Calmese v. Larkins
Filing
18
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Terry Russell is SUBSTITUTED for Steve Larkins as a Respondent in this case. IT IS FURTHER ORDERED that Chris Koster is ADDED as a Respondent in this case. IT IS FINALLY ORDERED that the 28 U.S.C. § 2254 petition of Jamie Calmese is DENIED without further proceedings. An appropriate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on August 30, 2012. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMIE CALMESE,
Petitioner,
vs.
TERRY RUSSELL and CHRIS KOSTER,
Attorney General of the State of Missouri,
Respondents.1
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) Case no. 4:09cv1100 TCM
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MEMORANDUM AND ORDER
Jamie Calmese (Petitioner), a Missouri prisoner, petitions the United States District
Court for the Eastern District of Missouri for federal habeas corpus relief from an August 23,
2005 conviction following a jury trial. See 28 U.S.C. § 2254. Respondents filed a response
[Doc. 12].
This matter is before the undersigned United States Magistrate Judge for review and
final disposition of the petition.2 Finding that the pending federal habeas petition presents
1
The record reveals that Petitioner is incarcerated at the Eastern Reception, Diagnostic and
Correctional Center (ERDCC), where Terry Russell is now the Warden. Therefore, the Court will
substitute Russell for the originally named Respondent, Steve Larkins, who was the warden at the
ERDCC at the time Petitioner filed this federal habeas action. See Rule 2 (a), Rules Governing
Section 2254 Cases in the United States District Courts.
Additionally, the Court will add as a Respondent the Missouri Attorney General, Chris Koster,
because Petitioner is challenging a judgment subjecting him to a sentence he will serve in the future
in that consecutive terms of imprisonment were imposed in the underlying criminal proceeding
challenged by this federal habeas action. See Rule 2(b), Rules Governing Section 2254 Cases in the
United States District Courts; Sentence and J., Legal File, Resp't Ex. D, at 68-70.
2
This matter is before the undersigned United States Magistrate Judge on consent of the
parties. 28 U.S.C. § 636(c).
twelve grounds for relief, finding that all but two of the claims are procedurally barred, and
concluding that the two other claims lack merit, this Court will deny the petition without
further proceedings.3
Background
In 2004 Petitioner was charged, as a prior and persistent offender, with first degree
murder, in violation of Mo. Rev. Stat. § 565.020, and armed criminal action, in violation of
Mo. Rev. Stat. § 571.015, for the shooting death on May 1, 2004, of Darryl Robinson.
(Compl., filed May 2, 2004, Legal File, Resp't Ex. D, at 6-8; Indictment, filed June 22, 2004,
Legal File, Resp't Ex. D, at 11-12.)
A jury found Petitioner guilty of the charges; and the trial court sentenced Petitioner
to consecutive terms of imprisonment of life without the possibility of probation or parole for
the first degree murder offense and life for the armed criminal action offense. (Verdicts, Legal
3
Earlier the Court denied without prejudice Petitioner's motion to stay his federal habeas
proceedings until his motion to reopen his state post-conviction proceedings was ruled in cause no.
0622-CC07255 in the Circuit Court for the City of St. Louis, State of Missouri (motion to reopen).
(See Mem. and Order, dated Sept. 30, 2009 [Doc. 14].) In its order, this Court directed Petitioner "to
promptly advise the Court of the motion court's ruling on his motion to reopen his post-conviction
proceedings. If the motion court does reopen the proceedings, Petitioner may reassert his request for
stay." (Id. at 2.) Petitioner did not advise this Court of any disposition of his motion to reopen; and
has not reasserted a request for a stay of these federal habeas proceedings. A review of the docket
sheet for cause no. 0622-CC07255 reveals that a motion by Petitioner was dismissed on February 3,
2010 "for lack of jurisdiction" and a subsequently filed motion to reopen was denied on September
1, 2011, upon a finding of the motion court that Petitioner had "not alleged facts which constitute
abandonment" and Petitioner was "not entitled to any relief." (See Feb. 3, 2010 and Sept. 1, 2011
entries on docket sheet for Calmese v. State, No. 0622-CC07255 (Cir. Ct. St. Louis City filed Dec.
18, 2006) (available at https://www.courts.mo.gov/casenet/cases/searchDockets.do (last visited Aug.
27, 2012).)
-2-
File, Resp't Ex. D, at 61, 62; Sentence and J., filed Oct. 28, 2005, Legal File, Resp't Ex. D, at
68-70.)
Petitioner raised three points in his timely direct appeal. (Notice of Appeal, Legal File,
Resp't Ex. D, at 72-73.) In his first point, Petitioner argued that his Fifth, Sixth, and
Fourteenth Amendment rights to due process, to a fair trial, and to be tried only for charged
offenses were violated when the trial court allowed the prosecutor to elicit evidence of
uncharged crimes through the testimony of Officer Simon who stated Detective Dampier had
said, "We know who it is" and "reminded me that we had dealt with this guy before." (Pet'r
Br., Resp't Ex. A, at 15, 18.) In his second point, Petitioner contended that his Fifth, Sixth,
and Fourteenth Amendments to due process and a fair trial were violated when the trial court
allowed the prosecutor to play the 911 tape for the jury because the tape bolstered the
testimony of eyewitness Jimmie Jones, who was not impeached by any statement on that
recording. (Id. at 16, 27.) For his third and final point, Petitioner urged that his rights to the
Fifth, Sixth, and Fourteenth Amendments were violated when, over Petitioner's objection, the
prosecutor elicited information from Petitioner, and then argued in closing "about
[Petitioner's] release on probation regarding his prior convictions." (Id. at 17, 31.)
The Missouri Court of Appeals for the Eastern District of Missouri affirmed the trial
court's sentence and judgment in a summary order, supplemented by a memorandum, sent
only to the parties, setting forth the reasons for the decision. (Per curiam Order and Mem.
Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Sept. 19, 2006, Resp't Ex.
-3-
G.) In affirming, the state appellate court found the facts, viewed in the light most favorable
to the verdict, as follows:
In April 2004, Darryl Robinson (Victim) lived with Yakela4 Wicks
(Yakela),5 Yakela's father, Melvin Wicks (Melvin), and Yakela's four-year-old
daughter, Alancia. [Petitioner] was dating Yakela's sister, Lawanda, and had
a child with Lawanda, one-year-old Jamecia. [Petitioner] lived with Lawanda,
Jamecia, and Lawanda's two other children. [Petitioner], Lawanda and Victim
worked at the same place and carpooled to work. Yakela and Melvin usually
babysat all the children when [Petitioner], Lawanda and Victim were working.
On April 31, 2004,6 [Petitioner] and Lawanda arrived at Yakela's home
with Jamecia and Lawanda's other children, ready to carpool to work with
Victim. Alancia wanted to play with Jamecia, which angered [Petitioner] who
told Alancia to leave J[a]mecia alone. Victim asked [Petitioner] why he did not
want Alancia to play with J[a]mecia, and [Petitioner] merely responded, "You
don't have a mother-f--king thing to do with this." Victim stated that he loved
Alancia just as much as [Petitioner] loved Jamecia. The men argued until
Melvin intervened and separated them. [Petitioner] and Lawanda then left with
Jamecia and Lawanda's other children. As they left, [Petitioner] said to Victim,
"Whatever the f--k I do, I'm going to kill you."
Yakela gave Victim a ride to work that day, as [Petitioner] and Lawanda
had left without him. Yakela saw [Petitioner] and Lawanda in the parking lot
of the workplace, and asked them to bring the children back to her, so that
Lawanda could go on in to work. [Petitioner] was still upset and told Yakela,
"I'm not going to let this ride."
Later that evening, [Petitioner] telephoned Melvin several times and
repeatedly asked him where Victim went after work. Melvin told [Petitioner]
that Victim usually did not go anywhere after work.
4
In the trial transcript and other available materials, this person's name is spelled "Ykela."
While this Court will refer to her as "Ykela," the Court will spell her name as the Missouri Court of
Appeals did in this excerpt from that court's opinion in the direct appeal.
5
The Court will refer to those individuals having the same last names by their first names.
This reference is for convenience and clarity, and is not meant to be disrespectful.
6
This date should probably be April 30, 2004.
-4-
The next day, Saturday, Yakela, Melvin, and Victim were planning to
go to a laundromat because their dryer was not working. Lawanda called
Yakela in the morning and asked her what they were all doing that day. Yakela
told Lawanda that they had to go to a laundromat because the dryer was not
working. As Yakela cooked Melvin and Victim some sausage, the men loaded
laundry into the car. Melvin returned to the house after they finished loading
the laundry, and Victim started to fix the car's radio.
Suddenly, [Petitioner] carrying a gun, walked up to the car, swung the
driver's door open, and said to Victim, who was sitting in the car, "What's up
now, n---er?" [Petitioner] pulled the trigger three times, but the weapon fired
only once, striking Victim in the head. [Petitioner] ran away.
Jimmie Jones (Jones) was in his truck at the time of the shooting and saw
[Petitioner], whom Jones recognized as a friend who frequently visited Melvin's
and Yakela's house, shoot Victim. Jones called 911. Melvin and Yakela ran
outside as soon as they heard a gunshot and saw [Petitioner] running away,
carrying an object in his hand.
Officers Larry Dampier (Dampier) and Tommy Simon (Simon) were
dispatched to the scene. After they learned that [Petitioner] was the shooter,
they went to Lawanda's residence to look for him. The officers obtained
permission from Lawanda to search the residence, but [Petitioner] was not
there. As the officers told Lawanda what had transpired, [Petitioner] arrived at
the house and opened the screen door. Simon saw him and said, "There he is,"
and [Petitioner] ran. Simon, yelling, "Stop! Police!" pursued [Petitioner] into
a gangway, where [Petitioner] stumbled over a gate. Simon reached [Petitioner]
and pointed his gun at him. [Petitioner] raised his hands and tossed a set of car
keys into the grass. The officers found [Petitioner]'s car parked about fifteen
feet from Lawanda's house.
Jones identified [Petitioner] shortly after his arrest. Jones stated that
[Petitioner] was wearing different clothes on his upper body than what he had
worn earlier that morning. The police seized three ATM . . . receipts from
[Petitioner], which showed that [Petitioner] had withdrawn money from a gas
station ATM . . . at 10:53 a.m., 10:55 a.m., and 10:56 a.m. Detective Jody
Ballman testified that it took between five and seven minutes to drive between
Lawanda's house and that particular gas station.
Victim died. The ballistic examination of the bullet recovered from his
head showed that it was a .32 caliber bullet designed for a semiautomatic gun,
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but had skidding marks consistent with being fired from a revolver, not a
semiautomatic gun. Officer David Menendez, a firearms examiner, explained
that firing a semiautomatic gun bullet from a revolver would not produce a
reliable result and the revolver might not work.
While [Petitioner] was incarcerated, Melvin went to the police station for
an interview. [Petitioner] saw Melvin and yelled from his cell, "Melvin, don't
do that. I'm telling you don't do that."
[Petitioner] testified at trial, denying the shooting. [Petitioner] testified
that he left Lawanda's house while she was on the telephone with Yakela to
withdraw money from an ATM for the rent, and he walked to the gas station to
use the ATM as his car would not start. [Petitioner] claimed that he had
forgotten his glasses, so he had to wait for an employee at the gas station to
help him withdraw the money from the ATM. [Petitioner] maintains that he
then walked back to Lawanda's residence, but took off running after he got
there because he saw a gun pointed at him and thought that there were drug
dealers waiting for him. [Petitioner] claims that when he realized it was the
police chasing him, he stopped, but the officers grabbed him and slammed him
into the ground.
Lawanda testified that [Petitioner] left around 10:00 a.m. on the day of
the murder to withdraw money for the rent, that he did not hear her
conversation with Yakela, and that he never threatened to kill Victim.
At the close of all the evidence, the jury found [Petitioner] guilty of firstdegree murder and armed criminal action. The trial court sentenced
[Petitioner], as a prior and persistent offender, to life without parole for the
murder and to a [consecutive]7 life sentence for the armed criminal action. This
appeal follows.
(Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Sept. 19, 2006,
Resp't Ex. G, at 2-5 (four footnotes added).) In resolving Petitioner's first point on appeal, the
Missouri Court of Appeals stated:
7
See Sentence and J. filed Oct. 28, 2005, Legal File, Resp't Ex. D, at 68-70.
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In his first point, [Petitioner] asserts that the trial court erred and abused
its discretion in overruling his objection at trial to Simon's testimony that
Officer Larry Dampier (Dampier) stated "We know who it is," and that Dampier
"reminded me that we had dealt with this guy before." [Petitioner] maintains
that this testimony indicated that he had committed prior bad acts and had
dealings with the police, which was not legally relevant; was more prejudicial
than probative of the charged crimes; and was improper propensity evidence.
Preservation of Error and Standard of Review
Simon's testimony about which [Petitioner] complains occurred during
the following questioning by the State:
Q. And after the initial interview with these witnesses, the name of the
suspect was what?
A. [names [Petitioner]]
Q. And you at the time were requested to leave the scene, is that
correct?
A. Yes, I was.
Q. And who requested you to leave the scene?
A. It was me–
Q. What officer?
A. P. O. Officer Larry Dampier. We were in separate cars. He stated,
"We know who it is," and he reminded me that we had dealt with this guy
before.
Q. Did you ride separately with Officer Dampier?
A. At that point, I was riding in a separate vehicle. He went over in the
same car, but arrived separately initially.
Q. So, you responded in separate cars to the scene, but then
jumped into one car?
-7-
A. Yes, we did.
[DEFENSE COUNSEL]: Your Honor, may we approach?
[COURT]: Yes.
(At thi[s] time the following discussion was held out of the presence of
the jury:)
[DEFENSE COUNSEL]: I don't know whether if it would have been
possible to make a timely objection to the statement. Certainly it's in front of
the jury. But what he said in response to–
[COURT]: I heard what he said.
[DEFENSE COUNSEL]: He said we dealt with him before. That's a
comment on potentially prior bad acts.
[PROSECUTOR]: It was non-responsive to my question. I didn't expect
him to say that.
[COURT]: It was non-responsive.
[PROSECUTOR]: Well, it was kind of an ambiguous statement. I talked
to him on the street. I seen him at McDonald[']s.
[COURT]: What's before me?
[DEFENSE COUNSEL]: I'm going to ask for a mistrial.
[COURT]: Okay. That's denied. There was some testimony that has
already come out, something about the police knew him because of some little
domestic stuff at the house. I don't see any prejudice at this point.
[Emphasis added.] As can be seen in this transcript excerpt, [Petitioner]'s
objection to the comment was untimely, as the objection was not made until
after the question was asked and answered. State v. Harris, 827 S.W.2d 255,
256 (Mo. [Ct.] App. . . . 1992). Thus, the matter is not properly preserved for
appellate review and we review only for plain error. Id.
-8-
A defendant is entitled to plain error review if the defendant
demonstrates that manifest injustice or a miscarriage of justice will occur unless
the error is . . . corrected. State v. Knese, 985 S.W.2d 759, 770 (Mo. banc
1999). Plain error r[eview] is to be used sparingly and may not be used to
justify a review of every point that has not been otherwise preserved for
appellate review. Id.
Discussion
[Petitioner]'s untimely objection was based on the premise that testimony
indicated [Petitioner] had committed prior bad acts. However, [Petitioner] does
not indicate what prior bad acts Simon's answer disclosed. Simon's answer did
not identify [Petitioner] as the perpetrator of another crime or clearly associate
him with other misconduct or criminal activity. To violate the rule prohibiting
evidence of other crimes or misconduct by the accused, the evidence must show
the accused committed, was accused of, was convicted of, or was definitely
associated with the other crimes or misconduct. State v. Bolds, 11 S.W.3d 633,
638 (Mo. [Ct.] App. . . . 1999). Vague references or remarks cannot be
characterized as clear evidence to associate the accused with other crimes. Id.;
State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989). We find that Simon's
answer was just that: a vague reference or remark, which did not clearly
associate [Petitioner] with any prior bad acts.
Furthermore, if any prejudice did result from the comment, it was
minimal and certainly did not rise to the level of plain error required to reverse
in the absence of a timely objection by [Petitioner] at trial. State v. Sullivan,
935 S.W.2d 747, 759 (Mo. [Ct.] App. . . . 1996).
For the foregoing reasons, Point I is denied.
(Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Sept. 19, 2006,
Resp't Ex. G, at 5-8 (fourth, sixth through fourteenth, and sixteenth through nineteenth
alterations in the original).)
In resolving Petitioner's second point on appeal, the Missouri Court of Appeals stated:
In his second point, [Petitioner] states that the trial court erred and
abused its discretion in permitting the prosecutor to play the tape of Jones'[s]
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phone call to 911 for the jury because the tape was hearsay; improperly
bolstered Jones's prior consistent testimony; and was cumulative.
Standard of Review
The admission of evidence is reviewed for abuse of discretion. State v.
Lyons, 951 S.W.2d 584, 593 (Mo. banc 1997).
Discussion
When the prosecutor requested to play for the jury the tape of Jones'[s]
911 call after he witnessed [Petitioner] murder Victim, defense counsel
objected, claiming the tape improperly bolstered Jones'[s] testimony that he saw
[Petitioner] approach Victim and his car, pull the trigger of his gun three times,
although it only fired once, and run away. Defense counsel also claimed the
tape of the 911 call contained hearsay statements. The trial court overruled
defense counsel's objection.
Improper bolstering occurs when an out-of-court statement of a witness
is offered solely to duplicate or corroborate trial testimony. State v. Wolfe, 13
S.W.3d 248, 257 (Mo. banc 2000) [abrogated on other grounds, Mitchell v.
Kardesch, 313 S.W.3d 667 (Mo. 2010) (en banc)]. However, if the out-of-court
statement is offered for relevant purposes other than corroboration and
duplication - such as rehabilitation - there is no improper bolstering. Id.
Defense counsel had extensively cross-examined Jones regarding his ability to
completely observe the "incident," his ability to see [Petitioner]'s face, his
familiarity with [Petitioner], his ability to correctly identify [Petitioner], and his
ability to accurately describe the clothing and physical appearance of
[Petitioner]. Consequently, the State was entitled to attempt to rehabilitate
Jones on redirect examination. [Id.] Accordingly, for this reason, the
introduction of the 911 tape was not improper bolstering.
Additionally, the contents of the 911 tape are not entirely duplicative of
Jones'[s] testimony about the murder. Jones never testified about what he told
the 911 operator, but rather only that he did, in fact, call 911 right after the
shooting. Jones never testified about the details of the conversation he had with
the 911 operator.
Further, we do not find the contents of the 911 tape to be inadmissible
hearsay. Rather, we agree with the trial court's finding that Jones'[s] emergency
phone call to report a murder he had just witnessed constituted an excited
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utterance. Furthermore, the tape was admitted in conjunction with the
testimony of Officer John Clobes (Clobes), who testified about the procedure
used in recording 911 phone calls. Clobes stated that he personally had
received several 911 phone calls on the day of Victim's murder concerning the
crime. Therefore, the 911 tape also falls under the business record exception
to the hearsay rule.
Finally, there was substantial other evidence implicating [Petitioner].
As such, the admission of the 911 tape did not add anything substantial to the
case that had not already been established by other evidence and eyewitness
testimony. Rather, it was admitted for the legitimate purpose of rehabilitating
an eyewitness whose ability to identify [Petitioner] as the perpetrator had been
repeatedly questioned and criticized by defense counsel.
For the foregoing reasons, Point II is denied.
(Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Sept. 19, 2006,
Resp't Ex. G, at 8-10.)
In addressing Petitioner's third point on appeal, the Missouri Court of Appeals stated:
In his third point, [Petitioner] avers that the trial court
erred and abused its discretion in permitting the prosecutor to
elicit [Petitioner]'s testimony about his release on probation for
his prior convictions and[] because that testimony and closing
argument injected character evidence into the trial and touched
upon issues of punishment when the jury did not have to decide
[Petitioner]'s punishment.
Preservation of Error and Standard of Review
On cross-examination, the prosecutor questioned [Petitioner] as follows:
Q. Let's start back with your convictions just so I'm clear.
A. Okay.
Q. 1970, you were found guilty by a jury of robbery one.
A. Right.
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Q. Sentenced to ten years. You did about four and a half.
A. Right.
Q. Go up to 1980. Stealing over, a felony, correct? You pled guilty or
you were found guilty of that one?
A. Right.
Q. Found guilty by a jury?
A. Pled guilty.
Q. Pled guilty to that one. You received a five year – you ultimately
received a five-year prison sentence.
A. Right.
Q. On that particular charge.
A. Right.
Q. 1981 you were found guilty of robbery in the second degree by a
jury?
A. Right.
Q. You get a fifteen-year prison sentence.
A. Right.
Q. Also, in 1981 you were found guilty of another robbery, of a robbery
one. That's with a weapon, a gun, correct?
A. Right.
Q. Again, you were found guilty?
A. Right.
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Q. And you get twenty-five years?
A. Right.
Q. And the twenty-five on the robbery one, the fifteen on the robbery
two and the five on stealing over all run concurrent for a total of twenty-five
years?
A. Right.
Q. And you end up doing about thirteen on that?
A. No.
[DEFENSE COUNSEL]: Objection, exceeds the scope of direct.
[PROSECUTOR]: I'm entitled to go into his sentences.
[COURT]: Your objection is overruled.
Q. You ended up doing about thirteen of the twenty-five?
A. Twelve, six.
Q. You got out in '93?
A. Yes.
[Emphasis added.] As evidenced by the colloquy above, defense counsel did
not object the first time that the prosecutor asked [Petitioner] about his prior
convictions. His later objection to the complained about testimony was
untimely, as the objection was not made until after the question was asked and
answered. Harris, 827 S.W.2d at 256. Thus, the matter is not properly
preserved for appellate review and we review only for plain error. Id.
A defendant is entitled to plain error review if the defendant
demonstrates that manifest injustice or a miscarriage of justice will occur unless
the error is . . . corrected. Knese, 985 S.W.2d at 770. Plain error r[eview] is to
be used sparingly and may not be used to justify a review of every point that
has not been otherwise preserved for appellate review. Id.
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Discussion
[Petitioner]'s prior felony convictions were originally brought out by
defense counsel during direct examination, while the prosecutor's questions
were asked later during cross-examination. When a defendant decides to testify
in his own defense, the prosecutor may question him about his prior convictions
to establish his lack of credibility as a witness. [Mo. Rev. Stat.] Section
491.050. Further, Section 491.050 has been interpreted by Missouri courts to
authorize the prosecutor to elicit the sentences resulting from prior convictions.
State v. Jackson, 676 S.W.2d 304, 305 (Mo. [Ct.] App. . . . 1984).
Additionally, no manifest injustice could have resulted from the
prosecutor's questioning because there was overwhelming evidence of
[Petitioner]'s guilt. See State v. Rollen[,] 133 S.W.3d 57, 64 (Mo. [Ct.] App.
. . . 2003). Three eyewitnesses, two of which knew [Petitioner] well, and
another familiar with [Petitioner]'s frequent presence in the neighborhood,
identified [Petitioner] as the shooter who ran away from the crime scene.
[Petitioner] also fled from police. As such, the trial court did not commit plain
error in allowing the prosecutor's questions. Based on the foregoing, Point III
is denied.
(Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Sept. 19, 2006,
Resp't Ex. G, at 10-12) (one footnote omitted) (sixth through ninth alterations in original).
On October 13, 2006, the state appellate court issued its mandate in the direct appeal.
(See docket sheet for State v. Calmese, No. ED87216 (Mo. Ct. App. filed Oct. 28, 2005)
(available at https://www.courts.mo.gov/casenet/cases/searchDockets.do (last visited Aug. 27,
2012)). Petitioner did not seek further review of the affirmance of his conviction. (Id.)
On December 18, 2006, Petitioner filed a timely pro se motion seeking post-conviction
relief under Missouri Supreme Court Rule 29.15 ("PCR motion") based on twelve grounds
that his trial attorney and attorney on direct appeal provided ineffective assistance of counsel,
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and requesting an evidentiary hearing. (Pet'r PCR Mot., PCR Legal File, Resp't Ex. J, at 3103.)
Petitioner subsequently filed, through appointed counsel, an amended PCR motion,
which included a request for an evidentiary hearing and Petitioner's pro se PCR motion, along
with a request that the claims in the pro se PCR motion be addressed by the Court. (Pet'r Am.
PCR Mot., PCR Legal File, Resp't Ex. J, at 107-237.) In the amended PCR motion, Petitioner
sought relief for violations of his Fifth, Sixth, and Fourteenth Amendment rights due to the
ineffective assistance of his trial attorney and appellate attorney. (Id.) Specifically, Petitioner
alleged that:
(1) his trial attorney failed to call Mohammed,8 a material witness, to testify that
Mohammed had helped Petitioner get money from the ATM at the gas station and had seen
Petitioner walk away, not drive away, from the station (claim 8(a) in the amended PCR
motion);
(2) his trial attorney failed timely to object to Officer Simon's non-responsive
testimony regarding Petitioner's prior contacts with the officers, which implied prior bad acts
(claim 8(b) in the amended PCR motion);
(3) his trial attorney failed to investigate and call alibi witnesses (specifically,
Mohammed) (ground 8(a) in the pro se PCR motion; referred to by this Court as ground 8(c)
in the amended PCR motion);
8
The available record does not reveal this person's full name.
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(4)
his trial attorney failed properly to impeach Jones, "when [Jones] made
inconsistent statements during his testimony" (ground 8(b) in the pro se PCR motion; referred
to by this Court as ground 8(d) in the amended PCR motion);
(5) his trial attorney failed properly to impeach Ykela, "when [she] gave inconsistent
statements during her testimony" (ground 8(c) in the pro se PCR motion; referred to by this
Court as ground 8(e) in the amended PCR motion);
(6) his trial attorney failed properly to impeach Melvin, with his "inconsistent
statements" (ground 8(d) in the pro se PCR motion; referred to by this Court as ground 8(f)
in the amended PCR motion);
(7) his trial attorney failed to argue in closing that the three eyewitnesses (Jones,
Ykela, and Melvin) told three different stories as to the events that led up to the shooting
(ground 8(e) in the pro se PCR motion; referred to by this Court as ground 8(g) in the
amended PCR motion);
(8) his trial attorney failed to investigate and call Police Officers Edward Gonzalez,
III, Anna England, Ernest Church, and Tommy Simon to use their testimony to impeach the
three eyewitnesses (Jones, Ykela, and Melvin) (ground 8(f) in the pro se PCR motion; referred
to by this Court as ground 8(h) in the amended PCR motion);
(9) his trial attorney failed to produce and present evidence crucial to the defense,
specifically, photographs of Victim's house "to show that there w[ere] no[] trees to reflect a
glare of any kind on the windshield of [the] car," fingerprints on Victim's vehicle, the
videotape from the gas station to show Petitioner was there during the alleged murder, DNA
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from the beer can seized at the scene of the crime, and the absence of gun residue on
Petitioner's clothing that was seized upon his arrest (ground 8(g) in the pro se PCR motion;
referred to by this Court as ground 8(i) in the amended PCR motion);
(10) his trial attorney failed to investigate and present evidence of Victim's "prior
enemies and demeanor" (ground 8(h) in the pro se PCR motion; referred to by this Court as
ground 8(j) in the amended PCR motion);
(11) his attorney on direct appeal failed to brief and argue that the trial court erred by
overruling Petitioner's motion to suppress statements, which statements were not voluntary
and were not the result of a knowing waiver of his Miranda9 rights (ground 8(i) in the pro se
PCR motion; referred to by this Court as ground 8(k) in the amended PCR motion);
(12) his attorney on direct appeal failed to brief and argue that the trial court erred by
denying Petitioner's motions for judgment of acquittal, which were presented at the close of
the State's evidence and at the close of all the evidence (ground 8(j) in the pro se PCR motion;
referred to by this Court as ground 8(l) in the amended PCR motion);
(13) his attorney on direct appeal failed to brief and argue that the trial court erred by
overruling Petitioner's objection to the cross-examination of Petitioner regarding the
credibility of other State witnesses (ground 8(k) in the pro se PCR motion; referred to by this
Court as ground 8(m) in the amended PCR motion); and
9
This refers to Miranda v. Arizona, 384 U.S. 436 (1966).
- 17 -
(14) his attorney on direct appeal failed to brief and argue that the trial court erred by
not declaring a mistrial when the prosecuting attorney stated improperly during closing
argument that Petitioner "was a criminal and knew what he was doing" (ground 8(l) in the pro
se PCR motion; referred to by this Court as ground 8(n) in the amended PCR motion).
Petitioner then waived the claims in the amended PCR motion that this Court refers to as
grounds 8(a), 8(h) (what was 8(f) in the pro se PCR motion), 8(i) (what was 8(g) in the pro
se PCR motion), and 8(j) (what was 8(h) in the pro se PCR motion), leaving ten claims for the
motion court to resolve. (See Pet'r Waiver, PCR Legal File, Resp't Ex. K, at 240.)
The motion court10 entered findings of fact and conclusions of law denying Petitioner's
request for an evidentiary hearing and denying Petitioner's amended PCR motion ("PCR
Judgment"). (Findings of Fact, Conclusions of Law, J. and Order, filed Dec. 14, 2007, PCR
Legal File, Resp't Ex. K, at 241-46.)
Petitioner presented four points in his timely PCR appeal, contending that his rights
to due process, to the effective assistance of counsel, and to a fair trial, as guaranteed by the
Fifth, Sixth, and Fourteenth Amendments, were violated by the post-conviction motion court's
denial of certain claims. (Pet'r Notice of Appeal, filed Jan. 23, 2008, PCR Legal File, Resp't
Ex. K, at 249.) In point one Petitioner challenged the motion court's denial, without a hearing,
of his claim that his trial attorney failed timely to object to Officer Simon's non-responsive
testimony regarding Petitioner's prior contacts with the officers, which implied prior bad acts
10
The judge presiding over the post-conviction proceeding also presided over the jury trial
and sentencing.
- 18 -
by Petitioner. (Pet'r PCR Br., Resp't Ex. H, at 22, 26.) In his second point, Petitioner
challenged the motion court's denial, without a hearing, of his claim that his trial attorney
failed to impeach Jones, Ykela, and Melvin with their previous inconsistent statements to
police officers and in their depositions. (Id. at 23, 38.) For point three, Petitioner challenged
the motion court's denial, without a hearing, of his claim that his appellate attorney failed to
raise on direct appeal the trial court's overruling of defense counsel's objections to the State's
cross-examination of Petitioner as to the credibility of other State witnesses. (Id. at 24, 45.)
For his fourth and final point, Petitioner challenged the motion court's denial, without a
hearing, of his claim that his appellate attorney failed to raise on direct appeal the trial court's
denial of a mistrial after the prosecutor improperly referred to Petitioner's prior convictions
in closing argument and told the jury Petitioner was an experienced criminal. (Id. at 25, 51.)
The Missouri Court of Appeals for the Eastern District affirmed the denial of
Petitioner's post-conviction motion in a summary order, supplemented by a memorandum,
sent only to the parties, setting forth the reasons for the decision. (Per Curiam Order and
Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b), dated Dec. 16, 2008,
Resp't Ex. L.) Citing to Strickland v. Washington, 466 U.S. 668 (1984), and finding that
the record supported the motion court's conclusions, the state appellate court denied
Petitioner's points on appeal. In relevant part, the state appellate court found:
1. Trial Counsel's Failure to Timely Object to Officer Simon's Testimony
In his first point on appeal, [Petitioner] contends that the motion court
erred in denying his motion for post-conviction relief because his trial counsel
was ineffective for failing to timely object to a portion of Officer Tommy
- 19 -
Simon's testimony. Officer Simon testified that Officer Larry Dampier stated,
"We know who it is," and that Officer Dampier "reminded me that we had dealt
with this guy before." [Petitioner] asserts that this testimony was improper
because it implied that he had committed prior bad acts.
In order for [Petitioner] to prevail on his claim, he must show that his
trial counsel's objections would have been upheld if made and that the failure
to object resulted in a substantial deprivation of his right to a fair trial. Glass
v. State, 227 S.W.3d 463, 473 (Mo. banc 2007). Moreover, "[t]o violate the
rule prohibiting evidence of other crimes or misconduct by the accused, the
evidence must show that the accused committed, was accused of, was convicted
of, or was definitely associated with, the other crimes or misconduct." . . .
Bolds, 11 S.W.3d [at] 638 . . . . A vague reference is not considered as clear
evidence associating the accused with other crimes. Id.
The motion court found that [Petitioner]'s ineffective assistance of
counsel claim should be denied because, inter alia, trial counsel's failure to
object did not result in a substantial deprivation of [Petitioner]'s right to a fair
trial. The motion court's finding is not clearly erroneous.
[Petitioner] has failed to demonstrate that his trial counsel's objections
would have been upheld if they were timely made. Officer Simon's testimony
that Officer Dampier stated, "We know who it is," and that Officer Dampier
"reminded me that we had dealt with this guy before" does not violate the rule
prohibiting evidence of other crimes or misconduct because it is only a vague
reference which does not clearly associate [Petitioner] with any prior bad acts.
See Bolds, supra. Furthermore, [Petitioner] has failed to demonstrate that his
trial counsel's failure to object resulted in a substantial deprivation of his right
to a fair trial. Point one is denied.
2. Trial Counsel's Failure to Impeach Three of the State's Witnesses
In his second point on appeal, [Petitioner] asserts that the motion court
erred in denying his motion for post-conviction relief because his trial counsel
was ineffective for failing to impeach Jimmie Jones, Ykela Wicks, and Melvin
Wicks with their previous inconsistent statements to police officers and in their
depositions.
First, [Petitioner] contends that Jimmie Jones made inconsistent
statements regarding Melvin's location around the time of the shooting.
[Petitioner] also contends that [Jones] made inconsistent statements about
- 20 -
whether []he told Melvin and Ykela that [Petitioner] shot Victim. Secondly,
[Petitioner] contends that Ykela made three different statements about what
[Petitioner] said to Victim. Ykela's statement to police was that [Petitioner] told
Victim, "If it's the last thing I do, I'm going to kill you." Then, Ykela testified
in her deposition that [Petitioner] told Victim[,] "I'm going to kill you if that's
the last thing I do." At trial, Ykela testified that [Petitioner] told Victim, "Well,
whatever the f--k I do, I'm going to kill you." [Petitioner] contends that Ykela
made inconsistent statements about whether she gave Victim polish sausages
before he was shot. Finally, [Petitioner] contends that Melvin made
inconsistent statements about who was loading the car during the shooting and
what [Petitioner] said when he picked up his daughter to leave.
The motion court found that the points of inconsistencies raised by
[Petitioner] were about trivial matters, and matters which people would not
remember several years after they had occurred. The motion court also found
that the State's witnesses were consistent about the "crucial evidence" that
[Petitioner] walked up to Victim and shot him while he was seated in a car in
front of Ykela's house. We agree with the motion court's findings. [Petitioner]
has failed to demonstrate that had trial counsel impeached [Jones], Ykela, and
Melvin, their impeachment would have provided [Petitioner] with a viable
defense or changed the outcome of the trial. Therefore, trial counsel's failure
to impeach the witnesses does not constitute ineffective assistance of counsel.
See Roberts v. State, 232 S.W.3d 581, 585 (Mo. [Ct.] App. . . . 2007) (stating
that "[t]he failure to impeach a witness will not constitute ineffective assistance
of counsel unless such action would have provided a viable defense or changed
the outcome of the trial"). Point two is denied.
3. Appellate Counsel's Failure to Argue that the Trial Court Erred in
Overruling Objections to the State's Cross-Examination of [Petitioner]
In his third point on appeal, [Petitioner] argues that the motion court
erred in denying his motion for post-conviction relief because appellate counsel
failed to argue that the trial court erred in overruling objections to the State's
cross-examination of [Petitioner]. [Petitioner] asserts that the prosecutor asked
him to comment on the credibility of the State's witnesses when, during
[Petitioner]'s cross-examination, the prosecutor made the following comments
to [Petitioner]: (1) "You heard the testimony,"; (2) "You heard her testify,"; and
(3) "So Officer Simon is flat out wrong? . . . . He is flat out wrong when he
says you tossed the keys." The prosecutor withdrew the first comment, and the
trial court overruled trial counsel's objection to the other two comments.
- 21 -
[Petitioner]'s trial counsel included the issue in his motion for new trial, but
appellate counsel did not raise the issued during [Petitioner]'s direct appeal.
An attorney may, through cross-examination, compare the testimony of
the State's witnesses against that of the defendant. State v. Savory, 893 S.W.2d
408, 410 (Mo. [Ct.] App. . . . 1995). In no other way could a contradiction be
established. Id. However, when seeking to expose a contradiction between
several witnesses' testimony, an attorney may not directly ask one witness if
another witness was lying. Id. In order to show prejudice on direct appeal, the
defendant must show that the erroneous questioning affected the jury's decision.
Id. A defendant fails to show prejudice from such improper questions when
there is a drastic difference between the testimony of the state's witnesses and
the defense witnesses as to the events of the day because "the jury . . . ha[s] to
determine the credibility of the witnesses in order to render their verdict." Id.
The motion court denied [Petitioner]'s ineffective assistance of appellate
counsel claim on the grounds that [Petitioner] did not show the error would
have required reversal had appellate counsel raised it on direct appeal. We
agree with the motion court's finding. Even assuming arguendo that the
prosecutor's comments were improper because they can be construed as asking
[Petitioner] if the other witnesses were lying, [Petitioner] cannot show prejudice
from the comments. There was a drastic difference between the testimony of
the State's witnesses and the defense witnesses as to the events of the day.
Three of the State's witnesses identified [Petitioner] as the person who shot
Victim and fled from police. Additionally, Officer Simon testified that after
chasing [Petitioner], he pointed his gun at [Petitioner] and [Petitioner] raised his
hands. In contrast, [Petitioner] denied shooting Victim. [Petitioner] testified
that he was fleeing from drug dealers, but once he realized it was the police
who was chasing him, he stopped and the officers grabbed him and slammed
him onto the ground. In order to convict [Petitioner] of first degree murder, the
jury had to determine the credibility of the witnesses in order to render their
verdict. Because [Petitioner] could not have shown he was prejudiced by the
State's allegedly improper cross-examination, there is not a reasonable
probability that the result of [Petitioner]'s direct appeal would have been
different had appellate counsel raised this issue. Point three is denied.
4. Appellate Counsel's Failure to Argue that the Trial Court Erred in
Failing to Declare a Mistrial Sua Sponte
In his fourth point on appeal, [Petitioner] argues that the motion court
erred in denying his motion for post-conviction relief because appellate counsel
- 22 -
failed to argue that the trial court erred in failing to declare a mistrial during a
portion of the prosecutor's closing argument sua sponte.
The motion court denied [Petitioner]'s ineffective assistance of appellate
counsel claim on the grounds that [Petitioner] did not show the error would
have required reversal had appellate counsel raised it on direct appeal. We
agree with the motion court's conclusion. [Petitioner] cites no precedent
requiring a trial court to declare a mistrial sua sponte under similar facts.
Additionally, counsel will not be found ineffective for failing to raise an
unpreserved error on appeal. Blackmon v. State, 168 S.W.3d 129, 134 (Mo.
[Ct.] App. . . . 2005). Point four is denied.
(Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b) , dated Dec. 16, 2008,
Resp't Ex. L, at 3-7 (fourth, thirty-second, and forty-third alterations in original.) The state
appellate court issued its mandate on January 7, 2009. (See docket sheet for Clamese v.
Missouri, No. ED90870 (Mo. Ct. App. filed Jan. 23, 2008) (available at
https://www.courts.mo.gov/casenet/cases/searchDockets.do (last visited Aug. 27, 2012)).
Petitioner did not seek further review of that decision. See id.
Petitioner then filed his timely federal habeas petition [Doc. 1]. In his petition,
Petitioner alleges:
(a) for ground one, that his rights to due process, to be free from unreasonable searches
and seizures, and to be free from self-incrimination, as guaranteed by the Fourth, Fifth, Sixth,
and Fourteenth Amendments, were violated by the trial court's denial of Petitioner's motion
to suppress statements and the trial court's admission, over objection, of testimony and
evidence regarding Petitioner's statements, "even when it was shown that police officers failed
to advise [Petitioner] of his constitutional rights to remain silent and to have an attorney
present prior to any questioning" (Pet'r Pet. at 17 [Doc. 1 at 15]);
- 23 -
(b) for ground two, that his rights to due process and a fair trial, as guaranteed by the
Fifth, Sixth, and Fourteenth Amendments, were violated by the trial court overruling
Petitioner's motions for judgment of acquittal at the close of the State's evidence and at the
close of all the evidence because, absent his statements which should have been suppressed,
there was insufficient evidence to support the guilty verdict (Pet'r Pet. at 24 [Doc. 1 at 22]);
(c) for ground three, that his rights to due process, a fair trial, and the effective
assistance of counsel, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments, were
violated by his trial attorney's failure to investigate, interview, and call "the only known alibi
witness," Mohammed (Pet'r Pet. at 28 [Doc. 1 at 26]);
(d) for ground four, that his rights to due process, a fair trial, and the effective
assistance of counsel, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments, were
violated by his trial attorney's failure to identify, investigate, and call a firearms examiner as
an expert witness to refute the testimony of the State's expert (Pet'r Pet. at 34 [Doc. 1 at 32]);
(e) for ground five, that his rights to due process, a fair trial, and the effective
assistance of counsel, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments, were
violated by his trial attorney's failure to identify, investigate, and call a forensic examiner as
an expert witness to refute the testimony of the State's expert (Pet'r Pet. at 41 [Doc. 1 at 39]);
(f) for ground six, that his rights to due process, a fair trial, and the effective assistance
of counsel, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments, were violated by
his trial attorney's failure to identify, investigate, and call a DNA examiner as an expert
witness to refute the testimony of the State's expert (Pet'r Pet. at 46 [Doc. 1 at 44]);
- 24 -
(g) for ground seven, that his rights to due process, a fair trial, and the effective
assistance of counsel, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments, were
violated by his trial attorney's failure to investigate and interview Jones, Melvin, and Ykela,
regarding their criminal backgrounds (Pet'r Pet. at 51 [Doc. 1 at 49]);
(h) for ground eight, that his rights to due process, a fair trial, and the effective
assistance of counsel, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments, were
violated by his trial attorney's failure to investigate and interview the police officials listed in
the police reports, which "would have established the lack of evidence the State had against"
Petitioner (Pet'r Pet. at 56 [Doc. 1 at 54]);
(i) for ground nine, that his rights to due process, a fair trial, to be tried only on charged
offenses, and to the effective assistance of counsel, as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments, were violated by the trial court when it overruled Petitioner's
objection to testimony by Officer Simon that Office Dampier stated, "We know who it is" and
"reminded me that we had dealt with this guy before," which indicated that Petitioner had
committed prior bad acts; and by Petitioner's trial attorney who failed timely to object to this
testimony of Officer Simon (Pet'r Pet. at 64 [Doc. 1 at 62]);
(j) for ground ten, that his rights to due process, a fair trial, and the effective assistance
of counsel, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments, were violated by
Petitioner's trial attorney's failure to develop and discuss trial strategy with Petitioner before
and during trial (Pet'r Pet. at 74 [Doc. 1 at 72]);
- 25 -
(k) for ground eleven, that his rights to due process and a fair trial, as guaranteed by
the Fifth, Sixth, and Fourteenth Amendments, were violated when the trial court allowed, over
Petitioner's objection, the Prosecutor to play the 911 tape for the jury, in that the tape was
hearsay, improperly bolstered Jones's testimony, and was cumulative (Pet'r Pet. at 84 [Doc.
1 at 82]); and
(l) for ground twelve, that his rights to due process and the effective assistance of
counsel, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments, were violated when
Petitioner's attorney on direct appeal failed to identify, investigate, and include "other
colorable claims that were brought to his attention by Petitioner prior to submission of the
appellate brief" (Pet'r Pet. at 89 [Doc. 1 at 89]).
Respondents contend that all of these grounds for relief, except grounds nine and
eleven, are procedurally barred, and all of the grounds for relief lack merit.
Discussion
Procedural bar. Respondents argue that Petitioner did not present grounds one and two
in his direct appeal; that Petitioner did not pursue ground three in his post-conviction appeal;
and that Petitioner did not include grounds four through eight, ten, and twelve in his postconviction motion.
It is well established that "[t]o be eligible for federal habeas corpus relief, a state
prisoner must first exhaust his state law remedies and fairly present the facts and substance
of his habeas claim to the state court." Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir.
2007) (internal quotation marks omitted) (quoting Middleton v. Roper, 455 F.3d 838, 855 (8th
- 26 -
Cir. 2006)); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). Absent a showing of cause
and prejudice, a federal habeas court may not reach the merits of "procedurally defaulted
claims in which the petitioner failed to follow applicable state procedural rules in raising the
claims." Sawyer v. Whitley, 505 U.S. 333, 338 (1992).
Missouri requires the raising of constitutional claims at the first available opportunity.
See In re J.M.N., 134 S.W.3d 58, 73 (Mo. Ct. App. 2004); In re T. E., 35 S.W.3d 497, 504
(Mo. Ct. App. 2001). Alleged trial court errors, including constitutional claims of trial court
error, must be raised on direct appeal; for "[p]ost-conviction motions cannot be used as a
substitute for direct appeal or to obtain a second appellate review." State v. Clark, 859
S.W.2d 782, 789 (Mo. Ct. App. 1993); accord State v. Twenter, 818 S.W.2d 628, 636 (Mo.
1991) (en banc) (a post-conviction proceeding "is not a substitute for direct appeal, and
matters that properly should have been raised by direct appeal may not be litigated in a postconviction proceeding"). "If the allegations of trial error are constitutional violations, they
are not cognizable [in a post-conviction proceeding] unless exceptional circumstances are
shown which justify not raising the constitutional grounds on direct appeal." Clark, 859
S.W.2d at 789; accord Amrine v. State, 785 S.W.2d 531, 536 (Mo. 1990) (en banc); Allen
v. State, 903 S.W.2d 246, 247 (Mo. Ct. App. 1995). Therefore, if a trial court's alleged
violation of the constitution is not raised on direct appeal, the claim is defaulted absent
exceptional circumstances justifying the failure to raise the errors on direct appeal.
A post-conviction motion proceeding is, however, the exclusive procedure for pursuing
in state court any ineffective assistance of counsel claim; a motion court's decision on such
- 27 -
motions are subject to appeal; and successive post-conviction motions are not permitted. Mo.
S. Ct. Rule 29.15(a), 29.15(k); 29.15(l); Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir.
2006). Claims that should have been but were not presented in a post-conviction motion or
on appeal from a denial of a post-conviction motion are procedurally defaulted. See
Interiano v. Dormire, 471 F.3d 854, 856 (8th Cir. 2006) (finding that claims not presented
in a Rule 29.15 post-conviction motion or appeal are procedurally defaulted); Osborne v.
Purkett, 411 F.3d 911, 919 (8th Cir. 2005) (finding a claim raised in a Rule 29.15 postconviction motion but not presented on appeal was procedurally barred); Sweet v. Delo, 125
F.3d 1144, 1149-50 (8th Cir. 1997) (finding certain claims defaulted either because they were
not raised at any stage of the post-conviction proceeding or because they were not raised in
the post-conviction appeal).
A review of the record shows that Petitioner did not pursue grounds one and two,
which are alleged trial court errors, on direct appeal. In his argument supporting these two
claims, Petitioner has not pointed to any reason for his failure to pursue these two claims on
direct appeal. Therefore, there is no justification for Petitioner's failure to present those two
claims in his direct appeal, and those claims are procedurally defaulted.
Additionally, Petitioner did not present on appeal from the post-conviction motion
court's judgment the ineffective assistance of trial counsel claim regarding the failure to
present Mohammed as a witness at trial, which is ground three in this federal habeas
proceeding; did not present to the post-conviction motion court, or in the post-conviction
- 28 -
appeal, any of the ineffective assistance of trial counsel claims in grounds four through eight11
and ten in his federal habeas petition; and did not include either in his post-conviction motion
or in his post-conviction appeal the ineffective assistance of appellate counsel claim that is
ground twelve in his federal habeas petition. These claims are, therefore, also procedurally
defaulted.
"Unless a habeas petitioner shows cause and prejudice or that he is actually innocent
of the charges, a [federal habeas] court may not reach the merits of procedurally defaulted
claims in which the petitioner failed to follow applicable state procedural rules in raising the
claims." Skillicorn v. Luebbers, 475 F.3d 965, 976-77 (8th Cir. 2007); see also Sawyer, 505
U.S. at 338. "'[T]he existence of cause for a procedural default must ordinarily turn on
whether the prisoner can show that some objective factor external to the defense impeded
counsel's efforts to comply with the State's procedural rule.'" Greer v. Minnesota, 493 F.3d
952, 957 (8th Cir. 2007) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). There is no
exhaustive catalog of the objective impediments, nor have the precise contours of the cause
requirement been clearly defined. Ivy v. Caspari, 173 F.3d 1136, 1140 (8th Cir. 1999).
What has been established is that a "fail[ure] to recognize the factual or legal basis for a claim,
11
Petitioner asserted, in the claim this Court refers to as claim 8(h) in the amended PCR
motion (claim 8(f) in the pro se PCR motion), that his trial attorney provided ineffective assistance
by failing to investigate several police officers, including Officers Edward Gonzalez, III, Anna
England, and Tommy Simon. To the extent that claim is now presented as ground 8 in this federal
habeas proceeding, the Court finds the claim procedurally defaulted because Petitioner waived the
claim before the post-conviction motion court considered it and did not pursue it in his postconviction appeal. (See Pet'r Waiver, filed Nov. 8, 2007, PCR Legal File, Resp't Ex. K, at 240; Pet'r
Br. , Resp't Ex. H.) Therefore, the Court concludes that claim was not properly pursued before the
post-conviction motion court and is procedurally defaulted.
- 29 -
or [a] fail[ure] to raise [a] claim despite recognizing it, does not constitute cause for a
procedural default." Murray, 477 U.S. at 486.
Petitioner has not argued any cause for his failure properly to present these claims in
state court. Because no cause has been established for Petitioner's procedural default, it is
unnecessary to consider whether he has demonstrated prejudice. Abdullah v. Groose, 75
F.3d 408, 413 (8th Cir. 1996) (en banc).
Petitioner’s defaulted grounds may be reached absent a showing of cause and prejudice
for his procedural default if he establishes that a failure to consider the claims' merits will
result in a fundamental miscarriage of justice. "Procedurally barring a claim that establishes
actual innocence is considered a fundamental miscarriage of justice." Cox v. Burger, 398
F.3d 1025, 1031 (8th Cir. 2005). A showing of actual innocence requires new evidence and
a "show[ing] that 'it is more likely than not that no reasonable juror would have convicted him
in light of th[at] new evidence.'" Osborne, 411 F.3d at 920 (quoting Schlup v. Delo, 513 U.S.
298, 327 (1995)); accord House v. Bell, 547 U.S. 518, 536-39 (2006) (Schlup standard
applies to determine whether defaulted claims in a first federal habeas petition should be
considered based on actual innocence). "'Without any new evidence of innocence, even the
existence of a concededly meritorious constitutional violation is not in itself sufficient to
establish a miscarriage of justice that would allow a habeas court to reach the merits of a
barred claim.'" Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007) (quoting Schlup, 513
U.S. at 316).
- 30 -
Petitioner does not submit any new evidence of his actual innocence, nor does he allege
that such evidence exists. Therefore, the above claims are procedurally barred; and this Court
will not consider those claims on their merits. The Court will consider the merits of the two
claims that are not procedurally barred, the claims presented in grounds nine and eleven of
Petitioner's federal habeas petition.
Merits - Standard of Review. Title 28 U.S.C. § 2254(d) mandates that a federal court
grant habeas relief on a claim that was adjudicated on its merits by the State courts only
when the state court's decision [is] contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme
Court [of the United States], or the [state court] decision [is ]based on an
unreasonable determination of the facts in light of the evidence presented in the
state court.
de la Garza v. Fabian, 574 F.3d 998, 1001 (8th Cir. 2009); accord Christenson v. Ault, 598
F.3d 990, 994 (8th Cir. 2010).
A state court decision is contrary to clearly established federal law if it
reaches a conclusion opposite to one reached by the [United States] Supreme
Court on a question of law or decides the case differently than the [United
States] Supreme Court has decided a case with a materially indistinguishable
set of facts.
de la Garza, 574 F.3d at 1001; accord Losh v. Fabian, 592 F.3d 820, 823 (8th Cir. 2010)
(quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). "A state court decision involves
an unreasonable application of clearly established federal law if, in the federal court's
independent judgment, the relevant state court decision not only applied clearly established
federal law incorrectly, but also did so unreasonably." de la Garza, 574 F.3d at 1001. "The
unreasonable application inquiry is an objective one." Id.; see Losh, 592 F.3d at 823 (under
- 31 -
the unreasonable application clause of § 2254, a habeas petition may be granted "only if the
state court applied the correct governing legal principle in an objectively unreasonable
manner" (citing Williams v. Taylor, 529 U.S. 362, 409 (2000)).
In reviewing state court proceedings to ascertain whether they are contrary to or
involve an unreasonable application of clearly established federal law, this Court "is limited
to the record that was before the state court that adjudicated the claim on the merits." Cullen
v. Pinholster, 131 S. Ct. 1388, 1398 (2011). Additionally, this Court's review is limited to
consideration of the United States Supreme Court precedents at the time the state court issues
its decision on the merits. Greene v. Fisher, 132 S. Ct. 38, 44 (2011) (relying on Cullen,
supra); accord Losh, 592 F.3d at 823 ("[o]nly rulings in [United States] Supreme Court
decisions issued before the state court acts are considered clearly established federal law, for
a state court does not act contrary to or unreasonably apply clearly established federal law if
there is no controlling [United States] Supreme Court holding on the point" (citations
omitted)). The state court does not need to cite to Supreme Court cases, "'so long as neither
the reasoning nor the result of the state-court decision contradicts them.'" Revels v. Sanders,
519 F.3d 734, 739 (8th Cir. 2008)) (quoting Early v. Packer, 537 U.S. 3, 8 (2002) (per
curiam)).
"[T]he 'summary nature' of the [state court's] discussion of [a] federal constitutional
question does not preclude application of [§ 2254's] standard." Brown v. Luebbers, 371 F.3d
458, 462 (8th Cir. 2004) (en banc). "When a federal claim has been presented to a state court
and the state court has denied relief, it may be presumed that the state court adjudicated the
- 32 -
claim on the merits in the absence of any indication or state-law procedural principles to the
contrary." Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011). Section 2254(d) "does not
require a state court to give reasons before its decision can be deemed to have been
'adjudicated on the merits.'" Id. at 785. When, however, a state court issues a summary
ruling, the petitioner can only satisfy the "unreasonable application" prong of habeas review
by showing there is no reasonable basis for the state court decision, which the habeas court
assesses by determining what arguments or theories could have supported the state court
decision and "'whether fairminded jurists could disagree that those arguments or theories are
inconsistent'" with a prior decision of the United States Supreme Court. Cullen, 131 S. Ct.
at 1402 (quoting Harrington, 131 S. Ct. at 784, 786).
Additionally, in a federal habeas action pursued by a state prisoner, "a determination
of a factual issue made by a State court shall be presumed to be correct" unless rebutted by
the petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The deference owed
by a federal habeas court to a state court's findings of fact includes deference to state court
credibility determinations, Smulls v. Roper, 535 F.3d 853, 864 (8th Cir. 2008) (en banc), and
to "[a] state court's findings of fact made in the course of deciding" an ineffective assistance
of counsel claim, Odem v. Hopkins, 382 F.3d 846, 849 (8th Cir. 2004). Moreover, the
presumption of correctness of findings of fact applies to the factual determinations made by
a state court at either the trial or appellate levels. Smulls, 535 F.3d at 864-65.
Ground Nine - Admission of Prior Bad Acts and Ineffective Assistance of Trial
Counsel for Failing Timely to Object to Testimony of Prior Bad Acts. In ground nine,
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Petitioner argues that his rights to due process, a fair trial, to be tried only on charged
offenses, and to the effective assistance of counsel, as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments, were violated by the trial court when it overruled Petitioner's
objection to testimony by Officer Simon that Office Dampier stated, "We know who it is" and
"reminded me that we had dealt with this guy before," which indicated that Petitioner had
committed prior bad acts; and by Petitioner's trial attorney who failed timely to object to this
testimony of Officer Simon. (Pet'r Pet. at 64 [Doc. 1 at 62].) Respondent counters that the
state courts reasonably denied Petitioner relief on these claims.
Ground Nine: Trial Court Error in the Admission of the Challenged Testimony. As
part of ground nine Petitioner urges the trial court erred by overruling his objection to Officer
Simon's challenged testimony.
The trial court denied Petitioner's counsel's request for a mistrial upon concluding the
testimony was not prejudicial and observing that "[t]here was some testimony that has already
come out . . . about the police kn[owing Petitioner] because of some little domestic stuff at the
house." (Trial Tr., Resp't Ex. E, at 422.) On direct appeal, the Missouri Court of Appeals
reviewed this point, Petitioner's first point, only for plain error, which requires an appellant
to demonstrate that manifest injustice or a miscarriage of justice will occur if the error is not
corrected. (Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Sept.
19, 2006, Resp't Ex. G, at 5-8, 7.) The state appellate court concluded the challenged
testimony was "just" a "vague reference or remark" that did not "identify [Petitioner] as the
perpetrator of another crime or clearly associate him with other misconduct or criminal
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activity," and that prejudice resulting from the comment, if any, "was minimal" and did not
rise to the level required for a reversal based on plain error. Id. at 7-8.
A state court's admission of evidence of a defendant's uncharged bad acts does not
necessarily constitute a due process violation. Harris v. Bowersox, 184 F.3d 744, 752 (8th
Cir. 1999). A federal habeas court may reverse a state court evidentiary ruling as violating
the petitioner's right to a fair trial only if the petitioner shows the alleged evidentiary error
fatally infected the proceedings and rendered the petitioner's trial fundamentally unfair.
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Lisenba v. California, 314 U.S. 219, 236
(1941); accord Meadows v. Delo, 99 F.3d 280, 283 (8th Cir. 1996) (addressing a petitioner's
claim that evidence of other crimes was erroneously admitted). To satisfy his burden, the
petitioner must show there is a reasonable probability that the alleged error affected the trial's
outcome, i.e., that the verdict would have been different absent the allegedly erroneously
admitted evidence. Harris, 184 F.3d at 752; Meadows, 99 F.3d at 283; accord Troupe v.
Groose, 72 F.3d 75, 76 (8th Cir. 1995).
Assuming arguendo that Officer Simon's challenged testimony constitutes evidence of
Petitioner's prior bad acts, Petitioner has not established that the verdict would have been
different absent that testimony. Three eyewitnesses to the shooting and to Petitioner running
from the scene testified at trial; each of those witnesses was familiar with Petitioner. Their
testimony supports the verdict. There is no reasonable probability that the admission of
Officer Simon's challenged testimony affected the outcome of Petitioner's trial. See Parker
v. Bowersox, 94 F.3d 458, 460 (8th Cir. 1996) (admission of testimony that the petitioner had
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blackened the murder victim's eyes on one or two prior occasions did not violate the
petitioner's right to due process in that it did not fatally infect the trial because there was
"abundant testimony" that the petitioner was threatening and hitting the victim shortly before
her death); Troupe, 72 F.3d at 76 (admission of earlier deviate sexual intercourse conviction
did not violate the petitioner's right to due process in trial of rape, sodomy and kidnapping
charges involving a minor boy in that it did not fatally infect the trial rendering it
fundamentally unfair due to the other evidence at trial).
The state appellate court's decision to uphold the admission of Officer Simon's
challenged testimony was not contrary to or an unreasonable application of clearly established
federal law. Additionally, there is no showing that the state courts unreasonably determined
the facts in light of the evidence presented. Ground nine, to the extent it seeks relief for
alleged trial court error in the admission of Officer Simon's challenged testimony, is denied.
Ground Nine: Ineffective Assistance of Trial Counsel in Failing Timely to Object to
the Officer Simon's Testimony. Petitioner also seeks habeas relief in ground nine of his
petition for his trial attorney's alleged ineffectiveness in failing timely to object to Officer
Simon's challenged testimony. The record reveals that Petitioner's trial attorney did not object
until two questions and answers after the challenged testimony was provided, when he
unsuccessfully sought a mistrial. (Trial Tr., Resp't Ex. E, at 420-22.)
Petitioner pursued this ineffective assistance of trial counsel claim in his amended
motion for post-conviction relief (see Claim 8(b) in Pet'r Am. PCR Mot., PCR Legal File,
Resp't Ex. J, at 109) and in his post-conviction appeal (see Point I in Pet'r Br., Resp't Ex. H,
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at 22, 26). In affirming the motion court's denial of relief, the Missouri Court of Appeals
concluded Petitioner "failed to demonstrate that his trial counsel's objections would have been
upheld if they were timely made"; the challenged testimony did "not violate the rule
prohibiting evidence of other crimes or misconduct because it is only a vague reference which
does not clearly associate [Petitioner] with any prior bad acts"; and Petitioner failed to show
"that his trial counsel's failure to object resulted in a substantial deprivation of his right to a
fair trial." (Mem. Supplementing Order Affirming J. Under Rule 84.16(b), dated Dec. 16,
2008, Resp't Ex. L, at 4.)
The Sixth Amendment right to the assistance of counsel is a right to the effective
assistance of counsel. Marcrum v. Luebbers, 509 F.3d 499, 502 (8th Cir. 2007) (citing
Kimmelman v. Morrison, 477 U.S. 365, 377 (1986)). In Strickland, supra, the Supreme
Court established a two-part test for determining whether or not an attorney provided effective
assistance of counsel. The petitioner must establish both deficient performance, i.e., that
"counsel's representation fell below an objective standard of reasonableness," and prejudice,
i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland, 466 U.S. at 687-88, 694;
accord Marcrum, 509 F.3d at 502; Kellogg v. Skon, 176 F.3d 447, 452 (8th Cir. 1999).
To establish that counsel’s performance was deficient, a petitioner must show that
counsel “‘made errors so serious that counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment.’” Greiman v. Thalacker, 181 F.3d 970, 972 (8th
Cir. 1999) (quoting Strickland, 466 U.S. at 687). More specifically, a petitioner must
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demonstrate that “counsel’s performance was so deficient as to fall below an objective
standard of the customary skill and diligence displayed by a reasonably competent attorney.”
Armstrong v. Kemna, 534 F.3d 857, 863 (8th Cir. 2008) (citing Strickland, 466 U.S. at 68789). “Only reasonable competence, the sort expected of the ‘ordinary fallible lawyer,’ is
demanded by the Sixth Amendment.” White v. Helling, 194 F.3d 937, 941 (8th Cir. 1999)
(quoting Nolan v. Armontrout, 973 F.2d 615, 618 (8th Cir. 1992)). The Court is highly
deferential in analyzing counsel’s conduct and “indulg[es] a strong presumption that counsel’s
conduct falls within the wide range of professional judgment.’” Armstrong, 534 F.3d at 863
(quoting Middleton, 455 F.3d at 846).
To establish prejudice, a petitioner must demonstrate “‘a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Armstrong v. Kemna, 590 F.3d 592, 595-96 (8th Cir.) (quoting McCauley-Bey
v. Delo, 97 F.3d 1104, 1105 (8th Cir. 1996)), cert. denied, 130 S. Ct. 3369 (2010). “‘A
reasonable probability is [a probability] sufficient to undermine confidence in the outcome.’”
Id. at 596 (quoting McCauley-Bey, 97 F.3d at 1105); accord Carroll v. Schriro, 243 F.3d
1097, 1100 (8th Cir. 2001) (quoting Strickland, 466 U.S. at 694). The petitioner bears the
burden of showing such a reasonable probability. Lawrence v. Armontrout, 961 F.2d 113,
115 (8th Cir. 1992).
The question of prejudice from counsel’s performance need not be reached if the
performance was not deficient. See Parkus v. Bowersox, 157 F.3d 1136, 1140 (8th Cir.
1998). Conversely, the question of counsel’s allegedly deficient performance need not be
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reached if a petitioner has failed to show prejudice. See Strickland, 466 U.S. at 697;
Williams v. Locke, 403 F.3d 1022, 1025 (8th Cir. 2005).
Here, due to the testimony of three eyewitnesses who saw Petitioner shooting Victim
and running from the scene, there is no reasonable probability that the result of the trial would
have been different if Petitioner's trial attorney had timely objected to Officer's Simon's
challenged testimony. Because Petitioner cannot satisfy the prejudice prong, the Court will
not address whether Petitioner demonstrated the performance prong of this ineffective
assistance of counsel claim.
The state appellate court's decision is not contrary to, or an unreasonable application
of, clearly established Federal law; and is not based on an unreasonable determination of the
facts.
Ground nine, to the extent it seeks relief based on Petitioner's trial attorney's alleged
failure to provide effective assistance because that attorney failed timely to object to Officer
Simon's challenged testimony, is denied.
Ground Eleven: Trial Court Error in Allowing the Jury to Hear the 911 Tape. In
ground eleven, Petitioner urges that his rights to due process and a fair trial, as guaranteed by
the Fifth, Sixth, and Fourteenth Amendments, were violated when the trial court allowed, over
Petitioner's objection, the Prosecutor to play the 911 tape for the jury, in that the tape was
hearsay, improperly bolstered Jones's testimony, and was cumulative. (Pet'r Pet. at 84 [Doc.
1 at 82].) Petitioner presented this challenge to the Missouri Court of Appeals as the second
point in Petitioner's direct appeal. (Pet'r Br., Resp't Ex. A, at 16, 27.) The state appellate
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court concluded that the introduction of the 911 tape was not improper bolstering, but an
effort to rehabilitate Jones after Petitioner's counsel had "extensively cross-examined,"
"repeatedly questioned" and "criticized" Jones, specifically, about his ability to observe the
incident, see Petitioner's face, and correctly identify Petitioner; his familiarity with Petitioner;
and his ability accurately to describe Petitioner's clothing and physical appearance. (Mem.
Supplementing Order Affirming J. Pursuant to Rule 30.25(b), Resp't Ex. G, at 9.) The state
appellate court also found the 911 tape was not "entirely duplicative" because Jones testified
that he called 911 but did not testify about what he told the 911 operator; the 911 tape was not
inadmissible hearsay because it constituted "an excited utterance" or a "business record"; and
the 911 tape "did not add anything substantial to the case that had not already been established
by other evidence and eyewitness testimony." (Id.)
As noted earlier, a federal habeas court may reverse a state court evidentiary ruling as
violating the petitioner's right to a fair trial only if the petitioner shows the alleged evidentiary
error fatally infected the proceedings and rendered the petitioner's trial fundamentally unfair.
Estelle, 502 U.S. at 67-68; Lisenba, 314 U.S. at 236; accord Meadows, 99 F.3d at 283. The
Court concludes the state appellate court reasonably determined that the 911 tape did not add
anything substantial to the case that was not otherwise provided through other evidence and
testimony. In particular, there was testimony from three individuals familiar with Petitioner
about the shooting and Petitioner running away from the scene. Their testimony supports the
verdict. There is no reasonable probability that the admission of the 911 tape affected the
outcome of Petitioner's trial.
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The state appellate court's decision to uphold the admission of the 911 tape was not
contrary to or an unreasonable application of clearly established federal law. Additionally,
there is no showing that the state courts unreasonably determined the facts in light of the
evidence presented. Ground eleven is denied.
Conclusion
Upon careful consideration of Petitioner's twelve claims; finding that ten of those
claims are procedurally defaulted and may not be considered on their merits; and finding that
the remaining two claims, grounds nine and eleven in Petitioner's federal habeas petition, lack
merit, the Court will deny Petitioner's federal habeas petition. Accordingly,
IT IS HEREBY ORDERED that Terry Russell is SUBSTITUTED for Steve Larkins
as a Respondent in this case.
IT IS FURTHER ORDERED that Chris Koster is ADDED as a Respondent in this
case.
IT IS FINALLY ORDERED that the 28 U.S.C. § 2254 petition of Jamie Calmese is
DENIED without further proceedings.
An appropriate Judgment shall accompany this Memorandum and Order.
/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 30th day of August, 2012.
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