Anderson v. Jennings

Filing 82

MEMORANDUM AND ORDER re: 72 MOTION to Stay and Abeyance of Habeas Corpus Proceedings Pending Exhaustion of State Remedies filed by Petitioner Terrance Lutrek Anderson: IT IS HEREBY ORDERED that Petitioner's Motion for Stay and Abeyance of Habeas Corpus Proceedings Pending Exhaustion of State Remedies 72 is DENIED. Signed by District Judge John A. Ross on 11/21/2022. (CMH)

Case: 1:19-cv-00014-JAR Doc. #: 82 Filed: 11/21/22 Page: 1 of 5 PageID #: 8817
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

TERRANCE LUTREK ANDERSON,
Petitioner,
V.

RICHARD JENNINGS,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 1:19-CV-00014 JAR
CAPITAL CASE

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner's Motion for Stay and Abeyance of Habeas
Corpus Proceedings Pending Exhaustion of State Remedies. (Doc. No. 72). The motion is fully
briefed and ready for disposition.

Background
Petitioner is a Missouri state prisoner under a sentence of death. After direct appeals and
post-conviction proceedings, the Missouri Supreme Court affirmed the denial of relief. Anderson
v. State, 564 S.W.3d 592 (Mo. bane 2018) (rehearing denied on January 29, 2019). Petitioner filed
his Petition for Writ of Habeas Corpus with this Court on January 29, 2020. (Doc. No. 17). On
March 4, 2020, Petitioner requested the Court stay this action so he could return to state court to
exhaust claims of jury misconduct set forth in Claim 10 of his habeas petition based on newly
obtained evidence. (Doc. No. 18). The Court denied Petitioner's request. (Doc. No. 26). On
October 16, 2020, Petitioner amended his habeas petition (Doc. No. 33); his supporting
memorandum was filed on January 15, 2021 (Doc. No. 40). Respondent filed his response on April
15, 2021 (Doc. No. 49) and Petitioner replied on February 22, 2022 (Doc. No. 64).
following the Supreme Court's recent decision in Shinn v. Ramirez, 142 S. Ct. 1718

-1-

Case: 1:19-cv-00014-JAR Doc. #: 82 Filed: 11/21/22 Page: 2 of 5 PageID #: 8818
(2022), Respondent filed a notice of additional authority with the Court asserting that Shinn holds
that under § 2254(e)(2), federal habeas courts may not conduct an evidentiary hearing or otherwise
consider evidence beyond the state-court record, even when a petitioner alleges ineffective
assistance of state post-conviction counsel under Martinez v. Ryan, 566 U.S. 1 (2012). (Doc. No.
66). The Court granted Petitioner an opportunity to respond or otherwise file additional pleadings
in light of Shinn. (Doc. Nos. 70, 71 ). Petitioner filed the instant motion requesting the Court stay
this action so he can return to state court to present his unexhausted claims of ineffective assistance
of counsel set forth in Claims 6, 12, and 141 of his habeas petition in compliance with Shinn. Upon
consideration, the motion will be denied.
Discussion

In support of his motion for a stay and in response to Respondent's reliance on Shinn,
Petitioner first argues that Shinn did not overrule Martinez and Trevino 2 ; thus, even without
conducting a hearing under§ 2254(e), the Court can still consider claims 6, 12, and 14 based on
the existing state court record. (Doc. No. 73 at 3-8). To the extent Shinn requires any evidence this
Court considers to be a part of the state-court record, Petitioner requests his habeas case be stayed
pursuant to Rhines v. Weber, 544 U.S. 269 (2005), so that he can present the relevant evidence in
state court. (Doc. No. 73 at 9-18). Alternatively, Petitioner requests this Court (1) consider Claim

1

In Claim 6, Petitioner alleges his trial counsel failed to object to additional improper closing arguments.
In Claim 12, Petitioner alleges his prior counsel failed to investigate the violation of his right to a jury
comprised of a fair cross-section of the community. In Claim 14, Petitioner alleges his resentencing counsel
was ineffective for failing to reasonably investigate, develop and present compelling mitigating evidence
that was readily available.
2

In Martinez v. Ryan, 566 U.S. 1, 17 (2012), the Supreme Court held that a procedural default will not bar
a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initialreview collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.
Subsequently, in Trevino v. Thaler, 569 U.S.413, 429 (2013), the Supreme Court held that Martinez applies
where a State "procedural framework, by reason of its design and operation, makes it highly unlikely in a
typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance
of trial counsel on direct appeal."

-2-

Case: 1:19-cv-00014-JAR Doc. #: 82 Filed: 11/21/22 Page: 3 of 5 PageID #: 8819
14 in its entirety to prevent a fundamental miscarriage of justice, and (2) evaluate "cause and
prejudice" for the defaults and the merits of Claims 6 and 12 (and in the alternative Claim 14)
using the existing state-court record. (Doc. No. 73 at 20-24).
Respondent opposes a stay, arguing that Petitioner misunderstands the effect of the
Supreme Court's decision in Shinn, which confirmed, based on the text of§ 2254(e)(2), that a
habeas court "may not consider [new] evidence on the merits of a negligent prisoner's defaulted
claim unless the exceptions in § 2254(e)(2) are satisfied" - even in the context of a Martinez
hearing. Shinn, 142 S. Ct. at 1738. (Doc. No. 78 at 2-8). Respondent further argues that Petitioner's
claims 6, 12, and 14 are procedurally defaulted and therefore exhausted. Thus, the Court has no
authority to issue a Rhines stay. (Id. at 8-12).

In reply, Petitioner argues that since the Supreme Court recognized that under Martinez,
"ineffective assistance of state postconviction counsel may constitute "cause" to forgive
procedural default of a trial-ineffective-assistance claim," see 142 S. Ct. at 1733, Shinn supports
his request to either expand the record under Habeas Rule 7 to include evidence establishing cause
or return to state court to include the evidence in the state court record. (Doc. No. 81 at 2). The
Court disagrees.
Although Martinez can excuse procedural default and permit a petitioner to raise an
ineffective assistance of trial counsel claim in federal habeas, it does not permit factual
development outside the state court record to prove that claim. Instead, claims that can be raised
under Martinez remain subject to§ 2254(e)(2), which generally does not permit new evidence in
federal habeas proceedings unless the petitioner shows actual innocence and the claim relies either
on a new, retroactive rule of constitutional law or on a factual predicate that could not previously
have been discovered. Shinn, 142 S. Ct. at 1728. Petitioner makes no argument that he can satisfy
the narrow requirements of§ 2254(e)(2).

-3-

Case: 1:19-cv-00014-JAR Doc. #: 82 Filed: 11/21/22 Page: 4 of 5 PageID #: 8820
Moreover, in Rhines, the Supreme Court limited district courts' discretion to allow habeas
petitioners to return to state court to exhaust claims. When a petitioner pleads both exhausted and
unexhausted claims - known as a mixed petition - the district court may stay the petition to allow
the petitioner to return to state court to exhaust claims only if: (1) the habeas petitioner has good
cause for procedural default; (2) the unexhausted claims are potentially meritorious; and (3)
petitioner has not engaged in dilatory litigation tactics. 544 U.S. at 276-77. Cause must be
something external to the defense, i.e., something that cannot fairly be attributed to him.
Marcyniuk v. Payne, 39 F.4th 988, 995 (8th Cir. 2022) (citing Coleman v. Thompson, 501 U.S.
722, 753 (1991)).
Petitioner argues he can meet the requirements for a Rhines stay because Claims 6, 12, and
14 are potentially meritorious. He adds there is good cause for his failure to exhaust because his
state post-conviction counsel failed to conduct an objectively reasonable investigation that would
have revealed meritorious violations of his constitutional rights and concludes that he has not
engaged in dilatory tactics. Respondent argues that a stay is inappropriate because Petitioner's
claims are exhausted by virtue of his procedural default and that even if they were unexhausted,
he does not have an available state remedy.
In his amended habeas petition, Petitioner asserted that Claims 6, 12, and 14 were
exhausted. (Doc. No. 17 at 13, 36, 70, 106). He now argues the claims are unexhausted and that
he should be granted a stay so that he can return to state court to present those claims in a successive
and untimely state habeas petition. (Doc. No. 73 at 2). In his reply, Petitioner asserts that his
statement that his claims are exhausted does not necessarily mean that they are, see Ashker v.
Leapley, 5 F.3d 1178, 1180 (8th Cir. 1993). In further reply, Petitioner states that state-court
remedies are "at least arguably available" to him and that if the Court is unsure, it should grant the
stay to permit the state court to make that determination in the first instance. But Petitioner makes

-4-

Case: 1:19-cv-00014-JAR Doc. #: 82 Filed: 11/21/22 Page: 5 of 5 PageID #: 8821
no argument that he can overcome the procedural bars of the Claims 6, 12, and 14 - in which
Martinez would not apply -in state court under current Missouri law.
In sum, Petitioner has not demonstrated that a Rhines stay is warranted here. The point of
a Rhines stay is to allow a federal habeas petitioner an opportunity to present unexhausted claims
in state court. His claims are procedurally defaulted, and he makes no attempt to show he can
overcome the procedural bars. Thus, granting Petitioner's request for a Rhines stay would be
contrary to the Supreme Court's instructions that exhaustion stays should be granted only in
limited circumstances and that the Court must be "mindful that AEDP A aims to encourage the
finality of sentences and to encourage petitioners to exhaust their claims in state court before filing
in federal court." Rhines, 544 U.S. at 276-77. The Court will therefore deny Petitioner's motion to
stay and consider his claims on the existing state court record.
Accordingly,

IT IS HEREBY ORDERED that Petitioner's Motion for Stay and Abeyance of Habeas
Corpus Proceedings Pending Exhaustion of State Remedies [72] is DENIED.

Dated this 2l5t day ofNovember, 2022.

JO
A.ROSS
UNI ED STATES DISTRICT JUDGE

-5-