Carroll v. Bowersox

Filing 19

OPINION, MEMORANDUM AND ORDER-- HEREBY ORDERED that the Petition of Brion Carroll for Writ of Habeas Corpus, [Doc. No. 1 ], pursuant to 28 U.S.C. § 2254 is denied. FURTHER ORDERED that a Certificate of Appealability will notissue as Petitioner has not made a substantial showing of the denial of a federal constitutional right. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Henry E. Autrey on 07/15/2013. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRION CARROLL,
Petitioner,
v.
MICHAEL BOWERSOX,
Respondent.

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Case No. 4:08CV1700 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the Report and Recommendation, of
Magistrate Judge Thomas C. Mummert, III that Brion Carroll’s Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, [Doc. No. 1], be denied.
Petitioner has filed written objections to the Report and Recommendation. When
a party objects to the magistrate judge's report and recommendation, the Court
must conduct a de novo review of the portions of the report, findings, or recommendations to which the party objected. See United States v. Lothridge, 324
F.3d 599, 600 (8th Cir.2003) (citing 28 U.S.C. § 636(b)(1)). Pursuant to 28 U.S.C.
§ 636, the Court will therefore conduct a de novo review of those portions of the
Report and Recommendation to which petitioner objects.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §

2254 (AEDPA) applies to all petitions for habeas relief filed by state prisoners
after the statute’s effective date of April 24, 1996. When reviewing a claim that
has been decided on the merits by a state court, AEDPA limits the scope of
judicial review in a habeas proceeding as follows:
An application for writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a state court shall not be granted
with respect to any claim that was adjudicated on the merits in state
court proceedings unless the adjudication of the claim –
(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(d).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, 529 U.S. 362 (2000), held that:
Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
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Williams, 529 U.S. at 412-13. Furthermore, the Williams Court held that “a
federal habeas court may not issue the writ simply because that court concludes in
its independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” Williams, 529 U.S. at 409.
Discussion
The Procedural History and Factual Background are set forth in the Report
and Recommendation. Petitioner does not object to the procedural background set
forth in Judge Mummert’s Report and Recommendation, rather, he objects to
Judge Mummert’s conclusions of law as applied to the facts as found by the state
court. The objections, however, are without merit.
Petitioner does not object to Judge Mummert’s conclusions that Grounds
Three and Four of his Petition are procedurally barred. Accordingly, the Court
will adopt, without discussion, Judge Mummert’s well explained conclusions as to
Grounds Three and Four.
As to Ground One of the Petition, Petitioner alleges that the trial court erred
in overruling his motion for judgment of acquittal at the close of all the evidence
on the four Class B felony first-degree assault charges because there was
insufficient evidence that Petitioner attempted to kill or cause serious physical
injury to those four Victims because the evidence did not establish that he was
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aware of the four individuals in the parked car.
While the Court is required to review the record de novo, this review is
limited in scope. The Court is not at liberty to substitute its rulings for those of the
state court. The standard by which the Court reviews the record on a habeas
petition, as set forth above, is that relief may only be granted if the decision by the
state court (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(d).
Petitioner argues that under Jackson v. Virginia, 443 U.S. 307 (1979), he
was denied due process. Focusing on the State Court’s discussion of whether
Petitioner was likely aware of the presence of those who he was charged with
attempting to kill, Petitioner argues that the standard used by the State Court was a
misapplication of the law. Petitioner attempts to equate “should have known”
with the appropriate standard used by the State Court, i.e. , that he was “likely” to
have known of the presence of the other victims in the car. While Petitioner is
correct that the Whalen Court, State v. Whalen, 49 S.W.3d 181, noted that “[t]o the
extent that Stewart or Macone suggest that a ‘should have known’ standard is
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sufficient, they should no longer be followed. Petitioner’s unexplained use of
“should have know” interchangeably with “likely” fails to recognize a crucial
distinction.
Judge Mummert’s Report and Recommendation carefully considers the
State Court”s decision under the appropriate standard: considering evidence in the
light most favorable to the prosecution, and deferring to the trial judge’s resolution
of any conflicts in favor of the prosecution. The evidence was sufficient to
support each of the felony offenses’ elements, even if Petitioner was not actually
aware of the presence of the four individuals in the car. Neither the State Court
nor Judge Mummert examined the evidence under a “should have known”
standard, rather, the State Court determined that the evidence sufficiently
established that a reasonable jury could conclude that Petitioner was aware of the
likely presence of the men. This determination, as Judge Mummert carefully
discussed, was neither contrary to, nor an unreasonable application of federal law.
As Ground Two of the Petition, Petitioner contends his trial counsel was
ineffective in failing to effectively cross examine Detective Wheeler regarding the
identification procedure used in this case.
A petitioner’s claim that counsel’s assistance was so defective as to require
reversal of a conviction has two components. First, Petitioner must show that
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counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, Petitioner must show that the
deficient performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive Petitioner of a fair trial, a trial whose
result is reliable. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, --- U.S. ----, 126 S.Ct. 221 (2005). The first part of the
test requires a “showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. Review of counsel’s performance by the court is “highly deferential,” and the
Court presumes “counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. The court does not “second-guess” trial strategy or
rely on the benefit of hindsight, id., and the attorney’s conduct must fall below an
objective standard of reasonableness to be found ineffective, United States v.
Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the
alleged deficient performance) would have been rejected, counsel's performance is
not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
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“eliminate the distorting effects of hindsight” by examining counsel’s performance
from counsel’s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that Petitioner show that he
was prejudiced by counsel’s error, and “that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. When determining if
prejudice exists, the court “must consider the totality of the evidence before the
judge or jury.” Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir.
2006).
Taken together, AEDPA and Strickland establish a “doubly deferential
standard” of review. Cullen v. Pinholster, –––U.S. ––––, 131 S.Ct. 1388, 1410,
179 L.Ed.2d 557 (2011) (internal quotation omitted). Under Strickland, the State
Court must make a predictive judgment about the effect of the alleged deficiencies
of counsel on the outcome of the trial, focusing on whether it is “reasonably
likely” that the result would have been different absent the errors. Strickland, 466
U.S. at 696, 104 S.Ct. 2052. The Strickland prejudice standard is less demanding
than a more-probable-than-not standard, but the difference is “slight and matters
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only in the rarest case.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 792,
178 L.Ed.2d 624 (2011) (internal quotation omitted). To satisfy Strickland, the
likelihood of a different result must be “substantial, not just conceivable.” Id.
Under AEDPA, the Court must give substantial deference to the state court’s
predictive judgment.
In reviewing whether the State Court’s decision involved an unreasonable
application of clearly established federal law, the Court examines the ultimate
legal conclusion reached by the Court, id. at 784, not simply the statement of
reasons explaining the State Court’s decision. See Gill v. Mecusker, 633 F.3d
1272, 1291–92 (11th Cir.2011) Wright v. Sec'y for Dep't of Corr., 278 F.3d 1245,
1255 (11th Cir.2002); Neal v. Puckett, 239 F.3d 683, 696 (5th Cir.2001); Hennon
v. Cooper, 109 F.3d 330, 335 (7th Cir.1997). At least where there is no
“conspicuous misapplication of Supreme Court precedent” that makes the state
court's decision “contrary to” clearly established law, Wright, 278 F.3d at 1256 n.
3, the proper question is whether there is “any reasonable argument” that the State
Court’s judgment is consistent with Strickland. Richter, 131 S.Ct. at 788; see
Premo v. Moore, ––– U.S. ––––, 131 S.Ct. 733, 740, 178 L.Ed.2d 649 (2011). If
the State Court “reasonably could have concluded that [the petitioner] was not
prejudiced by counsel’s actions,” then federal review under AEDPA is at an end.
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Moore, 131 S.Ct. at 744. Williams v. Roper, 695 F.3d 825, 831 -832 (8th Cir. 2012).
As Judge Mummert’s Report and Recommendation details, the State
Appellate Court fount that there was substantial direct and circumstantial
evidence, other than the questioned identification of Petitioner’s guilt. Moreover,
the State Appellate Court determined that the procedure was not unduly suggestive
due to Missouri case law concluding that it is proper to tell a witness that a picture
of a suspect is in the photo array. In light of the evidence supporting the finding
of Petitioner’s guilt, counsel’s failure to cross examine Detective Wheeler either
about his failure to use a blinded examiner or his failure to mention to Fister that
the lineup may or may not include a picture of the perpetrator was does not satisfy
the Strickland standard.
The Court agrees that this finding is not contrary to, nor was it an
unreasonable application of federal law. Under the Strickland standard, the Court
must ascertain whether counsel’s actions, which are presumed to be within the
wide range of reasonable professional assistance, are such that he was not acting
as “counsel,” and whether, but for counsel’s action or inaction, the outcome of the
trial would have been different. Neither can be shown here. Counsel’s lack of
cross-examination cannot be found to be ineffective. Petitioner cannot
demonstrate that the outcome of the trial would have be different had counsel
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cross examined Detective Wheeler. Petitioner’s objection is overruled.
Conclusion
This Court has conducted a de novo review of those portions of the Report
and Recommendation to which Petitioner objects. The Court has reviewed the
trial record, the Missouri court rulings, opinions and decisions. It has further
reviewed all pleadings, motions and memoranda before it. The Court finds that
the Report and Recommendation sets forth a very thorough and correct analysis of
the issues raised in the Petition. Petitioner’s objections to the Report and
Recommendation are without merit and are denied in their entirety. The Court
will adopt the Recommendation of Judge Mummert that the Petition be denied.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). A substantial showing of the denial of a constitutional right requires
that “issues are debatable among reasonable jurists, a court could resolve the
issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997). This Court finds that Petitioner has not made a
substantial showing of the denial of a constitutional right. A Certificate of
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Appealability will therefore not be issued.
Accordingly,
IT IS HEREBY ORDERED that the Petition of Brion Carroll for Writ of
Habeas Corpus, [Doc. No. 1], pursuant to 28 U.S.C. § 2254 is denied.
IT IS FURTHER ORDERED that a Certificate of Appealability will not
issue as Petitioner has not made a substantial showing of the denial of a federal
constitutional right.
A separate judgment in accordance with this Memorandum and Order is
entered this same date.
Dated this 15th day of July 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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