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Stemple v. Warden and Attorney General of State

United States District Court, D. Maryland

November 30, 2016

MICHAEL RAY STEMPLE # 37084 Petitioner


          Catherine C. Blake United States District Judge.

         Pending is Petitioner Michael Ray Stemple's (“Stemple”) petition for writ of habeas corpus filed pursuant to 28 U.S.C. 2254. Respondents, by their counsel, filed a response, (Answer, ECF No. 4), to which Stemple has replied, (Reply, ECF No. 6). After consideration of the pleadings, exhibits, and applicable law, the court finds a hearing unnecessary. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts. For the reasons set forth below, Stemple's Petition will be denied.


         Stemple, who is representing himself, challenges his 2011 convictions for sexual abuse of a minor in the Circuit Court for Frederick County, Maryland. (Pet. 1-2, [1] ECF No. 1.) The following is a summary of the facts of his conviction.

         In August 2010, Stemple was charged in the Circuit Court for Frederick County with multiple counts of sexual abuse of a minor and other offenses. (Answer 3, ECF No. 4; Answer, Ex. 1, Circuit Court Docket, ECF No. 4-1.) The victim was Stemple's sixteen-year-old stepdaughter. (Answer, Ex. 2, Plea Hrng. Tr. 11, ECF No. 4-2.) On January 11, 2011, Stemple appeared with counsel and entered a guilty plea to one count of sexual abuse of a minor (Count Three), which had occurred on July 23, 2010, and an Alford [2] plea to a second count of sexual abuse of a minor, which had taken place sometime between August, 2009, and July 22, 2010 (Count Nine). (Pet. 2, ECF No. 1; Answer, Ex. 2, Plea Hrng. Tr. 11, ECF No. 4-2.) Stemple was sentenced on August 4, 2011, to fifty years imprisonment, with twenty-five years suspended, and five years of probation. (Pet. 1, ECF No. 1; Answer, Ex. 3, Sent. Hrng. Tr. 20, ECF No. 4-3.)

         Stemple, proceeding pro se, filed a Notice of Appeal, which was treated as an application for leave to appeal to the Court of Special Appeals of Maryland, on August 11, 2011. (Pet. 2, ECF No. 1; Answer 5, ECF No. 4; Answer, Ex. 4, Notice of Appeal, ECF No. 4-4.) He did not present specific grounds for review. (Answer, Ex. 4, Notice of Appeal, ECF No. 4-4.) The court summarily denied the application in an unreported opinion filed on June 18, 2012. (Pet. 2, ECF No. 1; Answer, Ex. 4, June 18, 2012, Unreported Opinion, ECF No. 4-4.) Its mandate issued on July 19, 2012. (Answer, Ex. 4, July 19, 2012, Mandate, ECF No. 4-4.) Stemple did not seek further review by the United States Supreme Court. (Pet. 2, ECF No. 1.)

         On November 20, 2011, Stemple filed a pro se petition for post-conviction relief in the Circuit Court for Frederick County, followed by two supplements to that petition. (Answer, Ex. 5, Pro Se State Petitions, ECF No. 4-5.) Subsequently, Stemple, through counsel, filed two supplemental petitions for post-conviction relief. (Answer, Ex. 6, Counseled State Petitions, ECF No. 4-6.) Stemple raised numerous claims of error, including the lack of a knowing and voluntary guilty plea, ineffective assistance of both plea and sentencing counsel, prosecutorial misconduct, and judicial error. (Answer, Ex. 7 1, Amended Opinion and Order, ECF No. 4-7.) After the hearing, the post-conviction court denied the petition on February 19, 2013. (Answer, Ex. 7, ECF No. 4-7; Respondents' Ex 10, November 15, 2012, Hearing Tr.).[3] Stemple filed an application for leave to appeal the adverse decision, (Answer, Ex. 8, Application for Leave to Appeal, ECF No. 4-8), which the Court of Special Appeals summarily denied, (Answer, Ex. 9, November 14, 2013, Unreported Opinion, ECF No. 4-9.) Its mandate issued on December 16, 2013. (Answer, Ex. 9, December 16, 2013, Mandate, ECF No. 4-9.)

         The instant Petition was filed on May 3, 2014.[4] Stemple claims that:

(1) His counsel was ineffective for failing to disclose to the court that Stemple had filed a grievance against him;
(2) The Assistant State's Attorney erred by “read[ing] behind the plea agreement, ” failing to present a true victim impact statement, and stating her own belief;
(3) The judge erred by failing to drop the sexual abuse count to which Stemple entered an Alford plea because there was no evidence to prove that charge and by failing to inform Stemple that he had a limited period of time in which to withdraw his plea;
(4) His counsel was ineffective by failing to withdraw his plea at Stemple's request; and
(5) His sentence was illegal.

Pet. 5-6, ECF No. 1.) Respondents filed an answer in which they argue that (1) Stemple's claims fail under Habeas Rule 2; (2) three of his claims are not premised on federal law; (3) three of his claims are unexhausted and/or procedurally defaulted; (4) the unexhausted claims, even if cognizable, fail on the merits; and (5) the state court's ruling as to Stemple's exhausted claims was a reasonable application of federal law that survives scrutiny under § 2254(d). (Answer 16-23, ECF No. 4.) Stemple filed a reply, in the form of a letter to the court. (Reply, ECF No. 6.)[5]


         Section 2254 states that a district court “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         I. Threshold Considerations

         A. Exhaustion

         The exhaustion doctrine, codified at 28 U.S.C. § 2254(b)(1), [6] “is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings. Under our federal system, the federal and state courts [are] equally bound to guard and protect rights secured by the Constitution.” Rose v. Lundy, 455 U.S. 509, 518 (1982)(alteration in original)(internal citations and quotation marks omitted). Moreover, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation ....” Id. Thus, the Rose Court cautioned litigants, “before you bring any claims to federal court, be sure that you first have taken each one to state court.” Id. at 520; see also O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999)(“Federal habeas relief is available to state prisoners only after they have exhausted their claims in state court.”).

         B. Procedural Default

         In O'Sullivan, the Supreme Court stated: “To ... ‘protect the integrity' of the federal exhaustion rule, we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts.” 526 U.S. at 848 (internal citation omitted); see also Id. at 844 (“Section 2254(c) requires only that state prisoners give the state courts a fair opportunity to act on their claims.”). The inquiry, then, is “[w]hether a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has properly presented his claims to the state courts. ... Because we answer this question ‘no, ' we conclude that [petitioner] has procedurally defaulted his claims.” Id. at 848. Stated differently, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” Id. at 845. The O'Sullivan Court noted, however, that:

In this regard, we note that nothing in our decision today requires the exhaustion of any specific remedy when a State has provided that that remedy is unavailable. Section 2254(c), in fact, directs federal courts to consider whether a habeas petitioner has “the right under the law of the State to raise, by any available procedure, the question presented.” (Emphasis added.) The exhaustion doctrine, in other words, turns on an inquiry into what procedures are “available” under state law. In sum, there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is not available.

Id. at 847-48; see also Breard v. Pruettt, 134 F.3d 615, 619 (4th Cir. 1998)(quoting Coleman v. Thompson, 501 U.S. 722, 375 n.1 (1991))(“A procedural default also occurs when a habeas petitioner fails to exhaust available State remedies and ‘the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”).[7]

         When a claim is procedurally defaulted, a federal court may not address the merits of a state prisoner's habeas claim unless the petitioner can show: (1) both cause for the default and prejudice that would result from failing to consider the claim on the merits; or (2) that failure to consider the claim on the merits would result in a fundamental miscarriage of justice, i.e., the conviction of one who is actually innocent. See Murray v. Carrier, 477 U.S 478, 495-96 (1986). “Cause” consists of “some factor external to the defense [that] impeded counsel's efforts to raise the claim in State court at the appropriate time.” Breard, 134 F.3d at 620. In order to demonstrate prejudice, a habeas petitioner must show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (quoting Frady). Even when a petitioner fails to show cause and prejudice for a procedural default, a court must still consider whether it should reach the merits of a petitioner's claims in order to prevent a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 314-15 (1995).

         C. Strickland

         When a petitioner alleges a claim of ineffective assistance of counsel, he must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Representation is deficient if it falls below an objective standard of reasonableness, considering all the circumstances. Id. at 688.

         To satisfy the first part of this standard, it must be demonstrated that counsel's performance was not “within the range of competence normally demanded of attorneys in criminal cases.” Id. at 687. The standard for assessing such competence is “highly deferential” and has a “strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance.” Id. at 669. A federal court's consideration of ineffective assistance of counsel claims arising from state criminal proceedings is limited on habeas review due to the deference accorded trial attorneys and state appellate courts reviewing their performance. A petitioner must overcome the “‘strong presumption' that counsel's strategy and tactics fall ‘within the wide range of reasonable professional assistance.'” Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 at 689). “There is a strong presumption that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect.” Harrington v. Richter, 562 U.S. 86, 109 (2011)(citations and internal quotation marks omitted); see also Sharpe v. Bell, 593 F.3d 372, 383 (4th Cir. 2010)(“Counsel is not required to engage in the filing of futile motions.”). “The standards created by Strickland and §2254(d) are both ‘highly deferential, ' and when the two apply in tandem, review is ‘doubly' so.” Id. at 105 (citations omitted). “When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.

         The second prong requires the court to consider whether counsel's errors were so serious as to deprive the defendant of a fair trial where the result is reliable, and whether there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 690-94. “The benchmark of an ineffective assistance claim must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Id. at 686. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, counsel's errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. A determination need not be made concerning the attorney's performance if it is clear that no prejudice would have resulted had the attorney been deficient. See Id. at 697.

         The principles governing ineffectiveness claims apply in federal collateral proceedings as they do on direct appeal or in a motion for new trial. Id. at 697. Indeed, the presumption that a criminal judgment is final is at its strongest in collateral attacks on that judgment. Id.

         Moreover, the same principles apply in the context of guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). The Hill Court held that “the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Id. at 58; see also Padilla v. Kentucky, 559 U.S. 356, 371 n.12 (2010) (“In Hill, the Court recognized-for the first time-that Strickland applies to advice respecting a guilty plea.”). The first prong of the Strickland test is nothing more than a restatement of the standard of attorney competence stated above. Hill, 474 U.S. at 58.

The second, or “prejudice” requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Id. at 59. The Hill Court reiterated that, as stated in Strickland, “these predictions of the outcome at a possible trial, where necessary, should be made objectively ....” Id. at 59-60; see also Padilla, 559 U.S. at 372 (noting that “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances”).

         II. Analysis Framework

         A federal court may not grant a writ of habeas corpus unless the state's adjudication on the merits: (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(a).

         A state adjudication is “contrary to” clearly established federal law under § 2254(d)(1) where the state court “arrives at a conclusion opposite to that reached by the [Supreme] Court on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme] Court.” Williams v. Taylor, 529 U.S. 362, 405 (2000). Under the “unreasonable application analysis, ” a “state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough. v Alvarado, 541 U.S. 652, 664 (2004)). In other words, “a federal habeas court may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied established federal law erroneously or incorrectly.” Renico v. Lett, 559 U.S. 766, 773 (2010).

         Under section 2254(d)(2), “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). “[E]ven if reasonable minds reviewing the record might disagree about the finding in question, ” a federal court may not conclude that the state court decision was based on an unreasonable determination of the facts. Id.

         Further, “a determination of a factual issue made by a State court shall be presumed to be correct[, ]” and the petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1) “Where the state court conducted an evidentiary hearing and explained its reasoning with some care, it should be particularly difficult to establish clear and convincing evidence of error on the state court's part.” Sharpe, 593 F.3d at 378. This is especially true where the state court has “resolved issues like witness credibility, which are ‘factual determinations' for purposes of Section 2254(e)(1).” Id.


         I. Respondents' Arguments

         Respondents argue that: (1) Stemple's claims are “incoherent” and, therefore, fail under Habeas Rule 2; (2) the claims fail to specify what federal constitutional right or provision was violated and are thus not cognizable; (3) Stemple has failed to exhaust or has procedurally defaulted his claims of prosecutorial and judicial error and illegal sentence because he failed to present them in his application for leave to appeal the adverse post-conviction decision to the Court of Special Appeals;[8] and (4), in any event, the claims fail on the merits. (Answer 21-23, ECF No. 4.) Further, with respect to Stemple's ineffective assistance of counsel claims, Respondents argue that, in denying post-conviction relief, the circuit court reasonably applied federal law and that, therefore, its decision survives scrutiny under 28 U.S.C. § 2254(d). (Id. at 16-21.)

         Although the court agrees that the Petition is “incoherent, ” (id. at 21, ECF No. 4), bearing in mind its obligation to construe pro se filings liberally, see Estelle v. Gamble, 429 U.S. 97, 106 (1976), the court will not dismiss the petition on this ground alone. Additionally, although Stemple fails to link his judicial error, prosecutorial error, and illegal sentence claims to violations of federal constitutional rights in the instant Petition, he did include references to federal violations in his state court filings. (Answer, Ex. 5, Pro Se Supp. Pet. for Post-Conviction Relief 4, 7 ECF No. 4-5.) Again reading the pro se documents liberally, the court will assume, for purposes of argument, that Stemple's claims are cognizable. Whether presented to the state courts as they are here or not, (Answer 22, ECF No. 4), Respondents are correct that Stemple did not assert his prosecutorial misconduct, judicial error, and illegal sentence claims in his application for leave to appeal the denial of post-conviction relief, (id. at 23; see also id., Ex. 8, App. for Leave to Appeal, ECF No. 4-8). However, this court may deny an application for a writ of habeas corpus on the merits, “notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). Accordingly, the court turns to the merits of Stemple's claims.

         II. Merits of Claims

         A. Ineffective Assistance of Counsel

         As noted above, Stemple claims that his counsel was ineffective for: (1) failing to disclose that Stemple had filed a grievance against him (Ground One); and (2) failing to withdraw Stemple's guilty plea at Stemple's request (Ground Four).[9] (Pet. 6, ECF No. 1.) The post-conviction court denied both aspects of Stemple's ineffective assistance claim on the merits. (Answer, Ex.7 21-23, ECF No. 4-7.)

         With respect to Stemple's first allegation, the circuit court stated:

Petitioner submits that ineffective assistance of counsel existed because Defense Counsel Stephen Musselman failed to inform the trial court that Petitioner had filed a grievance with the Attorney Grievance Commission against him, and Petitioner was, therefore, not provided the opportunity to obtain new counsel.


Relief on this allegation is denied on several grounds. First, where the defendant created the issue, he is not entitled to relief on the matter. Ruth v. State, 133 Md.App. 358, cert. denied, 361 Md. 435 (2000). The Petitioner created the potential conflict of representation by filing a grievance against Mr. Musselman, and then failed to inform the trial judge that he had done so. Furthermore, this Court finds credible Mr. Musselman's testimony that he discussed the grievance with Petitioner, and was told that he was comfortable with Mr. Musselman's representation, and did not want new counsel to represent him.
Finally, Petitioner has failed to set forth any law to support the allegation that a filing of a grievance with the Attorney Grievance Commission creates an actual conflict of interest that renders counsel's assistance ineffective. In his Supplemental Petition for Post Conviction Relief, Petitioner states that “there are no Maryland cases on point.” (Supp. Pet. at 4).10 In fact, in the recent case of Taylor v. State, 428 Md. 386 (2012), the Maryland Court of Appeals explained that Maryland now adopts the three-part test set forth in Mickens v. Taylor, 240 F.3d 348 (2001), for determining whether counsel's potential conflict of interest had an actual adverse effect upon his performance. “That test requires a petitioner to establish: (1) a ‘plausible alternative defense strategy or tactic that his defense counsel might have pursued'; (2) ‘that the alternative strategy or tactic was objectively reasonable under the facts of the case known to the attorney'; and (3) ‘that the defense counsel's failure to pursue that strategy or tactic was linked to the actual conflict.'” Taylor, supra at 415 (citing Mickens, 240 F.3d at 361). Petitioner has failed to meet his burden of setting forth any plausible alternative defense strategy or tactic that Mr. Musselman might have pursued, establishing that this alternative strategy was reasonable, or establishing that Mr. Musselman failed to pursue that strategy.

(Answer, Ex. 7, Amended Opinion and Order 21-22, ECF No. 4-7.)

         Although he was unsure of when he became aware that Stemple had filed a grievance against him, Mr. Musselman testified that:

It was, it was before the conclusion of my representation of him and I do remember going to my supervisor which I do when I get a grievance saying I have one, I'm still actively representing someone. Should I re -- should you reassign this case. And my memory with this case was that my supervisor told me to talk to Mr. Stemple to ask if his comfort level, ah, was he okay with me representing him. ... I do remember having that discussion with him and him saying he was comfortable with me representing him. That later changed and Ms. Teahan ending up representing him after me.

(Respondents' Ex. 10, Post-Conv. Hrng. Tr. 203-04.) Mr. Musselman stated that he had originally been assigned to represent Stemple on the witness tampering charge as well, but “when the grievance interfered with that Ms. Teahan took it over.” (Id. at 204.) On cross-examination, Mr. Musselman was asked:

Q Okay. Did you explain to Mr. Stemple after he had filed the grievance that he could have another lawyer?
A Yes.
Q And he indicated to you at that time that he wanted to do what?
A He was comfortable, he was comfortable with me.

(Id. at 207.) Mr. Musselman testified that he did not inform the court of the pending grievance. (Id.)

         Stemple's version of events was markedly different:

After I had already gotten my sentence on August the 4th for this case here I did not know on the same day that, that I had a hearing for the jury tampering charge. That day. I was never aware of that charge. So, I mean of, of the hearing. So when I refused to take the deal, like two days later they took me back in, into the ... court ... for another, ah, deal. Me and Musselman argued. He came to the county jail and that's when he had told me that ... he had been grieved and I was probably gonna have to get a different attorney. He was all mad. He, he, because I wouldn't sit down and listen to more tapes that he came in there with, um, he got all mad. He said that he was probably gonna have to withdraw as my attorney because, or he was gonna let the judge know that he needed to withdraw as my attorney because I had grieved him. And his family was more important than me. That's what his exact words was. And he took his little CD player thing, little computer or whatever it was, he packed it up and he walked out of, out of the, um, little cell there and then the next time when I seen Musselman he was, we was in the courtroom and he was relieving hisself (sic) as my counsel [on the witness tampering charge].

(Id. at 44-45.)[11] Asked by post-conviction counsel why he did not ask for a different attorney at his sentencing hearing, Stemple stated that:

[W]hen I told him I was gonna grieve him, he told me he didn't believe that I could get another public defender ‘cause he was the third one and he didn't think that they was gonna give me another public defender to start with. So I just assumed that I was gonna have to go with him unless I heard something from the Attorney Grievance Office ....

(Id. at 45-46.)

         As is clear from the Amended Opinion and Order, quoted above, the post-conviction court credited Mr. Musselman's testimony over Stemple's. Credibility determinations are factual findings, Sharpe, 593 F.3d at 378, and this court must defer to the state court's factual findings, see 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”). Stemple has provided this court with no evidence (or argument) to rebut the presumption of correctness of the state court's credibility finding. Simply put, Stemple has not met his burden.

         Moreover, the circuit court properly recognized that the issue should be analyzed under the Supreme Court's conflicts jurisprudence. See Strickland, 466 U.S. at 686, 692; Cuyler v. Sullivan, 446 U.S. 335 (1980);[12] see also (Answer, Ex. 7, Amended Opinion and Order 21-2, ECF No. 4-7.) “A criminal defendant's Sixth Amendment right to effective assistance of counsel includes a right to counsel unhindered by conflicts of interest.” Mickens, 240 F.3d at 355. In Sullivan, the Supreme Court stated: “In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance.” 446 U.S. at 350; see also Strickland, 466 U.S. at 692 (quoting Sullivan). The possibility of conflict is insufficient to impugn a criminal conviction. Sullivan, 446 U.S. at 350. “[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Id.

         Stemple has shown nothing more than a possibility of a conflict of interest, especially given his-and Mr. Musselman's-uncertainty regarding when Mr. Musselman learned that Stemple had filed the grievance. Even if there had been an actual conflict, Stemple has not demonstrated that any conflict adversely affected Mr. Musselman's performance as his counsel. See Mickens, 240 F.3d at 360. Stemple has not pointed to any alternative strategy that Mr. Musselman failed to pursue due to the alleged conflict. Id. at 361. Although Stemple states that his “counsel was grie[]ved an[d] refused to withdraw[] my plea an[d] yet refused to notify proper commission, ” (Pet. 6, ECF No. 1), which could be construed as implying that Mr. Musselman's failure to withdraw the plea was a result of the grievance, assuming for the sake of argument that withdrawing the plea was a plausible alternative strategy, Stemple has not established that the alternative strategy was objectively reasonable under the facts of the case known to counsel or that counsel's failure to pursue that strategy was linked to the alleged conflict. Id. Therefore, Stemple has not demonstrated that Mr. Musselman's failure to disclose the filing of the grievance had an “actual adverse effect upon his performance.” (Answer, Ex. 7, Amended Opinion and Order 22, ECF No. 4-7.)

         The circuit court's denial of Stemple's conflict claim was neither an erroneous nor an unreasonable application of clearly established federal law to the facts of the case. 28 U.S.C. §2254(d)(1). Further, the court did not unreasonably determine the facts in light of the evidence presented at the post-conviction hearing. Id. § 2254(d)(2). Therefore, this portion of Stemple's ineffective assistance of counsel claim fails.

         With respect to Stemple's allegation that counsel was ineffective for failing to withdraw Stemple's guilty plea when asked to do so, the circuit court found:

Petitioner submits that ineffective assistance of counsel existed because Mr. Musselman failed to withdraw Petitioner's guilty plea upon his request.


Relief on this allegation is denied. This Court finds that the facts set forth supporting this allegation are untrue. See Washington, 13 supra at 59 (denying an allegation where it is factually incorrect). This court finds that the Petitioner did not request Stephen Musselman to withdraw his plea. The Petitioner did not object at the sentencing hearing when Mr. Musselman stated that Petitioner did not want to withdraw his plea. (See Sentencing Transcript at 3). Moreover, this Court finds credible the testimony of Mr. Musselman that he did discuss withdrawing the plea with Petitioner. At the post conviction hearing, Stephen Musselman explained that he advised the Petitioner about withdrawing his plea and “walked him through” withdrawing the plea. (Post Conviction Hearing at 3:42 pm.). Mr. Musselman further explained that Petitioner did not want to put his stepdaughter through a trial, and testified that Petitioner otherwise did not want to withdraw his guilty plea.

(Answer, Ex. 7, Amended Opinion and Order 22-23, ECF No. 4-7.)

         Mr. Musselman testified at the November 15, 2012, post-conviction hearing that, after being appointed to represent Stemple, they discussed Stemple's options and whether Stemple wanted to withdraw his plea. ((Respondents' Ex. 10, Post-Conv. Hrng. Tr. 193, 195, 199-200.) He elaborated that:

Ah, I started kind of at ground zero going through discovery, going through with him what the State claimed happened, explaining again he had no burden to, he, he had no obligation to assist in any way, shape, or form in the prosecution of himself. I walked him through what your evidence appears to be based on the discovery, based, the pros and cons of going forward to trial, if he did seek to ... move to, to withdraw his plea it would put him back at ground zero with me. Talked through those options with him. It looks like I met him a few times on succ -- successive days. I think that was in the context of seeing if I could renegotiate with you to come down off the plea agreement that was already had. So it was pretty much kind of an accelerated trial preparation because for him to make a knowing and intelligent decision of whether or not to seek to withdraw his plea I had to be able to advise him. So I kind of walked him through all his options.

(Id. at 195-96.) Mr. Musselman's testimony continued:

Q And during those conversations with him did he come to a decision with regard to how he wanted to proceed?
A He wanted to go forward to sentencing.
Q All right. And did he indicate to you, that to you prior to August 4th of 2011 when he was sentenced?
A Yes. The times I met with him at the detention center --
Q So ... that communication or that position that he took was communicated to you at the detention center?
A Correct.
Q Okay. And by the time you came to sentencing on August 4th had he wavered ...

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