Miller v. Bowersox

Filing 20

OPINION MEMORANDUM AND ORDERIT IS HEREBY ORDERED that the Petition is DENIED.IT IS FURTHER ORDERED that this Court will not issue a Certificate ofAppealability as Petitioner has not made a substantial showing of the denial of a federal constitutional right. A separate judgment is entered this same date. 1 15 Signed by District Judge Henry E. Autrey on 1/17/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DWAYNE MILLER,
Petitioner,
vs.
MICHAEL BOWERSOX,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:09CV1385 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the Report and Recommendation, of
Magistrate Judge David D. Noce’s recommendation that the Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, [Doc. No. 1], be denied.
Petitioner has filed lengthy 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.
-2-

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
Petitioner objects to the Report and Recommendation of Judge Noce on the
following grounds, which are the same grounds as he presented in his Petition;
Ground One:
The Magistrate Judge was not sensitive to the Batson issues and did
not consider the totality of the circumstances as it relates to the trial
court sustaining the state’s Batson challenge to Petitioner’s
peremptory strike of a white juror.
Ground Two:
Magistrate Judge Noce was in error in ruling that Petitoner was
procedurally barred from raising an error by the trial court in
overruling a Batson challenge to the state’s peremptory strike of two
African -American jurors.
Ground Three:
Judge Noce erred in ruling no basis for relief relative the Brady allegation
as it relates to the findings of fact the conclusions by the state court and that
same were reasonable applications of federal law.
Ground Four:
Judge Noce erred in finding that the state courts reasonably applied federal
-3-

law in concluding and finding trial counsel did not provide constitutionally
ineffective assistance of counsel in not investigating and requesting any
police reports or copies of photo spreads shown to witnesses the night of
the murder.
Ground Five:
Magistrate Judge Noce erred in his Report and Recommendation by
concluding counsel was not constitutionally ineffective for failing to call
Detective Rodebaugh as a potential witness.
On August 29, 2003 a jury in the Twenty-Second Judicial Circuit, the
Circuit Court of the City of St. Louis, found petitioner guilty of one count of first
degree murder, one count of armed criminal action, and one count of first degree
attempted robbery. (Doc. 14, Ex. L at 71-73).
Thereafter, on October 24, 2003 Petitioner was sentenced to life
imprisonment as to the first degree murder count, 25 years for armed criminal
action, and 15 years for attempted first degree robbery. The sentences were to be
served concurrently. (Id. at 99-101).
Petitioner filed appeal and on January 11, 2005, The Missouri Court of
Appeals affirmed the conviction of petitioner . State v. Miller, 162 S. W. 3d 7 (Mo.
App. E. D. 2005); (Doc. 14, Ex. Q). Subsequent thereto, on August 5, 2005
petitioner filed his motion for post conviction relief pursuant to Missouri Supreme
Court Rule 29.15. (Doc. 11, Ex. A at 4-11). Hearings were conducted on

-4-

November 16 and November 30, 2007. (Id., Ex. B. at 1-63). Thereafter, on March
18, 2008, the Circuit Court denied the motion for post-conviction relief. (Id., Ex.A
at 138-48). The Missouri Court of Appeals affirmed the Circuit Court decision on
March 10, 2009. (Id., Ex. E) (summary opinion and supplemental memorandum).
Petitioner argues that Judge Noce was in error and did not consider the
totality of the circumstances surrounding the exercise of the peremptory strike by
the defense of venireperson Visintainer. Judge Noce thoroughly discusses the
arguments made by Petitioner and the law applicable to same. The review by
Judge Noce is impeccable and Petitioner has failed to present to the Court any
misstatements of law or fact reflective of a failure on the part of Judge Noce to be
in compliance with the law applicable in such habeas petitions.
Petitioner’s assessment of error on the part of Judge Noce regarding his
ruling relating to the assertion there was error in the state court’s failure to sustain
his Batson challenge of the state’s strikes of two black venirepersons, Shirley
Alexander and Amazie McCain, is also devoid of any substance or support in the
law or facts in the record. Upon de novo review of same, there is nothing to deny
the sound resolution of this point by Judge Noce.
Petitioner asserted in Ground Three that there was a Brady violation
committed by the state in the failure to disclose all relevant photo spreads, namely
-5-

one related to a purported photo display to witnesses the evening of the crime.
Upon review of the Report and Recommendation, the hearing on the post
conviction relief motion, and the ruling by the Missouri court of Appeals on this
point the record is again empty of any aspect to suggest that Judge Noce was in
error in ruling the state courts’ findings were reasonable applications of the law,
which is the entire authority of the court when reviewing these rulings under 28 U.
S. C. § 2254.
In Grounds Four and Five, Petitioner reiterates his original claims in
objecting that the finding of no constitutionally ineffective counsel by Judge Noce
was in error. In Strickland, the inquiry focuses around whether counsel’s
performance “fell below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). The defendant must also establish
prejudice by showing “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.,
at 694.
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, 546 U.S. 882 (2005). The first part of the test requires
a “showing that counsel made errors so serious that counsel was not functioning as
-6-

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 would
have been rejected, counsel's performance is not deficient. Carter v. Hopkins, 92
F.3d 666, 671 (8th Cir.1996). Courts seek to “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 the movant 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.
-7-

2006).
Judge Noce painstakingly reviewed the applicable law for these claims and
rigorously assessed the application of the law to the circumstances touching both
Ground Four and Five. As such, this Court agrees that the state court findings are
not contrary to, nor were they an unreasonable application of, federal law.
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, correct and scholarly
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, concluding its review under AEDPA, will adopt the Recommendation of
Judge Noce 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. §
-8-

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
Appealability will therefore not be issued.
Accordingly,
IT IS HEREBY ORDERED that the Petition is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Petitioner has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 17th day of January, 2014.

_________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

-9-