ENTITLED TO HAVE THE CONVICTION IN CASE NUMBER 0622-CR02210-01 , REVERSED, THE SENTENCE VACATED AND THE CASE REMANDED BACK BEFORE THE TRIAL COURT FOR A NEW TRIAL.

SUPPORTING FACTS FOR GROUND SIX

In a PER CURIAM ORDER issued on April 19, 2011, the court of appeals for the Eastern District of Missouri, denied Mr. Sharks' appeal of the motion court's denial of his Rule 29.15 motion for post-conviction relief, without an evidentiary hearing, on the claim that trial counsel was ineffective for consenting to a continuance and failing to adequately cross-examine the codefendant on whether he would receive a more favorable sentence in exchange for his testimony against Mr. Sharks'.

The court's denial of Mr. Sharks' appeal is in contrast to the facts of the case. The motion court was required to conduct an evidentiary hearing on this claim to determine if his rights to a `speedy trial' had been violated by counsel's complacency in the continuance that was agreed upon after the motion for a speedy trial had been filed.

The facts of the case established that on January 28, 2008, the State filed a memorandum in support of its request for a continuance in the case to make a proffer to Jim Winslow in return for his testimony against Mr. Sharks. The court rationalized that trial counsel's agreement to the continuance did not substantially affect Mr. Sharks' constitutional rights because Mr. Winslow had already made a written statement to the police. However, this rationale is inconsistent with the facts established; in that, the State had to make a proffer to Mr. Winslow before he would testify against Mr. Sharks and the State could not use his statement to the police unless he testified against Mr. Sharks, as any attempt to introduce said statement without producing Mr. Winslow to testify as to its authenticity would have been a violation of Mr. Sharks' rights to confront his accusers. Furthermore, the court failed to address the relevant fact that trial counsel did not consult with Mr. Sharks prior to agreeing to the continuance because she knew that he would not agree to it. Moreover, counsel could not rely on the rationale of `trial strategy' because it would not be sound trial strategy to seek a continuance to allow the State to produce more damaging evidence against him. Thus, the motion court should have been required to conduct a hearing on this claim, to determine to what extent trial counsel's actions in this regard affected Mr. Sharks' constitutional rights to a fair and speedy trial.

The court of appeals could only speculate as to whether or not the State could have proceeded without Mr. Winslow's testimony and obviously the State felt that its case would not be as sound as it would be if it had Mr. Winslow's testimony, thus, the facts of the case established that trial counsel was ineffective for failing to consult with Mr. sharks about the continuance and at a minimum, notify the trial court of his objection on the record. Mr. Sharks established facts which entitled him to an evidentiary hearing on this matter.

As to the argument that trial counsel was not ineffective for failing to adequately cross-examine Mr. Winslow as to whether he would receive favorable consideration in exchange for his testimony against Mr. Shank. The Courts rational is, again, inconsistent with the fact of the case.

The facts of the case established that Mr. Winslow and not Mr. Shanks' was the person who was initially arrested for the crime for which he testified against Mr. Sharks and that it was Mr. Wilson and not Mr. Shanks' who was caught with processed from the robbery, Therefore, it was Mr. Winslow who had a motive to testify against Mr. Sharks and that motive was to tell the State whatever they wanted to hear in order to reduce his punishment. The facts further established that Mr. Winslow didn't volunteer to testify against Mr. Sharks', that the State had to Make a proffer to him in exchange for his testimony.

A reasonable attorney would have filed a pre-trial motion, thus requiring the State to reveal any deals and/or agreements that had been made in exchange for Mr. Winslow's testimony which could have been used for impeachment purposes at trial. However, trial counsel failed to do so, which effectively denied Mr. Sharks' the opportunity to challenge Mr. Winslow when he represented to the jury that he had not received any favorable consideration for his testimony.

Missouri courts are all in agreement that extreme caution must be taken when considering codefendant testimony as their testifying often turns into "testi-lyig" in order to obtain favorable consideration.

At a minimum, the motion court should have conducted an evidentiary hearing on this claim to determine why trial counsel failed to require the State to reveal, prior to trial, any deals and/or agreements it had made with Mr. Winslow in exchange for his testimony and the failure to do so violated Mr. Sharks' right to due process of the law, effective assistance of counsel, the right to confront his accusers and the right to a fair trial, as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section(s) 10 and 18(a) of the Missouri Constitution.

Therefore, Mr. Sharks is entitled to have the conviction in case no. 0622-CR02210-01, reversed, the sentence vacated and the case remanded back before the trial court for a new trial.

GROUND SEVEN

THE COURT OF APPEALS FOR THE EASTERN DISTRICT OF MISSOURI ERRED IN DENYING MR. SHARKS' APPEAL OF THE POST-CONVICTION MOTION COURT'S DENIAL OF HIS MOTION FOR POST-CONVICITON RELIEF UNDER RULE 29.15 , ON THE CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO POINT OUT AN INCONSISTENCY IN THE TIMES WRITTEN ON TWO DOCUMENTS. SAID DOCUMENTS WERE IN RELATION TO THE PHOTO LINE UP AND SAID INCONSISTENCIES FURTHER PROVE THAT THE LINE UP WAS IMPROER. THE COURT'S DECISION IS IN CONTRAST WITH THE FACTS OF THE CASE AND IS IN CONFLICT WITH ESTABLISHED FEDERAL LAW AS DETERMINED BY THE UNITED STATES SUPREME COURT, THEREFORE THE CLAIM IS PRESERVED FOR FEDERAL HABEAS CORPUS REVIEW. 28 U.S.C. 2254(d). THUS MR. SHARKS' IS ENTITLED TO HAVE THE CONVICTION IN CASE NUMBER 0622-CR02210-01 , REVERSED, THE SENTENCE VACTED AND THE CASE REMANDED BACK BEFORE THE TRIAL COURT FOR A NEW TRIAL.

SUPPORTING FACTS FOR GROUND SEVEN

In a PER CURIAM ORDER dated April 19, 2011, the court of appeals for the Eastern District of Missouri, denied Mr. Sharks' appeal of the denial of his Rule 29.15 motion for post-conviction relief, without an evidentiary hearing, on the claim that trial counsel was ineffective for failing to point out the inconsistencies in the times written on two documents.

The Court's decision is in contrast to the facts of the case; in that, the facts established that a statement written by Jim Winslow, in the presence of Detective Griffin, indicates it was written at 2:00 p.m. on December 23, 2005, at the police station. However, the photo lineup also indicates that Mr. Ian McGahan made his identification in front of Detective Griffin at 2:00 p.m. on December 23, 2005, at the victim's home, thus, essentially placing Detective Griffin in two places at the same time.

The motion court denied Mr. Sharks' an evidentiary hearing on this claim stating that in its opinion, this disparity would not have changed the outcome of the trial. The Court of Appeals agreed with the motion court.

However, an evidentiary hearing should have been conducted on this claim because the evidence adduced at trial was that both the victim and Mr. Winslow were certain that they had both signed their respective documents at 2:00 p.m. on December 23, 2005, in the presence of Detective Griffin. There was no evidence presented that this was merely a typographical error.

The police tactics used in obtaining an identification from Mr. McGahan were questionable and were produced as a result of an unnecessarily suggestive tactic; in that, Mr. McGahan could not positively identify Mr. Sharks from the photo line up and was then allowed to cover up part of his face, which could not be considered a valid identification. Coupled with the fact that Detective Griffin was allegedly present for both Mr. Winslow's statement and Mr. McGahan's identification, at the same time, raises some question of possible police misconduct and therefore, the motion court should have been required to conduct an evidentiary hearing on this claim.

The failure of the motion court to conduct an evidentiary hearing on this claim and the appeals court denial of Mr. Sharks' appeal, violated Mr. Sharks' right to due process of the law, effective assistance of counsel and the right to a fair trial, as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section(s) 10 and 18(a) of the Missouri Constitution.

Therefore, Mr. Sharks' is entitled to have the conviction in case no. 0622-CR02210-01, reversed, the sentence vacated and the case remanded back before the trial court for a new trial.

GROUND EIGHT

THE POST-CONVICTION RELIEF MOTION COURT ERRED IN FAILING TO ISSUE [ITS] "FINDINGS OF FACT AND CONCLUSIONS OF LAW" ON ALL CLAIMS RAISED IN MR. SHARKS' PRO-SE MOTION , IN VIOLATION OF RULE 29.15(j). FURTHERMORE, MR. SHARKS' WAS PROVIDED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL; IN THAT, COUNSEL FAILED TO INCORPORATED THE PRO=SE CLAIMS INT THE `AMENDED MOTION' , IN ACCORDANCE WITH RULE 29.15(g) , THEREBY DENYING HIM THE OPPORTUNITY TO HAVE THESE CLAIMS PRESERVED FOR APPELLATE REVIEW. MR. SHARKS' IS ENTITLED TO HAVE THIS MATTER REMANDED BACK BEFORE THE PCR MOTION COURT, APPELLATE COUNSEL BE APPOINTED, AN EVIDENTIARY HEARING BE CONDUCTED AND THE MOTION COURT ORDERED TO ISSUE [ITS] "FINDINGS OF FACT AND CONCLUSION OF LAW" AS TO THE CLAIMS RAISED WITHIN THE ORIGINAL PRO-SE MOTION.

SUPPORTING FACTS FOR GROUND EIGHT

The Post-Conviction Relief Court violated Missouri Supreme Court Rule 29.15(j) by failing to address and issue a `findings of fact and conclusions of law' on the claims presented in Mr. Sharks' pro-se motion. Furthermore, Mr. Sharks' was denied effective assistance of appellate counsel; in that, appellate counsel violated Missouri Supreme Court Rule 29.15(g), by failing to incorporate the claims presented in the pro-se motion, into the Amended Motion and by failing to attach a copy of the pro-se motion to the Amended Motion.

Mr. Sharks, in his pro-se motion, presented the following claims of ineffective assistance of trial counsel:

(a) trial counsel was ineffective for failing to request the trial court to submit to the jury, instructions on lesser included offenses of Robbery in the Second Degree and Stealing;

(b) trial counsel was ineffective for failing to impeach Detective Cichacki, at trial, with his prior inconsistent statements as to when the alleged hat the robber wore was found in Jim Winslow's car by Detective Griffin;

(c) trial counsel was ineffective for failing to call Detective Griffin to testify at trial concerning the discrepancy about when the alleged victim picked Mr. Sharks' picture out of the photo spread;

(d) trial counsel was ineffective for failing to impeach the testimony of State's witness Michael Burrage, at trial, with his prior inconsistent statement to Detective Hickman that he allegedly heard the driver Jim Winslow tell the passenger Mr. Sharks to "hurry up" when they returned to the car;

(e) trial counsel was ineffective for failing to cross-examine State's witness Jim Winslow, about the discrepancy between the amount of money Mr. Sharks' allegedly gave him after the robbery and the amount he actually had in his possession when he was arrested.

The motion court failed to address any of these claims in its decision, thereby effectively denying Mr. Sharks' the opportunity for collateral review of said claims.

The practice of motion courts failures to address pro-se claims has come under scrutiny and in WEEKLEY V. STATE, 265 S.W. 3d 319 (mo.App.S.D. 2008), the Court of Appeals for the Southern District of Missouri addressed this issue, stating that "A motion court's failure to issue findings of fact and conclusions of law as required by 29.15(j) is error and generally necessitates that the case be remanded with a directive to make the required findings." See e.g. BROOM, 173 S.W.3d at 682-83; MITCHELL V. STTAE, 50 S.W.3d 342, 343 (Mo.App.S.D. 2001).

In addressing appellate counsel's failure to incorporate said claims, the court stated, "[T]he better practice is for counsel to include the claims from movant's earlier pro-se motions within the body and text of counsel's amended motion, and in that way to assure compliance with the Rule 29.15(e) requirement that appointed counsel supplement and perfect the factual and legal allegations in the pro-se motions." REYNOLDS V. MISSOURI, 994 S.W.2d 944, 946 (Mo. 1999).

It is clear from the cases cited that the motion court erred in failing to issue its findings on the claims raised within the pro-se motion and counsel was ineffective for failing to incorporate said claims within the amended motion.

Therefore, at a minimum, Mr. Sharks' is entitled to have this matter remanded back before the motion court with instructions that appellate counsel be appointed and that an opportunity be provided for counsel to submit a supplemental amended motion thereby addressing the claims raised within the original pro-se motion and that the motion court determine if an evidentiary hearing should be held on said claims. If the motion court denies an evidentiary hearing, the court should be required to establish as to why it has determined why a hearing is not necessary and to issue a `findings of fact and conclusions of law' as to the claims raised within the original pro-se motion for post-conviction relief under Rule 29.15. Docket or case number (if you know): 1022-CC00047_____________________________________________________ Date of the court's decision: April 15, 2010__________________________________________________________ Result (attach a copy of the court's opinion or order, if available): PCR Motion denied_______________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ (3) Did you receive a hearing on your motion or petition? Yes [] No [X] (4) Did you appeal from the denial of your motion or petition? Yes [X] No [] (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? Yes [] No [] (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed: Court of Appeals, Eastern__________________ District______________________________________________________________________________________________ Docket or case number (if you know): ED94927__________________________________________________________ Date of the court's decision: April 19, 2011__________________________________________________________ Result (attach a copy of the court's opinion or order, if available): Conviction Affirmed_____________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ (7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue: N/A____________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground One:__________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ GROUND TWO: SEE ATTACHED_________________________________________________________________________________ __________________________________________________________________________________________________________ (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): SEE ATTACHED______________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ (b) If you did not exhaust your state remedies on Ground Two, explain why: _______________________________ N/A_______________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ (c) Direct Appeal of Ground Two: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes [X] No [] (2) If you did not raise this issue in your direct appeal, explain why: ________________________ N/A___________________________________________________________________________________________________ ______________________________________________________________________________________________________ (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? Yes [X] No [] (2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Post Conviction Relief Motion Rule 29.15___________________________ Name and location of the court where the motion or petition was filed: ________________________________ Circuit Court of St. Louis, Mo._______________________________________________________________________ Docket or case number (if you know): 1022-CC00047_____________________________________________________ Date of the court's decision: April 15, 2010__________________________________________________________ Result (attach a copy of the court's opinion or order, if available): Conviction Affirmed_____________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ (3) Did you receive a hearing on your motion or petition? Yes [] No [X] (4) Did you appeal from the denial of your motion or petition? Yes [X] No [] (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? Yes [X] No [] (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed: Court of Appeals, Eastern__________________ District______________________________________________________________________________________________ Docket or case number (if you know): ED94927__________________________________________________________ Date of the court's decision: APRIL 19, 2011__________________________________________________________ Result (attach a copy of the court's opinion or order, if available): CONFIRMED_______________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ (7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue: N/A____________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Two:______________________ N/A___________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ GROUND THREE: SEE ATTACHED________________________________________________________________________________ __________________________________________________________________________________________________________ (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): SEE ATTACHED______________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ (b) If you did not exhaust your state remedies on Ground Three, explain why:______________________________ N/A_______________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ (c) Direct Appeal of Ground Three: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes [X] No [] (2) If you did not raise this issue in your direct appeal, explain why: _______________________________ N/A____________________________________________________________________________________________________ ______________________________________________________________________________________________________________ (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? Yes [X] No [] (2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Post-Conviction Relief Motion under Rule 29.15_____________________ Name and location of the court where the motion or petition was filed: Circuit Court of_______________ St. Louis City, Mo.___________________________________________________________________________________ Docket or case number (if you know): 1022-CC00047_____________________________________________________ Date of the court's decision: APRIL 15, 2010__________________________________________________________ Result (attach a copy of the court's opinion or order, if available):_________________________________ PCR MOTION DENIED_____________________________________________________________________________________ ______________________________________________________________________________________________________ (3) Did you receive a hearing on your motion or petition? Yes [] No [X] (4) Did you appeal from the denial of your motion or petition? Yes [X] No [] (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? Yes [X] No [] (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed: COURT OF APPEALS, EASTERN__________________ DISTRICT______________________________________________________________________________________________ Docket or case number (if you know): ED94927__________________________________________________________ Date of the court's decision: APRIL 19, 2011__________________________________________________________ Result (attach a copy of the court's opinion or order, if available): AFFIRMED________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ (7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue: N/A____________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Three:____________________ N/A___________________________________________________________________________________________________ ______________________________________________________________________________________________________ GROUND FOUR: SEE ATTACHED_________________________________________________________________________________ __________________________________________________________________________________________________________ (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): SEE ATTACHED______________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ (b) If you did not exhaust your state remedies on Ground Four, explain why:_______________________________ N/A_______________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ (c) Direct Appeal of Ground Four: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes [] No [X] (2) If you did not raise this issue in your direct appeal, explain why:_______________________________ ISSUE FOR POST CONVICTION RELIEF______________________________________________________________________ (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? Yes [X] No [] (2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: POST-CONVICTION RELIEF MOTION RULE 29.15___________________________ Name and location of the court where the motion or petition was filed: CIRCUIT COURT OF________________ ST. LOUIS CITY, MO.___________________________________________________________________________________ Docket or case number (if you know): 1022-CC00047_____________________________________________________ Date of the court's decision: APRIL 15, 2010__________________________________________________________ Result (attach a copy of the court's opinion or order, if available): PCR MOTION DENIED_______________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ (3) Did you receive a hearing on your motion or petition? Yes [] No [X] (4) Did you appeal from the denial of your motion or petition? Yes [X] No [] (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? Yes [X] No [] (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed: EASTERN DISTRICT COURT OF__________________ APPEALS_______________________________________________________________________________________________ Docket or case number (if you know): ED94927___________________________________________________ Date of the court's decision: APRIL 19, 2011___________________________________________________ Result (attach a copy of the court's opinion or order, if available): AFFIRMED________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ (7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue: N/A ___________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Four: ____________________ N/A___________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ 13. Please answer these additional questions about the petition you are filing: (a) Have all grounds for relief that you have raised in this petition been presented to the highest state court having jurisdiction? Yes [] No [X] If your answer is "No," state which grounds have not been so presented and give your reason(s) for not presenting them: APPELLATE CPUNSEL REFUSED TO FILE MOTION_______________________ FOR REHEARING AND/OR TRANSFER TO SUPREME COURT____________________________________________________ __________________________________________________________________________________________________ __________________________________________________________________________________________________ (b) Is there any ground in this petition that has not been presented in some state or federal court? If so, which ground or grounds have not been presented, and state your reasons for not presenting them: N/A__________________________________________________________________________ __________________________________________________________________________________________________ __________________________________________________________________________________________________ 14. Have you previously filed any type of petition, application, or motion in a federal court regarding the conviction that you challenge in this petition? Yes [] No [X] If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, the issues raised, the date of the court's decision, and the result for each petition, application, or motion filed. Attach a copy of any court opinion or order, if available. _____________ N/A___________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ 15. Do you have any petition or appeal now pending (filed and not decided yet) in any court, either state or federal, for the judgment you are challenging? Yes [] No [X] If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, and the issues raised. N/A________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ 16. Give the name and address, if you know, of each attorney who represented you in the following stages of the judgment you are challenging: (a) At preliminary hearing: KELLY JAGER, 100 N.BROADWAY, ST. LOUIS, MO. 63102_________________________ ______________________________________________________________________________________________________ (b) At arraignment and plea: KELLY JAGER, SAME ADDRESS________________________________________________ ______________________________________________________________________________________________________ (c) At trial: KELLY JAGER, SAME ADDRESS________________________________________________________________ ______________________________________________________________________________________________________ (d) At sentencing: KELLY JAGER, SAME ADDRESS__________________________________________________________ ______________________________________________________________________________________________________ (e) On appeal: MALEANER HARVEY, 1000 ST. LOUIS UNION STATION, STE. 300________________________________ ST. LOUIS, MO. 63103__________________________________________________________________________________ (f) In any post-conviction proceeding: ANDREW E. ZLEIT, 1010 MARKET STREET, SUITE_____________________ 1100, ST. LOUIS, MO. 63101____________________________________________________________________________ (g) On appeal from any ruling against you in a post-conviction proceeding:____________________________ ANDREW E. ZLEIT, SAME ADDRESS_________________________________________________________________________ ______________________________________________________________________________________________________ 17. Do you have any future sentence to serve after you complete the sentence for the judgment that you are challenging? Yes [] No [X] (a) If so, give name and location of court that imposed the other sentence you will serve in the future: N/A___________________________________________________________________________________________ ______________________________________________________________________________________________________ (b) Give the date the other sentence was imposed: N/A_________________________________________________ (c) Give the length of the other sentence: N/A________________________________________________________ (d) Have you filed, or do you plan to file, any petition that challenges the judgment or sentence to be served in the future? Yes [] No [X] 18. TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) does not bar your petition.* N/A_______________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ * The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") as contained in 28 U.S.C. § 2244(d) provides in part that: (1) A one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from 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. (2) 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. Therefore, petitioner asks that the Court grant the following relief: REVERSE THE CONVICTION IN___________ CASE NO. 0622-CR2210-01, VACATE THE SENTENCE AND REMAND THE CASE BACK BEFORE__________________________ THE TRIAL COURT FOR A NEW TRIAL_______________________________________________________________________ or any other relief to which petitioner may be entitled. ________________________________________________ Signature of Attorney (if any) I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on ______________________________ (month, date, year). Executed (signed) on _________________________ (date). ________________________________________________ Signature of Petitioner If the person signing is not petitioner, state relationship to petitioner and explain why petitioner is not signing this petition. ___________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ IN FORMA PAUPERIS DECLARATION __________________________________________________ [Insert appropriate court] * * * * *