Gray v. Dormire

Filing 31

MEMORANDUM AND ORDER re: 30 29 28 ORDERED that Petitioner's Motion for Reconsideration is DENIED. [Doc. 28]. FURTHER ORDERED that Petitioner's First Motion for an Order Directing Respondent to Serve Petitioner with a Copy of Respondent s' Response to Petitioner's Motion for Evidentiary Hearing and Motion to Appoint Counsel, or in the alternative, that the Court send Petitioner a copy of the response should be DENIED as moot. [Doc. 29]. FURTHER ORDERED Petitioner's Se cond Motion for an Order Directing Respondent to Serve Petitioner with a Copy of Respondents' Response to Petitioner's Motion for Evidentiary Hearing and Motion to Appoint Counsel, or in the alternative, that the Court send Petitioner a cop y of the response should be DENIED as moot. [Doc. 30]. FURTHER ORDERED that an Amended Memorandum and Order will issuecontemporaneously with this Order amending the Court's September 26, 2011 Order as discussed on page three (3) of this Order. Signed by Magistrate Judge Nannette A Baker on 12/8/11. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KENNETH GRAY,

)
)
)
)
)
)
)
)
)

Petitioner,
vs.
DAVID DORMIRE,
Defendant.

Case No. 4:09-CV-01355-NAB

MEMORANDUM AND ORDER
Presently before the Court is Petitioner’s Motion for Reconsideration of the Court’s
September 26, 2011 order denying Petitioner’s Motion for an Evidentiary Hearing and Motion to
Appoint Counsel. [Doc. 28]; [Doc. 27]. Petitioner has also filed two motions seeking an order
from the Court directing Respondent to serve a copy of its response to Petitioner’s Motion for an
Evidentiary Hearing and Motion to Appoint Counsel, or in the alternative, that the Court send
Petitioner a copy of Respondent’s response. [Doc. 29]; [Doc. 30]. For the reasons set forth
below, each of Petitioner’s motions is denied.
Discussion
A. Motion for Reconsideration
On September 26, 2011, the Court entered an Order denying Petitioner’s Motion for an
Evidentiary Hearing and Motion to Appoint Counsel. [Doc. 27]. Petitioner sought an evidentiary
hearing to develop the record regarding his age and mental capacity to understand his Miranda
rights in light of the United States Supreme Court’s decision in J.D.B. v. North Carolina, 131 S.
Ct. 2394 (2011). In J.D.B., the Supreme Court held that a child’s age, when known or
objectively apparent to a reasonable officer, must be considered by the court in conducting the
Miranda custody analysis. J.D.B, 131 S. Ct. at 2405-06. This Court denied Petitioner’s motion,

finding that the J.D.B. decision did not constitute “clearly established Federal law” at the time
the state court issued the decisions from Petitioner seeks habeas relief. See [Doc. 27] at 1-2.
Petitioner presents no meritorious arguments or legal authority that requires the Court to reverse
that Order.
Petitioner cites to three case that he claims have applied J.D.B. retroactively. Petitioner
cites to Finley v. Barrington, No. CV 10-2338 DOC (MRW), 2011 U.S. Dist. LEXIS 95512
(C.D. Cal. July 25, 2011); Ahumada v. McDonald, No. ED CV 10-1454 RGK (MRW), 2011
U.S. Dist. LEXIS 88273 (C.D. Cal., July 12, 2011), and Kalmakoff v. State, 257 P.3d 108
(Alaska 2011). None of these cases apply the holding of J.D.B. retroactively, as Petitioner
alleges. Finley and Ahumada both cite to J.D.B. for the general principle that in order for a
statement taken during a custodial interrogation to be admissible, the prosecution must
demonstrate that the suspect voluntarily waived his Miranda rights and voluntarily made the
subsequent statement. Finley, 2011 U.S. Dist. LEXIS 95512, at *7; Ahumada, 2011 LEXIS
88273, at *9. There is no further mention of J.D.B. in either case. The remaining case,
Kalmakoff, only recognized the holding in J.D.B.; the decision did not rely on a retroactive
application of J.D.B. Furthermore, Kalmakoff was a non-habeas, state case that in no way
addressed or applied 28 U.S.C. § 2254, the federal statute which governs this Court’s review of
Petitioner’s case. Therefore, for the reasons set forth in September 26, 2011 Memorandum and
Order, the Court denies Petitioner’s Motion for Reconsideration of the denial of his Motion for
an Evidentiary Hearing.
Similarly, for the reasons discussed in the September 26, 2011 Memorandum and Order,
the Court denies Petitioner’s request to reconsider the denial of Petitioner’s Motion to Appoint
Counsel. See [Doc. 27] at 2-3. Petitioner has continued to display an ability to research relevant

2

legal authority and present his claims in a clear and concise fashion. Therefore, the Court denies
Petitioner’s Motion for Reconsideration of the denial of his Motion to Appoint Counsel.
B. Motions for Order Directing Respondent to Serve Copy of Response
Petitioner has filed two motions seeking an order from the Court directing Respondent to
serve Petitioner with a copy of his response to Petitioner’s Motion for Evidentiary Hearing and
Motion to Appoint Counsel. The motions, in the alternative, request that the Court send
Petitioner a copy of Respondent’s response. [Doc. 29]; [Doc. 30].
The second sentence of the Court’s September 26, 2011 Memorandum and Order stated,
“Respondent did respond to the motions.” However, that sentence should have read,
“Respondent did not respond to the motions.” The Court received no response from Respondent
to Petitioner’s Motion for an Evidentiary Hearing and Motion to Appoint Counsel. The Court
will amend the September 26, 2011 Memorandum and Order to correct this error. Petitioner’s
motions that seek an order from this Court directing Respondent to serve a copy of his response,
or in the alternative, that the Court send Petitioner a copy of the response will therefore be
denied as moot.
Conclusion
For the reasons set forth above the Court finds that Petitioner’s Motion for
Reconsideration of the Court’s September 26, 2011 Order should be DENIED. [Doc. 28].
Further, the Court finds that Petitioner’s Motions for an Order Directing Respondent to Serve
Petitioner with a Copy of Respondent’s Response to Petitioner’s Motion for Evidentiary Hearing
and Motion to Appoint Counsel, or in the alternative, that the Court send Petitioner a copy of the
response should be Denied as moot. [Doc. 29]; [Doc. 30].
Accordingly,

3

IT IS HEREBY ORDERED that Petitioner’s Motion for Reconsideration is DENIED.
[Doc. 28].
IT IS FURTHER ORDERED that Petitioner’s First Motion for an Order Directing
Respondent to Serve Petitioner with a Copy of Respondents’ Response to Petitioner’s Motion for
Evidentiary Hearing and Motion to Appoint Counsel, or in the alternative, that the Court send
Petitioner a copy of the response should be DENIED as moot. [Doc. 29].
IT IS FURTHER ORDERED Petitioner’s Second Motion for an Order Directing
Respondent to Serve Petitioner with a Copy of Respondents’ Response to Petitioner’s Motion for
Evidentiary Hearing and Motion to Appoint Counsel, or in the alternative, that the Court send
Petitioner a copy of the response should be DENIED as moot. [Doc. 30].
IT IS FURTHER ORDERED that an Amended Memorandum and Order will issue
contemporaneously with this Order amending the Court’s September 26, 2011 Order as
discussed on page three (3) of this Order.

Dated this 8th day of December, 2011

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

4